Reply to NYT: Judge Pauses RIF Plans

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]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.[/quote]

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

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.[/quote]

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. [/quote]

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

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. [/quote]

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.[/quote]

Standing is not really the hard part of these cases. [/quote]

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. [/quote]

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. [/quote]

(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.) [/quote]

I don’t disagree, but several courts have. That’s all.  [/quote]

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

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. [/quote]

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.[/quote]

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