Federal employee unions are challenging the Trump administration’s threats to conduct mass layoffs of government workers amid the latest shutdown.
In a lawsuit filed Tuesday, the American Federation of Government Employees and the American Federation of State, County and Municipal Employees allege that the Office of Management and Budget has taken a “legally unsupportable” position to use a lapse in appropriations as grounds for eliminating programs and jobs that are not considered current priorities for the president.
In guidance published last week, OPM authorized agencies to move forward with reductions in force, including issuing RIF notices to federal workers while also preparing for furloughs ahead of a shutdown. “Agencies are encouraged to prepare decisional documents to document and support RIF-related decision-making,” according to the OPM guidance.
Over the weekend, OMB and the Office of Personnel Management went further, telling agencies that federal workers could keep working during the shutdown to carry out these RIFs.
The unions said the directive is “contrary to federal law, because carrying out RIFs is plainly not a permitted function that can lawfully continue during a shutdown.”
The unions’ lawsuit calls for an injunction. “These actions are contrary to law and arbitrary and capricious, and the cynical use of federal employees as a pawn in Congressional deliberations should be declared unlawful and enjoined by this Court,” the lawsuit notes.
During a shutdown, federal employees are either furloughed or they are required to work if their roles are considered essential to “protecting life and property.” Neither furloughed nor “excepted” employees are paid during a shutdown, although they are guaranteed back pay once the government reopens.
AFGE and AFSCME argue in the lawsuit that there is no statutory authority for reductions in force during a shutdown.
The statutes governing RIFs do not give agencies legal authority to conduct RIFs. Instead, they can only lay out how a RIF must be carried out if one is authorized. Employees subject to RIFs must receive a 60-day notice, though OPM can approve a shorter 30-day notice in some circumstances.
The unions argue that RIF procedures do not apply to furloughs that occur under the Antideficiency Act during a shutdown.
“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,” the lawsuit reads.
“The RIF regulations do not apply to shutdown furloughs. As the Trump administration recently reaffirmed, in OPM’s just-updated guidance document, ‘Reductions in force (RIF) furlough regulations … are not applicable to emergency shutdown furloughs because the ultimate duration of an emergency shutdown furlough is unknown at the outset and is dependent entirely on Congressional action, rather than agency action,’” it continues.
AFGE and AFSCME asked the court to rule that OMB and OPM “have exceeded statutory authority, acted contrary to law, and acted in an arbitrary and capricious manner.”
The unions also asked the courts to throw out OMB’s memo and OPM’s guidance that encourages agencies to conduct RIFs during a shutdown.
“Announcing plans to fire potentially tens of thousands of federal employees 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,” AFGE National President Everett Kelley said in a statement. “Federal employees dedicate their careers to public service – more than a third are military veterans – and the contempt being shown to them by this administration is appalling.”
The lawsuit was filed just hours before the funding deadline as Democrats and Republicans clashed over health care provisions.
President Donald Trump told reporters in the Oval Office on Tuesday that the administration can make “irreversible” cuts if Democrats do not vote for the GOP continuing resolution to fund the federal government through November.
“The last person that wants to shut down is us,” Trump said. “With that being said, we can do things during the shutdown that are irreversible, that are bad for them and irreversible by them. Like cutting vast numbers of people out, cutting things that they like, cutting programs that they like.”
“You all know [White House budget director] Russell Vought, he’s become very popular recently because he can trim the budget to a level that you couldn’t do any other way. So, they’re taking a risk by having a shutdown. Because of the shutdown, we can do things medically and other ways, including benefits,” he added.
Rep. James Walkinshaw (D-Va.) said in a Sept. 30 op-ed that no statute, appropriation or constitutional clause gives an administration authority to fire government workers simply because funding has lapsed.
“When Congress fails to enact a continuing resolution or full-year funding, federal agencies are constrained by appropriations law, not presidential whim,” Walkinshaw wrote.
If you would like to contact this reporter about recent changes in the federal government, please email anastasia.obis@federalnewsnetwork.com or reach out on Signal at (301) 830-2747.
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