Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—9th Cir.: Government denied emergency stay of order requiring reinstatement offers for fired probationary employees, (Mar 27, 2025)

By Ronald Miller, J.D.

OPM had not shown that the district court likely abused its discretion in ordering that the terminated employees be reinstated.

An emergency motion to stay a district court’s preliminary injunction requiring the Trump administration to rehire federal employees at six federal agencies while it appeals the reinstatement order was denied by a divided Ninth Circuit, in a 2-1 decision. The appeals court determined that the OPM had demonstrated neither that it was sufficiently likely to succeed on the merits of this appeal nor that they will suffer irreparable harm from complying with the preliminary injunction. Judge Bade filed a separate dissent (American Federation of Government Employees v. United States Office of Personnel Management, No. 25-1677 (9th Cir. Mar. 26, 2025)).

A federal district court in California, in a case brought by the American Federation of Government Employees and other unions, ordered the Trump administration to offer reinstatement to thousands of probationary employees who were terminated in recent reductions in force at numerous federal agencies.

Standing. The OPM had not demonstrated a sufficient likelihood of success of showing that none of the organizational plaintiffs have established standing. The organizational plaintiffs provided evidence of various concrete injuries, and the district court carefully analyzed that evidence and determined that it was sufficient.

Nor had OPM demonstrated that they are likely to establish that Congress had channeled the organizational plaintiffs’ claims to administrative agencies.

Additionally, OPM has not demonstrated a likelihood that the district court clearly erred in finding that the six agencies were directed by the OPM to fire probationary employees. It followed that OPM had not shown that the district court likely abused its discretion in ordering that the terminated employees be reinstated.

Finally, OPM’s claimed administrative burdens from complying with the injunction during the pendency of this appeal did not demonstrate the requisite irreparable harm.

Dissent. In a dissenting opinion, Judge Bade argued that the organizational plaintiffs had not met their burden of showing that they have standing, and thus the government was likely to prevail on the merits because the district court did not have jurisdiction to enter the preliminary injunction. Here, the dissent argued that the organizational plaintiffs had not shown that the district court’s preliminary injunction requiring federal agencies to reinstate probationary employees was “likely” to redress their alleged harms. Therefore, the dissent would grant the government’s emergency motion for a stay pending appeal.

The case is No. 25-1677.

Judge: Per curiam.

Attorneys: Danielle Leonard (Altshuler Berzon) for American Federation of Government Employees, AFL-CIO. Kelsey John Helland, U.S. Department of Justice, for U.S. Office of Personnel Management.

Companies: American Federation of Government Employees, AFL-CIO; U.S Office of Personnel Management

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