US judge orders reinstatement of fired probationary employees

Senior U.S. District Judge William Alsup issued a preliminary injunction on Thursday ordering six federal government departments to immediately reinstate probationary employees fired last month.

After oral argument in San Francisco, Alsup ruled that Charles Ezell, acting director of the U.S. Office of Personnel Management, or OPM, unlawfully directed the departments to fire "tens of thousands of" probationary employees without the authority to do so.

Alsup said the Department of Veterans Affairs, Department of Agriculture, Department of Defense, Department of Energy, Department of the Interior and Department of Treasury must rehire the probationary employees.

The department leaders stated in news releases, and OPM contended in court filings - that they decided themselves to fire the employees for performance reasons in furtherance of President Donald Trump's mission to reduce the government workforce, estimated at 2 million.

OPM said it merely gave the departments guidance.

The lawsuit was brought by labor unions, advocacy organizations, and the State of Washington, accusing the Office of Personnel Management of violating federal law by coordinating the heads of the departments in a phone call to effectively order the firing of "tens of thousands" of probationary employees using "boilerplate" termination notices.

"If you want to go to the Court of Appeals, God bless you, I want you to," Alsup, an appointee of former President Bill Clinton, told government counsel on Thursday. He accused the U.S. Attorney's Office of "stonewalling" proceedings by withdrawing Ezell as a witness despite an order for him to testify Thursday. "Come on, that's a sham!" Alsup declared.

"The government, I believe, is trying to frustrate the judge's ability to get to the truth of what happened here," Alsup said, criticizing the government's reluctance to put Ezell on the stand. AFL-CIO et al. v. United States Office of Personnel Management et al., 3:25-cv-01780 (N.D. Cal., filed Feb. 19, 2025).

Kelsey Helland, the assistant U.S. Attorney who led oral argument for the government, rejected Alsup's claim, saying, "We're not trying to frustrate the ability to find the truth."

Helland also reiterated the government's stance. "I don't think plaintiffs have yet acknowledged this evidence that these were the actions of the political leadership of these agencies in response to a priority, a clearly communicated public priority of the administration, rather than an order from OPM."

Thursday's proceeding was originally supposed to be an evidentiary hearing where Ezell and other witnesses would take the stand to testify about OPM's communications with other government agencies, per Alsup's previous order.

At the outset of the hearing, Danielle Leonard of Altshuler Berzon LLP in San Francisco, one of the plaintiffs' lead attorneys, explained why a preliminary injunction reinstating the government employees was proper in this instance.

She argued that the defendant's recent evidentiary submissions created an "unusual circumstance."

On Monday, government counsel withdrew Ezell's declaration about OPM's discussions with the federal department heads, claiming he was not on the Feb. 13 call at the center of the dispute.

"What we have before the court is record evidence that conclusively establishes that OPM directed the terminations at issue," Leonard said. "We have a very unusual circumstance where the government has not mounted [or] attempted to say they factually dispute that claim. ... There is a mountain of evidence before the court that OPM directed it. OPM's actions were unlawful. The plaintiffs have standing, and there is irreparable harm that is occurring every minute, and it is snowballing."

After government counsel withdrew Ezell as a witness and a subsequent declaration from Noah Peters, a senior advisor to Ezell, Alsup centered Thursday's hearing on the plaintiffs' request for a preliminary injunction. He expressed his frustration.

"I had expected to have an evidentiary hearing today in which these people would testify . . . but instead, we've been frustrated in that," Alsup said. "Still, we're here on a preliminary injunction and if you want me to just wait until months go by until we ever get the evidential hearing, I will do that," Alsup told Leonard during her opening argument. "But we do have a record here, and I'd like to hear your views on what relief should be issued today. T, O, D, A, Y, today."

After Leonard's initial argument, Helland responded to Alsup's criticisms by saying he "respectfully disagreed" with the judge's view that the declarations were a "sham." He argued against a preliminary injunction, citing the federal departments' actions since Alsup amended the temporary restraining order barring the firing of more government employees.

"OPM amended its guidance on March 4 to clarify that it hadn't been and still was not directing terminations. Virtually all of them decided not to bring back the probationary employees that their leadership had decided to terminate," Helland argued. "National Science Foundation did bring them back. That was within its prerogative to do so, but virtually no other agency did, maybe a couple others."

Alsup snapped back. "That's why we need an injunction that tells them to rehire them. You will not bring the people in here to be cross examined. You're afraid to do so because, you know, cross examination would reveal the truth. This is the U.S. District Court. Whenever you submit declarations, those people should be submitted to cross examination," he said.

Alsup's order is aimed at providing relief to the plaintiffs who claim the mass terminations have deprived the public of essential government services. The judge also ordered Peters to appear for a deposition within the next two weeks.