DOD, other agencies may once again fire probationary employees en masse, court rules

The Trump administration can once again fire all probationary employees after a second court ruling in as many days found those challenging the dismissals did not have standing to sue. 

Most recently hired, or in some cases recently promoted, employees the Trump administration fired across government in February were being reinstated back into their jobs after two courts found the terminations were conducted unlawfully.

On Wednesday, the U.S. Court of Appeals for the Fourth Circuit paused one of the injunctions that had ordered those rehirings. That followed the Supreme Court on Tuesday also issuing a stay on a related case that had blocked the firing of 16,000 federal workers. 

In those cases, the Fourth Circuit and the Supreme Court found those bringing the suits did not have standing to make their challenges. Both cases will still hold hearings on the merits of the claims. 

The injunction that was paused on Wednesday applied to employees at 20 agencies who live in work in 19 states or Washington, D.C.

[The Defense Department had fired 364 probationary employees when the stays came down, officials said in March.]

The Fourth Circuit in its 2-1 majority opinion cited the Supreme Court’s ruling and said the district court that issued the injunction likely did not have the jurisdiction to do so. 

The states that brought the challenge had argued that a stay would create chaos for their unemployment offices and public benefit systems, and allow agencies to “abruptly terminate the employment of thousands of public servants through no fault of their own.” Judge James Bredar for the U.S. District of Maryland had found the Trump administration essentially conducted widespread reductions in force without following proper procedure, including to notify states that mass layoffs were forthcoming. 

The Trump administration countered that the allegations did not merit the “sweeping order” to reinstate employees. 

“Every day the injunction remains in place, the government is obligated to continue paying thousands of employees it had previously terminated, with no practical mechanism to recoup those funds if it prevails on appeal,” the administration had said. 

The Fourth Circuit said it will hold an expedited schedule to decide on the full merits of the case. 

One Internal Revenue Service probationary employee who was fired and subsequently reinstated said he was planning to accept the Treasury Department's offer to take paid leave through September before leaving government—through what is known as the deferred resignation program—but is no longer sure he will be eligible to do so. IRS had fired 6,700 employees in their probationary periods. 

"It just sucks," the employee said. "They will likely just terminate us again." 

The Supreme Court issued its decision Tuesday in response to a similar case in California, in which District Judge William Alsup said the Office of Personnel Management had unlawfully directed the firings of probationary employees across government. His order applied only to six agencies, though the six employ the majority of those impacted by the firings. The ruling rested on the standing of several non-profit organizations that alleged being harmed due to the impact on services provided by agencies that had terminated probationary staff. 

The high court suggested those groups likely did not have adequate standing to sue. It did not issue a ruling on the merits of the case, which is now back before the Ninth Circuit Court of Appeals. 

Alsup on Wednesday held a hearing to determine whether the American Federation of Government Employees would have standing to sue over the firings. He will issue a decision on that in the coming days.