RIF threat sparks union lawsuit as shutdown continues

A pair of federal employee unions on Tuesday filed a lawsuit seeking to block the Trump administration from carrying out its threats to unleash mass reductions in force across government as part of an apparent plan to exert leverage on Democrats during the government shutdown that began Wednesday.

Office of Management and Budget Director Russell Vought first spelled out his plans to use the shutdown as an opportunity to issue permanent government layoffs in a memo to agencies last week. Though as of Thursday afternoon, only the U.S. Patent and Trademark Office had followed through on the threat, slating about 1% of its workforce for RIFs, Vought has reportedly signaled a wave of layoff announcements could begin within the next few days.

But the American Federation of Government Employees and the American Federation of State, County and Municipal Employees said OMB’s decision to classify the advancement of reductions in force as excepted activities that may be performed during a lapse in appropriations violate federal law and recently updated shutdown guidance from the Office of Personnel Management. The unions sued the administration in the U.S. District Court for the Northern District of California, a move that proved auspicious, as the federal district court in Washington, D.C., announced a pause of all civil litigation involving the federal government for the duration of the shutdown.

At issue is the fact that the Antideficiency Act, which prohibits agencies from expending funds not appropriated by Congress, does not allow for the promulgation of layoffs during a lapse in appropriations. And a 2019 update to the law, enacted following the 35-day partial government shutdown during Trump’s first term, requires the issuance of backpay to all federal employees furloughed or forced to work without pay during a lapse.

“RIF procedures do not apply to furloughs that arise under the Antideficiency Act in the event of a shutdown,” the unions wrote. “Nothing in the Antideficiency Act or any other statute authorizes RIFs of employees who work in agencies or programs with a lapse in funding. Instead, the Act expressly provides that all employees who are not paid during a shutdown—whether furloughed or excepted—must receive back pay for that time period once funding is reinstated.”

Additionally, the unions argued that OMB’s memo relies on a “fundamental misunderstanding” of how agencies are established and funded—namely, that Congress failing to fund an agency or program means that it is no longer statutorily authorized.

“With respect to those federal programs whose funding would lapse and which are otherwise unfunded, such programs are no longer statutorily required to be carried out,” OMB wrote.

“OMB’s lapse memorandum cites no authority for this conclusion,” the unions wrote. “Nor could it; a lapse in funding does not repeal, vacate or otherwise have any effect on statutory provisions requiring or authorizing agencies to perform specified functions.”

The lawsuit charges the Trump administration with violations of the Administrative Procedure Act, arguing that officials’ disregard for both the Antideficiency Act and individual agencies’ authorizing statutes constitute arbitrary and capricious decision-making.

“Announcing plans to fire potentially tens of thousands of federal employes simply because Congress and the administration are at odds on funding the government past the end of the fiscal year is not only illegal—it’s immoral and unconscionable,” said AFGE National President Everett Kelley in a statement. “Federal employees dedicate their careers to public service—more than a third are military veterans—and the contempt being shown them by this administration is appalling.”