In a Wednesday order (American Federation of State, County and Municipal Employees v. OMB), Judge Susan Illston, of the Northern District of California, issued a temporary restraining order (TRO) prohibiting the White House Office of Personnel Management (OPM) and all executive agencies from "taking any action to issue any Reduction in Force ('RIF') notices to federal employees" or "any further action to administer or implement any RIF notices." The TRO remains in effect "until further order of the Court," and scheduled a hearing on October 28.

Last Friday, OPM Director Russ Vought announced that "RIFs [Reductions in Force] have begun," referring to the administration's plan to use the shutdown as an opportunity to slim down the federal bureaucracy. Following an immediate lawsuit by public sector unions, the Trump administration informed the court on Friday that RIF notices had been sent to about 4,200 federal employees. However, on Tuesday the administration revised that figure to about half as many, after multiple agencies rescinded RIF notices.

The administration's "many errors" did not impress Judge Illston. "I keep getting revised declarations under oath from people who say, 'Well, I didn't mean the last one. I was off by about 2,000, because it's a fluid situation,'" she complained in a Wednesday hearing. "And what it is, is a situation where things are being done before they're being thought through."

The urgency of Judge Illston's TRO does not account for the timing of the layoffs, which generally would not take effect for 60 days, making a two-week-long TRO a rather dramatic remedy. However, Illston's TRO did freeze the clock. In addition to the prohibition against issuing or implementing RIFs, she also prohibited them from "counting any days towards any period of notice."

In a seven-page opinion, Illston nearly exhausted her supply of odious descriptions to apply to the White House's attempted layoffs. "Reductions in force ('RIFs') during a government shutdown are not 'ordinary' RIFs in any sense of the word," she declared. "This is unprecedented in our country's history" and "far from normal." Furthermore, "targeting for RIFs those programs that are perceived as favored by a particular political party"—the contention of challengers which she presumed to be true—"is the epitome of hasty, arbitrary, and capriciousdecision making."

The opinions of some judges are so circumspect that their personal opinions are known only to their personal friends. Judge Illston is a different sort.

In fact, Illston was so certain about the verdict she would issue that she delivered her ruling orally at the Wednesday hearing, before following it up with the formal written order on Wednesday night.

Illston indiscriminately broadcast her opinions in the hearing, too. She declared that [the] Trump administration had "taken advantage of the lapse in government spending, in government functioning, to assume that all bets are off, that the laws don't apply to them anymore, and that they can impose the structures that they like on a government situation that they don't like. And I believe that the plaintiffs will demonstrate ultimately that what's being done here is both illegal and is in excess of authority." Illston described the OPM guidance directing agencies to prepare for layoffs "completely untrue" and called the entire scheme "contrary to the laws."

Ultimately, Illston's hostility to the Trump administration's layoffs was motivated by a conviction that firing federal workers inflicted upon them a "human toll that cannot be tolerated."

It must be said that the government did little to help its case in the hearing. DOJ attorney Elizabeth Hedges was prepared to argue that the labor unions should have taken their case to the Merit System Protection Board or the Federal Labor Relations Authority, rather than a federal court. She was prepared to argue that the lawsuit had been brought too early, as some of the RIFs it challenged had not yet been implemented or, in some cases, even formulated. But she was not prepared to argue that the OPM's plan to lay off federal employees because of the shutdown was legal—a fact that astonished the judge.

(Hedges' reticence to defend this point in court is likely because she is uncertain about what the legal basis for the move is—as just about everyone is. Usually, administrations taking a novel action take pains to articulate the statutory basis for their action, but the OPM has not communicated that basis well. To date, this author has seen no explanation of the statutory grounds for laying off workers during a shutdown, either from OPM, other administration organs, or its other allies. Hedges' unpreparedness suggests that the OPM may even have failed to share its legal rationale with the DOJ team defending its policy in court!)

Nevertheless, the Trump administration may have cause to hope the Illston will be overruled on appeal. Earlier this year, Illston already blocked an executive order and memorandum planning for federal RIFs as "unlawful." On July 9, the Supreme Court overruled her in an 8-1 decision because Illston had simply ruled that the idea of federal layoffs was unlawful, without "any assessment of the plans themselves," which were "not before this Court" because they had "not yet been formulated."

Once again, Illston has left herself open to the charge of being overhasty to protect the jobs of federal employees. She concluded the case was "ripe for review" because "the challenged memorandum and guidance that triggered the RIFs have been issued and are final, even if not all defendant agencies have issued actual RIF notices as of this date." In other words, Illston has once again ruled against general guidance about layoffs, without waiting to see the actual planned layoffs—in fact, with a prohibition against any layoffs. This is a nearly identical scenario to the ruling the Supreme Court rebuked this summer. Subscribe for free to Breaking Christian News here

Joshua Arnold is a senior writer at The Washington Stand.

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