by Stephen Kaus on March 17, 2025 (BeyondChron.org)
Retired Judge Stephen Kaus
This Week in Trump Law
“It is sad, a sad day, when our government would fire some good employee and say it was based on performance when they know good and well that’s a lie. That should not have been done in our country.” San Francisco federal Judge William Alsup
With those words, and quite a few others, Judge Alsup last Thursday joined the federal judges across the country who are not buying what President Donald Trump is selling.
The case before Judge Alsup seeks to reverse the termination of federal probationary employees by the Office of Personnel Management (OPM), headed by acting director Charles Ezell. It was brought by multiple unions and political advocacy groups.
There are approximately 200,000 federal probationary workers, 15,000 of whom are in California.
Judge Alsup’s temporary restraining order requires six federal departments to immediately offer job reinstatement to the terminated employees. The departments also must report back within seven days with a list of probationary employees and an explanation of how the agencies complied with the order as to each person.
Alsup ruled that the government had fired the workers on the pretext that their work was unsatisfactory, when it knew this was not the case. “It was a sham in order to try to avoid statutory requirements,” he stated.
Prior to Thursday’s order, there was a preliminary skirmish over whether Acting Director Ezell needed to appear in court as Judge Alsup had ordered. The government’s lawyers originally identified Ezell as having made the challenged order. Then, when Judge Alsup ordered Ezell to appear in court, they withdrew Ezell’s declaration, said that Ezell had rescinded the order, which they characterized as “guidance,” and that he had delegated the matter to the agencies.
Judge Alsup rejected this changed story, said that Ezell had ordered the firings, and ordered him to appear. He did not.
“You will not bring the people here to be cross-examined. You’re afraid to do so because you know cross-examination would reveal the truth,” Alsup said Thursday. “I’m tired of seeing you stonewall,” he continued. “I want somebody to go under oath and tell us what happened.
“It upsets me; I want you to know that,” he said. “You’re not helping me get at the truth. You’re giving me press releases — sham documents.”
Alsup then ordered that the plaintiffs could question Noah Peters, a lawyer working with Mr. Musk’s team at the personnel office, under oath about the reason for the firings.
He said the Trump administration was attempting to “decimate” the Merit Systems Protection Board and the Office of Special Counsel, agencies that could previously have assisted the workers.
Same Ruling in Maryland Several cases in other courts address similar issues. Late Thursday, Maryland U.S. District Judge James Bredar made a similar order to Alsup’s, issuing a 14-day Temporary Restraining order against sham performance layoffs in multiple federal departments.
Judge Bredar’s 54 page written order also concluded that the Trump administration was lying. Considering the same government statement that each one of thousands of probationary employees were dismissed for cause, Judge Bredar said, “this isn’t true.” He noted that “[t]here were no individualized assessments of employees. They were just fired.”
Taking a different view, in February, a Massachusetts judge denied a request for a preliminary injunction for employees given the choice or taking a buy-out or being terminated. He ruled that the plaintiff unions did not have standing and that the claims were subject to exclusive review in an administrative procedure, so the court had no jurisdiction.
D.C Judge Beryl Howell ‘s two outspoken rulings against Trump Judge Alsup supplies a local angle, but Washington D.C. District Court Judge Beryl Howell has had two strong anti-Trump rulings.
In ruling that President Trump did not have the authority to dismiss members of the National Labor Relations Board, Judge Howell stated, “[a] president who touts an image of himself as a ‘king’ or a ‘dictator,’ perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution.”
In reality, Judge Howell said, the President may only perform “his enumerated duties, including the laws enacted by the Congress and as interpreted by the judiciary,” not whatever they want to do. Trump has appealed the injunction and requested a stay.
Last Wednesday, in a different case, Judge Howell did not hide the strength of her conviction that Trump’s Order punishing the Perkins, Coie law firm for supporting the Hillary Clinton campaign, including commissioning the Steele Dossier, is deeply unconstitutional.
Trump’s Order stated that Perkins Coie’s activities were detrimental to national security and democratic processes. It suspended security clearances held by members of Perkins Coie, instructed federal agencies to terminate, “to the maximum extent permitted by applicable law,” all contracts with Perkins Coie, required all federal contractors to identify all contracts with Perkins Coie and ordered the Equal Employment Opportunity Commission to investigate Perkins Coie’s hiring practices for racial discrimination. (Translation: discrimination against white men.)
Judge Howell did not mince words in granting a temporary restraining order blocking most of the Trump’s provisions based on potential violations of Perkins Coie’s First and Fifth Amendment rights and the punitive nature of the order.
Concerning the national security claims in the Order, Judge Howell said, “[i]t sends little chills down my spine,” comparing it to a bill of attainder, which is a law that inflicts punishment without trial. Such a law is expressly prohibited by the Constitution.
Howell commented that Trump has previously unsuccessfully sued Perkins Coie as an individual and found it improper for Trump to use taxpayer dollars to pursue a “wholly personal vendetta” in which the government has no cognizable interest.
The judge pointedly held that the lack of any notice or due process also invalidated the Order. “This may be amusing in ‘Alice in Wonderland’ where the Queen of Hearts yells, ‘Off with their heads!’ at annoying subjects … and announces a sentence before a verdict,” Howell said, “but this cannot be the reality we are living under.”
Judge Howell also acknowledged the chilling effect on the Constitutionally guaranteed right to counsel stating, “I am sure that many in the legal profession are watching in horror at what Perkins Coie is going through here. The order casts a chilling harm of blizzard proportions across the legal profession.”
Howell followed these comments from the bench with a more sterile written order hours later.
Trump Appears to Ignore Court Order to Halt Deportations. Last Saturday, Trump appears to have bum-rushed the courts and deported at least 238 alleged Venezuelan gang members with no notice or hearing at all and contrary to the explicit order of D.C. District Court Chief Judge James E. Boasberg.
On Friday, Trump secretly signed a proclamation invoking the Alien Enemies Act of 1798, signed by President John Adams. The Act has seldom been used and only in wartime. The last time was to intern Japanese Americans, two thirds of whom were American citizens, during World War II.
Trump’s theory is something like that the Tren de Aragua gang has formed a joint venture with President Maduro’s Venezuelan government, so their entry into the U.S. is an invasion.
Judge Boasberg issued an order blocking the deportation of five specific men Saturday morning. At an emergency 5 p.m. hearing, Judge Boasberg broadened the order and ordered the Trump administration to immediately halt the removals and return to the United States any flights that were in the air “however that’s accomplished — whether turning around the plane or not.”
“This is something that you need to make sure is complied with immediately,” he warned.
Instead, the White House announced the mass deportation, with an official punctuating the defiant announcement with “boom!” according to the Washington Post. El Salvador President Nayib Bukele posted a video on social media on Sunday showing men in handcuffs being led off a plane during the night and having their heads shaved.
On Sunday, President Bukele posted, “Oopsie… Too late,” along with a screenshot about Judge Boasberg’s order.
The moment of truth may have arrived. The final order was issued at 7 p.m. Washington time, but El Salvador is two time zones behind Washington and the men were shown disembarking at night. More next week.
DOGE Is Likely Subject to the Freedom of Information Act and Must Provide Documents and Answer Questions On Wednesday March 12, 2025, D.C. Judge Tanya S. Chutkan ordered Elon Musk and DOGE operatives to provide documents and answer questions about the firing of federal employees and the gutting of federal agencies.
In a different case, on Monday March 10, 2025, D.C. Judge Christopher Cooper held that DOGE is likely subject to public disclosure laws and must turn over internal emails and other documents to plaintiffs suing to end the secrecy surrounding Elon Musk’s operation.
The judge stated that Plaintiffs’ evidence “gives rise to the possibility that representatives of the defendant entities may not fully appreciate their obligations to preserve federal records.”
Supreme Court Update On Thursday March 13, 2025, filed two emergency applications at the United States Supreme Court.
First, Trump requested that the Supreme Court stay national injunctions issued by District Courts in Massachusetts, Maryland and Washington State against his birthright citizenship Order. No court has upheld Trump’s Order.
Second, Trump sought an end to district courts issuing nationwide injunctions. Trump’s petition claims that federal judges issued 15 nationwide stops of Trump policies in February. Trump argues that the courts are gumming up the works.
This is ironic, given that right wing groups have long sought nationwide injunctions, many from favorable courts in Texas. Trump’s petition states that there were 14 nationwide injunctions against Biden policies during his first 3 years.
There has been no action yet by the Court.
Other Activity This Week in Trump Litigation
There are now 123 cases, two of which are closed.
Monday March 10, 2025
Grants Reinstated A Massachusetts federal judge issued a Temporary Restraining Order reinstating previously awarded grants to plaintiff educational institutions that were summarily terminated for alleged DEI infractions. The case moves on to briefing on a preliminary injunction.
USAID Contracts Reinstated In a case discussed here last week that a divided Supreme Court refused to stay, D.C. District Judge Amir H. Ali followed up his ruling from the bench with a TRO ordering the government to pay nearly $2 billion in foreign assistance for work performed before Feb. 13.
Tuesday March 11, 2025
Stay of Order Denied The First Circuit Court of Appeals denied the governments motion for a stay of district court order against Trump’s Birthright Citizenship order.
Document Preservation Sought Plaintiff American Foreign Service Association petitioned for TRO to prevent destruction of documents by USAID. The petition included an image of an internal email from the Acting Executive Secretary Erica Carr directing USAID staff to “[s]hred as many documents” as possible, and to use “burn bags for when the shredder becomes unavailable or needs a break.
Reinstatement Denied D.C. District Judge Richard J. Leon denied reinstatement to Trump terminated Ward Brehm, a board member of the U.S. African Development Foundation. Leon stated that “Brehm has not identified any cognizable irreparable harm to himself as opposed to potential harm to the agency and its partners.”
Wednesday March 12, 2025
Reinstatement Ordered D.C. District Judge Sparkle Sooknanan granted Susan Grundman’s motion for summary judgment and issued a permanent injunction reinstating her to her position on the Federal Labor relations Authority (FLRA), holding that her termination was unlawful.
Thursday March 13, 2025
The Attorneys General of twenty states and the District of Columbia sued the to halt the termination of approximately 1,378 out of 4,133 employees of the Department of Education.
Friday March 14, 2025
Anti-DEI Crackdown Green-lighted Panel of three Fourth Circuit Court of Appeals judges lifted stay on DEI policies while two of them say DEI policies should be praised not condemned. Go figure.
Stephen Kaus is a retired Alameda County Superior Court Judge. @stephenkaus on X. @stephenkaus.bsky.social on Bluesky.
