Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—1st Cir.: Stay of injunction halting Department of Education’s reduction in force rejected, (Jun 5, 2025)

By Todd Harrison, J.D.

Among other things, the government failed to show that “the public's interest lies in permitting a major federal department to be unlawfully disabled from performing its statutorily assigned functions.”

Denying the government’s motion for a stay of a preliminary injunction halting a reduction in force at the Department of Education, the First Circuit determined that the government failed to make a strong showing that it was likely to succeed in its appeal as to injunctive relief predicated on the plaintiffs’ APA claims. It also failed to show that the plaintiffs would not be substantially injured by a stay during the pendency of its appeal. Although the court did find that the government demonstrated some risk of irreparable harm were it to turn out that it was erroneously required to continue paying department employees, the government failed to make any argument that this risk of harm in and of itself entitled it to relief (Somerville Public Schools v. McMahon, Nos. 25-1495 and 25-1500 (1st Cir. June 4, 2025)).

On May 22, a federal district court granted a motion for a preliminary injunction filed by a consolidated group of plaintiffs, including several states, school districts, nonprofits, and labor unions that challenged the Trump administration’s attempt at a reduction in force at the Department of Education that would effectively shutter the agency. Here, the government moved for a stay pending appeal of the district court’s order.

Standing. Applying the four Nken factors in considering the government’s motion, the court began by looking at the government’s likelihood of success on the merits in challenging the preliminary injunction on appeal. The government first argued that this factor weighed in its favor because the plaintiffs lacked Article III standing to pursue their claims.

Clapper. It was undisputed that the plaintiffs would suffer a cognizable injury under Article III if the Department were unable—in consequence of actions taken to close it down—to perform its statutorily assigned functions. Instead, the government argued, in part, that in contravention of the Supreme Court’s holding in Clapper v. Amnesty International USA, 568 U.S. 398 (2013), the plaintiffs' Article III standing rests on “speculation that, contrary to the Secretary['s]... judgment, the Department's remaining 2,183 employees will be unable to perform the Department's statutory functions.”

In support of this argument, the government asserted that the RIF did not—and would not—prevent the Department from carrying out its statutorily assigned functions. However, the district court found that the RIF was “explicitly implemented to shut down the Department” and “eliminat[ed] entire offices and programs,” and has “made it effectively impossible for the Department to carry out its statutorily mandated functions.”

On this point, the court here stated that insofar as the government meant to challenge this factual finding, it did not submit any evidence to support a contrary one. And, insofar as the government meant to suggest that the district court drew impermissibly speculative inferences in finding that the RIF made it effectively impossible for the Department to carry out its statutorily assigned functions, it did not identify evidence in the record to counter the district court’s contrary findings about the impact of the RIF.

Thus, the appellate court saw no basis on which to conclude that the government had made a “strong showing” that the district court likely clearly erred in its determination. As such, the government also failed to make a strong showing that it was likely to succeed on appeal in challenging the district court’s determination that the plaintiffs have Article III standing under Clapper because “their injuries are certainly impending,” said the court.

OPM. The government’s citation to OPM v. AFGE, No. 24A904 (U.S. Apr. 8, 2025), failed to convince the court otherwise. There, a district court entered a preliminary injunction requiring six federal agencies to reinstate all probationary employees who had been terminated in February 2025. The Supreme Court stayed that ruling on the ground that, “under established law,” the allegations of the nonprofit plaintiffs “are presently insufficient to support the organizations' standing,” and cited Clapper for that proposition.

Unlike the plaintiffs in OPM, the plaintiffs here were not challenging an action to terminate the employment of only the newest and most inexperienced employees at an agency, explained the court. Moreover, the termination of probationary employees in that case did not have the effect of eliminating entire offices and programs.

Programmatic injury. The court’s reasons for rejecting the government’s Clapper-based arguments as to the “likelihood of success” factor also compelled the court to reject the government’s other Article III-based argument on this point—that the plaintiffs had suffered a programmatic injury which would turn the courts into “continuing monitors” of the soundness of administration. However, as the court already explained, the government had failed to make a strong showing that the district court likely clearly erred in finding, consistent with Clapper, that the plaintiffs face imminent injury from the RIF precisely because that action has made it impossible for the Department to carry out its statutorily assigned functions on which the plaintiffs directly rely.

That being so, continued the court, it could not see how the government made a strong showing that its appeal will likely reveal that the plaintiffs’ imminent injuries could be properly characterized as “abstract and generalized” or “programmatic” rather than cognizable.

CSRA. Next, the government separately sought to satisfy the “likelihood of success” factor on a non-Article-III-based jurisdictional ground—that the Civil Service Reform Act (CSRA) provides an exclusive procedure for challenging federal personnel decisions. The court was not persuaded.

When, as the district court here found, mass terminations are explicitly implemented to shut down an agency, federal courts would lack the power the hear non-CSRA claims brought by parties who will be imminently injured by the agency’s effective inability to provide them with the services to which they are entitled, said the court.

Carter. Taking aim at the district court’s merits determinations in contending that it can meet its burden as to the “likelihood of success” factor, the government pointed to Carter v. U.S. Department of Education, 2025 WL 1453562 (D.D.C. May 21, 2025), in pressing its challenge in its stay motion to the District Court's APA ruling. However, Carter involved a situation in which the district court found that the “plaintiffs ha[d] not offered sufficient evidence demonstrating that OCR [failed] to perform its statutory and regulatory duties,” such that their challenge was really to the Office's “general operations and the speed at which OCR [would] be able to process civil rights complaints in the future.”

Here, the appellate court did not understand the district court in Carter to have held that a RIF is not a discrete agency action subject to review under the APA, such that the APA’s “agency action” requirement stands as an independent bar to an APA challenge to a specific reduction in force even when the CSRA does not stand as a bar to it.

Again, the district court in this case found that the massive reduction staff would make it effectively impossible for the Department to carry out its functions, explained the court.

Discrete agency action? As to whether the RIF constituted a discrete agency action, the government merely stated that it did not. As such, the court could not say that the government made a strong showing that the plaintiffs were challenging flaws in the entire program and were requesting wholesale correction under the APA as the plaintiffs were attempting in Carter.

Irreparable harm. Turning to the remaining Nken factors, the government contended that the district court’s order imposed irreparable harm because it “usurp[s]” the Executive's Article II authority to manage the Department according to its own judgment. However, it cited no authority to support its contention that the Executive Branch suffers irreparable harm by being required to carry out Congress’s duly enacted statutes.

The court did agree with the government that, if it were to turn out that the government was erroneously required to continue paying Department employees, it would suffer an irreparable injury to the extent that it would be unable to recoup those expenditures. However, considering the other side of the ledger, the court was not persuaded by the government’s attempt to argue that, as to the third Nken factor, issuance of the stay would not substantially injure the other parties to the litigation.

Public interest. As to the final Nken factor, the government contended that the public’s interests were indistinguishable from the government’s interests. However, as other courts have pointed out, “there is generally no public interest in the perpetuation of unlawful agency action.” Accordingly, the government’s motion for a stay was denied.

The case is Nos. 25-1495 and 25-1500.

Judge: Barron, D.

Attorneys: Will Bardwell (Democracy Forward Foundation) for Somerville Public Schools. Gina Bull, Office of the New York State Attorney General, for State of New York. Lucia Choi, Attorney General's Office, for State of California. Michael Benjamin Bruns, U.S. Department of Justice, for Linda Marie McMahon.

Companies: Somerville Public Schools

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