Talking Points for Decision Ordering Rehiring of Federal Employees

• A leftist Clinton judge in San Francisco, William Alsup, has decided to take charge of federal hiring and firing, ordering the immediate rehiring of tens of thousands of probationary employees in the Departments of Defense, Interior, Treasury, Energy, Veterans Affairs and Agriculture.

• These probationary employees are entitled to less protection under the law than other employees. Probationary employees are either new employees or employees who recently have been promoted.

• This judge is accusing the government of a “sham” by asserting that the Office of Personnel Management (OPM) ordered agencies to fire employees.

• OPM merely gave guidance for agencies to terminate employees; this was done because of the Trump administration’s goal of a reduction in force. Each agency made a determination on which employees if any to let go; OPM never ordered agencies to do so.

• The judge had ordered OPM’s head, Charles Ezell, to appear for questioning. Ezell withdrew a declaration so as not to be forced to undergo this judge’s interrogation. Judges are now going so far as to order in agency heads to probe their decisions.

• This court was not the proper forum for the dispute. Challengers should have gone to the Merit Systems Protections Board.

• Judge Alsup expressed concern that President Trump was firing people from these boards. The judge questioned how employees could obtain any relief. As of now, thanks to orders of leftist judges in D.C., all of those fired board members have been reinstated. The only way they would be terminated is if a higher court permits it.

• More importantly, President Trump should be able to fire members of these boards. That does not change the jurisdictional issue. Employees should have sought relief with the Merit Systems Protection Board instead of a court in San Francisco.

• There is another issue here with respect to standing. The fired employees, while in the wrong forum, still can articulate a harm: they were fired and thus have suffered an economic loss. But advocacy groups (so-called non-profits) also joined the suit, claiming that the firings would impact their work in places like national parks. If this theory is accepted, any outside group can challenge governmental firing decisions. The only ones who should be allowed to challenge those decisions are the fired employees—and only in the appropriate forums.

• This ruling must be appealed immediately, though relief in the Ninth Circuit is not too likely given its composition.

• Assuming that the Ninth Circuit does not intervene, the Supreme Court finally must get off its hands and do so. District courts are usurping their power and assuming control of the Executive Branch’s power. Just as President Trump cannot dictate firings within the Judicial Branch, the reverse is true. Congress has set up forums to adjudicate these disputes, and parties who claim to be aggrieved should avail themselves of those forums.

• There is one hopeful sign: the Supreme Court has put a stop to this judge’s nonsense before. See In Re United States, 583 U.S. 29 (2017) (per curiam) (vacating an absurd order demanding that the government produce records pertaining to the decision to rescind DACA). This order was so extreme that even leftist Ninth Circuit Judge Paul Watford would have overturned it. See In re United States, 875 F.3d 1200, 1210-13 (dissenting opinion).