Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—AFGE urges SCOTUS to deny OPM’s motion for a stay of injunction, (Apr 4, 2025)

By Brandi O. Brown, J.D.

“In short,” AFGE argues before the Court, “there is no serious question that OPM broke the law.”

The American Federation of Government Employees, AFL-CIO (AFGE), along with AFSCME and multiple other public and private sector unions and entities who filed suit against the Office of Personnel Management and others after probationary federal workers at 19 different federal agencies were fired, have responded to the administration’s application to the U.S. Supreme Court for a stay of a lower court order requiring reinstatement of those workers. Below, the federal district court had granted a preliminary injunction, ordering the reinstatement and the Ninth Circuit denied the administration’s motion for an emergency stay. Next, OPM and the Trump administration took its quest to the High Court.

Alsup’s ruling. In a written order, California federal district court Judge William Alsup ordered the Trump administration to offer reinstatement to the thousands of probationary employees who were terminated in reductions in force at 19 federal agencies. Rejecting DOJ’s assertion that OPM merely issued “guidance” to the agencies, which then led to the layoffs at issue, Judge Alsup pronounced from the bench: “The court finds that Office of Personnel Management did direct all agencies to terminate probationary employees with the exception of mission critical employees.” The judge thus ordered the employees’ immediate reinstatement.

Judge Alsup noted evidence that OPM had not only directed other agencies to fire their probationary employees, but also directed the agencies to fire the employees under the pretense of “performance.” Indeed, there was evidence that OPM disseminated a template termination letter to the agencies with text stating “The Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest. For this reason, the Agency informs you that the Agency is removing you from your position of [TITLE] with the Agency and the federal civil service effective [insert date and time, if necessary.]”

Ninth Circuit’s denial. The administration appealed and also sought an emergency stay from the Ninth Circuit, but it was denied. The appeals court explained that an administrative stay of the district court’s order, rather than preserving the status quo, “would disrupt the status quo and turn it on its head.”

“Hijack[ed]” by “third parties.” Ironically, given that the underlying lawsuit contends that OPM—without authority to do so—had directed other agencies to fire their employees, in its application to the High Court the Trump administration argues that the court’s preliminary injunction “let third parties hijack the employment relationship between the federal government and its workforce,” arguing that the respondents lack standing to pursue the suit. They also argue that the district court lacks subject-matter jurisdiction to assess the legality of the government personnel actions and that it “badly exceeded the scope of its equitable authority by ordering reinstatement—on a mass scale—for the perceived legal violation it identified.” The administration argued that the injunction is causing “ongoing, irreparable harm” warranting the High Court’s intervention. “Every day the government remains subject to the injunction inflicts intolerable harm on the functioning of the Executive Branch.”

OPM broke the law. Now, responding to the administration’s arguments, AFGE et al argue that the government will not succeed in overturning the injunction, noting that the government “concedes that OPM lacks authority to order other agencies to terminate their employees” and that the court “correctly found” that AFGE et al “were likely to succeed on claims that OPM’s actions were ultra vires because no statute ‘anywhere, ever’ granted OPM authority to fire other agencies’ employees.” They explain: “In short, there is no serious question that OPM broke the law.”

They also contend that (1) the district court “made detailed and well-supported findings” that they had standing to pursue their suit, (2) the government wrongly argued that the only way to challenge termination of federal employees is through claims by individual employees against each agency before the MSPB, and (3) the district court did not exceed its authority because it’s order “simply restored the status quo that existed prior to OPM’s illegal conduct, and reinstatement is a routine remedy in the face of illegal termination.”

The application is Docket No. 24A904.

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