Judge extends pause on shutdown layoffs

SAN FRANCISCO (CN) — A federal judge Tuesday extended an order blocking the Trump administration from mass terminations of federal workers during the government shutdown.

U.S. District Judge Susan Illston issued a bench ruling granting a preliminary injunction requested by unions representing federal workers, finding that they were likely to succeed on their claims that the reduction-in-force, or RIF, notices issued by the Office of Personnel Management and Office of Management and Budget during the government shutdown are unlawful.

The Bill Clinton appointee added that she is likely to find the government acted arbitrarily and capriciously in the “hazardous” way they rolled out the RIFs and that the mass layoffs were intended for political retribution. She further ruled it was likely unlawful for the government to tell agencies they no longer have to comply with statutory mandates during the shutdown.

“I think that is completely wrong,” she said.

The order blocks both offices from issuing termination notices to federal employees during and because of the government shutdown — in any program, project, or activity that includes any bargaining unit or member represented by any plaintiff. The government is also prohibited from implementing any RIF notices issued during or because of the shutdown.

She added that if there was a dispute over whether a RIF notice was related or unrelated to the shutdown, she would schedule an evidentiary hearing.

The order is effective immediately.

In a statement, Everett Kelley, national president of the American Federation of Government Employees, a plaintiff in the case, thanked the court for continuing its order blocking the government from firing workers during the shutdown.

“President Trump is using the government shutdown as a pretense to illegally fire thousands of federal workers — specifically those employees carrying out programs and policies that the administration finds objectionable,” he said.

A representative for the Department of Justice did not immediately respond to a request for comment.

The unions filed a lawsuit against the Trump administration the day before the shutdown started, claiming it had made “unlawful threats” to terminate federal employees if a shutdown occurred.

On Oct. 15, Illston issued a bench ruling temporarily prohibiting the government from taking any action to issue RIF notices to federal employees during or because of the government shutdown.

“The evidence suggests the OMB and OPM have taken advantage of lapse of government funding to assume that all bets are off, that the law does not apply to them anymore, and that they can impose the structures that they like on the government situation that they don’t like. I believe the plaintiffs will demonstrate what is going on here is illegal and in excess of authority and is arbitrary and capricious,” she said.

An estimated 4,100 federal employees have received RIF notices since the shutdown began on Oct. 1, according to Stephen Billy, a senior advisor at the Office of Management and Budget, in an Oct. 14 filing.

Illston said she was very affected by declarations the plaintiffs have provided documenting the impacts of the current and impending RIFs, saying that “it’s important to remember human faces to what we are discussing, the tremendous impacts to people.”

She also questioned the government on its position that the notices were not politically targeted, quoting a social media post by President Donald Trump.

“Do you think it is OK when he says, ‘I can’t believe the radical left Democrats gave me this opportunity to cut these many Democratic agencies?’” she asked.

Michael Velchik, an attorney for the Department of Justice, responded: “Yes.”

Velchik argued the president had the power to “target specific policy priorities” and that he ran on a platform of reducing the size of federal bureaucracy.

“I think there are all the more reasons to engage in RIFs during a lapse. If you don’t have money coming in, you should look at ways to cut costs,” he said.

Velchik defended the government’s position that the notices were lawful, arguing government programs are not statutorily authorized during a government shutdown and that the president has the authority to fire people working in the federal government.

He also addressed the plaintiff’s arbitrary and capricious claim, saying the reduction-in-force notifications were “the moral thing to do” and “good policy.”

“This is why he was elected,” Velchik said.

The plaintiffs criticized the government for not giving a direct response to their claim that forcing federal employees to work on the notices during the government shutdown is unlawful and pushed back on the idea that they were “morally” the right thing to do.

“I don’t think counsel wants to tread on that ground. It’s not just an ineffective statement; it’s offensive,” Danielle Leonard of Altshuler Berzon, an attorney for the plaintiffs, said.

Leonard also countered the government’s claim that the shutdown gives the president authority to fire federal employees, arguing that firing an individual worker is different than issuing an RIF, which structurally eliminates the position.

She added that a government shutdown caused by a lapse of congressional appropriations is not the same as the removal of statutory authority.

“Lapse in passing in 12 discretionary funding bills justifies furloughs, it does not justify eliminating. They are arguing that if Congress lapses for one day, the president can fire the entire government. That is absurd,” she said.

Illston also ordered the government to file a brief next week with information on any reduction-in-force issued on or after Oct. 1, or that were in preparation at the time of the court’s temporary restraining order, modified restraining order or preliminary injunction.

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