Earlier today, the Supreme Court lifted a preliminary injunction that had stopped many federal agencies from moving forward with layoffs of tens of thousands of employees. The court’s order is here; the full Supreme Court docket is here.
What did the Supreme Court say?
The Court provided little explanation of its decision. In an unsigned order, the Court briefly stated that the administration is “likely to succeed” in showing that it was lawful for President Trump to direct agencies to conduct RIFs. The Court added that it was “express[ing] no view on the legality of any Agency RIF.”
For those not following the case, the scope of the opinion may be confusing. How can the court allow the RIFs to go forward, while saying it is not assessing the legality of any agency RIF?
The answer lies in the Court’s statement that it was only addressing the legality of a specific executive order issued by President Trump (EO 14210) and a related memorandum issued by OPM and OMB. The executive order instructed agencies to “promptly undertake preparations to initiate large-scale reductions in force (RIFs), consistent with applicable law.” The executive order also provided further instructions on how the RIFs should be conducted, such as “prioritiz[ing]” “offices that perform functions not mandated by statute or other law…, including all agency diversity, equity, and inclusion initiatives.”
In other words, the Court held that it was likely permissible for the President to issue these instructions to agencies. However, the Court did not address the legality of any further action taken by agencies–including the specific RIFs conducted by a number of agencies so far. Thus, the opinion leaves room for further litigation.
[In a separate post, we discussed the absence from the Supreme Court’s opinion of any mention of the so-called “channeling doctrine,” which the Government asserted as a barrier to courts hearing the case at all.]
Citing the limited nature of the Court’s opinion, Justice Sotomayor concurred. In a short opinion, she suggested that she would find RIFs unlawful if they “restructured federal agencies in a manner inconsistent with congressional mandates.” Yet, she noted, the Executive Order directs agencies to engage in restructuring that is “consistent with applicable law.” She emphasized that the Court has not reviewed any specific RIF plans created under the Executive Order, and that the district court remains free to assess whether any such plans are lawful.
In a 14-page dissent, Justice Jackson disagreed with the Court’s order. She concluded that the President does not have the constitutional authority to unilaterally direct major reorganizations of government agencies. She also complained that the Court disregarded relevant factors such as irreparable harm to the party seeking the injunction.
No other justice issued a separate opinion.
Which agencies are affected?
Today’s Supreme Court decision addresses the preliminary injunction issued in one particular case, brought in the Northern District of California by a coalition of unions, nonprofits, and others. That preliminary injunction stopped RIFs at the following agencies: OMB, OPM, DOGE (USDS), USDA, Commerce, Energy, HHS, HUD, Interior, Labor, State, Treasury, Transportation, VA, AmeriCorps, Peace Corps, EPA, GSA, NLRB, NSF, SBA, and SSA.
As a result of today’s decision, RIFs may now move forward at those agencies, unless there is a separate court order that stops the RIFs. For instance, a separate court order blocked RIFs in parts of HHS.
Several other agencies are covered by separate lawsuits, and many of those lawsuits have led to orders preventing RIFs. These include the Consumer Financial Protection Bureau, the Department of Education, Federal Mediation and Conciliation Services, and others. These agencies are not directly afected by today’s Supreme Court order.
What does this mean for employees whose received a RIF notice at the agencies covered by the lower court’s preliminary injunction?
At several agencies affected by today’s decision, such as HHS, employees had already received RIF notices. Further, in most cases, the separation dates on those RIF notices has already passed.
We do not yet know how the agencies will treat these employees. The most aggressive stance would be for the agencies to claim that these employees are now terminated, retroactive to the termination dates in their RIF notices. For instance, the Department of Commerce took this approach in regard to terminated probationary employees after the Supreme Court lifted a lower court order stopping those terminations. On the other extreme, agencies could issue new RIF notices, providing another 60-day notice period. Or agencies could take a middle approach.
However, RIFs at the affected agencies could still be challenged in court. As discussed above, today’s decision does not address the legality of any specific agency RIF plans, but rather the President’s authority to order RIFs in general. Several cases are already challenging specific agency RIFs, and more such cases may be filed.
What does this mean for employees who have not yet received a RIF notice, but may receive one in the future?
Several agencies will likely move forward with RIFs now that the preliminary injunction from the Northern District of California has been lifted. By regulation, employees generally must be given 60 days notice of a RIF. This period can be shortened to 30 days, but only when OPM finds that the RIF was “caused by circumstances not reasonably foreseeable.” 5 C.F.R. 351.801(b).
What legal options remain to challenge RIFs?
The Court’s order preserves a number of options to challenge RIFs.
First, while addressing the President’s general authority to order RIFs, the opinion does not weigh in on the legality of any specific agency RIF plan. Further, the opinion does not rule that courts lack jurisdiction to consider such challenges.
As a result, parties may still raise specific challenges to RIFs, such as claiming that a RIF destroys an agency’s ability to perform functions mandated by Congress. Several courts have relied on such arguments to stop RIFs. It remains to be seen how the Supreme Court will view these issues.
Further, employees may still claim that agencies are not correctly following the intricate procedures set forth in regulations for conducting a RIF. Such claims can generally be decided by the Merit Systems Protection Board. And unions may claim in grievances that agencies are violating those regulations or collective bargaining agreements. Today’s decision does not affect these pathways.
-Charlotte Schwartz and Daniel Rosenthal, attorneys at James & Hoffman
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