Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Court issues order temporarily halting placement of USAID employees on paid administrative leave, (Feb 10, 2025)

By Brandi O. Brown, J.D.

The temporary restraining order also halts the expedited evacuation of USAID employees from their host countries but does not impact Secretary Rubio’s order pausing new obligations of funding.

On February 6, 2025, the American Foreign Service Association, along with AFGE, filed suit against President Trump and others seeking declaratory and injunctive relief relating to actions taken by the new administration to dismantle USAID.

Specifically, the unions pointed to Trump’s Executive Order on “Reevaluating and Realigning United States Foreign Aid,” the stop-work orders on USAID foreign assistance awards issued by the State Department and Mark Rubio, and the layoffs and furloughs of USAID contractors and grantees.

In the “wood chipper.” Thereafter, they allege, Elon Musk and DOGE “gutted what remained of the agency.” On February 3, 2025, they point out, Musk posted that he spent the previous weekend “feeding USAID into the wood chipper,” and, on that same day, USAID headquarters shut down and more than 1,000 employees, including some in war zones, were locked out of their federal computer network accounts. They add: “The usaid.gov website now indicates that ‘all USAID direct hire personnel will be placed on administrative leave globally’ on Friday, February 7, 2025, at 11:59 PM.”

“Not a single one of defendants’ actions to dismantle USAID were taken pursuant to congressional authorization. And pursuant to federal statute,” they allege, “Congress is the only entity that may lawfully dismantle the agency.”

Violates constitution and APA. The causes of action identified in the lawsuit include violation of separation of powers; violation of the Take Care Clause; and multiple violations of the Administrative Procedure Act.

Among other things, the plaintiffs sought relief “directing defendants to immediately cease actions to shut down USAID’s operations in a manner not authorized by Congress.” They alleged that their members are suffering or will suffer irreparable harm.

Court grants TRO, in part. In a separate TRO request filed on Friday, they asked the court to step in to “maintain the status quo” while the court considers the legality of the challenged actions. In its written order, the court granted, in part, their requested relief. The court explained that “at the TRO hearing, it became clear that plaintiffs’ allegations of irreparable injury flow principally from three government actions: (1) the placement of USAID employees on administrative leave; (2) the expedited evacuation of USAID employees from their host countries; and (3) Secretary Rubio’s January 24, 2025 order ‘paus[ing] all new obligations of funding... for foreign assistance programs funded by or through... USAID.’” The court found that a TRO was warranted regarding the first two actions but not the third.

Almost 3,000 employees in “informational vacuum.” In the hearing held on Friday, the court explained, some clarity was provided around the numbers—it learned that 500 USAID employees had been placed on leave and, absent a TRO, an additional 2,200 were slated to be placed on leave that same day. And, most importantly, counsel for the unions explained that the overseas employees placed on leave, who now lack access to the the agency’s email, payment, and “internal security warning/alert systems,” now have been left in an “informational vacuum” with regard to possible safety threats.

High-risk environs. Taking the TRO factor of “irreparable injury” first, the court found that the unions had “adequately demonstrated” that their members are and would be facing irreparable injury. It noted that many USAID personnel work in “high-risk environments where access to security resources is critical” and that “[n]o future lawsuit could undo the physical harm that might result if USAID employees are not informed of imminent security threats occurring in the countries to which they have relocated in the course of their service to the United States.” While noting that the defendants argued that placing these employees on paid leave in this way would be a garden-variety type of personnel action unworthy of court intervention, the court responded, “But administrative leave in Syria is not the same as administrative leave in Bethesda: simply being paid cannot change that fact.”

Serious safety concerns. There was also at least a “colorable argument” that placing nearly 3,000 USAID employees on administrative leave would violate the Further Consolidated Appropriations Act of 2024, the court explained. More importantly, however, on the “sliding scale” applicable to TRO inquiries, the “strong arguments about the seriousness of the safety risks” involved led the court to conclude that the merits argument was sufficient to support a TRO. And the government had been unable to adequately respond to a question about what harm would befall it if it could not immediately place these employees on leave, “beyond asserting without any record support that USAID writ large was possibly engaging in ‘corruption and fraud.’”

Immediate evacuation halted too. As for immediate evacuation, the risk of irreparable harm was shown. “Recalling employees on such short notice disrupts long-settled expectations and makes it nearly impossible for evacuated employees to adequately plan for their return to the United States.” Even if a future lawsuit could recoup some of the financial harms created, “it surely could not recoup damage done to educational progress, physical safety, and family relations.” The remaining TRO factors, the court explained “shake out in similar way as they did with respect to the administrative leave question.”

No TRO on contractor funding freeze. However, the answer was different when it came to the order freezing funding to USAID’s contractors. The court explained that there were “significant factual questions” about the practical effect of that order, but even assuming the freeze would prevent payments on existing grants in the way the plaintiffs argued, the court determined that they had not demonstrated irreparable harm—the claims regarding the risk of financial exposure for contracting offers were “simply too speculative.”

The lawsuit was filed in federal court in the District of Columbia; the case is No. 1:25-cv-00352-CJN.

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