Feds push Ninth Circuit to undo corrected employment records of fired workers

The government says the lower court did not have jurisdiction over what it called a “federal personnel action.”SEATTLE (CN) — The Department of Justice told a Ninth Circuit panel Friday that a lower court exceeded its authority by ordering federal agencies to correct the employment records of thousands of probationary federal workers.Joshua Koppel, representing the government, told the three-judge panel the lower court lacked jurisdiction over the case because the Civil Service Reform Act channels the plaintiffs’ claims to the Federal Labor Relations Authority or the Merit Systems Protection Board — not a San Francisco federal court.Koppel argued the employees at issue in this case were probationary and do not have the same appeal rights under the 1978 law as other employees.A group of unions, nonprofit organizations and the state of Washington sued the federal government this past February, arguing the Office of Personnel Management unlawfully ordered federal agencies to terminate all probationary employees on the pretext of poor job performance.Soon after, Senior U.S. District Judge William Alsup granted the plaintiffs a temporary restraining order, ruling the mass firings were likely illegal and that the office has no authority to order agencies to hire or fire employees. The Bill Clinton appointee found the OPM could only give guidance, and the government’s argument that it was “merely giving guidance” could easily be seen as an order by the agencies.The case made it all the way to the Supreme Court — which granted Trump an emergency pause to the reinstatement of thousands of terminated probationary federal employees — before returning to Alsup’s San Francisco courtroom in April, where he ruled federal probationary employees still have standing, despite the high court’s decision.Alsup also granted a narrowed preliminary injunction for the fired employees, barring the office from issuing any further orders that tell other agencies to fire their employees. He also determined that employees fired with the template letter were to be sent a notice that their firing was not “performance-based,” but was instead part of a government-wide mass termination effort.This past September, the judge partially granted the plaintiffs’ motion for summary judgment, concluding the OPM had no authority to order agencies to hire or fire employees and that the terminations violated the Administrative Procedures Act.However, Alsup did not order the government to return the terminated employees to their prior positions, noting “too much water has now passed under the bridge” since the Supreme Court’s stay order and many of the terminated employees had already found new jobs.Instead, he instructed the agencies to update terminated employees’ files to indicate that their terminations were not performance- or conduct-based and ordered them to issue corrective notices that the employees “were not terminated on the basis of your personal performance.”Koppel told the appeals panel that the government is suffering ongoing injury from the lower court’s order, as the agencies are required to tell the terminated probationary employees they were not terminated based on performance and are prohibited from saying anything to the contrary if prospective employers reach out.He argued it didn’t matter whether or not the OPM’s actions were precedent for the agency terminations because the law sets up a clear system to challenge personnel decisions.U.S. Circuit Judge Morgan Christen, a Barack Obama appointee, questioned Koppel whether he believed that unions or “anyone with any skin in the game” would never be able to seek declaratory judgment and prospective injunctive relief.“I think that’s right, and I think that that is exactly what the CSRA scheme envisions,” Koppel responded.In contrast, Danielle Leonard of Altshuler Berzon, representing the union plaintiffs, told the panel that there is “no textual or structural indication” in the act that Congress intended for the OPM’s actions to evade judicial review.“It’s about what Congress specifically did in this statute, what channels and what remedies it provided, and then against the backdrop of the APA, which very clearly provides a claim to challenge OPM’s unlawful actions — against that backdrop, did they take it away?” she said.Leonard emphasized the importance of the case focusing on probationary employees because there is no channel for them to challenge the unlawful directives.U.S. Circuit Judge Lawrence VanDyke asked Leonard if the case would be different if the employees were not probationary, adding that it seems like the law intentionally gives nonprobationary employees more rights.“If you frame it the way you’re framing it, and you say, ‘Because they don’t have a statutory agency remedy, that really puts a thumb on the scale that we need to have judicial review.’ That seems to turn it upside down because now you’re giving more rights to probationary employees than nons," said VanDyke, a Donald Trump appointee.“It’s not that we’re giving more rights,” Leonard responded. “The question is whether there’s judicial review for OPM’s action.”U.S. Circuit Judge Daniel A. Bress, another Trump appointee, rounded out the panel.Representatives for the plaintiffs declined to comment.The DOJ did not immediately respond to a request for comment.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads