Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—D.D.C.: Department of Education violated furloughed employees’ First Amendment rights by broadcasting partisan out-of-office email messages, (Nov 10, 2025)

By Ronald Miller, J.D.

Nonpartisanship is the bedrock of the federal civil service; it ensures that career government employees serve the public, not the politicians.

The Department of Education violated the First Amendment rights of its employees who have been furloughed or placed on administrative leave, by changing their generic automated out-of-office email messages to a partisan message that blamed Democrats for the government shutdown, ruled a federal district court in the District of Columbia. AFGE contended that by commandeering its employees’ e-mails in this manner, the department compelling their speech in violation of the First Amendment. The court first concluded that under the unusual circumstances of this case, it had jurisdiction over AFGE’s claim. Further, applying the traditional Pickering framework, the court concluded that the department did not have a “legitimate need” to insert partisan speech in its employees’ out-of-office messages. Because AFGE prevailed on the merits, it was entitled to summary judgment, including a permanent injunction (American Federation of Government Employees v. U.S. Department of Education, No. 25-cv-3553 (CRC) (D.D.C. Nov. 7, 2025)).

Out-of-office e-mail. In March 2025, some Department of Education employees were placed on administrative leave due to large-scale reductions in force. Before going on administrative leave—and losing access to their government e-mail accounts—many of these employees set an out-of-office e-mail message explaining that they could not respond to incoming messages during their absence. These out-of-office messages did not contain partisan or political statements.

On September 30, 2025, the department distributed information about the impending shutdown to its remaining employees. The department explained that during the shutdown, some employees would continue working as “excepted employees,” while others would be furloughed. The department instructed furloughed employees to set an out-of-office e-mail reply. The instructions provided plain-vanilla “template verbiage” for the message. Many soon-to-be-furloughed employees set an out-of-office message that conformed with this template. Shortly thereafter, furloughed employees lost access to their government e-mail accounts.

Partisan messages. On October 1, 2025—the first day of the shutdown—the department’s Deputy Chief of Staff for Operations, overrode the furloughed employees’ custom out-of-office messages and implemented a new “standardized” auto-reply. The new auto-reply, standardized for all furloughed employees, states that the lapse in appropriations was caused by “Democrat Senators” who were blocking the passage of a “clean” continuing resolution. Employees did not receive advance notice of this change. By the time many department employees noticed the new out-of-office message, they had already lost access to their e-mail accounts and couldn’t change it back.

AFGE—the union representing department employees affected by this change—filed this lawsuit on October 3, 2025. It alleged that the “co-opting” of department employees’ e-mail accounts “to speak against their will on this matter of public concern” violated the employees’ First Amendment rights. The same day, AFGE sent a cease-and-desist letter to the Department of Justice, informing the government that it would move for a temporary restraining order if the Department did not cease its unlawful behavior. On October 6, 2025—in response to AFGE’s letter—the department implemented a revised auto-reply for furloughed employees. The revised message still blamed Democrats for the government shutdown.

Compelled speech. Since the first day of the shutdown, the department has used its employees’ e-mail accounts to repeatedly deliver partisan messages that many employees do not wish to convey. AFGE contends that by commandeering its employees’ e-mails in this manner, the department is compelling their speech in violation of the First Amendment. The government challenged both the court’s jurisdiction and the merits of AFGE’s claim.

Jurisdiction. As to jurisdiction, the government asserts that Congress provided an exclusive path for administrative and judicial review of federal labor-related disputes, and that any claim regarding the original message is prudentially moot. The court disagreed with the government’s contention that AFGE’s claim is a federal labor dispute that must proceed through administrative channels provided by the Civil Service Reform Act (CSRA) and the Federal Service Labor-Management Relations Statute (FSLMRS) before reaching an Article III court.

The court turned to the two-step framework established by Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), to determine whether the CSRA or FSLMRS deprived the court of jurisdiction. At the first step, the court asks whether Congress’s intent to preclude district court jurisdiction is “fairly discernible in the statutory scheme.” Congress clearly intended to preclude district court jurisdiction over claims that fall within the CSRA or FSLMRS’s review schemes.

Administrative channels. At the second step, the court asks whether AFGE’s claim is “of the type Congress intended to be reviewed within this statutory structure.” Here, the court noted that if AFGE had to proceed through prescribed administrative channels, then by the time it could seek judicial review, the shutdown would necessarily be over. By that point, the Revised Message would no longer be in effect, and there would be no way to afford AFGE meaningful relief. Thus, the first Thunder Basin factor thus weighs heavily in favor of allowing the Court to review AFGE’s claim.

“Wholly collateral”. The second Thunder Basin factor considered whether AFGE’s claim is “wholly collateral” to the statutory review scheme. A “personnel action” includes appointments, promotions, disciplinary actions, or “any other significant change in duties, responsibilities, or working conditions.” Whether AFGE’s claim is “wholly collateral” thus turned on the extent to which the department’s actions affected its employees’ “working conditions.” It is not clear whether the widespread injection of unwanted partisan statements in department employees’ out-of-office messages constitutes a change in “working conditions.” On the current record, the court cannot find that the second Thunder Basin factor weighs strongly in either direction.

Outside of agency’s expertise. The final Thunder Basin factor asked whether AFGE’s claim is “outside the agencies’ expertise.” It is not clear whether altering employees’ out-of-office messages amounts to a “grievance” under the FSLMRS or a “prohibited personnel practice” under the CSRA. Thus, the third Thunder Basin factor also does not weigh strongly in favor or against the court’s exercise of jurisdiction.

Unusual circumstances. The court observed that under normal circumstances, the CSRA and FSLMRS may have provided “meaningful judicial review” of AFGE’s First Amendment claim after the prescribed agency review process. But those administrative channels are now closed. They will remain entirely unavailable until the end of the shutdown, by which point the alleged First Amendment injury will be complete. Thus, any judicial relief derived from the administrative review scheme “would come too late to be meaningful.” Accordingly, the court concluded that under the unusual circumstances of this case, it has jurisdiction over AFGE’s claim.

Original message. It is undisputed that the department replaced the Original Message with the Revised Message on October 6, 2025. The Department has further committed “to not reverting to the Original Message during the pendency of the government shutdown,” and indicated it “intends to leave in place the [Revised] Message.” These assurances raise the question of whether the Court should still address the constitutionality of the Original Message. Because the department commits to not reimplementing the Original Message during the shutdown, the court need not decide its constitutionality.

Revised message. However, the revised message continues to present a live controversy. Because the court may still offer “meaningful relief” for the remainder of the shutdown, it moves forward to the merits of the dispute.

Employees’ speech. When the government compels individuals “to mouth support for views they find objectionable,” it deprives them of their fundamental right of free speech. In this case, it was undisputed that the department implemented the “Revised Message” without its employees’ consent. It was also undisputed that the Revised Message is automatically sent from employees’ e-mail accounts in response to incoming messages. And it was undisputed that the Revised Message blames “Democrat Senators” for causing the government shutdown. Some employees do not share that view and therefore believe that they are being “coerced into betraying their convictions.”

The out-of-office message includes the employees’ names and e-mail addresses. A person receiving the Revised Message might reasonably believe that the named employee authored the message or at least endorsed the message by declining to change it. Moreover, the employee did not have an opportunity to disavow the message or otherwise clarify their personal views because they cannot access their government e-mail account. This combination of factors presents an “unacceptable risk” that the Revised Message would be viewed as the employee’s speech. Thus, the department is forcing its employees “to be an instrument for fostering public adherence to an ideological point of view” through their email accounts. By doing so, the department has created an unacceptable risk that the Revised Message will be attributed to individual employees.

Public employees. The government next contended that, even if the Revised Message compelled the employees’ speech, there is still no First Amendment violation. The department asserted that as an employer, it “may insist that [its] employee[s] deliver any lawful message.”

It is well-established that “public employees do not renounce their citizenship when they accept employment, and... public employers may not condition employment on the relinquishment of constitutional rights.” Applying the traditional Pickering framework, the court concluded that the department did not have a “legitimate need” to insert partisan speech in its employees’ out-of-office messages.

Injunction. Because the Department violated the First Amendment rights of its employees who have been furloughed or placed on administrative leave, AFGE prevails on the merits and is entitled to summary judgment. In this case, AFGE has shown that its members are suffering an irreparable injury that cannot be repaired without a permanent injunction. Thus, AFGE has demonstrated that it is entitled to permanent injunctive relief. However, the court’s permanent injunction is limited to AFGE’s members affected by the Revised Message.

The case is No. 25-cv-3553(CRC).

Judge: Cooper, C.

Attorneys: Allison Marcy Zieve (Public Citizen Litigation Group) for American Federation of Government Employees. James Wen, U.S. Department of Justice, for U.S. Department of Education.

Companies: American Federation of Government Employees; U.S. Department of Education

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