The legal challenge was filed Wednesday by a consortium of unions, and a judge agreed to allow for more time to hear arguments. Image: CJ GUNTHER/EPA-EFE/Shutterstock
By: FEDweek StaffUpdated: A federal judge in Massachusetts on Wednesday declined to extend the temporary restraining order placed on OPM’s deferred resignation program. Shortly after, OPM issued a statement that the program is now closed to new entrants.
U.S. District Judge George A. O’Toole Jr. said at the hearing on Monday that the temporary restraining order he imposed last week would continue until he could resolve the issues presented, without giving a timeline. However, rather than address the program’s legality, he concluded that the Court lacked jurisdiction, and that the plaintiffs – several federal employees unions – lacked standing to sue.
The plaintiffs here are not directly impacted by the directive. Instead, they allege that the directive subjects them to upstream effects including a diversion of resources to answer members’ questions about the directive, a potential loss of membership, and possible reputational harm. The unions do not have the required direct stake in the Fork Directive, but are challenging a policy that affects others, specifically executive branch employees. This is not sufficient. Just as the Court found that the plaintiffs in Hippocratic Medicine could not spend their way into standing, neither can the plaintiffs in this case establish standing by choosing to divert resources towards “respond[ing] to tremendous uncertainty created by OPM’s actions” and away from other union priorities. (Pls.’ Mem. in Supp. of TRO 17.) Moreover, a loss of membership dues to the unions is not certain before the September 30th deadline.
Second, this Court lacks subject matter jurisdiction to consider the plaintiffs’ pleaded claims. While not binding on this Court, the decision in Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump (“AFGE”) is instructive. 929 F.3d 748 (D.C. Cir. 2019). In that case, the court held that the plaintiff-unions’ claims fell within the Federal Service Labor-Management Relations Statute’s (“FSL-MRS”) scheme and therefore the district court lacked jurisdiction to hear the case. – Opinion and Order February 12, 2025
“OPM is pleased the court has rejected a desperate effort to strike down the deferred resignation program. As of 7 p.m. tonight, the program is now closed,” said McLaurine Pinover, a spokeswoman for the office. “There is no longer any doubt: the deferred resignation program was both legal and a valuable option for federal employees. This program was carefully designed, thoroughly vetted, and provides generous benefits so federal workers can plan for their futures.”
Unions had been optimistic that they could pump the brakes or stop altogether the program, which they describe as illegal and coercive. “We are pleased the court temporarily paused this deadline while arguments are heard about the legality of the deferred resignation program. We continue to believe this program violates the law, and we will continue to aggressively defend our members’ rights,” said American Federation of Government Employees National President Everett Kelley last Thursday after an initial hearing.
“We continue to maintain it is illegal to force American citizens who have dedicated their careers to public service to make a decision, in a few short days, without adequate information, about whether to uproot their families and leave their careers for what amounts to an unfunded IOU from Elon Musk,” Kelly said after the the temporary injunction was dissolved.
AFGE was one of several unions that sued to pump the brakes on the program, one it alleges is illegal because the government cannot commit unappropriated funds toward the promised benefits, and is coercive in nature.
So far some 65,000 employees have reportedly opted in.
The challenge was filed February 5 by AFGE, the American Federation of State, County and Municipal Employees, (AFSCME), and the National Association of Government Employees (NAGE) represented by Democracy Forward.
“The ‘Fork Directive’ is the latest attempt by the Trump-Vance administration to implement Project 2025’s dangerous plans to remove career public service workers and replace them with partisan loyalists,” said AFGE in a Wednesday announcement,” asserting that the program is “a clear ultimatum to a sweeping number of federal employees: resign now or face the possibility of job loss without compensation in the near future.”
OPM has defended the program as legal and binding on the government. It issued guidance this week stating that the assurances of full pay and benefits through September 30, regardless of workload, “are binding on the government,” and if the government were to renege on its promises then an employee could request to have his or her resignation undone.
It posted on statement on X last week insisting the program isn’t cancelled and that it would follow through.
In compliance with the court order, the deadline for federal employees to accept the deferred resignation program is being extended to Monday, February 10, at 11:59pmET. The program is NOT being blocked or canceled. The government will honor the deferred resignation offer.
— U.S. Office of Personnel Management (@USOPM) February 6, 2025
OPM was also ordered on Monday, February 10 to provide all federal employees that have received the offer with written notice of the order to extend the deadline.
Clauses in a template agreement that OPM issued this week cast doubt on an employee’s standing if they were to challenge any aspect of the program after opting in. One paragraph, for example – #13 in the template, “essentially prevents any employees from bringing any action against the employer related to their employment and/or the deferred resignation program” if signed, said Ryan Nerney, a managing partner at Tully Rinckey PLLC whose focus includes national security and federal employment law.
Nerney described the injunction as “a pause on the program until at least Monday where the Judge will hear arguments on the legality of the program from both sides. Should the Judge determine the program to be not in accordance with the law, then he would likely issue a permanent injunction, subject to appeal up through the various courts and potentially to SCOTUS.”
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Court Allows Order against Unions to Remain, but Congress Eyes Stepping In
See also,
Top 10 Provisions in the Big Beautiful Bill of Interest to Federal Employees
A Pre-RIF Checklist for Every Federal Employee, From a Federal Employment Attorney
Work Longer or Take the FERS Supplement Now: Which is Better?
Doubling Your TSP (C Fund vs G Fund)
