The Federal Practice Group Founding Partner Debra D’Agostino recently
shared her insight with The Washington Post in a Federal Insider article
on President Trump’s executive order on immigration. The article –
To resist or not, the federal employee’s dilemma – discusses the rights of federal employees who may find themselves
having to enforce dubious and controversial laws.
The article focuses on Trump’s immigration executive order, which
sparked concern across the nation and the globe by temporarily restricting
immigration from seven Muslim-majority countries. The ban has also raised
confusion about dealing with lawful residents of the U.S., or green card
holders, when they attempt to return to America following trips abroad.
Shortly after the ban was passed, officials began enforcing it, even when
many decried that they were enforcing illegal orders.
For civil servants who implement and enforce laws, not make them, the ban
has resulted in tremendous confusion, as well as many questions regarding
their rights and whether they can refuse to enforce an order without repercussions.
When former acting attorney general Sally Yates publicly stated she would
not defend Trump’s order, she was promptly fired by Trump.
Although what happened to Yates may have been a political move on a big
stage, the same concerns exist for civil servants all over the country
and abroad. According to Attorney
Debra D’Agostino, who was quoted in The Washington Post article, there is still the golden
rule of “comply now, complain later,” even if policies may
be improper. Attorney D’Agostino further states:
- Under Merit Systems Protection Board (MSPB) case law, federal employees
must obey orders, with the rare exception that doing so places them in
clear danger or at risk of suffering harm.
- After obeying an order, federal employees can then challenge its validity.
- Refusing to comply can put employees at risk of disciplinary actions or
removal for a charge of insubordination.
Since the order went into effect, federal judges have temporarily blocked
the ban, including a federal judge in Seattle whose ruling was broad enough
to apply nationwide. The ruling is still being disputed in a federal appeals
court and there will likely be continued efforts to pass or enforce similar
orders. For federal employees, as D’Agostino states, it may come
down to the same ethical decisions employees in the private sector face
– is it worth the job to enforce something you adamantly disagree with?
You can read the full article featuring Attorney D’Agostino here.
If you are a federal employee and would like to discuss your situation
and case with a federal employment law attorney from our firm, contact
us today for a case consultation.