Court Refuses To Block Trump Exec Order On TikTok As Requested By TikTok Employee After DOJ Says He Can Still Get Paid

from the so-many-arguments dept

There have been a variety of lawsuits filed regarding Trump's silly Executive Order regarding TikTok, but one interesting one involves an employee of TikTok, Patrick Ryan, who filed suit on his own behalf to try to block the Executive Order from going into effect. A key part of Ryan's argument is that since the executive order bans transactions, it would mean his own salary from TikTok's parent company, ByteDance, might be blocked by the US government.

It is impossible to know now whether the Commerce Department will exempt the payment of wages and salaries from the dictates of the Executive Order, and Plaintiff will not know until the day the order is to take effect, but any plain reading of the language of the order would include the payment of wages and salaries to U.S. employees of TikTok within that definition

As such, Ryan asked the court to issue a Temporary Restraining Order to block the Executive Order from actually going into effect on September 20th. There's more to the lawsuit than that, but the DOJ responded to say "we won't block employee salaries."

The Department of Commerce can state that it does not intend to implement or enforce Executive Order 13942 in a manner which would prohibit the payment of wages and/or salaries to Plaintiff or any other employee or contractor of TikTok.

The Department of Commerce can state that it does not intend to implement or enforce Executive Order 13942 in a manner which would prohibit the provision of benefits packages to Plaintiff or any other employee of TikTok.

The Department of Commerce can state that it does not intend to implement or enforce Executive Order 13942 in a manner which would result in the imputation of civil or criminal liability to Plaintiff or any other employee or contractor of TikTok for performing otherwise lawful actions that are part of their regular job duties and responsibilities.

That caused Ryan's lawyers to declare at least an initial victory:

This morning, the Government advised Plaintiff’s counsel and later the Court that it in fact will not apply the Executive Order to the payment of TikTok wages, salaries or benefits, or impose civil or criminal sanctions against them for doing their jobs, thereby mooting the need to seek a temporary restraining order against the Government to protect the TikTok employees.

We are pleased that our litigation was able to achieve this fantastic result for the thousands of TikTok employees around the world, and we are confident that the remaining issues in this case also will be litigated fully to a successful conclusion, which will be the striking of the Executive Order as a unconstitutional overreach by this U.S. President.

However, it also made it easy for the judge to then deny the requested TRO:

Ryan’s application for a temporary restraining order is denied for two related reasons. First, there is a serious question about whether this Court has jurisdiction to issue a temporary restraining order at this point in time. It seems unlikely that the conflict between Ryan and the federal government has ripened into a true “case or controversy” within the meaning of Article III of the United States Constitution. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 297 (1979). Whether Ryan could actually face prosecution for getting a paycheck from TikTok depends on a number of uncertain conditions. As a foundational matter, the President may only exercise his emergency powers to block transactions with a foreign-owned entity. ByteDance is widely reported to be in negotiations to alter its ownership structure in a manner that could result in non-enforcement of the Executive Order.

Even if that fails, the Secretary of Commerce would need to include payments to employees on the list of prohibited transactions. And then there would need to be real risk that federal government would actually start prosecuting TikTok employees for receiving paychecks. That is an unlikely chain of events—indeed, yesterday the government filed a notice in this case specifying that the Department of Commerce “does not intend to implement or enforce [the Executive Order] in a manner which would prohibit the payment of wages and/or salaries to Plaintiff or any other employee or contractor of TikTok.” It is thus doubtful—at least at this time—that Ryan’s alleged fear that he faces prosecution is reasonable.

The second reason for denying the temporary restraining order is that, even if the Court presently has jurisdiction, Ryan has not demonstrated that he is likely to suffer irreparable harm absent an immediate ruling. His vague allegation that he would suffer reputational harm from the government’s implementation of the Executive Order against TikTok certainly does not suffice. Ulrich v. City and County of San Francisco, 308 F.3d 968, 982 (9th Cir. 2002) (citing Paul v. Davis, 424 U.S. 693, 701, 711 (1976)). And to the extent Ryan seeks to protect a future paycheck (or to protect against prosecution for receiving money that TikTok owes him for work performed), that protection could be readily provided at a later date, if and when the possibility of losing it becomes more concrete.

Of course, many of these cases may be moot, should the Treasury Department decide that the weird non-sale to Oracle solves any "problems" for TikTok.

Of course, there's still another lawsuit from a bunch of WeChat users about the Executive Order, and since there's no attempt to sell WeChat... that case may have a longer lifespan, but we'll cover that in another post (stay tuned).

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Filed Under: donald trump, employees, executive order, patrick ryan
Companies: bytedance, tiktok


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  • icon
    Ehud Gavron (profile), 16 Sep 2020 @ 2:57pm

    Legal language

    I am uncertain whether "The Department of Justice can state X" means either:

    1. X
      or
    2. We can state X

    For example, here's my take:
    I can state that The DoJ is run by a corrupt AG.

    Did I just SAY the DoJ is run by a corrupt AG or did I say only that I CAN so state... yet haven't yet actually stated it?

    In the latter case there is still good cause shown for a TRO.

    E

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Sep 2020 @ 3:49pm

    I call bullshit too...

    This reads like NSA testimony to congress.

    If the Department of Commerce blocks transactions from ByteDance to TikTok/US, TikTok thereby can't make payroll. But hey, The DoC didn't block salaries by TikTok, did they?

    The Department of Commerce can state...

    The DoC can state the sky is orange, too. Or that no dog has 5 legs. The proof, judge, is when the DoC actually makes such a statement, not when it is capable of doing so.

    However, this is the judge saying that you have to have actually been hit by the oncoming trolley before you can sue. Better hope that the guy by the switch decides to have the trolley run over the fat man in office rather than the workers on the other track.

    reply to this | link to this | view in chronology ]

    • identicon
      Sharur, 16 Sep 2020 @ 11:30pm

      Re: I call bullshit too...

      I didn't read that as "you can't sue" before getting hit by a trolley, but rather that you can't get a restraining order before either getting hit by a trolley or having a trial.

      (Though I agree that it would be nice to have something more binding that "DoC has no intention of doing this at this time" ).

      But as for your point about DoC blocking payments being equivalent to blocking salaries: that's irrelevant to this case, because the DoC has no obligation to allow him to get paid. If the DoC levies a (legal) fine that forces the shut down a business, the workers can't sue the DoC for shutting down his employer.

      Note that complaint was not "plaintiff will not get paid" but rather "plaintiff is potentially in breach of executive order, and thus liable to prosecution, for getting paid".

      reply to this | link to this | view in chronology ]

      • icon
        Ehud Gavron (profile), 16 Sep 2020 @ 11:56pm

        Re: Re: I call bullshit too...

        I guess the question remains unanswered. Does "The DoJ can say X" means "X" or "one day maybe X" or "it it comes to it in the right way X" or what. Having a lawyer offer an opinion may help.

        Either way, an injunction is typically provided as a relief because money can't solve the problem. "I may not get paid" can certainly be resolved with money. As a non-lawyer I can see why the TRO was rejected, yet still have questions about DoC and DoJ wording.

        I can agree fully the droids working for Trump are as stupid as he is, and cause more harm to the United States than I ever thought possible. I just haven't said it.

        E

        reply to this | link to this | view in chronology ]


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