Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—D.D.C.: Eight fired probationary federal employees fail to secure preliminary injunction, (May 9, 2025)

By Todd Harrison, J.D.

In this instance, their claims were subject to administrative review, and differed from other cases wherein the plaintiffs were private organizations, labor unions, and individual states.

Denying the request for a preliminary injunction sought by eight former probationary federal employees who were allegedly fired due to poor performance, a federal court in the District of Columbia determined that they were required to seek administrative review with the Office of Special Counsel for alleging a “prohibited personnel practice” as described in 5 U.S.C. § 2302(b). Because the employees had an available administrative remedy, the court found that it lacked jurisdiction over their claims, and even if the court were to consider the merits of their claims, it would likely reject them (Gober v. Collins, No. 25-714 (RC) (D.D.C. May 8, 2025)).

Eight probationary employees who worked across several federal agencies were terminated from their jobs in February or March 2025, purportedly on the basis of poor performance. None of the termination letters identified any specific performance deficiency or example of misconduct. They filed an initial class action complaint on March 11, requesting that the court certify a class consisting of all probationary employees of the defendant agencies terminated for purported poor performance between January 20, 2025, to the present.

Claims. The operative complaint consisted of four claims: (1) defamation in violation of the Fifth Amendment; (2) a constitutional due process violation for terminating the employees without prior notice of performance deficiencies; (3) that their removal was arbitrary and capricious under the APA; and (4) that the court issue a writ of mandamus ordering the defendant agencies to reinstate the employees in order to make them whole.

Preliminary injunction. On March 27, the employees moved for a preliminary injunction. They requested that the court issue an order requiring the defendant agencies to “clarify that performance had nothing to do with the terminations that took place” and to make them “whole.” Each employee issued a sworn declaration describing their employment, including performance reviews, and all but one included a statement of harm to the effect that they were facing stigmatization in having to explain to prospective employers that they had been terminated for poor performance. Here, the court found the motion for the preliminary injunction was ripe for review.

CSRA. Much of the arguments surrounding the motion for a preliminary injunction centered on the Civil Service Reform Act (CSRA), which protects federal employees from a broad range of personnel practices. The CSRA requires the exhaustion of administrative remedies as a prerequisite to filing suit. The appeal rights of probationary employees under the CSRA are extremely limited and are largely confined to actions taken on the basis of political affiliation, marital status, or pre-employment conditions.

OSC. Here, the employees did not assert that they were fired on the basis of marital status, political affiliation, or pre-employment conditions. However, there was one other form of administrative review for probationary employees who alleged a “prohibited personnel practice” as described in 5 U.S.C. § 2302(b): filing a complaint with the Office of Special Counsel (OSC).

Nevertheless, the employees contended that the court had jurisdiction over their claims because OSC review would be “futile” and “a waste of time,” and that they were not required to administratively exhaust constitutional claims. The court found this line of reasoning to be erroneous and that the employees had not meet their burden to establish a likelihood of success on the merits.

Jurisdiction. First, the employees could not point to any statute or regulation giving district courts jurisdiction over federal personnel actions where administrative review under the CSRA is futile. Nor could they show that the CSRA encompassed a carve-out for constitutional claims like theirs.

Probationary employees must channel their constitutional claims through the CSRA in the first instance, explained the court, and the employees here had not articulated a convincing reason why their constitutional claims should be treated any differently. Because the employees had a CSRA remedy available to them, the court determined that it lacked jurisdiction over their claims. As such, the employees failed to show a likelihood of success of the merits.

Although the court could have ended its analysis here, if it were to consider the merits of the employees’ claims, it would likely reject them.

APA claim. With regard to the employees’ APA claim, the court found that they were “flatly wrong” in asserting that the APA gives the court the authority to review any agency decision. The APA is subject to limitations, observed the court, and it is black letter law in this circuit that the CSRA’s comprehensive employment scheme preempts judicial review under the more general APA, even when that scheme provides no judicial relief.

Defamation. Turning to the employees’ claim for defamation, they failed to point to any case where a court found a constitutional due process violation for defamatory speech where the defendants were not the speakers.

“Conclusory statements of harm at a high level of generality, like those in Plaintiffs’ declarations, are not enough to establish a qualifying injury for a constitutional defamation claim,” said the court.

Termination without prior notice. As to the employees’ claim that their termination without prior notice of performance deficiencies violated their due process rights, the court disagreed. This effectively constituted a claim that the defendant agencies violated federal regulations, not the Constitution, explained the court, and such a claim must be brought pursuant to the CSRA, if at all.

Mandamus. Regarding the claim seeking mandamus, the court found that the employees did not come close to showing entitlement to this type of “drastic” remedy, and their motion presented no argument as to why mandamus was appropriate in this case.

Other cases. Finally, the employees emphasized that two other district courts have found the mass terminations to be unlawful and, as a result, issued nationwide preliminary injunctions. Those cases, observed the court, were distinguishable because they were brought by different types of plaintiffs asserting different claims.

None of the plaintiffs in those cases were individual employees, and one such case challenged OPM’s role in the mass terminations while the other challenged the government’s failure to provide the states with notice of the mass terminations as required by law.

That those courts found cause to issue preliminary injunctions had no effect on this court’s evaluation of the employees’ likelihood to succeed on the merits of their claims, said the court. Further, neither preliminary injunction was currently in effect.

A party seeking a preliminary injunction must demonstrate a likelihood of success on the merits, explained the court. Because the employees here failed to do so, the court denied their motion without evaluating the other preliminary injunction factors. The court reserved the request to certify the putative class for later proceedings.

The case is No. 25-714 (RC).

Judge: Contreras, R.

Attorneys: Pamela M. Keith (Center for Employment Justice) for Jessica Gober. Kaitlin Kerry Eckrote, U.S. Department of Justice, for Douglas A. Collins.

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