The Pyrrhic probationary victory
Plus, the Supreme Court’s *own* authoritarian agenda?
Dear Civil Servant,
After months of intense litigation, probationary employees in AFGE v. OPM have won a decisive victory in district court.
Or have they?
It’s true, they “won” — a federal judge ruled that the Office of Personnel Management (OPM) acted illegally, both by exceeding its power and instructing agencies to lie about why they were firing probationary employees. But the court did not give the employees their jobs back.
The judge cited the Supreme Court’s decision earlier this year to allow the government to proceed with firing probationary employees while the case was litigated. He decided it was very likely that the high court would again interfere if he were to reinstate them. And, because so much time had passed, many employees and agencies had already moved on — it is hard to put something so broken back together.
In short, the probationary employees won on the law, but the Supreme Court’s rulings made it so that the Trump administration won in practice.
You could call this a “Pyrrhic victory” — a win of questionable value because of its extraordinarily high cost in comparison to what it actually achieved. The phrase is named after an ancient general who won battles against the Romans but lost so many troops in the fights that he could no longer field an army, famously remarking: “One more such victory and we are undone.”
Lawsuits like this are resource-intensive, and this case was vigorously litigated for months by talented attorneys, with tremendous support from the civil servants themselves. By contrast, the district court seemed to question whether the government was even litigating in good faith, calling the record of decision making the Trump administration compiled “a sham.”
But the Supreme Court’s earlier decision to permit the firings ensured that the government “won” anyway, in a sense. Though the probationary employees can claim victory in the actual lawsuit, the government gets what it wants: no more probationary employees.
In this newsletter, we explain how civil servants — former or current, probationary or not — should understand the ruling. And we unpack how the effects of the Supreme Court’s interference in this case suggest the Supreme Court has taken a stark authoritarian turn by grabbing power from the lower courts.
Ten questions on what the probationary ruling means for civil servants
Were the probationary employees illegally fired?
Yes.
Will probationary employees get their jobs back?
No.
What did the probationary employees get from the win?
The court ordered that OPM can’t direct any more similar firings and that agencies can’t follow such OPM directions if they receive them. For the employees themselves, the court ordered that the government:
Update the employee’s personnel files, including their SF-50, to reflect that their termination “was not performance or conduct based.”
Send a letter to each affected probationary employee stating, “You were not terminated on the basis of your personal performance.”
Refrain from telling anyone that probationary employees were fired because of their performance.
Do the courts not have the power to give employees their jobs back?
Reinstatement — giving someone their job back — is something the courts generally can do in employment-related cases. The judge here acknowledged that, writing that in “the ordinary course” the court would return “probationers to their posts.”
So…if the court can reinstate employees, why didn’t it?
The judge offered two reasons for why he was not ordering reinstatement:
That too much time had passed since the Supreme Court lifted the initial ruling that would have kept probationers in their jobs while the lawsuit played out, meaning that agencies have changed and many probationers have moved on; and
That “the Supreme Court has made clear enough by way of its emergency docket that it will overrule judicially granted relief respecting hirings and firings within the executive” — in other words, the judge assumed that even if he did reinstate probationary employees, the Supreme Court would quickly undo that reinstatement.
For context, the Supreme Court’s decision to jump into an ongoing lawsuit (at the Trump administration’s invitation) so early and disagree with the district court is, historically, fairly extraordinary.
For most of American history, district courts have been entrusted with the job of taking in a huge amount of information, determining which facts are true, and deciding who is legally in the right. This can take a year or more, as can the appeal that comes after that. In the normal course, it is only then that the Supreme Court would consider a case and make a ruling — and they would do so with the benefit of the other judges’ factual and legal analyses.
Making an abnormally early ruling in a case, before facts or legal determinations have been made at all, used to be nearly unheard of. But the Supreme Court has begun to use its “emergency docket” — once used mostly for procedural or life-or-death issues — to insert itself early into litigation. The judge in the probationary employee case was calling out this new SCOTUS modus operandi as the reason he did not reinstate probationary employees.
You’re telling me that both of the reasons that probationary employees didn’t get their jobs back are related to the Supreme Court?
Yes, we sure are.
Some lawsuits seek money; with some exceptions, money can be doled out at any time to remedy the problem. But other lawsuits — like most suits challenging illegal civil service actions — ask courts to stop something from happening, which is called seeking an injunction. As this case shows, injunctions really only work if they happen at the right time (i.e., if they actually prevent the allegedly illegal thing from happening), and that is why courts nominally have the power to grant early (“preliminary”) injunctions to freeze the status quo while an entire lawsuit plays out.
But here, and in many, many other cases where the district court found that a preliminary injunction was necessary, the Supreme Court has interfered early to knock down that injunction and let the government continue to engage in the potentially unlawful activity while the case is litigated. As the probationary “win” painfully demonstrates, without the power to effectively freeze the status quo at the beginning of a case and feel confident that the freeze will last until the case is resolved, courts can’t actually fix the problems caused by illegal government acts. The Supreme Court has taken that power from lower courts. (More on the Supreme Court’s authoritarian power grab below.)
What does this ruling mean for other civil servants challenging unlawful employment actions?
We had been living in a country where — despite their imperfections — federal courts did a decent job of halting federal policies that were plainly illegal. That has changed. The Supreme Court’s interest in holding the executive branch to a standard of legality — where the bounds of legality are defined by the existence of statutes, precedents, and a shared commitment to complying with those — is breaking down.
We see this in the Supreme Court’s apparent eagerness to allow the Trump administration to pursue policies that district court judges — after immersing themselves in the record and the legal arguments and rendering carefully reasoned decisions — have deemed unlawful. We also see it in the way that the Supreme Court has allowed the channels of accountability and remediation — like the Merit Systems Protection Board (MSPB), where federal employees have long turned when faced with an improper employment action — to break down.
While these channels might eventually be fixed, you should not rely on them to right wrongs.
That’s gloomy. What should civil servants do, practically speaking?
The adage “hope for the best, prepare for the worst” resonates here. Yes, you know your firing was illegal, unfair, and a slap in the face after your years of service. You can acknowledge that truth and still prepare for the worst. If you have been fired, or if you believe your role or office might be on the chopping block, look for a new job, and/or prepare to be unemployed.
We have other advice here about how to prepare for an involuntary departure, and Civil Service Strong has a series of relevant explainers.
As a current civil servant, how do I know if my job is at risk?
The current threats have common themes: politicization and loyalty.
After the initial purges of employees and offices, administration signaled that civil servants may only retain their jobs if they are seen as “loyal” to the president by firing certain individuals for being perceived as “opposing” the president (e.g., EPA employees who publicly spoke out about issues at their agencies, the pardon attorney who refused to recommend Mel Gibson get his gun rights back, people who were assigned to work on J6 investigations). Now, with the introduction of Schedule G and ideological screening questions in the regular hiring process, you can expect a wave of Trump loyalists to enter the civil service — some in quite senior positions. These new hires are likely to vigorously advance the administration’s priorities and worldview, and are not likely to tolerate dissent. The administration has also previewed upcoming efforts to change the civil service regulations in ways that would make it easier to fire employees who they perceive as not politically-aligned.
Your position may be at risk if:
Your office or agency works on issues that have been politicized, which unfortunately today includes things like vaccines and the weather.
You worked in the past on issues that this administration disapproves of, or that its allies see as “lefty” causes.
You are perceived as being associated with individuals who have been targeted or criticized by the Trump administration or its allies.
You may be ordered to take an action that violates your own personal or professional ethics (or the law), meaning that you might be forced to resign or be fired.
To be clear, firing you or getting rid of your position for these reasons may well be illegal. For example, the First Amendment should protect you from being terminated for who you are related to, or for politically disfavored work that you previously did excellently. But these days, that’s just not enough to protect against getting fired, and it is unclear whether challenges to such firings will succeed.
As a former civil servant, does that mean I shouldn’t challenge my illegal separation?
No. As much as we’re advocating realism about the current state of affairs, we still have hope for a more regular future. That means doing the next right thing and trusting that the small efforts will add up to big change. For illegally fired civil servants, that may mean challenging your removal. While some federal employees have brought federal court lawsuits, the most straightforward way for most civil servants to challenge a wrongful removal is before the Merit Systems Protection Board (MSPB). Civil Service Strong has an explainer on how to e-file an MSPB appeal by yourself. Why do this? Because you might get your job back, and you will definitely contribute to building up evidence about this administration’s illegal civil service purges.
The Supreme Court’s power grab
When we talk about rising authoritarianism, the conversation has focused on executive power: the single autocrat who is consolidating power in a single office. At Protect Democracy, we literally wrote the 2025 Authoritarian Playbook about “how an authoritarian president will dismantle our democracy and what we can do to protect it.” In looking at the other two branches of government — Congress and the courts — we have generally asked whether they are checking the authoritarian power grab or complicit in enabling it; we have not asked if they are the power grab.
We should now be seriously asking that question about the Supreme Court — but we should not treat the entire judiciary as a monolith. The probationary employees lawsuit lays bare that the Supreme Court has used its “shadow docket” to usurp power from lower courts and inhibit their ability to perform the role that our system of government has demanded of them.
This is, of course, what authoritarian executives do: They aggrandize their own power, sometimes by stealing power from other institutions; weaken checks on that power; and quash any criticism or dissent.
By preventing lower courts from being able to swiftly stop likely illegality and mitigate harm while a case is litigated, the Supreme Court has transformed itself — already quite powerful by any measure — into effectively the only court. Its power is unchecked, even by time, which ordinarily kept cases from the Court until lawyers and judges had spent months or years developing facts and legal arguments. And when the Supreme Court has perceived that its absolute power was being disregarded by lower courts, members of the Court have publicly criticized and shamed those judges — accusing them of “judicial hubris” or defying orders. This is against the backdrop of growing safety concerns for lower court judges; many have received death threats and other attacks after deciding cases against the Trump administration.
Many district court judges are speaking publicly about how the surge of shadow docket matters is hampering their ability to do their jobs and undermining trust in the rule of law. After a number of instances in which administration attorneys appeared to mislead lower courts, lower court judges are appropriately demanding that the administration prove its claims rather than giving them the benefit of the doubt, once known as the presumption of regularity. This is remarkable, in some respects, as judges are some of the most careful and circumspect members of the legal profession; one must be risk-averse to be confirmed as a judge, or so the wisdom goes.
Perhaps none of us had “district court judges as a bulwark against the Supreme Court’s rising authoritarianism” on our bingo cards. But maybe that was wrong. Many judges are people of principle who have worked within our system of government and seen that it can work, as imperfect as it sometimes can be. Many care deeply about fairness and the rule of law. They know intimately, deeply, painfully what will be lost if our system of American government falls.
In other words: They share many characteristics with civil servants.
We know many of you are gone, either because you were forced out, fired, or simply couldn’t take it anymore. But for those who remain, we’re inspired by the example of these district court judges who are speaking their truth to power. Onward.
Resources
Our Resign or Be Fired explainer, which offers information on practical implications of choosing to resign or being fired, such as effects on unemployment and employee benefits. (The first page is most helpful for lawyers; all other pages are for everyone.)
FedsForward’s Career Solutions helps government employees transfer their skills and experiences to private-sector work.
Explore the Federal Unionists Network, “a network of federal unionists and our allies organizing to support each other in strengthening our unions, improving our agencies, and building solidarity across the federal sector of the labor movement.”
Check out the Partnership for Public Service‘s upcoming career transition webinars on Sept. 24 and 30.
Public Service Alliance (PSA) recently launched a marketplace to support public servants seeking personal wellbeing, privacy, security, and legal resources. You can explore PSA’s free-to-low-cost services here.
Explore FiredbutFighting’s shared community calendar for resources and organizing events (virtual and in-person) near you.
WellFed provides three recurring weekly virtual programs [monday meditation, wednesday workshops and friday career co-working] designed to provide structure, support, and momentum for professionals navigating career transitions.
What we’re reading
NPR: These fired DOJ lawyers are finding new ways to make a difference.
ProPublica: The untold saga of what happened when DOGE stormed Social Security.
This publication should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Protect Democracy. This publication also contains hypertext links to information created and maintained by other entities. Protect Democracy does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.
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Great piece!! Unfortunately, I think we’re in for a lot of Pyrrhic “victories” over the next three years. 😔
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