The short answer is DOGE did not follow the law. The long answer is complex.
Judge Orders Thousands to Be Rehired
Yesterday, I noted Hello DOGE, Judge Orders Thousands to Be Rehired, What Will That Cost?
Before anyone gets into a Trumpian Tantrum over the obvious, I support workforce reduction, provided it’s done in accordance with the law.
But time and time again, Trump has issued illegal Executive Orders whose only purpose is to put Trump above the law.
That was a general statement. Today, I go over the ruling. But first we need to understand the Reduction In Force (RIF) rules.
A Primer on Reductions in Force
Lawfare Media has a nice Primer on Reductions in Force.
Trump seeks to reduce the size of the federal workforce using a complicated and arcane process.
Many employees affected by a RIF can challenge its validity at the Merit Systems Protection Board (MSPB). One cannot easily generalize whether the Trump administration will follow the law governing RIFs. A RIF is not a governmentwide layoff; it is limited to a particular geographic area, organizational unit, and type of position. There will likely be hundreds of RIFs. The validity of each RIF, however, depends on whether the agency adheres to the arcane procedures that govern the process.
In an executive order titled “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative,” Trump outlined two additional mechanisms by which he will seek to reduce federal employment. The order is sweeping, and its definition of “agency” suggests that it will apply to both executive departments and independent agencies. The order, however, excludes positions related to public safety, immigration enforcement, or law enforcement.
Section 3 of the executive order envisions the use of attrition to reduce the size of the federal workforce. The order states that agencies shall hire “no more than one employee for every four employees that depart.” Moreover, this section requires agencies to develop a “data-driven plan” to ensure that hires are made in the “highest-need areas.” The order requires the Department of Government Efficiency (DOGE) team lead to approve any hiring—subject to exceptions deemed necessary by the agency head. Although the team lead works with DOGE, an earlier executive order contemplates that the team lead is an employee within the agency in question—not DOGE.
Section 4 of the order instructs agencies to “initiate large-scale reductions in force.” For purposes of the RIF, agencies should prioritize “[a]ll offices that perform functions not mandated by statute or other law,” including “all agency diversity, equity, and inclusion initiatives; all agency initiatives, components, or operations that my Administration suspends or closes; and all components and employees performing functions not mandated by statute or other law who are not typically designated as essential during a lapse in appropriations.” The order envisions a sweeping reduction in the size of the federal workforce, stripping agencies to the bare minimum number of employees needed to implement the laws enacted by Congress.
How many employees might be laid off as a consequence of this order? One estimate puts the number at more than 700,000 individuals. This estimate comes from the fact that the order instructs agencies to separate employees “not typically designated as essential during a lapse in appropriations as provided in the Agency Contingency Plans.” The contingency plans provide a rough estimate of the number of employees targeted by the order. The contingency plans also reveal that the effects of the order will vary from agency to agency. For example, the Department of Justice classifies about 84 percent of its employees as essential. By contrast, the Department of Commerce classifies only about 16 percent of its employees as essential. The meaning of “essential,” however, is subject to political jockeying. Nevertheless, even a small reduction in an agency’s workforce may significantly disrupt the agency’s programs and services.
Justifying a RIF
Under OPM’s regulations, an agency may begin a RIF only for a legitimate reason, including reorganization, budgetary constraints, and lack of work, among others. The MSPB may invalidate a RIF if the agency lacks a bona fide, fact-based reason that it acted pursuant to one of these reasons. For example, in Losure v. Interstate Commerce Commission, an employee alleged that the agency had begun a RIF to target her personally based on her “association with the office’s operation under the former supervisors.” The MSPB determined that the agency’s RIF was based on pretext and, therefore, invalidated the RIF. MSPB explained that “the Board will not allow the circumvention of adverse action procedures where the ‘reorganization’ has no substance and is in reality a pretext for summary removal.”
AFSCME, AFLCIO v Government
Unfortunately, there is no legal summary or case highlights yet.
However, we can watch the entire court proceeding at American Federation of Government Employees v United States Office of Personnel Management (“OPM”) and Acting OPM Director Charles Ezel
The video is 1:29:21 long and I played most of it. This brief transcription by me took many hours.
AFSCME, AFLCIO v Government Partial Transcription
- The word “sham” came in just after the 6 minute mark (timeline on hover-over bottom – not the clock time on the right)
- At the 12-minute mark the attorney for the AFL-CIO requested everything the govt did be taken back.
- Government lawyer starts at approximately the 13-minute mark
- At the 16-minute mark, the judge blasts the Government repeats “sham” … “You’re giving me press releases” “I’m getting mad at you. You’re doing your best and I apologize” “sham” repeated at 20 minute mark
- 21:50 “I got mislead by the government”
- 28:50 the judge blasts the administration over recurring issues
- I then skipped to the 1:05:00 mark
- The judge further blasted the government lawyer after reviewing some reviews of top people being fired on “template letters”
- 1:08:00 “sad sad day our government would fire employees and say it was based on performance, when they know good and well that is a lie”
- “That should not have been done in our country. It was a sham in order to avoid statutory requirements.
- It also happens that when you fire someone for performance that they cannot get unemployment insurance. That makes it even worse, doesn’t it?”
- 1:22:00 “I may have made an error” (relying on the government) that employees had an effective remedy to appeal firing. But I didn’t know this at the time I made that ruling.
- I believe that is in reference to unions not having standing to appeal firings. If so, we might see a reversal in previous rulings.
The key point is the conclusion. One can skip to the 1:18:00 mark and start there.
In quotes are from Judge U.S. District Judge William Alsup. Anything not in quote or in brackets is my brief translation.
Judge U.S. District Judge William Alsup Conclusion
- The template letter (from the government) said you may have a right to appeal. “That has nothing to do with this case. It gives you a right to file an appeal” based on something that happened before you were employed.
- “If there is no ability to appeal, I don’t see how this can be channeled. To the extent the unions were seeking rights to vindicate, I may have made an error.”
- “I relied on the government’s representation, that Merit Systems Protection Board (MSPB) was an effective remedy. I thought it was and I am not yet ready to say it wasn’t. But I did not know all of this at the time I made that ruling.”
- The judge gave each side a week to respond as to whether the unions have standing, “based on the fact that a channel has been destroyed.”
- “If you want to appeal this, God bless you. I want you to because I am tired of seeing you stonewall on trying to get at the truth, giving me snippets. I want someone to go under oath and tell us what happened in these phone calls, and agencies claiming they did this on their own” [a clear reference to DOGE and OPM]. The judge demands Noah Peters appear under oath. [ Noah Peters is the author of the OPM Acting Director Charles Ezell’s … DOGE Plan”]
- “We’ve got a preliminary injunction, I have ordered discovery. Go ahead, put it up there on appeal and see if the Court of Appeals agrees with what I have done here today by way of relief. That’s fine. I am doing the best I can with the record I’ve got.”
- “I want to make it clear that right now I am just ruling based on service. I am raising the question whether there is an additional jurisdiction exists because the channel that Congress wanted to be effective [MSPB] has been ruined.“
- “I want to make it clear that I don’t think the council for the government has done anything dishonorable. I’ve given him a hard time. He’s doing the best he can with case he’s got.”
Comments from Constitutional Law Expert
I sent the video link to my Constitutional Law Expert Friend. He commented:
Congress passed a Reduction in Force Act that authorizes Agency heads to reduce workforce size. The plaintiffs argue that OPM ordered the agencies to fire people and did not make the particularized findings the the RIF law requires to fire people. The plaintiffs put on evidence of that direction and of a mandate to terminate every employee. Probationary employees include all new employees and all PROMOTED employees. The evidence was that employees with good performance records were fired for poor performance.
It’s really worth while to listen to Alsup’s decision from the bench at the end of the video, which lays out how awful these actions really were.
So the employees have been reinstated pending final hearing on the issues, probably not for many months. He prohibited OPM from further direction terminations. And he require agencies to fire people only consistent with the RIF law.
In other words, Alsup, in his nice Southern accent, said that the government can lay people off, but it has to do so in accordance with law. And the way this was done, the evidence shows, was not consistent with law. This is a very solid decision. Bill Alsup is very respected.
His decision is highly likely (70 percent) to be upheld on appeal.
Alsup Wants an Appeal
“If you want to appeal this, God bless you. I want you to because I am tired of seeing you stonewall on trying to get at the truth, giving me snippets. I want someone to go under oath and tell us what happened in these phone calls, and agencies claiming they did this on their own” .
“Go ahead, put it up there on appeal and see if the Court of Appeals agrees with what I have done here today by way of relief. That’s fine. I am doing the best I can with the record I’ve got.”
The judge asks Noah Peters appear under oath. Noah Peters is the author of the OPM Acting Director Charles Ezell’s DOGE Plan.
One of the more amusing things is the tact that DOGE took may have given unions standing and the right to sue.
His previous ruling that DOGE cheered was that the unions were likely correct but had no grounds to sue due to lack of standing. Now Alsup says “I am raising the question whether there is an additional jurisdiction exists because the channel that Congress wanted to be effective [MSPB] has been ruined.“
So Stupid
This is all so stupid. Team DOGE did mass firings of people, including those with perfect reviews, on grounds of performance.
Then it “ruined” MSPB, a Congressionally approved method to challenge firings.
All these fired workers have to be reinstated.
Trump can appeal, but Peters will have to testify under oath.
What a hoot!
Alsup says that the government can reduce its force under the RIF Act, but has to follow the process. So why not follow the process?
As I have said in the beginning, on all of these cases, Trump would have been far better off going about these processes legally.
Heck, even some semblance of legality might have worked. But this was a clear “sham”, a word Judge Alsup used at least five times.
Another Ill-Advised Self-Inflected Mess
I support workforce reduction, provided it’s done in accordance with the law.
But time and time again, Trump has issued illegal Executive Orders whose only purpose is to put Trump above the law.
And time and time again, Trump has lost in court, and I have cheered.
Q: Why cheer?
A: Unlike others, I am not a hypocrite.
All I want Trump to do is follow the law. However, Trump wants to be King, not President. Sorry!
On February 6, I commented USAID Cancellation by Trump, the Good, the Bad, and the Ugly Details
The Right Approach
What Trump should have done is allow Musk to search for questionable items and report them.
Then Trump could legitimately block those items. Also he could have directed USAID to look at and question every expense, flagging and temporarily those that are questionable.
Instead, Trump blocked everything except for “critical items” whatever that means.
Lawsuits are pending and Trump will lose. We should not be in this setup.
“The unfortunate impact might very well be the courts block everything when some very good things may have happened if Trump took a legitimate case-by-case look.“
The Elon Musk Sponsored, Ted Mack Legal Amateur Hour
On February 9, I discussed The Elon Musk Sponsored, Ted Mack Legal Amateur Hour
The problem with the DOGE approach is the mission may backfire spectacularly.
What to Expect from a USAID Shutdown
- My constitutional law expert says “Contractors will sue. There will have been no valid legal basis for stopping contract payments. So, under the contracts, the federal government will pay a bundle in penalties and equitable adjustments.“
- The courts will force a reversal. And no good will come from this approach.
This is the Elon Musk sponsored, Ted Mack Legal Amateur Hour.
Correct Call
Supreme Court Rejects Trump’s Pause on USAID Payouts
On March 5, I noted Supreme Court Rejects Trump’s Pause on USAID Payouts
Cancellation or Timing?
The Supreme Court’s Wednesday order was brief, but it stressed that the case was still in preliminary stages and that the government wasn’t contesting the order by Judge Ali to pay the contractors, only the timeline he set for doing so.
So, team Trump is no longer even arguing USAID would be shut down. Fancy that after Musk’s hype about shutting it down.
Rather, Trump now just wants to approve the timeline at which payments go out, but it wants too long to decide.
This court smackdown is a good thing. I don’t want Trump running roughshod over the Constitution any more than I did Biden. Hypocrites, of course, don’t see it that way.
DOGE Makes Huge Mistake Firing Nuclear Workers, Now Seeks to Rehire Them
On February 17, I commented DOGE Makes Huge Mistake Firing Nuclear Workers, Now Seeks to Rehire Them
When you fire people without understanding what they even do, you make big mistakes.
What a Total Clown Show
Q: How did this happen?
A: Trump surrounded himself with complete legal idiots on DOGE, on firings, and on birthright citizenship.
To work in the Trump administration, a requirement going in was that one had to believe every idiotic thing Trump believed on tariffs, on the economy, and on all legal matters.
When you surround yourself with economic and legal fools, this is what happens.
Q: What do we call this?
A: Winning, silly.
Q: Why?
A: Everything Trump does is winning by definition. Contradictions cannot exit.
For a discussion of tariff contradictions, please see Lutnick Says Tariffs Can Eliminate the IRS and Balance the Budget
The stupid thing about these firings is all Trump had to do was get Congress to go along. Congress would not have agreed to all of the cuts Trump wants, but it would have agreed with some of them.
But Trump does not want to be President, he wants to be King. The courts wisely said no.
Everyone should applaud because the next President may very well want to be a Democrat King.
I Support DOGE
I want to reiterate that I am 100 percent behind the mission of DOGE. I want to reduce costs and get rid of departments.
I am on board with getting rid of the Department of Education.
The problem I have had with DOGE is my repeated warning that Trump should do this legally or it would backfire.
No one can honestly say I got this wrong.