UPDATE: As of April 9, 2025, the preliminary injunctions issued in both the California and the Maryland cases have been stayed by higher courts. That means that there is currently no court order preventing government agencies from re-terminating probationary employees. We have heard reports that at least one agency, the Department of Commerce, has started re-terminating probationary employees, reverting the effective date back to February 2025. The MSPB class actions for probationary employees remain pending.
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On Thursday, two courts issued orders requiring reinstatement of probationary employees.
First, Judge Alsup of the Northern District of California granted a preliminary injunction requiring reinstatement of employees at six agencies: Veterans Affairs, Agriculture, Interior, Energy, Defense, and Treasury. Under the order, reinstatement was supposed to occur “immediately.” The order was issued orally in a hearing, followed by a written opinion with further explanation.
The preliminary injunction goes a step further than the prior opinion by Judge Alsup granting a temporary restraining order. In that opinion, the judge found that OPM had acted outside its authority by ordering the terminations and that non-profits could challenge the terminations, but he did not order reinstatement as a remedy.
Second, Judge Bredar of the District of Maryland issued a temporary restraining order and opinion requiring reinstatement of employees at eighteen agencies. The list of agencies includes five of the six covered by Judge Alsup’s order (omitting only DOD). In addition, the order includes other major agencies such as Health and Human Services, Commerce, and Transportation. Collectively, the orders by Judges Alsup and Bredar require the government to reinstate the vast majority of terminated probationary employees. Under Judge Bredar’s order, employees must be reinstated by Monday, March 17, at 1:00 PM.
In issuing his order, Judge Bredar relied on the agencies’ failure to follow legally-mandated procedures for reductions in force (RIFs), including procedures designed to help states prepare for the termination of their residents and potential disruption of federal services within the states. For example, agencies are supposed to provide advance notice of RIFs to states, just as they are supposed to provide notice to affected employees. Here, no notice was given.
Both judges correctly recognized that the Government broke the law through its unprecedented mass terminations of probationary employees. Their orders provide an important victory for all those affected by the illegal terminations.
What happens next?
It is unclear if the Government has complied with Judge Alsup’s order, which required immediate reinstatement as of Thursday. The media has reported on reinstatement of employees at the Department of Energy, but there do not seem to be similar reports for all of the other agencies covered by the preliminary injunction. Meanwhile, Judge Bredar’s order requires reinstatement by Monday at 1:00 PM, so we do not yet know if the Government will comply.
The Government quickly appealed both orders. Further, it sought an emergency stay of Judge Alsup’s order from the Ninth Circuit Court of Appeals. If granted, a stay would mean that agencies would have no obligation to reinstate employees while an appeal is pending.
Presumably, the Government also intends to seek a stay of Judge Bredar’s order from the Fourth Circuit Court of Appeals. And if stays are not granted at the circuit court level, the Government may seek that relief from the Supreme Court.
We should know more in a few days about whether the Government will comply with the orders and whether an appellate court will stay the orders.
How do these orders relate to class actions at the MSPB?
As previously discussed here, a coalition of law firms has filed class action appeals at the MSPB to challenge the termination of probationary and trial employees at many agencies.
The Government is trying to use the possibility of MSPB appeals to argue that courts should not intervene here, but should rather let the MSPB resolve the issue. Judges Alsup and Bredar both rejected that argument, and for good reason.
First, the MSPB cannot provide the relief sought by the non-profits and states who brought the cases. Those entities cannot file claims at the MSPB, and the MSPB cannot repair their injuries in a complete or timely manner. For instance, in the California case, non-profits argued that the terminations were impairing government services, such as maintenance of public parks. But even if employees’ MSPB appeals are successful, they will not obtain relief in the coming months, and even when relief is issued, agencies could potentially attempt to comply with MSPB orders by placing employees back on the payroll without actually putting them back to work.
Likewise, the court cases, even if successful, may not provide all of the relief sought by employees in MSPB appeals. For instance, it is unclear whether the orders by Judges Alsup and Bredar require agencies to provide backpay. The Government could argue that backpay is not necessary to remedy the harms asserted by the plaintiffs, such as disruption of public services.
In short, the MSPB appeals and court cases have been brought by different parties, with different interests, seeking different relief.
Second, the current administration has sought to cripple the MSPB by removing one of its board members, Cathy Harris, leaving the board unable to decide cases. Litigation on this issue is ongoing. If the administration succeeds, it may prevent employees from obtaining timely relief through the MSPB, while transforming the MSPB from an independent oversight body to one under the thumb of the President who ordered the terminations.
Employees had no choice but to file MSPB appeals within the short window for doing so, to preserve their rights to challenge their terminations. But the filing of those appeals should not be taken to mean that the employees or their lawyers believe that courts should step aside. On the contrary, the judges correctly found they had authority to act, and their orders are necessary to address these unlawful terminations in a timely manner.