Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Federal employee unions sue OPM over ‘Fork in the Road’ resignation program, (Feb 5, 2025)

By Brandi O. Brown, J.D.

“The continued success of government is based, in large part, on the institutional memory of its career civil servants who are committed to the missions of their agencies and the prospect of working for the American people.”

Yesterday, American Federation of Government Employees, AFL-CIO (AFGE), AFGE Local 3707 (Local 3707), American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME), and National Association of Government Employees, Inc. (NAGE), which collectively represent more than 800,000 federal civil servants, jointly brought suit against the Office of Personnel Management (OPM) and the Acting Director of OPM relating to the January 28, 2025, decision by OPM to offer a “deferred resignation” program to federal career employees. This action, they allege, “is the latest effort by this Administration to drastically reduce the nonpartisan career civil service upon which this country has depended and under which it has thrived for more than 140 years.”

The January 28, 2025, email, titled “Fork in the Road,” which offered employees a so-called “deferred resignation... program,” is in line with other actions already being taken by the White House and OPM, the complaint alleges, through executive orders and OPM memoranda. “Daily, the complaint alleges, “the President is also eliminating offices and programs that are supported by Congressional appropriations and tasked by Congress with specific functions.” In the email, federal employees were given little more than a week to accept or reject the offer—until February 6, 2025—and to leverage employees into accepting, the directive threatens employees with eventual job loss if they refuse. OPM stated that “the majority of federal agencies are likely to be downsized through restructurings, realignments, and reductions in force,” and that they “cannot give you full assurance regarding the certainty of your position or agency.”

Information lacking. The unions allege that they are “unable to render dependable advice because basic information is absent from the Directive,” including: (1) whether OPM can or will honor the financial commitment for agencies government-wide when Congress has made no appropriations for this purpose; (2) whether and under what circumstances employees are expected to continue working for the government and whether they seek outside employment before their final resignation date; (3) the implications for pensions, health insurance, retirement, eligibility, service tenure requirements, reinstatement rights, and the like; and (4) how and when the threatened restructuring, realignments, and RIFs will be announced and whether the employees’ adverse-action and due protections will be honored.

Other problems with the “Fork Directive” that are identified in the complaint include that OPM failed to consider several factors in issuing it, such as the critical concerns of continuity and service across government operations and the programmatic and other impacts of dramatically, with little warning, reducing the size of the federal workforce. “Compounding the confusion,” moreover, OPM sent the directive to individuals it later deemed ineligible to participate, including air traffic controllers who later learned, allegedly through the media, that they were exempt. The directive, they allege, “does not reflect reasoned decision-making.”

Arbitrary, lacking statutory basis. The plaintiffs allege that the Fork Directive is arbitrary and capricious, and also contrary to law, lacking a statutory basis. “Moreover,” the complaint alleges, “the current appropriation for most federal agencies expires on March 14, 2025, but the Directive purports to make or authorize an expenditure or obligation through September 30, 2025, before an appropriation is authorized. The Antideficiency Act forbids such a guarantee.”

“Because the Fork Directive is a final agency action that, as written, is arbitrary and capricious and contrary to law,” the complaint contends, “the Court should, inter alia, declare that the Directive as issued is arbitrary, capricious, and not in accordance with law, vacate and remand the Directive to OPM to provide a reasoned basis for the Directive and extend the deadline accordingly, and until such time as Defendants provide an adequate justification for the Directive, and enjoin the February 6, 2024 deadline.”

They seek declaratory and injunctive relief that includes a declaration that “the Fork Directive, as currently drafted, is arbitrary, capricious, and not in accordance with law in violation of the Administrative Procedure Act[.]” They ask the court to vacate the directive and remand to OPM and that the court preliminarily and permanently enjoin the defendants and their agents and successors from implementing or otherwise giving effect to the deadline, as well as to send a court-approved corrective communication. They also seek costs and attorney fees, among other relief.

Comments. “We are filing this lawsuit to stop the purge of qualified professionals from the federal government workforce. Not only are these actions illegal and a scam, but they are eroding the health and well-being of our communities. These workers do everything from making sure families receive their Medicare, Medicaid and Social Security benefits on time to protecting our drinking water and the food we eat to overseeing our national security. If this chaos goes unchecked, it will have devastating impacts on working people,” said AFSCME President Lee Saunders.

“The vast majority—more than 90%—of Americans believe that government employees should be hired and promoted based on merit, not political loyalty. Yet, President Trump and his unelected associates are threatening that value and our hardworking, dedicated, and independent civil servants—individuals who swear an oath to support and defend the Constitution and the American people,” said Skye Perryman, President and CEO of Democracy Forward.

MainStory: TopStory LitigationNewsTrends PublicEmployees UnionsMembers Layoffs Discharge AgencyNews WhiteHouseNews IndividualRights GCNNews