A federal appeals court ruled Thursday that 19 intelligence community employees terminated for holding diversity, equity, and inclusion positions must be given the chance to apply for other jobs within the agencies, dealing another setback to the Trump administration’s effort to purge DEI bureaucrats from sensitive national security posts.
The 4th U.S. Circuit Court of Appeals upheld a lower court ruling in a 2-1 decision, finding that the CIA and the Office of the Director of National Intelligence failed to follow their own internal procedures before dismissing the employees, The Washington Times reported.
Judge Nicole Berner, a Biden appointee who wrote the majority opinion, concluded the fired officers had a property interest in their jobs that entitled them to due process protections. She was joined by Judge Stephanie Thacker, an Obama appointee.
“As long as the employee subject to termination chooses to pursue reassignment, the Agencies must attempt to reassign her,” Berner wrote.
Judge Paul Niemeyer, a George H.W. Bush appointee, dissented sharply. He argued that federal law gives intelligence agency directors “unfettered discretion” in personnel decisions outside standard termination rules, and said that not only undermined the property interest argument but also the reassignment rights the majority was trying to protect.
Niemeyer urged the government to take the case to the Supreme Court.
“The preliminary injunction entered in this case is unlawful and should have been promptly vacated,” Niemeyer wrote. “Now, unfortunately, that can only be done by the Supreme Court, which I can hope will consider this wrongful intrusion, which has far-reaching and unfortunate precedential effects.”
President Trump signed an executive order upon returning to office directing federal agencies to eliminate DEI programs and personnel. The order called DEI “illegal and immoral.” The 19 intelligence community employees were placed on administrative leave and then notified they would be cut as part of a reduction-in-force that eliminated their positions entirely.
The ruling comes weeks after the Supreme Court issued two decisions on presidential firing authority. In one, the high court held that the president has broad power to remove employees who stand in the way of his policy agenda. In another, the court said the president was limited in firing a Federal Reserve board member without cause, requiring an opportunity to challenge the dismissal.
The intelligence community case now sits in a similar gray zone, with Biden-appointed judges finding ways to shield DEI bureaucrats from accountability while the government weighs whether to escalate to the Supreme Court.
