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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.

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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.

On December 2, an administrative judge at the Merit Systems Protection Board (MSPB) certified two more class actions for terminated probationary employees, covering probationary and trial period employees from the Department of Housing and Urban Development (HUD) and the Office of Personnel Management (OPM).

That means that terminated probationary who fall within the class definition in the cases (discussed further below) will be covered by the MSPB appeals. The class certification orders are available here for HUD and OPM.

Who is covered by the HUD class action?

The HUD class includes: “any agency employees serving in a probationary or trial period who were issued termination notices on or about February 14, 2025, in response to a January 20, 2025, guidance memorandum issued by the Office of Personnel Management.”

There are three exceptions to the class definition:

First, the class does not include anyone who signed a Deferred Resignation Program agreement or a similar agreement waiving their rights to challenge their termination.

Second, the class does not include anyone who was truly terminated based on specific, individual performance or conduct issue. This exception does not apply to most people, and it does not apply to people who received a termination letter saying that they were terminated based on performance, but who was really fired as part of a mass termination of probationary workers.

Third, the class does not include anyone who was past their probationary or trial period when they were terminated. Employees who are not sure whether this applies can read our “Am I really probationary?” guide and seek advice from an independent lawyer.

Employees who fall within these three exceptions may wish to file an individual appeal. We encourage employees to seek advice from an independent lawyer regarding their individual circumstances and options. Employees in this situation should act quickly so their appeal is not considered untimely.

What happens next in the HUD class action?

If you are covered by the class definition, you do not need to do anything to be included in the class action. Members of the class will receive a notice informing them that: the class has been certified; that they meet the class definition; and that they will become part of the class action and will be bound by any decision in this appeal.

If you are covered by the class definition and do not want to be included in the class action, you have the opportunity to opt out. Typically, this is most relevant to class members who wish to raise additional claims that are not raised by this class action. For example, employees alleging that they were targeted for termination based on their race or gender may want to consider opting out. Generally speaking, a class action case can address claims that are shared by the entire class, but not claims that are unique to one particular class member. To opt out, class members must file an individual appeal by January 1, 2026.

We encourage employees to seek advice from an independent lawyer regarding their individual circumstances and options.

It is possible there may be further negotiation and litigation regarding the scope of the class definition above, which could delay the proceedings and potentially impact the scope of the class definition (e.g. who’s included, and who’s not). However, unless and until that happens, the deadline for opt-out is January 1, 2026.

Who is covered by the OPM class action?

The administrative judge’s decision defines the OPM class as: “any agency employees serving in a probationary or trial period who were issued termination notices on or about February 13-14, 2025, in response to a January 20, 2025 guidance memorandum issued by the agency,” with the same exceptions outlined above for HUD. However, the Agency has said it plans to object to this definition.

What happens next in the OPM class action?

The administrative judge has paused further proceedings in order to resolve a dispute about who belongs in the OPM class. Next, both parties will file additional briefings to make arguments about the scope of the class. Then the administrative judge will make a final decision. Once that happens, class members will receive notice and have an opportunity to opt-out.

What law firms are involved in this effort?

Most of the appeals, including the HUD and OPM appeals discussed here, are being pursued by a group of four firms: Brown Goldstein & Levy, Cohen Milstein Sellers & Toll, Gilbert Employment Law, and James & Hoffman.

For the HUD appeal, the lead law firm is Gilbert Employment Law. For the OPM appeal, the lead law firm is Brown Goldstein & Levy.

–Emily Postman, attorney at James & Hoffman

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.

The second Trump administration has sought to terminate federal employees in unprecedented numbers, using mass terminations of probationary employees, reductions in force (RIFs), and other initiatives.

These terminations have placed massive pressure on the Merit Systems Protection Board (MSPB), which resolves appeals from terminated federal employees. The MSPB has already received more than 11,000 appeals this fiscal year.

Class actions seem like an attractive way to manage this onslaught of employee appeals. But so far, the MSPB’s attitude towards class actions has been mixed. The MSPB has entertained class actions in cases challenging the termination of probationary employees. But in RIF cases, the MSPB has denied requests for class status, before allowing discovery and without providing a detailed explanation of the reasons for the denial.

What is a class action?

A class action is a lawsuit brought by a person or small group of people, seeking to raise legal claims on behalf of a larger group of people with similar claims. For example, a person injured by a product might bring a lawsuit seeking to represent all people injured by the same product.

Class actions enhance access to justice. When many people are affected by the same allegedly illegal conduct, not everyone will have the means to hire a lawyer and pursue their claims. But all affected individuals can benefit from a class action. Class actions can also help make the work of courts and other decision-making tribunals more manageable. And in some cases, defendants might even prefer class actions to litigating a multitude of individual disputes.

In federal court, class actions are governed by a provision known as “Rule 23” (more specifically, Rule 23 of the Federal Rules of Civil Procedure). This rule sets forth the standards that a court should apply to decide whether a case can move forward as a class action. For example, the plaintiff must show that there are common legal or factual issues affecting the claims of all members of the proposed class.

Each class action has a class definition—a description of the members of the class. For example, in a product defect case, the class definition might be something like, “All individuals who purchased the product from 2020 to 2022 and were injured by the product.” Class actions typically work on an “opt out” basis, meaning that everyone within the class definition is considered part of the case, unless they choose to opt out.

The MSPB’s class action rule

Prior to this year, the MSPB had not allowed a class action in many years, perhaps going back to 1997 in a case called Adzell v. Office of Personnel Management in which veterans challenged a policy regarding veterans’ preference.

However, the MSPB’s rules clearly permit class actions. See 5 C.F.R. § 1201.27. The rules state that an MSPB case should be allowed to proceed as a class when it is “the fairest and most efficient way to adjudicate a dispute.” In making that determination, the judge should be “guided but not controlled” by the rule governing class actions in federal court.

Despite this clear authorization for class actions, MSPB judges have historically been reluctant to grant class status. But new circumstances call for new approaches.

Class actions in the era of DOGE downsizing

In the face of the Trump administration’s unprecedented attack on federal workers, employees and their advocates have sought to use class actions to assert their rights. 

First, probationary employees sought to challenge their terminations in class actions. At least twenty of these cases were filed by employees at different agencies. After the filing of the MSPB cases, many probationary employees were reinstated as a result of court orders, raising questions about whether and how the MSPB appeals would proceed.

So far, class certification has been granted at two agencies, the Department of Homeland Security and Department of Interior. At both agencies, large numbers of terminated probationary employees remain on administrative leave after being reinstated. Further, many employees at DHS have not received backpay. 

Class certification requests remain pending at several agencies, including agencies like HHS and the Department of Commerce where probationary employees were re-terminated after they were reinstated.

Class certification has also been denied at several other agencies on the basis that the cases are likely moot for most employees because they have been reinstated to active duty and provided backpay. Importantly, none of the probationary employee class actions have been denied for any reason other than likely mootness.

Second, employees have sought to challenge RIFs through class actions. But those attempts have uniformly been rejected. The MSPB has even denied class action where an entire agency (USAID) was eliminated, a seemingly ideal case for a class action because every employee was affected in the same way by the same action.

In RIF cases, the MSPB has denied class certification quickly—as soon as one day after the filing of the case—by issuing a short template order explaining why class certification was not appropriate.

The MSPB’s reasons for denying class certification in RIF cases

The MSPB has given three main reasons for denying class certification in RIF cases:

• Concerns about use of class members’ personal information (From a class certification denial order: “The nature of RIF actions presents difficulties in managing them as part of a class appeal with respect to protecting personally identifiable information of putative class members.”)
• Need for individual consideration (“RIF actions generally require an individualized review of appellants’ performance and competitive levels.”)
• Possibility of consolidation of appeals as an alternative to class status (Common issues “can be addressed efficiently, if later found appropriate by the adjudicating administrative judge, as a consolidation under 5 C.F.R. § 1201.36.”)

There are significant questions about these justifications for denying class certification.

The first two factors (personal information and individual consideration) would only come into play for certain legal theories, not others. For instance, these concerns could apply if a class action alleged errors in employees’ retention factors (e.g., tenure and performance reviews). Such errors might arguably need to be assessed individually and with use of personal information.

But these concerns would not apply to class actions that focus on other narrow agency-wide issues. For example, if an agency decided not to do retention rankings at all, that failure could be challenged without any need to consider personal information or individual circumstances.

It is true that a narrowly-focused case, like the one described above, would omit more individual arguments that some employees might like to raise. But that should not matter to class certification, which is supposed to be based on the arguments raised in the proposed class action itself.

Further, employees’ individual issues can be managed in at least two ways. First, employees could be told to opt out of the class action if they would like to pursue those issues. Second, the class action might be treated as an “opt-in” class, meaning that employees would only become part of it if they chose to proceed on the narrow theory of the class action. Under either of these approaches, a class action could remain an efficient mechanism to address a narrow agency-wide issue affecting a large number of employees, even while a smaller number of employees chose to pursue individual issues.

To the extent personal information remains a concern, there are techniques available to address it. For example, federal courts routinely issue orders that restrict the sharing and use of information.

Finally, the possibility of consolidation does not necessarily provide reason to deny class status. Consolidation refers to the process by which individual appeals filed by employees might be grouped together. But this system is much more burdensome and costly than a class action. Employees would still have to file appeals individually, which can be a daunting process, and one in which employees often use attorneys who charge legal fees. The MSPB must create a separate docket and issue separate orders in each case. Further, because the docket in MSPB cases is not public, it is challenging for employees and their counsel to identify parallel cases and seek consolidation.  

Many of the MSPB’s concerns with class actions could be alleviated through opt-in classes that raise narrow agency-wide issues. Because employees would affirmatively choose to participate, there would be no use of personal information without employee consent. Employees seeking to pursue individual issues could simply ignore the opportunity to opt in. And an opt-in process is more efficient than having hundreds or thousands of individual appeals separately filed and docketed.

Conclusion

As the Trump administration continues to terminate huge numbers of employees through RIFs, it will become more challenging for employees to pursue individual appeals and for the MSPB to resolve them. It is already hard enough for many laid-off employees to hire an attorney. It will become harder as the lawyers who represent employees at the MSPB take on more cases and have less capacity. Meanwhile, the MSPB’s caseload will grow larger and larger. Under these circumstances, one can hope that the MSPB will reconsider its reluctance to permit RIF class actions.

-Danny Rosenthal, attorney at James & Hoffman

As readers may know, this website is maintained by James & Hoffman, a law firm in DC dedicated to representing labor unions and employees. Over the past six months, the firm has been involved in numerous efforts to challenge the Trump administration’s attack on the federal workforce, including pursuing class actions on behalf of terminated probationary employees, representing whistleblowers, and challenging reductions in force. The firm is now seeking to hire a lawyer to assist with these efforts and participate in the remainder of the firm’s practice. The job posting is available here and reprinted below:

James & Hoffman is seeking to immediately hire an associate for a one-year term position with the possibility of conversion to a permanent position.

Based in Washington, DC, the firm represents labor unions and employees. In the past six months, the firm has grown its longstanding federal employment practice to meet the need created by the Trump administration’s unprecedented attack on the federal workforce. For instance, the firm has developed class actions on behalf of probationary employees at the Merit Systems Protection Board, and is working closely with other firms, labor unions, and nonprofits on these cases. Aside from its federal employee work, the firm’s other practice areas include representing unions and private sector employees at arbitration, administrative agencies, and in court.

To meet the demands of the firm’s increased workload, the firm seeks to add a new associate, ideally starting in August or September 2025. The associate would join the firm for a one-year term, with the possibility of conversion to a permanent position at the end of the year. The associate is expected to spend a significant portion of their time on litigation involving federal employees, but would also work throughout the firm’s practice.

Priority will be given to candidates with at least two years of litigation experience, which may include government positions or clerkships.

Salary is dependent on experience, and ranges from $95,000-$135,000. We also offer a competitive benefits package.

To apply, please send a cover letter, resume, law school transcript, and up to two writing samples to Michael Ellement.

Applications will be reviewed on a rolling basis, but interested applicants are encouraged to apply as soon as possible.

On July 17, 2025, an administrative judge at the Merit Systems Protection Board agreed to let terminated probationary and trial period employees at the Department of the Interior challenge their terminations as a class. That means that the class appeal can seek a remedy for all terminated probationary employees at the Interior Department (with some exceptions, discussed below). The class certification order is available here.

While DOI employees were reinstated as a result of other litigation brought in federal court, the agency did not make these employees whole. Many are still on administrative leave. This class action means that these employees will be able to pursue remedies for these harms together.

What does the order mean for fired DOI workers?

An MSPB Chief Administrative Judge certified a class with the following definition

“The class will consist of any agency employees serving in a probationary or

trial period who were issued termination notices between February 14-18, 2025, in

response to a January 20, 2025, guidance memorandum issued by the Office of

Personnel Management.”

This class includes employees from any part of DOI. The administrative judge also rejected an argument by the Agency that the case should be limited to people who are still on administrative leave.

Exceptions to the Class Definition

There are three exceptions to the class definition:

First, the class does not include anyone who signed a Deferred Resignation Program agreement or a similar agreement waiving their rights to challenge their termination.

Second, the class does not include anyone who was truly terminated based on specific, individual performance or conduct issue. This exception does not apply to people who received a termination letter saying that they were terminated based on performance, but who was really fired as part of a mass termination of probationary workers.

Third, the class does not include anyone who was past their probationary or trial period when they were terminated. Employees who are not sure whether this applies can read our “Am I really probationary?” guide and seek advice from an independent lawyer.

Employees who fall within these groups may wish to file an individual appeal. We encourage employees to seek advice from an independent lawyer regarding their individual circumstances and options. Employees in this situation should act quickly so their appeal is not considered untimely.

What happens next?

Members of the class will receive a notice informing them that: the class has been certified; that they meet the class definition; and that they will become part of the class action and will be bound by any decision in this appeal, unless they opt out by filing an individual appeal by August 21, 2025.

For employees who already filed their own MSPB appeal, the judge’s order states that they will receive a separate notice saying that their appeals subsumed into the class action, “unless they timely elect to proceed individually.” That means that your individual case will be subsumed into the class action, unless you opt out. It is not yet clear how employees should make this election.

Class members who wish to raise additional claims that are not raised by this class action—for example, alleging that they were targeted for termination based on their race or gender—may want to consider opting out. Generally speaking, a class action case can address claims that are shared by the entire class, but not claims that are unique to one particular class member. We encourage employees to seek advice from an independent lawyer regarding their individual circumstances and options.

What does this mean for probationary employees at other agencies?

In March 2025, a coalition of law firms filed class appeals for fired probationary and trial employees at 20 agencies. You can find a list of agencies covered by these class appeals here. This is the second probationary employees’ class action to be certified by the MSPB—and a hopeful sign that other appeals will be allowed to proceed on a class basis.

However, this decision isn’t binding on other MSPB administrative judges, and agencies continue to oppose class certification in most cases. Further, the MSPB has denied class certification in cases challenging mass terminations at the CFPB and USDA, because the Agency proved that they have reinstated virtually all members of the class, provided them with back pay, and made them whole.

What law firms are involved in this effort?

Most of the appeals, including the Department of Interior appeal discussed here, are being pursued by a group of four firms: Brown Goldstein & Levy, Cohen Milstein Sellers & Toll, Gilbert Employment Law, and James & Hoffman.

Some appeals are being pursued with a different set of firms as co-counsel, including  the American Federation of Government Employees (AFGE) and Towards Justice.

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You can follow further updates here and on our Bluesky account.

-Sejal Singh, attorney at James & Hoffman

An interesting aspect of yesterday’s Supreme Court decision on RIFs is that it doesn’t mention the so-called “channeling doctrine.” This doctrine provides that federal employees often cannot go directly to court to raise legal claims related to their employment. Instead, those claims must be raised in other forums such as the Merit Systems Protection Board.

There are two reasons why the Supreme Court could have been expected to address channeling. First, it was the Government’s lead argument in seeking a stay of the lower court’s preliminary injunction. From page 15 of the Government’s stay application: “As a threshold matter, respondents brought their claims in the wrong forum challenging the wrong actions. The district court lacked jurisdiction over this dispute related to federal personnel actions.”

Second, as reflected in the quote above, channeling is generally considered an issue of the court’s jurisdiction—meaning its power to hear the case at all. Typically, courts address jurisdictional issues before they address the parties’ other arguments. Courts follow this sequence because, if don’t have jurisdiction, they lack the power to address the merits of the case.

Here, though, the Supreme Court ignored channeling completely. The Court said it was lifting the preliminary injunction “[b]ecause the Government is likely to succeed on its argument that the Executive Order and Memorandum are lawful—and because the other factors bearing on whether to grant a stay are satisfied.” (The “other factors” mentioned by the Court are the balance of the equities, irreparable harm, and the public interest, none of which would likely involve channeling.)

In other words, the Court relied on its assessment of the merits of the parties’ arguments, without accepting the Government’s lead argument that the Court lacked power to hear the case. And this now appears to be a pattern: in a prior order allowing agencies to terminate probationary employees, the Court did not mention channeling either. Instead, the court found that the plaintiffs lacked standing.

We should be wary of reading too much into yesterday’s very brief order, but the absence of channeling seems significant. It might signal that a majority of the Court disagrees with the strong form of channeling proposed by the Government in this case, or at least that some pivotal justices haven’t made up their mind on the issue. For example, five justices might be inclined to hold that claims from nonprofit orgainzations and localities (who were among the plaintiffs in the RIF case) cannot be channeled because those plaintiffs cannot bring their claims to administrative forums like the MSPB. If a majority of the Court ultimately rejects the Government’s position on channeling, that would be a consequential development, because the Government is using the same defense against numerous other pending lawsuits involving federal employees.

Notably, Justice Alito dissented from the Supreme Court’s most recent channeling decision in Elgin v. Department of Treasury, where the Court ruled against employees seeking to challenge their terminations in court. Justice Alito’s dissent was joined by Justices Ginsburg and Kagan. Those justices objected to the Court’s use of the doctrine to preclude judicial review of constitutional claims by federal employees.

Thus, only three current justices joined the majority in Elgin—Chief Justice Roberts, Justice Thomas, and Justice Sotomayor. Further, it seems possible that one of those three, Justice Sotomayor, has changed her view in light of recent events such as President’s Trump’s firing of an MSPB Board member, in line with a Fourth Circuit decision from last month. If so, the key question may be whether all three of President Trump’s appointees (Justices Gorsuch, Kavanaugh, and Barrett) would join the Chief Justice and Justice Thomas to form a five-justice majority supporting a strong form of channeling. This assumes that Justice Alito would maintain his skepticism of channeling.

Another possibility is that a majority of the Court is prepared to side with the Government on channeling, but that one or two justices (likely including Justice Kagan) negotiated with their colleagues to remove any mention of channeling from yesterday’s opinion, in exchange for not filing or joining a separate opinion. This would suggest that the Court will eventually adopt the Government’s channeling argument. But for now, the opinion preserves hope for litigants seeking to obtain judicial review of the Trump administration’s attack on the federal workforce.

-Danny Rosenthal, attorney at James & Hoffman.

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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