DOJ urges Ninth Circuit to reverse order fixing fired probationary workers' records

The Department of Justice appeared before a three-judge Ninth Circuit panel, asserting that a San Francisco district court exceeded its authority by ordering federal agencies to revise the employment records of thousands of probationary workers who had been dismissed. Government counsel cited the Civil Service Reform Act, which directs such disputes to the Federal Labor Relations Authority or the Merit Systems Protection Board, and noted that probationary employees do not enjoy the same appeal rights as other federal staff.

The case originated when unions, nonprofit groups and the state of Washington sued the Office of Personnel Management over an alleged directive to fire all probationary employees for purported poor performance. A temporary restraining order was issued, and the Supreme Court later granted an emergency stay on reinstatement. Judge William Alsup subsequently issued a narrowed injunction, prohibiting further agency orders to fire staff and requiring notices stating terminations were not performance-based, though he stopped short of reinstating workers.

DOJ contended that the correction order forces agencies to provide non-performance-based explanations to prospective employers, causing ongoing injury. The panel heard arguments from both sides, with judges probing the extent of judicial review for OPM actions.