Author: Danny Rosenthal

This is our second post looking back at this year’s war over the federal workforce. The first post is here.

The current administration has faced a staggering number of lawsuits, including dozens related to its attacks on federal workers. For example, there are at least ten lawsuits arising from Trump’s attempt to downsize and eliminate the Department of Education and at least sixteen lawsuits challenging the executive order stripping collective bargaining rights from many federal employees. (This data is from the Just Security Litigation Tracker, a very helpful resource for tracking these lawsuits).

Unfortunately, the lawsuits have not stopped Trump from carrying out terrible policies, like massive reductions in force (RIFs), the closure of USAID, and the attack on union bargaining rights. Some of the suits have failed, and others face significant obstacles.

But it’s also worthwhile to recognize positive results. Lawsuits have mitigated some of the harm from the Trump administration’s attack on the federal workforce. This post discusses some of those cases and discusses why the “channeling doctrine” has been less of an obstacle so far than the administration has hoped.

(Note: Given the volume of litigation, this post will necessarily be incomplete. We apologize for the omissions.)

Key successes in court: limiting probationary employee terminations and protecting several agencies and subagencies

Perhaps the greatest success story is litigation over probationary employee terminations. It appears that lawsuits saved the jobs of at least 17,000 probationary employees. We calculate this number by starting with the number of probationary employees who initially received termination notices–about 24,000–and subtracting the number who were ultimately terminated–fewer than 7000, according to Scott Kupor, director of the Office of Personnel Management (OPM).

The lawsuits protected thousands of jobs even though favorable court orders were in effect for less than a month. In California, Judge Alsup ordered reinstatement of probationary employees at several agencies, but his order was stayed by the Supreme Court. In Maryland, Judge Bredar ordered reinstatement of probationary employees at most agencies, but his order was stayed by the Fourth Circuit. At that point, the administration was free to re-fire the employees. But most agencies did not.

Why not? The policy of terminating probationary employee was fragile. It was developed hastily by OPM without significant political support or executive branch input. Even the 900-page Project 2025 document did not recommend mass terminations of probationary employees; it merely contained a brief reference to “remind[ing] supervisors of expiring employee probationary periods.” A main driver of slashing the federal workforce, Elon Musk, was a “solo actor” who was taking drugs, according to the White House Chief of Staff. So one lesson is that, when a policy rests on such a shaky foundation, even a short-lived court order might significantly undercut its implementation.

Great credit is due to those who brought and litigated the cases, including the American Federation of Government Employees (AFGE) and American Federation of State, County, and Municipal Employees (AFSCME), the attorney general offices of Maryland and other states, the law firm Altshuler Berzon, and others. (James & Hoffman has not been involved in any of the court cases discussed in this post.)

Litigants have also been successful in stopping (for now) the administration’s efforts to shut down several agencies or subagencies, such as the Consumer Financial Protection Bureau (CFPB) and National Institute of Occupational Safety and Health (NIOSH). For example:

• Ten months after Russell Vought instructed CFPB employees to stay home and stop working, the agency still exists. Plaintiffs obtained a favorable order from the district court, and that ruling remains in place due to a recent decision by the D.C. Circuit to hear the case en banc (meaning that all active judges on the court will participate).
• Similarly, a court rejected the administration’s attempt to effectively shutter several components of HHS, such as the National Institute of Occupational Safety and Health, through RIFs. The court of appeals allowed the order to remain in effect while the appeal is litigated, and the administration did not ask the Supreme Court to lift that order.
• Another court enjoined the administration’s attempt to close the Institute of Museum and Library Services, Federal Mediation and Conciliation Service, and Minority Business and Development agency. Again, the court of appeals allowed the order to remain in place pending appeal, and the administration did not ask the Supreme Court to lift that order.

These cases have been brought by litigants including the National Treasury Employees Union, nonprofit organizations, and a number of states.

There have been some other notable victories, though they have not yet been reviewed by an appellate court. These include:

• A court stopped the administration from completing layoffs that were implemented during the government shutdown.
• A court ordered the administration to stop putting partisan messages in employees’ auto-replies during the shutdown.

As discussed below, a key element in these successes has been that courts have rejected some attempts by the administration to argue that the disputes must be resolved initially through an administrative forum like the Merit Systems Protection Board (MSPB).

Losses

On the other hand, the administration has notched a number of significant victories:

• The Supreme Court rejected lower court injunctions that stopped RIFs across the federal government and at the Department of Education. This cleared the way for nearly 20,000 terminations via RIF.
• A district court refused to stop the shutdown of USAID. Another lawsuit over the dismantling of USAID is still pending; in that case, Judge Chuang from Maryland issued an order that Elon Musk and DOGE stop working to close the agency, but the court of appeals lifted the injunction.
• A district court allowed the deferred resignation program to move forward.
• The courts permitted Trump to fire MSPB board member Cathy Harris, Special Counsel Hampton Dellinger, and others.

Many other cases are still pending. Ultimately, the administration has been able to carry out many of its worst policies, leading to an 11% reduction in the federal workforce in 2025.

In some of the unsuccessful lawsuits, the courts did not address the merits of the case but instead rejected the claims on procedural grounds. As a result, the issues raised in the cases may still be decided in other forums, such as the MSPB. For example, employees are challenging the validity of RIFs at USAID and other agencies through MSPB appeals. The MSPB has also certified class actions for probationary employees in four agencies where they were either re-fired or where they have not yet been made whole after they were initially terminated. The cases before the MSPB may eventually be heard by the Federal Circuit Court of Appeals, which hears petitions for review from final MSPB decisions, and perhaps eventually by the Supreme Court.

The “channeling doctrine” has not been totally insurmountable

In nearly all of the lawsuits discussed above, a key question has been whether the plaintiffs are allowed to bring their claim directly to court, or whether the issues must first be addressed through an administrative forum like the Merit Systems Protection Board (MSPB).

Under a legal doctrine known as “channeling,” courts have historically refused to hear most cases involving federal employees, holding that the cases must be “channeled” to the MSPB and other similar forums. For instance, in 2012, the Supreme Court applied the doctrine in Elgin v. Department of the Treasury to hold that employees could not go directly to court to argue that their terminations were unconstitutional, but rather should bring their claims to the MSPB–even though, as the Court acknowledged, “the MSPB has repeatedly refused to pass upon the constitutionality of legislation.”

In the first few months of 2025, federal courts relied on the channeling doctrine to reject several lawsuits related to the federal workforce. For example, in February, a court cited the doctrine to reject a lawsuit over the deferred resignation program. That same month, another court did so when it allowed the administration to close USAID.

But since then, courts have issued some important orders against the administration in spite of channeling arguments. These include the orders discussed above that stopped probationary employee terminations and prevented the closure of several agencies.

Several factors have contributed to the ability of litigants to avoid the channeling doctrine in some cases.

First, the administration’s actions have been so unprecedented, destructive, and legally questionable that courts appear to have perceived a strong need for judicial intervention.

Second, some of the cases have been brought by parties other than employees and unions, such as cities, states, or nonprofit groups affected by the administration’s actions. These plaintiffs have persuasively argued that channeling does not apply to them because they cannot bring claims through any administrative process. (This strategy can only work, however, when a party other than employees or unions can show a sufficiently concrete injury.)

Third, even in some cases brought by employees or unions representing them, litigants have raised credible arguments that the issues raised in the lawsuits are not of the kind that Congress intended to be resolved initially by administrative forums like the MSPB.

Fourth, although the administration has argued that federal employee issues must be resolved by agencies like the MSPB, it has simultaneously violated the statutes that make those agencies independent by firing officials without cause, citing the unitary executive theory. This has weakened the case for applying channeling, as at least one court of appeals has recognized.

Notably, the Supreme Court has not weighed in on channeling during this administration, although the administration has invoked it in several filings with the Court. For example, the Court bypassed channeling arguments in the California probationary employees case and cases involving RIFs government-wide and at the Department of Education. Nevertheless, the Court ruled for the administration in each case.

It’s unclear what to make of the Court’s silence on channeling. Perhaps some members of the Court are still formulating their views. Only five of the current justices were on the Court for its last last major case on channeling, the Elgin case in 2012. And recent developments may have caused some of those justices to reconsider their views. Justice Sotomayor ruled in favor of the government in Elgin, while Justice Alito ruled against the government; in more recent disputes on federal employee issues, those justices have more often been on the opposite side.

It seems likely that the Supreme Court will address channeling in 2026 in 2027. For instance, the administration has announced that it will ask the Court to review the channeling question in a case involving restrictions on the ability of immigration judges to speak freely outside of work.

***

The administration’s attack on federal workers has been destructive, but it could have been worse if not for the hard work of litigants and some favorable decisions by courts. In 2026 and 2027, we will likely see resolutions in several of the pending cases. Further, the Supreme Court will likely clarify the channeling doctrine, which will establish whether cases like these can be pursued directly in court. Finally, the MSPB will decide appeals challenging many of this year’s terminations of federal employees. The outcome of these cases will determine the fate of thousands of terminated employees and shape the legacy of Trump’s war on the federal workforce.

-Danny Rosenthal and Charlotte Schwartz, attorneys at James & Hoffman

This is the first in a series of posts that will look back at this year’s assault on the federal workforce and efforts to oppose it. This post will describe and quantify the damage done by the administration. Future posts will discuss legal challenges to the administration’s policies in court and at the Merit Systems Protection Board.

The administration shrank the federal workforce by 11% in 2025

According to data published by OPM, the administration reduced the size of the federal workforce by nearly 11% in 2025. This includes the separation of nearly 14% of federal government employees, via termination and resignation, mitigated by the hiring of a smaller number of new employees. Let’s break down these numbers:

For context, the total number of civilian employees as of September 2024 was 2,313,216. This is the most recent data in OPM’s FedScope database.

To give a sense of how these employees were distributed, about a third worked for the military (DOD, Army, Navy, or Air Force). That leaves about 1.5 million who worked for non-military agencies. The largest agency was the VA, with more than 480,000 employees. Other notable agencies included the Department of Homeland Security with about 227,000 employees; DOJ with about 117,000 employees (including about 37,000 FBI employees); and HHS with about 92,000 employees. Some cabinet agencies were much smaller: the Department of Education only had 4200 employees, the Department of Labor had fewer than 15,000, and the Department of Housing and Urban Development had about 8800.

The Trump administration appears to have slashed the total civil federal workforce by a net total of 249,000 people this year, according to numbers published by OPM Director Scott Kupor on X. Kupor posted that “approximately 317,000 employees will have left the federal workforce by year-end.” That constitutes a reduction of 13.7% of the total number of federal employees as of September 2024. Kupor further stated that about 68,000 federal employees were hired, for a net reduction of 249,000, or about 10.7% of the federal workforce as of September 2024.

We can see the massive scale of this reduction by comparing it to the size of notable agencies. For instance, the reduction in employees in 2025 is more than double the size of the entire Department of Justice as of September 2024. DOJ is responsible for enforcement of federal criminal and civil laws, and it includes not only the FBI but also the entire federal prison system, the Drug Enforcement Agency, Bureau of Alcohol Tobacco and Firearms, and other components. Imagine taking all of the people doing that work in 2024, terminating them, then terminating an equal number of people again. That would still be less than the total number of federal employees lost in 2025.

Likewise, the loss of federal employees in 2025 is equal to losing about 10 DOLs or about 17 HUDs.

Looking outside the federal government, the reduction of federal employees over 2025 is greater than the total number of people employed globally by CVS or Bank of America, according to Wikipedia.

Reductions by agency

We haven’t been able to find comprehensive data regarding terminations and resignations by agency. However, we’ve pieced together numbers for several significant agencies:

	Employees as of Sept. 2024 (OPM FedScope)	Headcount reduction in 2025	Approximate percent reduction in 2025
USAID	4800 employees	Nearly all, per reporting, with a few hundred likely rehired or retained	90%-95%
HHS	92,620 employees	Approximately 30,000, per agency press release indicating staffing of 62,000	32%
State Department	14,969 employees	Approximately 3,000, per agency	21%
IRS	99,001 employees	26,411, per agency	27%
Department of Education	4209 employees	1950, per agency	46%
Military (DOD, Army, Navy, Air Force)	772,549 employees	At least 60,000, per agency	8%
VA	482,831 employees	At least 30,000, per agency press release	6%

“Voluntary” departures

The administration claims that most employees who departed in 2025 did so “voluntarily” through the deferred resignation program, in which the administration encouraged employees to resign in exchange for a guarantee of employment (typically on administrative leave) through September 30.

But these departures were not truly voluntary. The administration encouraged employees to resign while simultaneously threatening to fire those who remained. (From the original fork email: “the majority of federal agencies are likely to be downsized through restructurings, realignments, and reductions in force.”) Meanwhile, the administration worsened working conditions for federal employees in numerous ways, with an apparent goal of pressuring employees to resign.

In short, a large majority of the 317,000 employee separations in 2025 resulted from the administration’s anti-worker policies, not merely employees’ voluntary choices to resign.

Terminations: Probationary employees, RIFs, and retaliation

According to OPM, the administration fired 6900 probationary employees in 2025. But the administration tried to fire many more. Approximately 24,000 probationary workers received termination notices in February and March. Many of those employees were later reinstated through court orders.

Aside from the probationary employee terminations, Kupor says that 17,000 employees were terminated through RIFs. Again, the administration tried to RIF more employees. For instance, Kupor’s number doesn’t include more than 1400 CFPB employees who the administration tried to lay off before a court intervened.

The administration has also targeted individual employees in retaliation for their involvement in politically-disfavored programs or protected speech. For example:

• DOJ and FBI employees were fired for working on January 6 cases
• FBI employees were fired for kneeling during a protest in 2020
• EPA employees were fired for signing a letter criticizing government policies

The effect on those who remain

So far, we’ve talked about employees separated from the federal government. But the administration’s actions have also taken a toll on the remaining employees:

• The administration attempted to strip collective bargaining rights from a huge number of federal employees.
• The administration eliminated remote work programs—even where those programs were mandated through legally binding contracts.
• Employees have been transferred involuntarily (often out of jobs enforcing civil rights).
• The administration’s actions have caused many employees to fear that they could be fired in the future, especially if they exercise their legal rights to criticize government policy or complain about unfair treatment.

***

In sum, this has been an extraordinarily damaging year for the federal workforce. In future posts, we will discuss litigation challenging these policies in court and at the MSPB.

OPM Director Scott Kupor has a blog. It’s called “Secrets of OPM,” and Kupor has posted there regularly since he was confirmed in July. (The confirmation vote was 49-46, with Lisa Murkowski joining Senate democrats to oppose the nomination).

While promising a candid look at “all things OPM and the federal workforce,” the blog sidesteps some of the most disturbing aspects of the administration’s policies and actions towards federal government employees. To pick some egregious examples, there is no post addressing Elon Musk’s hyperbolic attacks on USAID employees or Laura Loomer’s apparent influence on personnel decisions. On the other hand, Kupor defended the deferred resignation program and commented briefly on OPM’s decision to end the “five things” emails mandated by Musk. Most recently, Kupor, a former tech executive and venture capitalist, published a post encouraging federal employees to experiment with AI.

I want to focus here on Kupor’s post on the mass terminations of probationary employees. Kupor addressed the issue in a piece about legal decisions that, according to Kupor, support the Trump administration’s efforts to “improve the efficiency and accountability of the federal workforce.”

Kupor doesn’t explain how the mass termination of probationary employees enhanced “efficiency and accountability.” The terminations were indiscriminate, rushed, and haphazard. Agencies sent template letters suggesting that the terminations were based on performance or conduct; we now know that was false. OPM gave the agencies only a day or two to implement the terminations, so there was no time for a genuine assessment of the employees’ work. Many of the affected employees were well-established professionals who had recently joined government from the private sector. Others were longtime federal employees who had switched jobs.

The administration’s primary defense of the terminations has been that the government was allowed to do it because of the employees’ probationary status—not that it was good policy. Kupor largely follows that approach.

Specifically, Kupor cites a recent legal decision that he portrays as finding that the administration acted lawfully when it terminated probationary employees. But Kupor’s discussion of that case is misleading.

First, Kupor says that the case was “resolved by… the Merit Systems Protection Board (MSPB).” That is false. An initial decision was issued by an administrative judge at the MSPB, one of roughly 60 such judges around the country. It is not a final decision and does not necessarily reflect the views of other administrative judges or the MSPB Board. Even once the MSPB does make a final decision, that decision will be subject to review in federal court.

Second, Kupor portrays the case as making a general pronouncement about the legality of mass terminations of probationary employees. That is wrong too. The case considers the termination of 13 immigration judges by the Department of Justice. It does not address the mass terminations at other agencies, such as the termination of 3200 probationary employees at HHS or 1700 employees at the Department of Interior.

To be clear, neither the MSPB nor any administrative judge has issued a decision on the legality of these larger mass terminations. Judges have found some appeals to be moot because the employees were already made whole after federal court rulings against the administration. As to the other agencies, proceedings are ongoing before MSPB administrative judges. These agencies include HHS, Department of Interior, Department of Housing and Urban Development, Department of Commerce, and others.

Meanwhile, as noted above, several federal judges have found the probationary employee terminations to be unlawful. Just last week, a judge issued a summary judgment decision and final judgment in favor of AFGE and other plaintiffs on their challenges to the terminations.

-Danny Rosenthal, attorney at James & Hoffman.

Nearly three months have passed since agencies began mass terminations of probationary employees. In that time, there have been several court decisions on the issue, a series of appeals filed at the MSPB, and a new executive order on probationary employees. Here’s where things stand:

Court orders involving mass terminations of probationary employees

Currently, there is no court order forcing agencies to rehire terminated probationary employees or stop further terminations of probationary employees.

To summarize:

• Two courts issued preliminary orders requiring reinstatement of terminated probationary employees.
• Higher courts then stayed those orders, meaning that the orders are no longer in effect.
• Importantly, the appellate courts did not say the terminations were proper. Rather, the courts found that employees should challenge the terminations through administrative channels such as the Merit Systems Protection Board (MSPB).
• Appeals are still ongoing, so it is possible the reinstatement orders will be put back into effect.

Without active court orders protecting employees, agencies may choose to fire probationary employees again. The Department of Commerce did so in April. Some other agencies have refused to provide backpay or placed some employees on unpaid leave.

Recently, a court instructed agencies to email probationary employees explaining that they were not fired for poor performance, but as part of government-wide mass terminations. We understand many employees received these emails in the past few days. The court also barred the Office of Personnel Management from instructing agencies to terminate employees.

There are several other ongoing court cases that do not relate specifically to mass terminations of probationary employees, but raise overlapping issues:

• Lawsuits challenging the dismantling of agencies such as USAID, the CFPB, and the Federal Mediation and Conciliation Services (FMCS), where many employees were laid off. A court order has reversed recent layoffs at the CFPB, and another court is poised to issue a similar order for FMCS and other agencies.
• Lawsuits opposing layoffs at the Department of Education. A hearing in two cases was held on April 25. The judge hasn’t yet issued a decision.
• A challenge by unions and non-profits to the executive order that required agencies to conduct mass layoffs.

MSPB class actions challenging the terminations of probationary employees

As discussed in a prior post, a coalition of law firms filed class appeals at the MSPB challenging the mass terminations of probationary employees. These appeals argue that agencies broke the law by terminating large groups of employees as part of a workforce restructuring, while violating procedures for a reduction in force (RIF).

The MSPB class actions are ongoing. In several cases, the parties are awaiting decisions as to class certification. In others, the parties are conducting discovery. In some cases, the administrative judge has indicated that he or she is considering dismissal of the case on the grounds that it may be moot. (We discuss the mootness issue below.)

Here is a case-by-case update:

• Department of Agriculture: The Administrative Judge issued a “show cause” order indicating that she is considering dismissal on mootness grounds. The Administrative Judge asked for additional information from the Agency on efforts to reinstate probationary employees and make them whole. The Agency’s response is due on May 9, 2025, and the employees can respond by May 16, 2025.

• Department of Commerce: Awaiting a decision on class certification. Appellants filed a class certification brief on April 29, 2025, and the Agency responded on May 6, 2025.

• Department of Education: In discovery regarding class certification.

• Department of Energy: The Administrative Judge issued a “show cause” order indicating that she is considering dismissal on mootness grounds. The Administrative Judge asked for additional information from the Agency on its efforts to reinstate probationary employees and make them whole. The Agency’s response is due on May 9, 2025, and Appellants can respond by May 16, 2025.

• Department of Health and Human Services: Awaiting a decision on class certification. Appellants filed a class certification brief on April 29, 2025, and the Agency responded on May 6, 2025.

• Department of Homeland Security: Awaiting a decision on class certification. Appellants filed a class certification brief on April 29, 2025, and the Agency responded on May 6, 2025.

• Department of Housing and Urban Development: Awaiting a decision on class certification. Appellants filed a class certification brief on May 2, 2025, and the Agency’s deadline to respond is May 9, 2025.

• Department of the Interior: The Administrative Judge issued a “show cause” order indicating that she is considering dismissal on mootness grounds. The Administrative Judge asked for additional information from the Agency on efforts to reinstate probationary employees and make them whole. The Agency’s response is due on May 9, 2025, and the employees can respond by May 16, 2025.

• Department of Transportation: In discovery regarding class certification.

• Department of the Treasury: Awaiting a decision on class certification. Appellants filed a class certification brief on May 9, 2025.

• Department of Veterans Affairs: In discovery regarding class certification.

• Environmental Protection Agency: In discovery regarding class certification.

• Executive Office of the President: In discovery regarding class certification.

• Federal Deposit Insurance Corporation: In discovery regarding class certification.

• General Services Administration: In discovery regarding class certification.

• National Archives and Records Administration: Awaiting a decision on class certification. Appellants filed a class certification brief on April 29, 2025, and the Agency responded on May 6, 2025.

• Office of Personnel Management: In discovery regarding class certification.

• Small Business Administration. Awaiting a decision on class certification. Appellants filed a class certification brief on April 28, 2025, and the Agency responded on May 5, 2025.

• USAID: Awaiting a decision on class certification. Appellants filed a class certification brief on April 29, 2025, and the Agency responded on May 6, 2025.

Are the cases moot?

Some agencies have argued that the MSPB appeals are moot because terminated employees have been reinstated and provided backpay. The agencies have asked judges to dismiss the appeals.

We oppose these arguments. Many employees have not been made fully whole. Full compensation includes not only reinstatement and backpay but also:

• Restoring all benefits
• Granting leave that employees would have earned while fired
• Providing pay increases or bonuses that employees would have earned during that time
• Returning employees to active duty

Further, even if agencies have provided all of this relief, the government is actively appealing the court orders under which employees were reinstated.

As of today, none of the judges in the MSPB class actions has issued a decision on the mootness issue.

Is the MSPB still operating?

Yes. Administrative judges at the MSPB are still handling cases and issuing decisions. Currently, the MSPB Board lacks a quorum due to President Trump’s termination of Cathy Harris. This does not stop cases from proceeding before administrative judges, who may issue initial decisions that become final if neither party appeals, and who may also order some relief immediately even if a party does appeal. If a party loses before the administrative judge and petitions for review by the Board, the case may remain stalled until the Board regains a quorum.

Do employees need to do anything to be covered by the class appeals?

Right now, employees do not need to do anything to be covered by these appeals. If a judge grants class certification, covered employees will likely receive a notice describing next steps.

If employees wish to raise claims other than failure to follow the RIF procedures, they should consider separate legal action. Generally, when a federal employee files a complaint or appeal involving their termination, they may be precluded from pursuing other legal options. We encourage employees to seek advice from an independent lawyer regarding their individual circumstances and options.

Generally, under MSPB rules, the 30-day deadline for individual appeals is put on hold for members of a proposed class while a judge decides whether a case can proceed as a class action. 5 CFR § 1201.27.

Employees can check for updates here or on our Bluesky feed. We may also send major updates (like notifications about class certification decisions) to employees who have filled out the intake form here. Please only complete the form once.

Other legal action

Several unions are pursuing grievances over the mass firing of probationary employees. In addition, the Office of Special Counsel previously found that the terminations “appear to have been carried out in a manner inconsistent with federal personnel laws.” After President Trump replaced the Special Counsel, the office reversed its position and announced that it would close its investigation. Employees recently sent a letter asking OSC to reconsider this move.

Probationary employee executive order

On April 24, 2025, President Trump issued an executive order regarding probationary employees. The executive order attempts to create a new system in which employees are automatically fired at the end of their probationary period unless they “demonstrate why their continuation of employment. . . is in the public interest,” and the agency submits a certification to that effect. The executive order also purports to rescind current regulations on probationary employees. The legality of this executive order is likely to be challenged.

-Danny Rosenthal, attorney at James & Hoffman

The deferred resignation program is back, at least for some agencies. Anecdotally, employees seem more open to accepting the second round. The last few months have been taxing. Probationary employees have been terminated, then placed in limbo as they are reinstated under temporary court orders. Employees have been forced to report their accomplishments to Elon Musk. Many have received RIF notices, and others fear that a notice is on the way. Some employees have been told that they are being placed into Schedule Policy/Career. With each of these developments, resignation looks more appealing.

Weighing the benefits and costs

And yet, the value of the offer has fallen. In January, employees were being promised eight months of pay, through September 30. Now, it is less than six months. But the true value of the offer is less than that.

To illustrate, imagine that an employee fears an imminent RIF. If the employee receives a RIF notice in mid-April, they should remain on the payroll until mid-June, assuming the agency provides the 60 day notice typically required by regulations. Thus, accepting deferred resignation means that the employee would be paid through the end of September rather than the middle of June, a benefit of about three and a half months beyond what the employee likely would have received if RIF’ed.

This calculation does not take into account that accepting deferred resignation likely means losing the right to severance pay (for those eligible) and unemployment compensation. This further reduces the value of the offer. And beyond that, there may be an impact on retirement benefit options, depending on the terms of the agency’s offer.

For employees who fear placement in Schedule Policy/Career, it is also worth noting that current regulations provide that employees retain their civil service protections if placed in the new schedule. See 5 C.F.R. § 302.602(c)(ii). So long as this regulation remains in place, such employees would likely not face immediate termination and would have the right to challenge their termination.

For these reasons, the value of deferred resignation may be less than it appears, even assuming the government keeps its word. What about the costs? 

Obviously, by accepting deferred resignation, employees give up the possibility of continued employment with the government after September 30. Employees must also forfeit the ability to pursue any legal claim related to their employment. This includes claims related to the employee’s termination, as well as claims for discrimination, harassment, and denial of reasonable accommodation, to name a few examples. 

Importantly, for probationary or trial employees who were terminated in February or March, those who sign a deferred resignation agreement may give up their right to participate in MSPB class actions or other legal claims challenging their terminations. For now, agencies have reinstated most of these employees, and many agencies have paid or have promised backpay. But those actions were based on temporary court orders. If the court orders expire or are reversed, agencies could potentially revoke those reinstatements, reassert the original terminations, and perhaps even seek to recoup backpay. It is unclear whether the affected employees would then have any recourse if they signed the deferred resignation agreement.

Is the new deferred resignation program more enforceable?

We previously described significant concerns regarding the enforceability of the deferred resignation program. For the most part, the new iteration faces the same problems.

It is difficult to analyze these issues as a general matter because the proposed agreements now seem to vary by agency. Some agencies appear to have addressed a few of the most glaring flaws in the prior agreement, such as the provision allowing the agency to revoke the offer at any time in its sole discretion, even after an employee had accepted it. 

But still, there is no clear path to enforceability. As a general matter, courts have usually not allowed federal government employees to enforce contracts that govern their employment. The past few months have not brought any new statute or regulation to change this doctrine. Thus, it is unclear whether employees will have any recourse if they accept the agreement but are then terminated before September 30. 

There are also some new provisions that raise concerns in the deferred resignation agreements that have been provided to employees.

For example, at the Department of Labor, employees were offered an agreement with this provision:

“Employee shall not be subject to furlough, termination, reduction in force or layoff as a result of an agency-initiated reorganization or reduction in force.” 

This provision seems to imply that an employee who accepts the agreement could nevertheless be terminated, so long as the termination is initiated by OPM, DOGE, or the President. Notably, the administration has sought to give more power to OPM and DOGE to meddle in agency personnel decisions.

A similar provision appears in the deferred resignation agreement for the Department of Transportation. By contrast, the agreement for Department of Interior does not contain this language. Yet, it includes a new provision permitting the agency to violate the agreement based on “events outside [its] control,” which arguably could include a directive from OPM, DOGE, or the President.

For these reasons, the possibility remains that an employee might be fired even if they accept the offer, and that there would be no legal avenue to challenge the termination.

We have not yet reviewed draft agreements for other agencies, so we cannot speak to the specifics of those agreements. 

Conclusion

Of course, there is no single right decision for everyone. Whether inclined to stay or go, employees should make their decision with a full understanding of the facts. For those seriously considering the offer, we recommend seeking further specific advice from a labor union, attorney, or other expert, if possible.