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President Donald Trump addresses a joint session of Congress on Capitol Hill in Washington, Tuesday, March 4, 2025 (AP Photo/Alex Brandon).
The Trump administration was swatted down Monday by the U.S. Court of Appeals for the Ninth Circuit as it attempted to pause a ruling by a federal judge in its probationary mass firings case involving the Office of Personnel and Management and acting OPM director Charles Ezell.
U.S. Circuit Judges Judges Barry Silverman and Ana de Alba didn’t mince words in the 2-1 ruling denying Trump’s Justice Department and the emergency motion it filed on Friday to stay the lower court’s order reinstating probationary workers “unlawfully” fired by Trump over the past two months, according to U.S. District Judge William Alsup, a Bill Clinton appointee. The pair provided a brief two-sentence explanation, saying: “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. It would do just the opposite — it would disrupt the status quo and turn it on its head.”
Ezell, who was appointed by Trump after he took office in January, is being sued for firing federal workers while they were still in the probationary period of their employment. On Thursday, Alsup tore into the Trump administration for the mass terminations, calling it a “sad day” when the government would get rid of “good” workers — supposedly on the basis of performance — knowing “good and well that’s a lie,” the judge said as he ordered agencies to “immediately” rehire those who have been booted.
DOJ lawyers filed an emergency motion to stay Alsup’s order in district court and one in California’s Ninth Circuit on Friday, saying the claims of injury by the plaintiffs are “far too speculative to support standing to maintain this lawsuit,” among other complaints about the arguments made Thursday by the five labor unions and five nonprofit organizations suing Ezell and OPM. Alsup wound up denying the stay on Saturday, while the appeals court responded Monday.
Ninth U.S. Circuit Judge Bridget Bade — a Trump appointee — disagreed with Silverman, a Clinton appointee, and de Alba, a Biden appointee, in a 10-page dissent. She explained that she would have granted an emergency temporary stay due to the government “persuasively” arguing that the district court’s preliminary injunction order “imposes a substantial administrative burden,” per her dissent.
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“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,” Bade said. “What is more, these undertakings would cause further confusion and uncertainty if this panel later determines that the Nken factors [to determine whether a stay is warranted] are satisfied and grants the motion for a stay pending appeal, then be all for naught if this court vacates the preliminary injunction. A temporary stay would at least mitigate this potential whiplash effect.”
Before filing their motions to stay, DOJ lawyers rounded up and attached declarations provided by officials from the Departments of Agriculture, Defense, Energy, the Interior, the Treasury, and Veterans Affairs, which they claimed exercised the belief that Alsup’s order “constitutes an extraordinary intrusion into the authority of the Executive Branch and its agencies by: requiring six agencies to reinstate previously terminated probationary employees; and precluding the Office of Personnel Management from giving further guidance to agencies on personnel matters,” according to the district court motion.
“As those declarations reflect, agencies will face tremendous administrative burdens, personnel uncertainty, and interference with their internal functions as a result of complying with the Court’s preliminary injunction,” the DOJ said.
Bade said Monday that the six agencies identified in the preliminary injunction have already “completed the challenged terminations” and Alsup’s order would “change that status quo” by requiring those agencies to “immediately offer reinstatement” to any and all probationary employees terminated on or around Feb. 13 and 14.
“It seeks to facilitate that change by requiring the agencies to ‘submit a list of all probationary employees terminated … with an explanation as to each of what has been done to comply with’ the injunction,” Bade stated. “A limited administrative stay would briefly pause that change while we decide the merits of the motion for stay pending appeal.”
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Bade said she believed granting a stay would have given the Ninth Circuit time to resolve the motion for a stay pending appeal “with the time necessary for careful deliberation,” and before the government is required to take action that could be “rendered unnecessary.” She insisted that doing so would have given the court time to rule on the motion for a stay pending appeal “without potentially subjecting the government and the terminated employees to whiplash caused by diverging downstream decisions.”
Ezell and OPM have maintained that they simply told agencies to review their probationary workers and make determinations about whether to continue their employment based on need and did not order the firings themselves. Alsup has continued to ask the DOJ to put Ezell or other officials forward for testimony to help prove that claim, but the Trump administration has refused.
“The meaning of the order is plain,” Alsup concluded Saturday. “OPM cannot direct another agency to fire an employee simply by dressing up the directive as guidance. The undersigned has not and cannot circumscribe OPM’s lawful performance of statutorily authorized functions, including issuing guidance that goes no further.”
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