The offices at Langley don’t often make headlines over paperwork. However, a decision made by a federal appeals court on Thursday is drawing attention to something that appears to be procedural on the surface but actually raises some very unsettling concerns about how the government handles its own citizens.
A lower-court injunction preventing the Trump administration from terminating 19 career intelligence officers was upheld by a 2-1 panel of the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals. These CIA and Office of the Director of National Intelligence personnel were temporarily assigned to DEIA (diversity, equity, inclusion, and accessibility) initiatives. When President Trump signed an executive order targeting those programs, the agencies didn’t reassign the officers. They let them go. No appeal from within. No thought will be given to a new posting. Just out.
The majority opinion is worth closely examining because of what it doesn’t say as much as what it does. The court did not make a decision regarding the wisdom of the executive order or the existence of DEIA programs. It decided whether the agencies adhered to their own policies when they fired these individuals, which was a more specific and possibly more fundamental issue. “The Agencies may not ignore their own procedures and then use such noncompliance as an excuse to evade future obligations,” the two-judge majority wrote, clearly stating that the answer was no. Although it’s a dry sentence, it has significance. It describes an agency that tried to claim that the process didn’t apply because it didn’t follow the procedure it had developed. That’s a logic the court wasn’t willing to entertain.
None of these officers had been charged with misconduct, the attorneys for the employees had emphasized. None of them received a poor performance flag. The CIA director, in fact, stated directly that the terminations were carried out to implement the DEIA executive order — full stop. That was somewhat transparent, but it also eliminated any doubt regarding the reasoning. These weren’t bad performance evaluations. These individuals were temporarily reassigned before being permanently fired as a result of being caught in the downstream current of a policy decision.
Here, it’s difficult to ignore the larger pattern. 58 CIA and ODNI officers were placed on paid administrative leave related to DEIA work, and 19 of them were actually fired, making the firings part of a much larger wave. While those on leave have remained in legal limbo, the lawsuit, which was initially filed in February of last year, has wound its way through the courts. That’s a long time to sit and wait when your career is the thing hanging in the balance.
Judge Paul Niemeyer’s dissenting opinion is persuasive. He insisted that Congress granted directors of intelligence agencies wide, practically unrestricted power to fire staff members. This power, he claimed, was sufficient to exclude any Fifth Amendment-protected property rights. It’s a reading rooted in longstanding national security law, and some legal scholars would agree with it. In the event that this goes to the Supreme Court, the dissent offers the administration a strong case moving forward.
Still, the majority’s position seems grounded in something the agencies can’t easily argue around: that you don’t get to write the rules, ignore them when they’re inconvenient, and then claim the rules never applied. Trump’s larger agenda was not the subject of the 4th Circuit’s decision. It was a decision about whether due process matters when the government is the employer.
For those 19 officers, the current response is in the affirmative.
