Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—N.D. Cal.: Plan to cut FEMA staff by half was arbitrary and capricious, (Sep 15, 2026)

By Todd Harrison, J.D.

The Department of Homeland Security had purportedly usurped the authority of FEMA to make its own personnel decisions and then ordered FEMA to cut its staffing in half.

Granting a motion for partial summary judgment on the supplemental Administrative Procedure Act claims asserted the AFGE and other plaintiffs, a federal district court in California determined that the actions taken by DHS to effectively reduce FEMA’s workforce by 50 percent were, among other things, arbitrary and capricious. The arbitrary nature of not renewing FEMA employee contracts was perhaps best highlighted by the fact that the government stopped offboarding workers due to a pending severe winter storm impacting a large portion of the country, observed the court. Further, there was evidence that a government official first gave a staffing number of 11,383 to DHS, then told agency employees to figure out how they were going to reach that number (AFGE v. Trump, No. 25-cv-03698-SI (N.D. Cal. Sept. 11, 2026)).

CORE employees. FEMA employs both permanent civil service workers and temporary employees. FEMA’s temporary employees include CORE employees, who are full-time employees hired for two- to four-year terms to work across disasters rather than being hired for a particular disaster. At the start of fiscal year 2022, FEMA employed nearly 9,000 CORE employees.

Because CORE positions are “temporary,” these employees are given not-to-exceed (NTE) dates when hired, though positions are often renewed through FEMA’s process which, historically, did not involve DHS. The process for renewing CORE employees changed in 2025, when DHS began requiring FEMA to send over justifications for any CORE employees it wished to renew, which was generally all of them. Beginning January 1 to 22, 2026, CORE employees whose NTE dates were up were not renewed, regardless of their supervisors’ recommendations and contrary to historical practice at FEMA.

Supplemental complaint. This lawsuit concerned claims that are part of a larger lawsuit involving dozens of federal agency defendants. Of relevance here, the plaintiffs supplemented their existing claims challenging the alleged revocation of FEMA’s authority to renew CORE employee contracts and the order that FEMA cut its staffing in half, arguing that such actions violated the APA. The plaintiffs also asserted ultra vires claims.

On February 10, the plaintiffs filed a motion for a temporary restraining order related to the non-renewals of CORE employees taking place at FEMA since January 1. That motion was denied on June 26. At the same time, the court granted the plaintiffs’ request to move immediately to partial summary judgment on the DHS/FEMA claims and to treat their supplemental preliminary injunction brief as their opening partial summary judgment motion.

Standing, mootness. At the outset, the court addressed the government’s claims asserting CSRA preclusion and arguments that the plaintiffs had not met the requirements for Article III standing. The court rejected both arguments for the same reasons it had previously given at various points during this action.

As to mootness, the government argued that “subsequent developments have mooted the Supplemental Claims.” In particular, they pointed to new term appointments that have since been offered to CORE employees who were not renewed in January and to subsequent changes in leadership at both DHS and FEMA. The court was not convinced.

“Plaintiffs have put forth evidence, uncontradicted by defendants, that FEMA’s authority to renew CORE terms without DHS approval, as FEMA had done for years before March 2025, has not been restored,” observed the court. In addition, while COREs were historically renewed for terms of two years, the current CORE renewals are for six months to one year. Among other things, the plaintiffs were seeking a declaration that DHS’s usurping of FEMA authority to renew CORE contracts was unlawful and sought an injunction barring DHS from continuing to do so in the future. These claims were still at issue, explained the court, and the government had not met its burden of showing that there was no effective relief the court could provide.

Final agency action. Turning to the plaintiffs’ APA claims, the court noted that it had previously found final agency action stated by the allegations in the supplemental complaint. “At this point, the evidence bears out what plaintiffs previously alleged,” said the court. In particular, the court pointed to the undisputed, and still ongoing, removal of FEMA’s decision-making authority over CORE renewals.

Excess of statutory authority, contrary to law. Next, the court found that the plaintiffs were entitled to judgment on their APA claims that DHS and FEMA acted in excess of statutory authority and contrary to law, based on the agencies’ actions that violated both the Post-Katrina Act and the appropriations that ended the recent government shutdown.

Arbitrary and capricious. With regard to the plaintiffs’ claims that the government’s actions were arbitrary and capricious, the court found that these claims succeeded for several reasons. First, DHS acted arbitrarily and capriciously when it revoked FEMA’s long-standing authority to renew CORE appointments. There was no evidence reflecting reasoned decision-making for this about-face or for the subsequent conditions DHS placed on FEMA’s renewal authority, explained the court.

Further, the agencies acted arbitrarily and capriciously in not renewing COREs based on NTE date, beginning January 1, 2026. The nonrenewals were not based on any assessment of agency need or of individual performance, but targeted those employees simply because they were the ones whose NTE dates came up first when FEMA’s authority to renew COREs purportedly “expired.”

The arbitrary nature of not renewing the COREs, continued the court, was perhaps best highlighted by the fact that the government stopped offboarding COREs on January 22 due to a pending severe winter storm set to impact a large swath of the country. “In other words, it is clear that the January 1 nonrenewals began because there happened not to have been a winter storm on that date; but if the winter storm had arrived earlier or later, then the CORE nonrenewals would have halted on a different date and different employees would have been separated,” observed the court.

Staffing plan. Finally, the December 4, 2025, annual staffing plan that the then-Senior Official Performing the Duties of FEMA Administrator (SOPDA) submitted to DHS—and which has yet to be revoked—was arbitrary and capricious. “Frankly, the FEMA staffing plan number appears as if pulled from thin air,” said the court, although it noted that since deleted Signal messages between government officials that were subject to Rule 37(e) spoliation sanctions as part of this proceeding may have been able to shed light on how officials arrived at the staffing plan number.

Nonetheless, there was evidence that the SOPDA gave a staffing figure of 11,383 to DHS first and then told staff to figure out how they were going to reach that number. In other words, explained the court, rather than reflecting reasoned decisionmaking to reach the 11,383 annual staffing plan figure submitted to DHS, the record indicated that the SOPDA submitted the figure first and then worked backwards to figure out how to support it. Accordingly, the plaintiffs were entitled to judgment on this portion of their supplemental claims.

Ultra vires. As to the ultra vires claims asserted by the plaintiffs, the court found that these overlapped with the APA claims, both in substance and in terms of relief sought. Having found the plaintiffs entitled to relief on their supplemental APA claims, the court determined that it need not reach the ultra vires claims.

Remedy. With regard to remedies, the court agreed with the government that some of the relief sought by the plaintiffs was quite broad and no longer seemed to fit with the facts as they have unfolded over the months of this litigation. In particular, observed the court, since January 22 FEMA is no longer systematically non-renewing the COREs and there is no indication at present that FEMA is otherwise taking action on the annual staffing plan the SOPDA submitted to DHS on December 4, 2025. At same time, the court noted that DHS continues to usurp FEMA’s authority to renew CORE terms and that COREs are currently being renewed for shorter terms than have been granted in the past.

Given this backdrop, the court ordered the parties to meet and confer as to the scope of relief in light of this ruling on the supplemental APA claims. Should the parties be unable to reach an agreement, they must file a joint statement on what relief remains outstanding no later than October 9, 2026.

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

Judge: Illston, S.

Attorneys: Alice X. Wang (Altshuler Berzon) for American Federation of Government Employees, AFL-CIO (AFGE), 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 President Donald J. Trump and U.S. Office of Management and Budget.

Companies: American Federation of Government Employees, AFL-CIO [AFGE]; American Federation of State County and Municipal Employees, AFL-CIO; Service Employees International Union, AFL-CIO

Cases: RemediesDamages Labor UnionsMembers Procedure PublicEmployees CaliforniaNews