Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—N.D. Cal.: Court temporarily restrains White House’s ongoing layoffs of federal workers, (May 12, 2025)

By Jason Albright, J.D.

“‘Unchecked presidential power is not what the Framers had in mind.’”

A collection of unions, non-profit organizations, and local governments is entitled to a temporary restraining order against the Trump administration’s ongoing layoffs of federal workers pursuant to Executive Order 14210, which directs federal agency heads “to initiate large-scale reductions in force (RIFs)” focusing on the President’s agency reorganization priorities, a federal district court in California found. The plaintiffs showed a likelihood of success on their claim that the EO usurps Congress’s Article I powers, and no statute gives OPM, OMB, or DOGE the authority to direct another federal agency to engage in large-scale terminations, restructuring, or elimination of itself, the court concluded. There is also a likelihood of success on the plaintiffs’ claims that OPM and OMB engaged in rulemaking to implement the EO without the public notice and comment process required by the APA, the court found (American Federation of Government Employees v. Trump, No. 25-cv-03698-SI (N.D. Cal. May 9, 2025)).

EO 14210. On February 11, 2025, President Trump issued Executive Order (EO) 14210, “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative.” 90 Fed. Reg. 9,669 (Feb. 11, 2025). By its terms, the EO “commences a critical transformation of the Federal bureaucracy[.]” Section 3(c) states that agency heads “shall promptly undertake preparations to initiate large-scale reductions in force (RIFs), consistent with applicable law, and to separate from Federal service temporary employees and reemployed annuitants working in areas that will likely be subject to the RIFs.” According to the EO, “All offices that perform functions not mandated by statute or other law shall be prioritized in the RIFs….” Section 3(e) of the order directs agencies to submit a report within 30 days to the Office of Management and Budget (OMB) that “shall discuss whether the agency or any of its subcomponents should be eliminated or consolidated.”

OMB/OPM Memo. In response to EO 14210, the directors of OMB and the Office of Personnel Management (OPM) sent a memo to heads of executive departments and agencies on February 26, 2025, instructing agency heads to submit Agency RIF and Reorganization Plans (ARRPs) to OMB and OPM for review and approval.

Learning process… Agencies were directed to submit a “Phase 1” ARRP by March 13, 2025, that included, among other information, any Congressional statutes that established the agency, whether parts of the agency should be eliminated, a list of essential positions, how the agency intends to reduce positions, a “suggested plan for congressional engagement to gather input and agreement on major restructuring efforts,” and the agency’s timeline for implementation. The memo directed agencies to submit “Phase 2” ARRPs by April 14, 2025, that include, among other information, all reductions that will occur through RIFs, proposed relocations of offices from the Washington, D.C. area to “less-costly parts of the country,” “[a]n explanation of how the ARRPs will improve services for Americans and advance the President’s policy priorities,” a certification that the ARRPs will improve the delivery of direct services, and a timetable for implementation.

The memo excluded law enforcement, border security, national security, immigration enforcement, public safety, military personnel, the Executive Office of the President, and the U.S. Postal Service.

DOGE. As to DOGE, the court further explained, in 2025, Trump refashioned the U.S. Digital Service—an office that President Obama created within OMB—into the U.S. DOGE Service via Executive Order 14158. 90 Fed. Reg. 8,441 (Jan. 20, 2025). “DOGE is known colloquially as the Department of Government Efficiency, but it derives no authority from statutes.”

Other federal agency defendants. Finally, observed the court, the defendants include 21 other federal departments or agencies that are arguably more public facing, including the General Services Administration, the National Labor Relations Board, the National Science Foundation, the Small Business Administration, the Social Security Administration, and the Environmental Protection Agency.

Agency RIF and reorganization plans. As described in sworn declarations submitted by the plaintiffs, the federal agency defendants appeared to be at different points along the “continuum of action” for implementing the RIFs, according to the court. “RIFs have started at multiple agencies, including HHS, HUD, Labor, State, AmeriCorps, GSA, and SBA. After sending RIF notices to employees, agencies have sometimes placed these employees on immediate administrative leave until the termination date set by the RIF, usually sixty days after the notice.”

And the scale of the RIFs is large. The Department of Health and Human Services (HHS), for example, is issuing RIF notices to 8,000-10,000 employees. The Department of Energy (DOE) has identified 8,500 positions as eligible for cuts, nearly half of its workforce. And the National Oceanic and Atmospheric Administration (NOAA) is reportedly preparing a RIF to reduce its workforce by more than half.

Plaintiffs. The union plaintiffs in the case consist of the American Federation of Government Employees (AFGE) and four of its locals (Local 1122, Local 1236, Local 2110, and Local 3172), the American Federation of State County and Municipal Employees (AFSCME), and the Service Employees International Union (SEIU) and one of its locals (Local 1000). In addition, 11 membership-based non-profit organizations joined the unions as co-plaintiffs: Alliance for Retired Americans, American Geophysical Union, American Public Health Association, Center for Taxpayer Rights, Coalition to Protect America’s National Parks, Common Defense Civic Engagement, Main Street Alliance, Natural Resources Defense Council, Northeast Organic Farming Association, VoteVets Action Fund, and Western Watersheds Project. Finally, six local governments also joined the suit: Santa Clara County, California; King County, Washington; Baltimore, Maryland; Harris County, Texas; Chicago; and San Francisco.

Lawsuit and motion for TRO. The plaintiffs filed their complaint on April 28, 2025, alleging that EO 14210 is ultra vires and usurps Congressional authority, in violation of the Constitution’s separation of powers; that OMB, OPM, and DOGE also acted ultra vires or beyond their authority in directing agencies to submit ARRPs and engage in RIFs; that the February 26, 2025, memo violated the Administrative Procedure Act (APA) in several ways; and that the federal agency defendants’ ARRPs also violate the APA.

On Thursday, May 1, 2025, the plaintiffs filed a motion for a temporary restraining order (TRO), and the court heard oral arguments on the motion on May 9.

Ultra vires action by Trump. Observing that at least some collection of the plaintiffs have sufficient standing to bring their claims and that neither the Federal Service Labor-Management Relations Statute nor the Civil Service Reform Act of 1978 precludes them, the court went on to find that the plaintiffs are likely to succeed on their claim that EO 14210 is ultra vires, as the President has neither constitutional nor—at this time—statutory authority to reorganize the executive branch.

“As history demonstrates,” according to the court, “the President may broadly restructure federal agencies only when authorized by Congress,” and that did not happen here. “In recent history,” moreover, “this congressional check on executive reach has stopped Democratic and Republican presidents alike from restructuring federal agencies. Presidents George W. Bush, Barack Obama, and Donald Trump (in his first term) all sought but did not receive Congressional approval to reorganize the executive branch.”

“The simple proposition that the President may not, without Congress, fundamentally reorganize the federal agencies is not controversial,” noted the court: “constitutional commentators and politicians across party lines agree that ‘sweeping reorganization of the federal bureaucracy requires the active participation of Congress.’”

The court thus found that the plaintiffs showed a likelihood of success on the merits of their claim that EO 14210 “usurps Congress’s Article I powers and exceeds the President’s lawful authority.”

Actions of OPM, OMB, and DOGE. The actions of OPM, OMB, and DOGE here fared similarly. “In sum,” said the court, “no statute gives OPM, OMB, or DOGE the authority to direct other federal agencies to engage in large-scale terminations, restructuring, or elimination of itself. Such action is far outside the bounds of any authority that Congress vested in OPM or OMB, and, as noted, DOGE has no statutory authority whatsoever.”

No public notice or public comment process. Finally, noting that several of the plaintiffs’ APA claims overlap with the ultra vires claims on which they had already shown a likelihood of success, the court additionally found a likelihood of success on their claims that OMB, OPM, DOGE, and their directors violated the APA by engaging in “rule-making” without publication and opportunity for notice and comment as required by the statute. In their brief, noted the court, the defendants asserted—incorrectly—that OPM simply promulgated regulations as it is statutorily authorized to do. But “OPM did not promulgate regulations here,” observed the court. Promulgating a regulation would have required a public process, including notice and comment under the APA. See 5 U.S.C. § 553. This did not occur.

The plaintiffs thus showed a likelihood of succeeding on their claim that OPM and OMB engaged in rulemaking without the public notice and comment required by the APA, in issuing the February 2025 memorandum and in approving the ARRPs.

TRO. Finally, finding that the irreparable harm—including lost wages and health benefits—plaintiffs will suffer in the absence of injunctive relief outweighs any burden placed on the government by the proposed two-week pause in implementation of the RIFs, the court ordered that, pending consideration of a preliminary injunction, the agency defendants and their officers or employees or any other individuals acting under their authority or the authority of the President are enjoined and stayed from taking any actions to implement or enforce Sections 3(c) and 3(e) of EO 14210 or the February 26 OMB/OPM Memo. The TRO shall last through Friday, May 23, 2025.

The case is No. 25-cv-03698-SI.

Judge: Illston, S.

Attorneys: Aaron Schaffer-Neitz (Altshuler Berzon) for American Federation of Government Employees, AFL-CIO, American Federation of State County and Municipal Employees, AFL-CIO and Service Employees International Union, AFL-CIO. Andrew Marshall Bernie, U.S. Department of Justice, for Donald J. Trump, U.S. Office of Management and Budget, Russell Vought, U.S. Office of Personnel Management, Charles Ezell, Department of Government Efficiency, and Elon Musk.

Companies: American Federation of Government Employees, AFL-CIO; American Federation of State County and Municipal Employees, AFL-CIO; Service Employees International Union, AFL-CIO; U.S. Office of Management and Budget; U.S. Office of Personnel Management; Department of Government Efficiency

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