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.