Feb 21 2025 Washington DC - US Attorney General Pam Bondi walks out to do a interview with Fox. Image: DT phots1/Shutterstock.com
By: FEDweek StaffFollowing is an excerpt from the Justice Department’s request that the U.S. Supreme Court stay a lower court’s order to stop the mass firings of probationary employees and to reinstate many of those fired earlier, which amounts to a summary of the Trump administration’s position in that case and a similar one in another federal court.
The district judge in this case spontaneously issued a preliminary injunction ordering a half-dozen departments and agencies to immediately offer reinstatement to over 16,000 probationary employees who had been lawfully terminated. The district court did so in a suit filed not by the employees themselves (whose claims Congress has channeled through special administrative procedures), but by a group of nonprofits who claimed that these layoffs could contribute to downstream harms from less-robust governmental services. And the court issued this sweeping relief on the theory that the agency decisionmakers wrongly believed that OPM had directed the terminations—even though OPM clarified otherwise in response to the court’s TRO, and even though the six enjoined agencies subsequently chose to stand by the terminations. The court’s preliminary injunction thus let third parties hijack the employment relationship between the federal government and its workforce. And, like many other recent orders, the court’s extraordinary reinstatement order violates the separation of powers, arrogating to a single district court the Executive Branch’s powers of personnel management on the flimsiest of grounds and the hastiest of timelines. That is no way to run a government. This Court should stop the ongoing assault on the constitutional structure before further damage is wrought.
Throughout February 2025, as part of the Administration’s efforts to stream line the federal workforce and address unsustainable federal expansion, multiple agencies terminated thousands of employees in probationary status, i.e., those who have yet to establish their qualification for continued service and remain in their one- or two-year trial periods. Some of those employees have since filed complaints with the Office of Special Counsel, which, at one of the agencies, pursued administrative relief before the Merit Systems Protection Board. But no employees are plaintiffs in this suit. The respondents whose claims formed the basis for the injunction are instead nonprofit organizations whose members use government services that have, at best, only distant connections to the terminated employees. Yet they have now parlayed such alleged harms as the late opening of a national park’s bathroom facility or supposedly dilatory Freedom of Information Act (FOIA) responses into a sweeping, nationwide preliminary injunction ordering six federal agencies to immediately rein state, to full duty status, more than 16,000 terminated probationary employees.
That injunction is especially remarkable given that respondents did not even move for it; the court issued an oral preliminary injunction from the bench at the end of an evidentiary hearing, later followed by a written opinion. The district court thus spontaneously expanded relief far beyond its initial temporary restraining order, which had simply required the Office of Personnel Management (OPM) to update its guidance to make clear that it does not have authority to direct personnel actions at the agencies (a principle that the government does not contest).
The notion that immediate reinstatement of thousands of probationary employees is the way to improve customer service at national park bathrooms also underscores fatal flaws with respondents’ theory of Article III standing—flaws that should have foreclosed any relief. To call respondents’ theory of standing attenuated is charitable. They speculate that OPM’s original guidance, not the agencies’ own assessments of whether retaining these probationary employees is necessary, prompted agencies to terminate probationary employees, thereby hampering specific services (like bathroom access and FOIA responsiveness) that would have been unaffected without the terminations. Those inferences cannot establish Article III standing. Nor can respondents link their theory of illegality—that OPM lacked the authority to direct terminations at particular agencies—to the injury they assert. If organizations could establish Article III standing just by positing that fewer government employees will translate into less-optimal government services for some of their members, then anyone anywhere with any contact with the federal government could second-guess any agencies’ personnel decisions, down to which federal employees work which hours.
Declaring open season on challenges to federal personnel management is especially unsound because Congress has created an entirely different framework for re solving legal challenges to the terminations of federal employees. As this Court has held, challenges to terminations of federal employees must proceed, if at all, under the reticulated process Congress set out in the Civil Service Reform Act of 1978 (CSRA). Allowing strangers to the federal-employment relationship to head straight to district court and raise claims that the affected federal employees themselves cannot raise would upend that entire process.
. . . .
The district court’s extraordinarily overbroad remedy is now inflicting ongoing, irreparable harm on the Executive Branch that warrants this Court’s urgent intervention. Every day that the government remains subject to the injunction inflicts intolerable harm on the functioning of the Executive Branch. The district court has compelled the government to embark on the massive administrative undertaking of reinstating, and onboarding to full duty status, thousands of terminated employees in the span of a few days. Exacerbating the burden, the district court has insisted that employees must be returned to full duty status and staffed so as to restore the services that respondents seek to use. And the government is required to reinstate employees to active-duty status and provide them with assignments, all subject to the ongoing supervision of the district court. The injunction appears to prevent the agencies from terminating those employees based on the agencies’ independent judgment or even on newly arising grounds, at least absent clarification or permission from the district court. The ensuing financial costs and logistical burdens of ongoing compliance efforts are immense.
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