Pentagon can re-fire some probationary workers, Supreme Court says
High court says non-profits who sued to block firings lacked standing—but a second lawsuit is still pending.
The court ruled that the coalition that brought the case had failed to establish standing. It ordered a stay of a California District judge's order to reverse the mass firing of employees in their probationary periods—typically, those hired in the last one or two years.
For now, most of the 16,000 employees affected by the court’s decision are protected under a separate injunction issued by a Maryland-based federal judge, whose ruling is separate from the one that made its way to the high court. The injunction placed by Judge James Bredar of the U.S. District Court for Maryland covers 20 agencies, including the ones covered in Alsup’s ruling.
But Bredar’s ruling applies only to employees working or living in the 19 states—and Washington, D.C.—that brought the suit. Employees at the six departments affected by the Supreme Court’s stay not living or working in those states or D.C. can now be re-fired.
[As of March 19, the Defense Department had fired 364 employees and rehired 64 of them, DOD officials said in court filings.]
Background
On March 13, U.S. District Judge William Alsup in California reversed the firings of federal employees in their probationary periods—typically, those hired in the last one or two years—at the departments of Agriculture, Defense, Energy, Interior, Treasury, and Veterans Affairs. In his ruling, Alsup held that the Trump administration, like any other, can engage in mass reductions of the federal workforce, but it can only do so by following federal statutes and the Constitution. Alsup found that the firings had been directed by the Office of Personnel Management, circumventing proper procedures.
The Trump administration then sought an emergency stay of Alsup's order from the U.S. Court of Appeals for the Ninth Circuit. A three-judge panel voted 2-1 to deny the request, saying the administration failed to demonstrate it was “likely to succeed on the merits” of the case. So the administration asked the Supreme Court to grant the stay, which it did.
The administration has argued federal employees must take their disputes over personnel actions to the proper channels as provided in civil service law, such as the Merit Systems Protection Board, whose Democratic chair was recently removed by President Trump. It also asserted that the non-profit coalition's assertions of harms—for example, that services such as bathroom maintenance at National Parks and responsiveness to Freedom of Information Act requests would diminish—failed to establish standing to sue. The American Federation of Government Employees was also party to the suit, but Alsup based his ruling on the non-profits' claims.
In a truncated decision, the high court latched onto the standing issue. The case went before Justice Elena Kagan, who referred the matter to the full court. Justices Sonia Sotomayor and Ketanji Brown Jackson dissented from the full court's decision to stay Alsup's decision.
The Ninth Circuit has yet to hear the full appeal of Alsup's ruling; that is scheduled for next month. The high court’s stay will remain in effect until then. If the Trump administration loses in the Ninth Circuit and appeals to the Supreme Court, the stay will end if the high court declines to hear the case or when it issues a decision.
On Tuesday, the coalition said "the battle is far from over" and there was "no doubt" the administration had acted unlawfully.
"Today’s order by the U.S. Supreme Court is deeply disappointing but is only a momentary pause in our efforts to enforce the trial court’s orders and hold the federal government accountable," the coalition said.
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