SAN FRANCISCO (CN) — Unions representing thousands of federal probationary workers fired by the Trump administration argued at a hearing Wednesday morning that their clients still have standing even though the Supreme Court stayed a federal judge’s order to reinstate the workers on Tuesday.
Danielle Leonard, counsel for the union plaintiffs, told Senior U.S. District Judge William Alsup, a Clinton appointee, that the Supreme Court’s decision was not a merits decision and the union plaintiffs still have standing because they are suffering from direct, irreparable harm.
“There may be precedent under the law that says losing a job is not irreparable harm. That is something only people with money say. Losing a job with health benefits is absolutely irreparable harm,” Leonard said, noting that her union clients represent 800,000 federal employees, 50,000 of whom are in California. Leonard said the 50,000 employees in California is the largest number outside of Washington, D.C.
Leonard added that the federal employees that remain are affected by the termination of their fellow colleagues because now they need to do more with less.
“There’s organizational standing on behalf of everyone,” she said.
Alsup asked Leonard if she knew exactly how many employees were fired; Leonard replied that the federal government had still not given her that information, violating their obligations under the court.
Alsup noted that the Supreme Court is “the boss” and said that in one of his original orders in February, he made it clear that government agencies do not have to listen to guidance from the Office of Personnel Management (OPM) on employment decisions. He said that thousands have already been hired and that agencies are now aware of his ruling and know they can independently make their own decisions.
“How long would they be entitled to be employed and the agency could not fire them? I don’t like being in the position where I’m telling an agency how to make their personnel decisions,” Alsup said.
Leonard replied that the government has not submitted evidence that the agencies are acting independently.
“How can the court believe without evidence that they aren’t still doing it?” Leonard asked, referring to unlawful firings.
The state of Washington joined the unions, arguing that the loss of probationary employees would put the state’s wildfire protection measures in serious jeopardy and cost the state untold amounts of money because the fired employees now must file for unemployment, overwhelming the system.
“Our harm is direct. It doesn’t depend on third parties doing anything. It just depends on probationary employees disappearing,” said Cynthia Alexander, a lawyer with Washington’s attorney general office.
Assistant U.S. Attorney Kelsey Helland said that the plaintiffs lack standing in the case and that agencies are now acting independently and know they don’t have to follow OPM guidance. Any firings, Helland said, are coming from the agencies themselves and not OPM.
For the union plaintiffs specifically, Helland said that it’s not even on the record of which employees were affected.
“Nor have they shown that all of their members were sufficiently affected in such a way as to give way to Article III standing,” he said. “You have to do enough to identify someone who was concretely harmed.”
Alsup requested that Leonard send him names of some of the probationary employees who were affected by the firings. Alsup told Leonard that it is legal for the president to do large-scale reductions in force of federal employees if done under the scope of the law.
“There’s no evidence before this court that they are going to do it right, and there is no evidence that a large-scale reduction in force that guts an agency is lawful and is consistent with what Congress has authorized,” Leonard replied.
At the end of the hearing, Alsup said he needed names of people that were affected by the firings and took the matter under submission.
In an order on subject matter jurisdiction issued March 24, Alsup found the Merit Systems Protection Board and the Federal Labor Relations Authority have no particular expertise on whether the Office of Personnel Management (OPM) violated the law when it directed federal agencies to fire 25,000 probationary workers.
Alsup had ordered the government to reinstate 17,000 workers from six federal agencies who were unlawfully fired. His original order applied only to non-union plaintiffs. Alsup’s decision that the union plaintiffs have standing breaks from the decision of other federal judges, who have ruled that union plaintiffs cannot sue the Trump administration.
He also found it is likely futile for workers and unions to appeal firings to the Merit Systems Protection Board and Federal Labor Relations Authority because of recent political chaos at the agencies.
In the first hearing in the matter in February, Alsup granted the plaintiffs a temporary restraining order and said the mass firings were likely illegal and that OPM has no authority to order agencies to hire or fire employees. He found OPM can only give guidance and that the government’s argument that it was merely giving guidance could easily be seen as an order by the agencies.
The plaintiffs — unions joined by five nonprofit organizations that represent veterans, small businesses, parks and the environment — said in that hearing that Charles Ezell, acting director of OPM, in a phone call on Feb. 14 ordered government agencies to use a template letter to terminate probationary employees that were not identified as “mission critical” by no later than the end of the day Feb. 17.
The plaintiffs said that the OPM letter said the firings were for performance reasons but that that was untrue because many of the fired employees had glowing performance reviews or were recently promoted.
Alsup said he believed the government was obfuscating the truth when he granted the temporary restraining order and said that he was upset that Ezell refused to testify about exactly what happened in the Feb. 14 phone call.