Federal worker unions allege State Department RIFs violate shutdown resolution

Two unions representing federal workers are asking a U.S. district court judge in California to block the State Department’s impending terminations of foreign service officers, arguing those actions run afoul of the resolution that ended the government shutdown.

The Wednesday filing from the American Federation of Government Employees and the American Foreign Service Association, a proposed plaintiff, is the latest in a lawsuit challenging the RIFs announced by government agencies as a result of the shutdown. The new filing requests a temporary restraining order against the State Department ahead of its plans to separate impacted foreign service officers Friday.

In addition to funding the government through January, the continuing resolution signed into law last month also included language undoing reduction-in-force actions that took place during the shutdown and pausing additional RIF actions until Jan. 30. 

That language provided hope for foreign service officers whose July separations were slated to be finalized during the shutdown. But despite their belief that the language of the resolution was clear, the department ultimately told workers this week that its action doesn’t violate the resolution and it would be executing the RIFs on Friday. 

In communications with workers shared with FedScoop, State pointed to “formal written guidance from both the Office of Management and Budget and Department of Justice Office of Legal Counsel” as support for its decision.

Shortly after that decision, AFSA said it was pursuing litigation and working with AFGE. On Wednesday, the motion was filed.

“The language in the bill and the intent of Congress is unambiguous — and so is the illegality of agencies proceeding to fire workers regardless of the prohibition,” AFGE National President Everett Kelley said in a written statement on the filing. “Because this administration continues to defy the law, the courts must intervene and protect these illegal terminations from proceeding.”

The issue hinges on Section 120 of the resolution, which states that between the enacted date and the end of January “no federal funds may be used to initiate, carry out, implement, or otherwise notice a reduction in force to reduce the number of employees within any department, agency, or office of the Federal Government.”

In addition to the request for a temporary restraining order, the plaintiffs also issued a supplemental complaint asking the court to declare that several other agencies have also acted contrary to the RIF provision of the shutdown resolution, and strike down any RIF actions in violation of the section. 

That included memos from OMB and the Office of Personnel Management that the unions allege misinterpreted the provision and gave agencies direction on that interpretation, rather than guidance. 

Meanwhile, the agencies alleged that the Department of Education, Department of Defense, and Small Business Administration have also violated the provision.

At the Education Department specifically, workers in the Office of Civil Rights have similarly sat in limbo, waiting on the courts to determine the fate of their layoffs. In addition to the 136 employees who were laid off for the first time Oct. 10, another 247 OCR workers who were RIF’d last March and April received renewed RIF notices Oct. 13, with a separation date in November.

The Education Department told the courts last month that it rescinded the 136 RIF notices from October in the wake of the shutdown deal, but did not rescind the 247 others, arguing they did not fall under the CR’s scope.

The agency said it is looking for clarification from the courts, while AFGE 252, the union representing ED employees, maintains that the language is broad enough to include this group of employees.

Notably, the supplemental complaint also highlights a statement from Sen. Tim Kaine, D-Va., who helped secure the RIF provision in the resolution, saying the language “pauses ongoing RIFs, and prohibits future RIFs.”

In a statement provided to FedScoop, Kaine similarly said “that means workers whose RIFs were still being processed when the government shut down cannot be terminated, will continue to be paid, and must be returned to the status they had on September 30.” 

The White House and Justice Department, which represents the government defendants, didn’t immediately respond to requests for comment.