Originally published Courts ready to hear arguments on fired probationary feds cases on by https://federalnewsnetwork.com/federal-report/2025/08/courts-ready-to-hear-arguments-on-fired-probationary-feds-cases/ at Federal News Network
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At the moment, one of the biggest employment issues dominating federal headlines is the government’s use of reductions in force (RIFs) to downsize the federal workforce. But before RIFs became an issue, the administration attempted to cut back the ranks of federal workers by conducting mass terminations of federal agencies’ probationary employees. And we may be closing in on some finality as to whether that attempt was legal.
Later this month, a pair of court hearings will address the issue of probationary employees. The U.S. District Court for the Northern District of California will hold a hearing on a coalition of unions’ motion for summary judgment as they seek a final ruling that would declare the mass firings illegal. And just nine days later, the Ninth Circuit Court of Appeals will hear arguments in an appeal brought by the government, seeking to overturn that same district court’s earlier ruling that ordered the rehiring of those employees as the legal case plays out.
The parties are fighting over technical, jurisdictional grounds that might end up deciding the outcome of the case, but assuming it survives those barriers, the underlying issues are whether agencies were acting at the direction of the Office of Personnel Management when they conducted the mass terminations earlier this year, and whether it’s legal for agencies to use probationary periods for mass layoffs at all. Those probationary periods, after all — or so everyone thought until recently — were only designed to assess individual employees’ performance. Instead, many agencies fired large swaths of their probationary employees via a template letter developed by OPM.
“The template was a sham, citing ‘performance’ as the basis for the terminations in order to evade statutory and regulatory requirements, including, for example, the construction of an ‘order of retention’ that honors veterans’ preference eligibility,” Judge William Alsup wrote in an April 18 injunction ordering agencies to rehire those employees. “Termination under the false pretense of performance is an injury that will persist for the working life of each civil servant. In pursuing future employment, each will have to concede that they have been terminated based on performance. The stain created by OPM’s pretense will follow each employee through their careers and will limit their professional opportunities.”
For its part, aside from jurisdictional problems that the government says should bar the lawsuit from moving forward at all, Justice Department attorneys argue the letter may have been drafted by OPM as part of its role in advising federal agencies — but the agencies themselves had the final call on who to fire. That was made clear, they argue, when OPM issued a memorandum making clear that it was not directing any of the terminations.
“Any confusion was therefore cleared up, and agencies were left to make their own politically accountable decisions,” the government argued in filings to the Ninth Circuit. “At least one agency did rescind some probationary employees’ terminations after OPM’s clarification. Most did not. That result is to be expected—the President directed agencies to optimize the federal workforce, and agencies may and should make employment decisions against the backdrop of that policy choice.”
But the unions argue probationary periods aren’t about policy choices regarding workforce shaping at all — they’re designed to assess the performance of each individual employee, and remove only the ones agencies deem unfit for the jobs they’ve recently been hired into.
“An agency may lawfully terminate a probationary employee based on its assessment of the employee’s performance or conduct during the probationary period, but must give a written notice explaining the reasons for termination,” union attorneys argue. “As plaintiffs thoroughly documented before the district court, probationers were notified that they were terminated for performance, with no statement of specific reasons … and in many instances, in spite of those employees’ outstanding work records and performance reviews. Neither OPM nor the federal agencies publicly announced these terminations. Nor did they warn or even inform employees’ labor representatives.”
However, the administration believes courts should resolve the case in their favor without even considering the issues of when probationary employees can be fired, because officials argue the dispute doesn’t belong in federal courts at all. They argue that under existing federal law, federal employees have to challenge their firings before the Merit System Protection Board, and unions must pursue their claims before the Federal Labor Relations Authority.
And those standing and jurisdictional issues have already proven a barrier in this very same case. Earlier this year, the Supreme Court ruled one of Alsup’s injunctions overstepped the court’s legal authority because it was based on harms to a group of plaintiffs who rely on government services that were impacted by the firings. However, the judge later issued another similar injunction based on damage suffered by the union plaintiffs. That injunction still stands, and for now, agencies have been following it, including by notifying the workers they initially fired that they were not terminated for “performance” reasons, but were instead fired as part of a government-wide mass termination.
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Originally published Courts ready to hear arguments on fired probationary feds cases on by https://federalnewsnetwork.com/federal-report/2025/08/courts-ready-to-hear-arguments-on-fired-probationary-feds-cases/ at Federal News Network
Originally published Federal News Network
