‘Government repeatedly mischaracterizes’: Judge’s frustrated dissent previews parade of horribles to come after Trump given green light to fire federal workers

Republican presidential nominee former President Donald Trump speaks at an election night watch party, Wednesday, Nov. 6, 2024, in West Palm Beach, Fla. (AP Photo/Alex Brandon).

The final domino fell in the Trump administration‘s favor on Wednesday as an appellate court in Virginia blessed the government’s plans to fire several thousand probationary federal workers.

In a 2-1 ruling, the U.S. Court of Appeals for the 4th Circuit granted a stay of a Maryland district court’s order which barred dozens of agencies from moving forward with drastic workforce reductions.

The appellate court ruling comes on the heels of a Tuesday order by the U.S. Supreme Court that dislodged a similar injunction issued by a California district court. In the latter case, the U.S. Court of Appeals for the 9th Circuit sided with the lower court and upheld the injunction.

The upshot of the high court’s order was unclear until the 4th Circuit’s ruling — as each of the lower courts previously reinstated different sets of federal employees based on different considerations.

In each rejection, however, the rationales were strikingly similar.

On Tuesday, an unidentified majority of Supreme Court justices, in an unsigned order, found that the plaintiffs in the California case, a collection of nonprofit organizations, had not sufficiently pleaded “standing” — or that they lacked such standing altogether.

On Wednesday, Circuit Judges Allison Jones Rushing, who was appointed by President Donald Trump, and J. Harvie Wilkinson, a Ronald Reagan appointee, cited the Tuesday order to justify the stay. The two-judge majority also referenced the government’s arguments “that the States lack Article III standing to challenge the terminations and that the district court lacked subject-matter jurisdiction.”

But where the high court issued conclusory statements in its terse order, the appellate court offered a brief analysis.

“Having reviewed the record, the district court’s opinion, and the parties’ briefing, we agree with the Government that it has satisfied the factors for a stay under [the relevant case law that governs stays],” the appeals court wrote. “The Government is likely to succeed in showing the district court lacked jurisdiction over Plaintiffs’ claims, and the Government is unlikely to recover the funds disbursed to reinstated probationary employees. The Supreme Court has stayed a similar preliminary injunction issued by the United States District Court for the Northern District of California. We therefore grant the Government’s motion for a stay of the preliminary injunction pending this appeal.”

The appellate court also said it will set an expedited briefing schedule — intending to deal with the merits of the case in quick fashion.

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That decision, impactful as it is, comes over a lengthy dissent by Circuit Judge DeAndrea Gist Benjamin, a Joe Biden appointee.

The dissenting judge would have left the preliminary injunction in place and denied the government’s motion. To make her case, the judge offers a policy argument relying on a parade of horribles she says is likely to occur once the Trump administration axes start falling.

“[A]dverse effects include, but are not limited to, an increase in unemployment benefits applications, an increase in the resources required to investigate this influx in unemployment benefits applications, additional financial and labor costs associated with the sudden strain placed on rapid response programs without advance notice, unanticipated loss of tax revenue, and the loss of support from federal employees who were working with various state agencies,” Benjamin says.

Those harms, the judge argues, are “concrete” and provide some of “the necessary grounds for Article III standing.”

Modern jurisprudence on Article III standing is widely understood by legal scholars as “conservative standing doctrine.” This judicial theory was created in two cases from the 1920s by conservative judges who sought to restrain the use and limits of constitutional redress. In other words, standing doctrine was created to limit citizens from suing the government over perceived violations of their rights.

While technically procedural in nature — as opposed to relying on underlying arguments in a dispute — standing arguments are fact-intensive and, when made by the government and accepted by the Supreme Court for analysis, often determinative.

On the broader case before the panel, Benjamin scolds the government for the way their appeal was framed — another permutation of the standing doctrine and a prime example of its reach.

“As a threshold matter, per the district court’s order, the States clearly have standing to challenge the process by which the Government has engaged in mass firings,” the judge says.

The government, on the other hand, says the states that sued to stop the firings cannot legally complain because those personnel actions are not happening to them, according to the dissenting judge.

This characterization of the lawsuit is off base, the judge says, and the government elides this “important distinction.”

Benjamin elaborates in a footnote:

The Government repeatedly mischaracterizes the basis of the States’ claims, suggesting that the States are attempting to sue on behalf of their respective citizens for alleged unlawful firings. This mischaracterization not only misses the point but — more seriously — distracts from the States’ actual alleged harm. The States were entitled to proper notice, which the Government did not give. That is the basis for the instant suit.

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‘Government repeatedly mischaracterizes’: Judge’s frustrated dissent previews parade of horribles to come after Trump given green light to fire federal workers

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