Divided 9th Circuit panel refuses to reinstate mass firings of federal workers

A 9th U.S. Circuit Court of Appeals panel, divided along partisan lines, on Monday denied an administrative stay requested by the Trump administration that would have blocked Senior U.S. District Judge William Alsup's preliminary injunction blocking the firing of tens of thousands of federal probationary employees.

"Given that the district court found that the employees were wrongfully terminated and ordered an immediate return to the status quo ante, an administrative stay of the district court's order would not preserve the status quo," 9th Circuit Judge Ana I. de Alba and Senior 9th Circuit Judge Barry G. Silverman wrote for the three-judge panel majority in an unsigned order.

"It would do just the opposite - it would disrupt the status quo and turn it on its head," they added. American Federal of Government Employees, AFL-CIO et al. v. U.S. Office of Personnel Management et al., 25-1677 (9th Circ., filed March 13, 2025).

De Alba is an appointee of President Joe Biden, while Silverman was named by President Bill Clinton.

9th Circuit Judge Bridget S. Bade, an appointee of President Donald Trump, partially dissented, writing that she would have granted the emergency temporary stay.

Bade wrote that "the government persuasively argues that the district court's preliminary injunction imposes a substantial administrative burden. That order requires the six agencies to offer reinstatement to thousands of terminated employees, who may accept and require onboarding, credentialing, and other human resources or administrative action."

She added that the government unions "offer no reason to believe that immediate offers of reinstatement would cure those harms."

Trump, speaking to reporters on Sunday night, blasted Alsup's injunction and the judge himself. "It's a judge that's putting himself in the position of the president of the United States, who was elected by close to 80 million votes," he said.

"That's a very dangerous thing for our country," Trump added. "I would suspect we're going to have to get a decision from the Supreme Court."

Alsup's denial of a stay, issued Saturday, followed his written order Friday night granting the preliminary injunction, issued a day after he ordered it from the bench during a hearing.

"Each federal agency has the statutory authority to hire and fire its employees, even at scale, subject to certain safeguards," he wrote. "The Office of Personnel Management has no authority to hire and fire employees in another agency. Yet that is what happened here - en masse."

"OPM directed all (or at least most) federal agencies to terminate all probationary employees for 'performance,'" the judge added, citing an example of one employee who got a performance-related firing just a few days after getting a glowing job review.

While the Trump administration denied the decisions were made by the Office of Personnel Management, Alsup cited a series of statements by other federal departments, including in termination letters and Zoom calls, saying the firings were done at the agency's direction.

The Justice Department, in a motion filed Friday, argued that the stay should apply to federal agencies - the Departments of Agriculture, Veterans Affairs, Defense, Energy, Interior and Treasury - included in Alsup's preliminary injunction.

"Given the scope of the district court's injunction and the difficulty of compliance, the defendants-appellants ask for an administrative stay," the government attorneys wrote.

U.S. Department of Justice attorney Yuri S. Fuchs argued in Friday's motion for a stay that the unions suing the U.S. Office of Personnel Management have failed to establish a likelihood they will succeed on the merits of their claims and that they lack standing to pursue relief for non-union federal workers who were fired.

"That is a remarkable intrusion into the operation of the Executive Branch and into the functioning of each of these agencies as they seek to implement the President's workforce optimization initiative," he wrote.

Attorneys for the plaintiff unions, as well as the Washington state attorney general's office, countered that the federal government agencies "have chosen to engage in further stonewalling and direct defiance of the Court's orders. Defendants' filing admits they are not implementing the Court's preliminary injunction."

Attorneys with San Francisco-based Altshuler Berzon LLP have led the litigation for the unions.

Alsup ordered the government to provide a list of probationary employees who were fired on Feb. 13 and 14.

The 9th Circuit panel ordered the plaintiffs to file a response to the government's emergency motion on Tuesday. The Justice Department can file an optional reply by Thursday.

The ruling is the second one against the Trump administration concerning the firing of probationary employees. Senior U.S. District Judge James K. Bredar of the District of Maryland, an appointee of President Barack Obama, granted a temporary restraining order Thursday blocking their firing in a lawsuit filed by 20 states, including California Attorney General Rob Bonta.

The government has appealed Bredar's order to the 4th U.S. Circuit Court of Appeals and the government is due to file a status report late Monday to Bredar about its compliance with his order. State of Maryland et al. v. U.S. Department of Agriculture et al., 25-cv-00748 (D. Md., filed March 6, 2025).