9th Cir. Skeptical of Union View on Federal Worker Firings (2)

A federal appeals court is casting doubt on a union-backed litigation effort to reverse Trump administration firings of federal employees during their probationary work period.

In a hearing before a three-member panel of the US Court of Appeals for the Ninth Circuit on Tuesday, judges waded through thorny process questions and indicated they’d give weight to the government’s argument that the union’s case is fundamentally flawed—and maybe shouldn’t come before the court at all.

The Ninth Circuit is considering the Trump administration’s appeal of a lower court order to rehire scores of probationary employees while the litigation advances.

The court’s posture could signal another federal workforce legal victory for President Donald Trump, who won permission from the US Supreme Court in July to continue sweeping layoffs across the government while a separate lawsuit on non-probationary employees moves forward. It could advance the president’s push to empower supervisors to fire new hires before their probationary period ends—part of a larger effort to purge federal workers who are seen as an impediment to Trump’s agenda.

Trump’s attorneys argued Tuesday that the lower court wrongly determined that federal unions have standing to challenge the firings through litigation. They’ve insisted that the government has wide authority over probationary workers.

The administration also argued the lower court didn’t have jurisdiction because personnel decisions should go through the US Merit Systems Protection Board and the Federal Labor Relations Authority, which were created to deal with government employment disputes. Those panels would be more favorable to Trump; the three-member FLRA is at a partisan deadlock with two members, while the MSPB consists of a sole Republican.

Because the agencies lack the authority to make far-reaching constitutional judgments, the dispute could wind up in court anyway.

“There’s a problem here,” Judge Lawrence VanDyke said. “That does seem to be circumventing an agency process, but it’s doing it grabbing ahold of an agency, but that agency never fired anybody.”

“The whole thing is, like, very confusing to me as to why they couldn’t just go after the agencies,” he added.

The Ninth Circuit has sided with Trump in other federal workforce cases. Last month, it halted an order from Judge Susan Illston of the US District Court for the Northern District of California that demanded the Trump administration turn over sealed copies of its layoff plans. It also allowed the administration to scrap collective bargaining agreements with federal worker unions, pausing a lower court order for them to remain in place.

The lawsuit at the Ninth Circuit on Tuesday challenges key pieces of Trump’s April executive order that made it easier to fire probationary workers. It orders federal agencies to certify that a probationary worker “advances the public interest” before hiring them full-time.

The American Federation of Government Employees, the main plaintiff, argues that the White House Office of Personnel Management overstepped by directing agencies to fire probationary employees. But the judges questioned whether OPM should be the defendant at all, as opposed to individual agencies, even as both sides debated the scope of OPM’s role. That suggests AFGE could find itself up against a daunting procedural hurdle.

The case is AFGE v. Office of Personnel Management, 9th Cir., 25-1677