A federal judge on Friday moved to protect more federal employees from being fired during the ongoing government shutdown amid a dispute between unions and the government about which members of the workforce were covered by a temporary restraining order the court issued earlier this week.
At an emergency hearing in San Francisco, Judge Susan Illston expanded the temporary restraining order barring reductions in force (RIFs) to also cover employees represented by the National Federation of Federal Employees, the Service Employees International Union, and the National Association of Government Employees. Previously, only members of the American Federation of Government Employees and the American Federation of State, County And Municipal Employees, the initial plaintiffs in the lawsuit, were explicitly shielded from reductions in force during the shutdown.
But at the plaintiffs’ request, the judge also clarified what it means to be a “member” of one of the unions. That issue arose in court filings on Friday, when at least some agencies made clear that they believed the restraining order did not apply to members of collective bargaining units that agencies stopped recognizing in the aftermath of President Trump’s March executive order that aimed to end union representation across wide swaths of the government.
“We think that they are overly narrowly interpreting the scope of the TRO and ignoring some of the language,” said Danielle Leonard, an attorney for the unions. “The TRO says ‘bargaining units or members,’ and there’s a reason for that language. The unions represent members regardless of whether they are in bargaining units, including at the agencies like HHS, where the government has tried to eliminate their right to have a bargaining unit.”
Illston agreed with the plaintiffs, saying she believed the language of her Wednesday order was clear from the beginning. She verbally amended the TRO from the bench to make it clearer.
“If an individual person is an employee of the defendant agencies and is a member of a plaintiff union … they can’t be RIFed. That’s what I thought I said and what I’m trying to say,” she said. “That would be contrary to what HHS perhaps thought I meant, but that’s what I do mean.”
At HHS, an agency declaration filed with the court on Friday indicated that officials there were complying with Illston’s TRO, but that they did not believe it prohibited them from issuing RIFs to members of bargaining units that the agency has chosen to no longer recognize.
“HHS and its operating and staff divisions have no AFSCME representation. Although CDC did previously have AFGE bargaining units, HHS terminated the relevant collective bargaining agreements on August 26, 2025, pursuant to Executive Order 14251,” officials wrote. CDC no longer has (and did not have, at the time of the RIF notices referenced in this paragraph) any bargaining unit employees represented by plaintiffs … thus HHS has not issued any RIF notices implicated by the court’s TRO.”
Illston clarified that those types of employees are, in fact, covered by the order and cannot be included in the administration’s shutdown-related firings.
Meanwhile, at the Department of the Interior, officials indicated in their own filings on Friday that they planned on “imminently abolishing positions in 68 competitive areas,” but that they did not consider those firings to be covered by the restraining order, because officials had been contemplating them for months before the shutdown.
Illston disagreed.
“It is not complicated,” she said. “During this time, these agencies should not be doing RIFs of the protected folks that we’re talking about that have been enjoined.”
Illston said she would issue a written order updating her earlier TRO once the plaintiffs’ attorneys provided her with suggested language. But she also ruled from the bench that federal agencies must, by noon Eastern Time on Monday, provide the court with an updated accounting of how many employees they had intended to remove during the shutdown, and how many of those are now shielded by the court’s clarified order.
Elizabeth Hedges, a Justice Department attorney, said the agencies would comply, but that pulling the information together over the weekend would be a heavy lift.
“We are in a shutdown. And part of the reason why this is so extraordinarily burdensome to the agencies is because we’re in a shutdown,” she said. “Every time we have to file something, it requires figuring out who to contact, who’s not furloughed, etcetera. So it is an extreme burden to comply on these timelines.”
“Well, it’s an extreme burden that was quite deliberately placed on your shoulders, and it wasn’t placed there by me,” Illston replied. “The government has decided to do it this way. And that’s why we’re in this very awkward situation.”
Hedges said the government believed it had been complying with the restraining order since Illston first issued it on Tuesday.
“We did our best to comply with this court’s order as quickly as possible. However, during the course of this hearing, the court has modified the TRO, and I will take that back to my clients and inform them of this court’s ruling,” she said. “To the extent any of them determine that this court’s amended TRO changes anything, they will be aware of that and they will comply with that. But I just want to make sure everyone’s understanding that up until this point in time, the TRO has said one thing, and it’s now been clarified or modified. And so I will communicate that to my clients.”
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