Three federal unions are asking a federal court to rule that the Trump administration’s “deferred resignation” program is illegal as currently structured, and to order the Office of Personnel Management to give federal workers at least two more months to decide whether to opt in to the unconventional workforce reduction program.
In a lawsuit filed Tuesday, the American Federation of Government Employees, the American Federation of State, County and Municipal Employees and the National Association of Government Employees claim the offer — sent to most federal workers via last month’s “fork in the road” mass email — violates the Administrative Procedure Act (APA) and other federal laws. As currently designed, the program gives employees until Feb. 6 to decide whether or not to resign.
“In issuing the directive across the government barely a week after the new administration was sworn in, OPM did not conduct any analysis of which agencies were likely to experience high levels of resignations, the optimal number of resignations, or where staffing was already woefully insufficient such that soliciting resignations would be incontrovertibly harmful to government operations,” attorneys for the labor unions wrote.
Alleged violations of federal law
And that alleged lack of analysis makes the deferred resignation program arbitrary and capricious under the APA, they argued. In addition, the lawsuit claims, the approach would violate the Antideficiency Act, which bars agencies from obligating funds that Congress hasn’t yet appropriated. Because the continuing resolution that’s currently funding the government expires on March 14, the government can’t legally commit to the portion of the program — the “Fork Directive,” as the lawsuit calls it — that promises to pay those who resign until Sept. 30.
“The Antideficiency Act forbids OPM from guaranteeing payment without an appropriation. Particularly where, as here, OPM does not know the contours of future appropriations or funding levels, this promise is improper,” the plaintiffs wrote. “If Congress decides to not fund certain offices after March 14, for example, employees in those offices who accepted the Fork Directive would have no appropriation to satisfy their promised pay.”
Since Jan. 28, when OPM first sent the governmentwide email blast, the administration has been seeking to reassure federal employees that the deferred resignation program is legal. In emails sent by acting agency leaders, workers were told the program is “valid, lawful, and will be honored” by their agencies.
And OPM has accused federal unions, who have been warning employees that taking the offer would be unwise, of misleading their members.
Program ‘thoroughly vetted,’ OPM says
“This is a rare, generous opportunity — one that was thoroughly vetted and intentionally designed to support employees through restructuring,” McLaurine Pinover, an OPM spokeswoman, said in an emailed statement. “Instead of spreading misinformation and using workers as political pawns, they should be making sure federal employees have the facts and freedom to make the best decision for themselves and their families.”
OPM declined a Tuesday request for an interview about the deferred resignation program, but in answers to emailed questions, said it had also distributed to federal agencies a template contract intended to provide employees with “binding assurance” that those who accept the offer will indeed be paid through Sept. 30.
But according to the unions, it’s far from clear that agencies can even make such a promise, given how unprecedented the deferred resignation program is and how little has been explained about the legal framework the administration plans to use to conduct it. They claim a series of FAQs OPM issued in the days after the initial email only added to the confusion.
“Particularly in light of the extremely compressed timeline to participate in the Fork Directive, OPM’s continual changing of the contours of that program — and the rights and obligations of employees under it — reflects the opposite of reasoned decision-making,” union attorneys wrote. “OPM’s need to broadly and flatly assert that the exploding offer in the Fork in the Road directive was ‘lawful’ and ‘valid’ only demonstrates the agency’s awareness of the tremendous extent of uncertainty surrounding the directive’s validity, and an effort to rush federal employees to make a decision in a matter of days despite that uncertainty.”
Outside employment
As one example of the confusion, the lawsuit points out the OPM’s FAQ page about the program tells employees that once their federal work obligations are finished, they’ll be free to take another job while still collecting their federal paycheck.
“We encourage you to find a job in the private sector as soon as you would like to do so,” reads one of the answers added to the FAQ page several days after the initial email was sent. “The way to greater American prosperity is encouraging people to move from lower productivity jobs in the public sector to higher productivity jobs in the private sector.”
But it’s unclear how that claim would intersect with numerous and “nuanced” federal rules about employees taking outside jobs while employed by the government, the unions argued.
“Federal ethics regulations provide that federal employees who seek outside employment must comply with numerous conditions, including ‘any agency-specific requirement for prior approval of outside employment or activities’ … and the regulations further provide that agencies may impose a prior-approval requirement before individuals employed at the agency can accept outside employment,” according to the lawsuit. “Some agencies have codified their requirement for prior approval by regulation and these policies could hardly be expected to change uniformly in the accelerated timeframe created by the Fork Directive.”
The lawsuit, filed in the U.S. District Court for the District of Columbia, asks a judge to rule that the deferred resignation program is invalid and order OPM to come up with a “reasoned basis” for any replacement program. The plaintiffs also want OPM to give federal employees at least 60 days to consider any revised resignation offer.
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