DOJ Asks US Supreme Court to Allow Federal Worker Firings (2)

The Trump administration has asked the US Supreme Court to allow the firing of thousands of workers at six federal agencies after a judge ordered that they be reinstated.

In an emergency application filed on Monday, the US Justice Department argued that a California federal judge had allowed the nonprofit organizations that sued to “hijack“ the relationship between the government and its employees and violated separation of powers.

“That is no way to run a government,” Acting Solicitor General Sarah Harris wrote. “This court should stop the ongoing assault on the constitutional structure before further damage is wrought.”

The case involves 16,000 fired workers who had probationary status, meaning they’d been hired in their current roles in the past one or two years. They worked at the departments of Agriculture, Defense, Energy, Interior, Treasury and Veterans Affairs.

Read More: Judge Rebukes ‘Sham’ Federal Layoffs, Orders Some People Rehired

As the justices consider the administration’s effort to keep the workers from being reinstated, the Justice Department asked for a temporary order that would allow the agencies to keep the reinstated employees on paid administrative leave instead of having to take more steps to restore them to full active duty.

The Justice Department also broadly criticized the “interbranch power grab” by district court judges across the country who have entered a slew of orders in the administration’s first two months blocking President Donald Trump’s executive actions.

Echoing the complaints of Trump administration officials, Harris wrote that the judicial orders “have sown chaos” as the executive branch complies with court-ordered deadlines “by sending huge sums of government money out the door, reinstating thousands of lawfully terminated workers, undoing steps to restructure Executive Branch agencies, and more.”

‘Over-Seers’

“The lower courts should not be allowed to transform themselves into all-purpose over-seers of Executive Branch hiring, firing, contracting, and policy making,” she wrote.

Norm Eisen of State Democracy Defenders Fund, which is representing plaintiffs in the case, said in a statement that “the administration’s efforts to block relief have so far failed and now they are turning to the Supreme Court — baselessly. Our coalition remains committed to ensuring that justice prevails for every affected probationary worker and we are confident that the courts will uphold the rule of law.”

In the probationary workers case, US District Judge William Alsup in San Francisco had required the administration to rehire probationary workers who were fired from the six agencies in mid-February.

In a separate case in Maryland, a federal judge’s March 13 order reinstating fired probationary employees for at least 14 days at 18 agencies, including five at issue in the California case, remains in effect. A federal appeals court last week rejected the Justice Department’s request to pause that order, since the lower court judge is set to hear arguments this week on whether to impose a longer-term injunction.

Alsup found that the Office of Personnel Management, which serves as the human resources arm of the federal government, had likely violated US law when it directed the agencies to remove those employees.

The judge rejected the administration’s claim that OPM hadn’t exercised authority over other agencies. During a hearing, Alsup had called a termination letter template that OPM provided — which included language indicating employees were being fired based on their performance — a “sham.”

The Justice Department had asked the 9th US Circuit Court of Appeals to stop Alsup’s ruling from taking effect, standing by its contention that agencies made firing decisions “of their own volition” and not at OPM’s direction. The government also said the judge was wrong to find that nonprofit organizations had standing to bring federal employment claims.

On March 17, the 9th Circuit in a 2-1 order had denied the government’s request to immediately halt the effect of Alsup’s decision. The majority wrote that Alsup’s order would be a “return to the status quo” — putting the federal workers back in their jobs — while granting the government’s request “would disrupt the status quo and turn it on its head.”

The 9th Circuit hadn’t ruled on the government’s request for a longer-term pause to Alsup’s order when it asked the US Supreme Court to intervene.

The case is Office of Personnel Management v. American Federation of Government Employees, AFL-CIO, 24A904, US Supreme Court.

(Updates with comment from Norm Eisen.)

To contact the reporter on this story:
Zoe Tillman in Washington at ztillman2@bloomberg.net

To contact the editors responsible for this story:
Sara Forden at sforden@bloomberg.net

Elizabeth Wasserman, Misyrlena Egkolfopoulou

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