Former Government Officials Ask SCOTUS to Not Stay Rehiring Injunction

Seventeen former career, appointed, and elected federal and state officials — some of whom served in previous Republican administrations — told the Supreme Court it should reject the government’s request to stay a San Francisco-based judge’s preliminary injunction requiring agencies to reinstate terminated federal workers.

The officials in their April 3 amicus brief told the Court that the Trump administration’s Office of Personnel Management (OPM) will “likely fail” in its argument that the Civil Service Reform Act (CSRA) “divests” the U.S. District Court for the Northern District of California from its jurisdiction to hear the Administrative Procedure Act (APA) complaint filed February 23 by a coalition of labor unions and various nonprofit organizations.

According to the organizations, OPM unlawfully directed the firings of tens of thousands of federal workers at various agencies serving in a probationary capacity, typically the first year or two in their role. District Court Judge William H. Alsup, agreeing with the petitioner organizations, issued a preliminary injunction mid-March ordering agencies to bring back the terminated employees.

OPM appealed the order to the 9th U.S. Circuit Court of Appeals, which denied its emergency motion for an administrative stay of Alsup’s preliminary injunction. According to the Department of Justice, about 16,000 employees have been reinstated thus far but have been placed on administrative leave, a move that Alsup said fell short of complying with his order.

The government also sought relief from the Supreme Court in a March 24 request for a stay. Days later, the 9th Circuit in a 2-1 split denied OPM’s full, non-administrative stay motion.

Those named on the brief include Ty Cobb, who served as special counsel to the president during Trump’s first term; Robert Shanks, a former deputy assistant attorney general for the Office of Legal Counsel during the Reagan administration; and Christopher Shays, a Republican who represented Connecticut’s fourth district from 1987-2009.

According to the former officials, OPM is arguing that the CSRA “precludes by implication all federal litigation brought by so-called ‘end-users of government services’ challenging agency action that affects federal personnel.” (emphasis in original) Their amicus brief said this “is a substantial argument to base on such unsubstantial evidence of congressional intent.”

The Court, they wrote, should deny OPM’s motion because the plain text of the APA allows for third-party plaintiffs to establish standing, while the OPM “relies on a claimed implicit intent in a different statute to limit those express terms. In this matchup, the express statutory terms should control.”

Moreso, the argument that the CSRA “silently repealed the APA’s judicial review provision for third-party plaintiffs… leaving them with no avenue for redress — is incompatible” with not only the text of the APA but also its principles, the brief added.

Also on April 3, the organizations filed their response to OPM’s motion, reiterating as it had to the lower courts that the mass firings “were carried out without any advance notice to employees or their representatives.” The filing added that “[s]ome agencies terminated employees within hours of OPM’s directives, and others within days.” OPM also has failed to establish how the government would be harmed by complying with the injunction, it continued.

OPM replied the next day, claiming that “[f]orcing a return” to prior work duties as the order requires “is a massive practical undertaking.” The government asserted that it cannot simply reinstate workers and give them the same assignments they had in February, and that enjoining agencies from reassigning them to different functions “aggravates the invasion” of the Trump’s agenda.