Updated: April 9 at 1:48 p.m. ET
Nothing is standing in the government's way from carrying out the firings of probationary workers at federal agencies, courts ruled in the last two days.
The Fourth Circuit Court of Appeals, in a lawsuit brought by state attorneys generals, determined the plaintiffs are not on strong legal ground. On April 9, the appellate court granted a stay of the preliminary injunction issued by a lower court.
"The government is likely to succeed in showing the district court lacked jurisdiction over plaintiffs’ claims, and the government is unlikely to recover the funds disbursed to reinstated probationary employees," the court said (PDF).
This decision, which applies to several departments including Health and Human Services, could still be challenged up to the Supreme Court—though the top justices' first brush with the issue didn't go workers' way.
On April 8, in a separate case brought by nonprofits, the Supreme Court agreed with the government to stay a preliminary injunction by a lower court to reinstate thousands of probationary employees at a more limited number of federal agencies, including workers at the Department of Veterans Affairs (VA).
That unsigned order applies to employees at six federal agencies, with the Supreme Court finding the nonprofit plaintiffs lacked standing.
"The district court’s injunction was based solely on the allegations of the nine non-profit-organization plaintiffs in this case," the Supreme Court wrote in the April 8 order. "But under established law, those allegations are presently insufficient to support the organizations’ standing."
Two liberal Justices, Sonia Sotomayor and Ketanji Brown Jackson, dissented.
The Department of Justice (DOJ) filed an emergency appeal urging the Supreme Court to reverse a lower court’s decision instructing the federal government to reinstate thousands of probationary employees. A district court previously ordered the feds to stay a preliminary injunction regarding fired probationary workers.
Workers at the VA received notice following the lower court’s decision, but they remain on administrative leave while earning full salary and benefits.
The government claimed (PDF) the preliminary injunction was “spontaneously issued” and hit at the order’s credibility, saying the lawsuit was brought forward by nonprofits that could be indirectly affected, not the fired workers. Additionally, the feds said plaintiffs “wrongly believed” the Office of Personnel Management directed the agencies to fire the workers but cited guidance that was retroactively edited in an attempt to clarify agencies have the final decision.
“The court’s preliminary injunction thus let third parties hijack the employment relationship between the federal government and its workforce,” the DOJ said. “And, like many other recent orders, the court’s extraordinary reinstatement order violates the separation of powers, arrogating to a single district court the executive branch’s powers of personnel management on the flimsiest of grounds and the hastiest of timelines.”
There is growing outrage at the district judges’ ability to halt presidential actions, with President Donald Trump calling on certain judges to go through impeachment hearings as well as demanding the end of nationwide injunctions. Senator Josh Hawley, R-Missouri, introduced legislation to restrict the use of nationwide injunctions March 20.
Others say these district court judges are merely doing their jobs, including Democratic lawmakers eager to see checks and balances imposed on the president. Supreme Court Justice John Roberts disagreed with Trump’s comments rationale for impeaching federal judges, in a rare public rebuke by a Supreme Court justice.
In the filing with the Supreme Court, the government said there have been more than 40 injunctions or temporary restraining orders against the Trump administration. Notably, these pauses would not be issued if there weren’t concern by judges the orders are illegal.
Five of the six agencies mentioned in this lawsuit are also currently required to reinstate employees under a case brought by state attorneys general.
In that case, a longer-term injunction will be considered March 26. An appeals court rejected the government's attempt for an administrative stay March 21, deciding the employees must be reinstated until a court rules otherwise.
“That order does not reduce the irreparable harm to the government from the preliminary injunction in this case because that order could be lifted at any time,” said the DOJ in a footnote.
It’s likely the Supreme Court’s response to the DOJ will have a knock-on effect on the outcomes of other fired probationary worker lawsuits, impacting employees at the Department of Health and Human Services and other federal agencies.