The Trump administration has asked the Supreme Court to intervene and allow the firing of 16,000 probationary employees at six federal agencies, claiming a California judge's reinstatement of federal workers violates the separation of powers.
On Monday, the Department of Justice asked for an immediate
Acting Solicitor General Sarah M. Harris wrote in an emergency order that a district court judge had allowed nonprofit groups to "hijack" the government's firing of its employees. In February, the American Federation of Government Employees sued OPM and was joined in the suit by more than a dozen unions and nonprofits.
In the two months since Inauguration Day, district courts have issued more than 40 injunctions or temporary restraining orders against the Trump administration, which Harris said has "sown chaos" in the executive branch.
"The court's preliminary injunction thus let third parties hijack the employment relationship between the federal government and its workforce," Harris wrote. "And, like many other recent orders, the court's extraordinary reinstatement order violates the separation of powers, arrogating to a single district court the Executive Branch's powers of personnel management on the flimsiest of grounds and the hastiest of timelines. That is no way to run a government. This Court should stop the ongoing assault on the constitutional structure before further damage is wrought."
On March 13, U.S. District Judge William Alsup issued a preliminary injunction ordering the reinstatement of probationary employees at the departments of Agriculture, Defense, Energy, Interior, Treasury and Veterans Affairs. Alsup said the terminations were unlawful and a "sham." He said employees who were fired for cause had received outstanding performance reviews and the administration had not followed proper procedures for mass reductions in force.
The Trump administration has asked the Supreme Court to take the case, which is pending an appeal at the U.S. Court of Appeals for the Ninth Circuit. The government had sought an administrative stay and requested a decision by the court of appeals by noon on Friday. The court of appeals denied an administrative stay, over the partial dissent of Judge Bridget Shelton Bade.
The Justice Department said Alsup, of the U.S. District Court for the Northern District of California, had "issued this sweeping relief on the theory that the agency decisionmakers wrongly believed that OPM had directed the terminations — even though OPM clarified otherwise in response to the court's TRO, and even though the six enjoined agencies subsequently chose to stand by the terminations."
Harris wrote that Alsup's injunction had caused "irreparable harm" to the executive branch by forcing the government to reinstate thousands of terminated employees in just a few days.
"Exacerbating the burden, the district court has insisted that employees must be returned to full duty status and staffed so as to restore the services that respondents seek to use," she wrote. "And the government is required to reinstate employees to active-duty status and provide them with assignments, all subject to the ongoing supervision of the district court. The injunction appears to prevent the agencies from terminating those employees based on the agencies' independent judgment or even on newly arising grounds, at least absent clarification or permission from the district court. The ensuing financial costs and logistical burdens of ongoing compliance efforts are immense."
The Trump administration has sought to portray lawsuits challenging its firings of federal employees as disputes that should be resolved through an administrative process.
"Allowing strangers to the federal-employment relationship to head straight to district court and raise claims that the affected federal employees themselves cannot raise would upend that entire process," Harris wrote.
The Justice Department claims that challenges to terminations are set out in the Civil Service Reform Act of 1978, which allows civilian employees to appeal firings, suspensions and furloughs to the Merit Systems Protection Board. However, federal employees generally do not have a right to appeal to the MSPB if they are still in their probationary period. In addition, in February, Trump
"The lower courts should not be allowed to transform themselves into all-purpose overseers of Executive Branch hiring, firing, contracting, and policymaking," Harris wrote. "Only this Court can end the interbranch power grab."
The American Federation of Government Employees was joined in its lawsuit by the American Federation of State County and Municipal Employees; the American Geophysical Union; the State of Washington; and the United Nurses Association of California-Union of Health Care Professionals, among other nonprofits.
