Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—N.D. Cal.: OPM blocked from directing the termination of more federal agency probationary employees, (Apr 21, 2025)

By Todd Harrison, J.D.

The agencies were also directed to clarify whether any individual terminations were, in fact, based on performance or whether they were made as part of a government-wide mass termination.

Provisional relief was granted to a group of public-sector labor unions by a federal district court in California stemming from a previous OPM directive ordering federal agencies to terminate their probationary employees en masse. The court enjoined OPM from directing or telling any other federal agency to terminate the employment of any federal employee or group of federal employees and enjoined all relief defendant agencies from following any OPM order or direction to fire any agency employee. Further, all relief defendant agencies who used the OPM template termination notice—or variation thereof—are required to provide recipients with a written statement, directed to the employee individually, stating that their termination was not performance-based (American Federation of Government Employees, AFL-CIO, v. United States Office of Personnel Management, No. C 25-01780 WHA (N.D. Cal. Apr. 18, 2025)).

After holding that OPM’s recent directive to fire employees at other agencies was unlawful, the court granted provisional relief, including an order requiring the reinstatement of employees at six federal agencies. That order was subsequently stayed by the U.S. Supreme Court. Since then, additional plaintiffs have joined the suit and seek additional relief, while a previous order held that the public-sector unions have standing to seek provisional relief. This case concerned provisional relief as to those plaintiffs.

Unions. In this instance, the unions asserted that probationary employees have been terminated en masse at several federal agencies and requested an injunction reversing those actions pending the resolution of this litigation.

State of Washington. The State of Washington sought an injunction reinstating employees at the Departments of Agriculture, Commerce, Defense, Education, Health and Human Services, Homeland Security, Housing and Urban Development, and the Interior.

Ultra vires. First looking to the plaintiffs’ likelihood of success on the merits, the court found that OPM’s directive constituted an ultra vires act that infringed upon all impacted agencies’ statutory authority to hire and fire their own employees.

“No statute—anywhere, ever—has granted OPM the authority to direct the termination of employees in other agencies,” said the court. The court was not persuaded by OPM’s contention that it did not issue a directive, and that agencies could have applied for an exemption or have chosen to do nothing at all.

“If the agencies exercised ultimate discretion, why did OPM make them apply for exemptions?” questioned the court. Further, even if some agencies refused to follow the directive, the evidence was overwhelming that most felt compelled to and did follow it.

“A choice—you may choose to retain your probationers—followed by a caveat—if OPM grants your exemption request—is not a choice,” explained the court. Accordingly, the court found the plaintiffs were likely to succeed on the merits.

Union standing. Turning to the question of Article III standing, the court first looked to the union plaintiffs in this action. Here, the court determined that the union plaintiffs stood in the shoes of their members, some of whom have been injured due to termination under the pretext of “performance,” and such an injury, unless redressed, will continue to injure those employees for the rest of their working lives. As such, the unions had standing to seek redress on behalf of their members.

In addition, the court found that the unions themselves had been harmed. Terminated union members cease to pay their union dues and thus reduce a key source of operational funding, observed the court. Further, the terminations have frustrated the union plaintiffs’ ability to perform their core functions as they have been forced to focus their energy on addressing these mass terminations. These injuries are fairly traceable to OPM’s directive to terminate probationary civil servants en masse. As such, the court found the unions had direct organizational standing.

Specificity. Addressing the government’s counterarguments, the court was unpersuaded that the unions lacked standing because their complaint did not describe their organizational harms with the requisite specificity.

“In one breath, the government demands that this injunction be decided within the four corners of the complaint; in the next, it insists that the analysis must be limited to a yet-to-come “administrative record”; in the third, it grounds its counterfactual in the declaration and now deposition of OPM Special Advisor Noah Peters—not a part of the complaint or the administrative record,” said the court.

Here, the court noted that it had considered the record as a whole in crafting the present injunction.

Member identities. As to the government’s argument that the union plaintiffs did not have representational standing because they had not provided a complete accounting of each terminated probationer, the court explained that when it is clear and not speculative that a member of a group will be adversely affected by a challenged action and a defendant does not need the identity of a particular member to defend against an organization’s claims, an organization need not identify members by name.

Unaffected employees. The court rejected the government’s argument that the union plaintiffs could not show representational standing because they could not show that all of their members were affected by OPM’s directive because not all of their members are probationary employees.

“So what?” said the court. “An organization establishes representational standing where it shows that some subset of its members have been, or imminently stand to be, injured.”

State of Washington standing. Directing its attention to whether the State of Washington established standing, the court found that it had failed to do so based on the purported loss of federal services.

“The assertion that the termination of probationers at NOAA and other agencies will necessarily result in the diminishment of the specific services and partnerships identified by Washington rests on a speculative chain of contingencies,” explained the court.

Financial injury. Washington did, however, establish a legitimate financial injury vis a vis a 470 percent increase in unemployment claims from February 13 to March 3, compared to the same period the previous year. Washington established that at least some of those claimants were probationary employees.

Irreparable harm. Next, the court considered whether the plaintiffs had suffered irreparable harm, beginning with the union plaintiffs. The court determined that there was much less need now for an order reinstating probationary employees than there was in March, noting that relief defendants had rehired their terminated probationers after the initial, albeit now stayed, TRO.

If any reinstated employees are now terminated, the court found that it will have been because the agency made the decision to do so, not because OPM directed it to do so. The union plaintiffs’ contention that they continued to face irreparable organizational harms fell short for the same reason.

“Just as there is little to suggest that agencies are still acting at the behest of OPM, there is little on the record to suggest that the unions’ core business functions are still being frustrated by such terminations,” said the court. As such, these claims have grown stale.

The union plaintiffs did, however, make out a claim of irreparable harm flowing from OPM’s template termination letter and its pretense of “performance” based firings. “Termination under the false pretense of performance is an injury that will persist for the working life of each civil servant,” observed the court.

As to the state of Washington’s claims of irreparable harm based on the widespread impairment of public services, the court again found any alleged injuries to be too speculative to show irreparable harm.

Equities, public interest. Finally, the court determined that the balance of the equities and the public interest required the grant of provisional relief, which in this case enjoined OPM from directing federal agencies to terminate their employees, enjoined federal agencies from using OPM’s template termination letter, and required those agencies who employed the template termination letter—or some variation thereof—to provide recipients with a written statement, directed to the employee individually, stating that their termination was not “performance” or fitness based but was made as part of a government-wide mass termination.

The case is No. C 25-01780 WHA.

Judge: Alsup, W.

Attorneys: Danielle Evelyn Leonard (Altshuler Berzon) for American Federation of Government Employees, AFL-CIO. James D. Todd Jr., U.S. Department of Justice, for U.S. Office of Personnel Management.

Companies: American Federation of Government Employees, AFL-CIO

Cases: RemediesDamages Discharge Labor UnionsMembers Layoffs Procedure PublicEmployees CaliforniaNews