NYT: Judge Pauses RIF Plans

[Anonymous]

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Anonymous wrote:It’s all academic. Who cares if OMB “can” direct agencies to RIF when the agencies are all either led by flunkies who will RIF anyway or, if they don’t, will be fired and replaced with someone who will RIF?

This whole case is about a very inside baseball esoteric legal question without much practical effect — does OMB/OPM have the authority to DIRECT agencies to RIF? Who cares?

FYI — the answer may be different depending on whether the agency is “independent” or not.

I thought this too. If Trump says at a cabinet meeting "wow it would be great for each agency to cut 15%" you better believe these loser bootlicker would hop to it with maybe possibly Rubio as an exception.

I think the impoundment argument is more interesting.

You may not agree with the policy; but those cabinet officials *work for Trump*, they are *supposed* to do what he says. If they can’t bring themselves to do it, they should resign in protest. But the idea that executive branch employees should “resist” Trump is profoundly anti-democratic.

Tory logic is very inconsistent. The president telling people to do something does not make it legal. It has to be a constitutional valid directive that is consistent with federal law (which is written by congress). Biden did not have the authority to implement blanket forgiveness of student loan debt. The president also does not have the authority to shut down agencies and implement comprehensive RIFs without approval from congress. These actions violate the major questions doctrine.

[Anonymous]

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Anonymous wrote:I like it of course. But S Ct and Circuit Courts have already bought into Trump’s view that these kinds of plaintiffs lack standing and individuals must complain through administrative channels first (like MSPB) before bringing a court case.

I believe these cases have plaintiffs that are not Fed employees and so the administrative exhaustion does not apply to them.

It's an open question whether it applies to them. The government argues it does. That was a major issue in the NDCA and DMD probationary termination appeals as well. Standing is a big one. We won't know for a while.

I don’t think it’s that much of an open question. Standing wouldn’t be hard to show for a lot of non-employees affected by RIFs and they don’t have any remedy through MSPB. The cause of action is different. Whether they are a class is a different question.

Well, it’s open enough that different courts are ruling different ways on the same issues.

I admittedly have not been tracking all the cases, but the point is that this case is different from the employee cases where the court ruled that the plaintiffs had not administratively exhausted. If you’re trying to say non-employees have to go through MSPB, that’s just wrong and no court has said that.

Different poster but I also remember some of the other cases where standing went different ways in terms of whether the union had standing. I don't know about these other groups of plaintiffs though.

Standing is not really the hard part of these cases.

I’m sorry but I’ve been tracking dozens of these cases for months and you’re wrong. The supreme court and 4th circuit both have indicated that standing is indeed a “hard” part of these cases, as in a hurdle to be overcome; and moreover that Fausto and other cases may foreclose any judicial review outside the CSRA’s channeling of claims to MSPB and to a lesser extent, FLRA.

As someone who’d like to see these plaintiffs win, it’s frustrating. But that’s how the courts are seeing it. They are going both ways and so far no appellate court has indicated its approval. Perhaps the 9th circuit later this summer or fall.

Standing really isn’t the hard part. It’s the constitutional question that’s harder. Obviously the question of whether the President can dismantle federal agencies in violation of legislation will make it to the Supreme Court.

(also the reason standing isn’t the hard part is because obviously you have to be able to get to the constitutional question without forcing people who have no MSPB rights to go through the MSPB. This is more than an employment case - others have standing and they don’t have to go through MSPB.)

I don’t disagree, but several courts have. That’s all.

A court said a non-employee plaintiff with standing had to go through MSPB?

The appellate courts are casting doubt on whether a non-employee plaintiff can have standing. The Supreme Court stayed the first NDCA probationary termination injunction on this ground. A stay pending appeal and disposition of cert.

I haven't seen a reasoned opinion denying standing to these non-employee plaintiffs. The problem is that everything is being decided in an emergency posture (granting or denying emergency stays on injunctions) and the appellate courts are shooting from the hip, granting or denying based on their idealogical predispositions. The 4th Circuit, for example, in overturning Judge Bredar's decision on the probationaries, simply said there may look to be standing problems. And that was it. The district court judge, on the other hand, made a very detailed argument analyzing standing and found standing. Same with the case in California for the probationaries. No reasoned, let alone persuasive, opinion from the Supreme Court in granting the government's stay, in the fact of very detailed and persuasive arguments from the lower courts finding standing.

Agreed. A case with standing will eventually make its way to the Supreme Court and then we will get to the separation of powers issue. For example the CFPB case has a plaintiff whose appointment with CFPB staff was cancelled.

No there won't. There's a different standard based on the party in power. Since a Republican is president, fed courts are going to claim states, cities, unions, etc have no standing and it's totally up to an individual federal worker to bring a lawsuit challenging separation of powers.

[Anonymous]

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Anonymous wrote:I like it of course. But S Ct and Circuit Courts have already bought into Trump’s view that these kinds of plaintiffs lack standing and individuals must complain through administrative channels first (like MSPB) before bringing a court case.

I believe these cases have plaintiffs that are not Fed employees and so the administrative exhaustion does not apply to them.

It's an open question whether it applies to them. The government argues it does. That was a major issue in the NDCA and DMD probationary termination appeals as well. Standing is a big one. We won't know for a while.

I don’t think it’s that much of an open question. Standing wouldn’t be hard to show for a lot of non-employees affected by RIFs and they don’t have any remedy through MSPB. The cause of action is different. Whether they are a class is a different question.

Well, it’s open enough that different courts are ruling different ways on the same issues.

I admittedly have not been tracking all the cases, but the point is that this case is different from the employee cases where the court ruled that the plaintiffs had not administratively exhausted. If you’re trying to say non-employees have to go through MSPB, that’s just wrong and no court has said that.

Different poster but I also remember some of the other cases where standing went different ways in terms of whether the union had standing. I don't know about these other groups of plaintiffs though.

Standing is not really the hard part of these cases.

I’m sorry but I’ve been tracking dozens of these cases for months and you’re wrong. The supreme court and 4th circuit both have indicated that standing is indeed a “hard” part of these cases, as in a hurdle to be overcome; and moreover that Fausto and other cases may foreclose any judicial review outside the CSRA’s channeling of claims to MSPB and to a lesser extent, FLRA.

As someone who’d like to see these plaintiffs win, it’s frustrating. But that’s how the courts are seeing it. They are going both ways and so far no appellate court has indicated its approval. Perhaps the 9th circuit later this summer or fall.

Standing really isn’t the hard part. It’s the constitutional question that’s harder. Obviously the question of whether the President can dismantle federal agencies in violation of legislation will make it to the Supreme Court.

(also the reason standing isn’t the hard part is because obviously you have to be able to get to the constitutional question without forcing people who have no MSPB rights to go through the MSPB. This is more than an employment case - others have standing and they don’t have to go through MSPB.)

I don’t disagree, but several courts have. That’s all.

A court said a non-employee plaintiff with standing had to go through MSPB?

The appellate courts are casting doubt on whether a non-employee plaintiff can have standing. The Supreme Court stayed the first NDCA probationary termination injunction on this ground. A stay pending appeal and disposition of cert.

I haven't seen a reasoned opinion denying standing to these non-employee plaintiffs. The problem is that everything is being decided in an emergency posture (granting or denying emergency stays on injunctions) and the appellate courts are shooting from the hip, granting or denying based on their idealogical predispositions. The 4th Circuit, for example, in overturning Judge Bredar's decision on the probationaries, simply said there may look to be standing problems. And that was it. The district court judge, on the other hand, made a very detailed argument analyzing standing and found standing. Same with the case in California for the probationaries. No reasoned, let alone persuasive, opinion from the Supreme Court in granting the government's stay, in the fact of very detailed and persuasive arguments from the lower courts finding standing.

Agreed. A case with standing will eventually make its way to the Supreme Court and then we will get to the separation of powers issue. For example the CFPB case has a plaintiff whose appointment with CFPB staff was cancelled.

Sure, but "eventually" means "eventually." Not much help for people today or a few months from now, in practical terms. A lot of agencies will have been functionally dismantled by then. Let's say they are forced to rebuild in 4 years - it won't be with the current staff. It will be a good thing, but it is not going to help those impacted by RIFs now.

Not sure about that. The most recent TRO granted in NDCA will go to the 9th Circuit. They aren't going to grant a stay. So the TRO is in place right now and will continue to be. And that benefits people right now.

And doesn’t Kagan have responsibility over the 9th Circuit or something to that effect in case Dump tries to go to SCOTUS?

SCOTUS stayed the probationary termination order from the same court. The theory, at least the standing aspects, aren’t much different for the RIF case.