Reductions in Force Challenges in the Federal Courts

A reduction in force (RIF) is the process by which a federal agency reduces the size of its workforce due to a lack of funds, a lack of work, or a reorganization. Although a noun, “RIF-ed” has become a verb in the past six months, used to describe the removal of an employee in the “Hunger Games for feds.”

In February, President Trump ordered agencies to “undertake preparations to initiate large-scale reductions in force (RIFS), consistent with applicable law.” The fallout from Executive Order 14210 has been chaotic, to say the least. In April, employees at the Department of Health and Human Services discovered they had been removed when their badges no longer granted them access to the building. The department’s retention decisions were based on inaccurate personnel records, rendering the RIF procedurally and legally defective. Hundreds of employees were later reinstated due to pressure from the public and lawmakers. Secretary Robert Kennedy dismissed the disorder, telling the press, “We’ll make mistakes.” Health and Human Services alone has lost 24 percent of its workforce. In total, the federal government has lost over 130,000 employees between RIFs and voluntary resignations.

Before the chaos at Health and Human Services unfolded, Lawfare published a short primer explaining the RIF procedures. In that piece, I concluded, “I do not anticipate that a court will order a complete injunction against RIFs. It may, however, reverse the RIFs performed by particular agencies based on procedural violations.” Plaintiffs have pursued both broad and targeted challenges in 22 lawsuits filed in response to the RIFs. While many of these challenges have met with success, issues of standing and justiciability have prevented some cases from proceeding, and a recent Supreme Court ruling cast further doubt on the viability of such challenges going forward.

RIFs in the District Courts

District courts have now addressed legal challenges to the RIFs in a number of cases. Using Lawfare’s Trump Administration Litigation Tracker, I identified every case where the district court considered a temporary restraining order (TRO), a preliminary injunction (PI), or a motion for summary judgment (SJ) involving RIF-related claims. The table below summarizes those cases. Other employment claims that lack a clear connection to RIFs—such as the removal of appointed officials, violations of the Privacy Act, the deferred resignation program, or retaliatory removals—are excluded. Several cases remain pending, such as those seeking to prevent dismantling of the National Endowment for the Humanities or the Bureau of Indian Education, but no court orders have been issued in those matters. As the primary interest is how district court judges have evaluated these claims, the table also does not capture which cases have been appealed or what has happened on appeal.

The table includes 22 decisions by district courts addressing RIF-related claims. Courts have enjoined RIFs in 14 of these cases (63.6 percent). Importantly, few of these rulings are final. Rather, they represent the district court’s preliminary consideration of the issues presented by these cases. Nevertheless, these cases provide valuable insights into the types of arguments being made and the reactions of the district court.

In every case where relief was denied, the court based its decision on justiciability. These cases all raise difficult questions of jurisdiction and standing. Under the Supreme Court’s decisions in Thunder Basin and Elgin v. Department of the Treasury, federal employees generally must exhaust their claims via the Merit Systems Protection Board (MSPB) before seeking relief in federal court. As a result, some district courts have dismissed claims brought by federal employees bringing claims based on unlawful removal for lack of subject matter jurisdiction. In Widakurswara v. Lake, the U.S. Court of Appeals for the District of Columbia Circuit appeared to suggest that district courts retained jurisdiction to enjoin RIFs as necessary to ensure that the agency continues to meet its statutory obligations. Likewise, the U.S. Court of Appeals for the Fourth Circuit has recently remanded an employee-brought case to the district court on the grounds that exhaustion principles should not apply when the MSPB lacks a quorum.

Many plaintiffs in these cases, however, are not federal employees. Instead, lawsuits have been brought by coalitions of states, nonprofits, and labor unions affected by diminished government services resulting from RIFs. These coalitions have their own standing issues. State and organizational plaintiffs typically allege two types of injuries: (a) that staffing reductions deprive their members of certain benefits that federal agencies provide by law and (b) that dysfunction within the agency forces the organizations to divert their own resources to compensate for unmet needs. The Supreme Court has strongly suggested that such downstream effects of government action—such as causing an organization to divert its resources—are generally insufficient to establish standing. Accordingly, any cognizable injury likely rests on the direct loss of statutory benefits provided by agencies to these organizations or their members.

District courts are divided on the validity of this theory of standing. Judges who find standing often adopt a broad view of harm. For example, in American Federation of Government Employees v. Trump, Judge Susan Illston cited the effects that RIFs at the IRS would have on a nonprofit tax clinic, noting that “its low-income members will see delays to the processing of refunds that they rely on for day-to-day expenses.” Similarly, for state and local governments, she cited the risk of “impending financial harm” from delays in federal grant processing. This broader view conceptualizes the harm as the deprivation of statutory rights stemming from a loss of administrative capacity at the agency.

By contrast, other judges have dismissed these harms as too speculative. In Maryland v. Corporation for National and Community Service, Judge Deborah Boardman concluded that the alleged harms, such as “lack of funding, delayed starts to programs, and inability to plan or secure other funding,” were “possible but not concrete.” These judges often emphasize that RIFs are personnel actions that most directly impact federal employees. In Association for Education Finance and Policy v. McMahon, Judge Trevor McFadden wrote that “it appears unlikely that either organization or their members would have standing to challenge the RIF itself,” as they have “no direct stake in the [agency’s] employment decisions.”

Cases involving lost grants or contracts face additional hurdles. The Supreme Court recently held that cases based on express or implied contracts with the United States must be brought in the Court of Federal Claims under the Tucker Act. Whether this jurisdictional requirement extends to situations where the plaintiffs challenge a RIF on the basis that it will delay the processing of grants remains an open question. In American Library Association v. Sonderling, plaintiffs sought reinstatement of the Institute of Museum and Library Services’s staff, fearing that the reduction in staff will “dramatically slow the processing of reimbursement due to libraries for awards already granted.” Judge Randolph Moss concluded that plaintiffs must pursue such claims in the Court of Federal Claims because “the benefit of reinstating the staff is tied to the benefit of reinstating the grants.” By contrast, a recent dissent by Judge Cornelia Pillard at the D.C. Circuit argued that the Supreme Court’s precedent does not foreclose the district court from reviewing a RIF claim because the plaintiffs’ constitutional claims exist independent of the existence of a contract.

A key factor influencing the jurisdictional analysis is whether a court characterizes the RIF as a reorganization that undermines the execution of law or merely as a personnel decision committed to agency discretion. Judges who adopt the former view are more likely to find standing for state and organizational plaintiffs.

On the merits, most RIF-related challenges raise constitutional separation-of-powers claims. The general separation-of-powers argument proceeds as follows: Article I vests legislative power in Congress, and federal agencies are created by statute. Article II requires the president to “take Care that the Laws be faithfully executed.” As Justice Robert Jackson explained in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the president exceeds his legal authority when he acts in the absence of either constitutional or statutory authority. Nothing in the Constitution authorizes the president to reorganize or abolish federal agencies created by statute. Nor does any statute authorize such action. Historically, the Reorganization Acts granted presidents authority to reorganize the executive branch through expedited legislative procedures. But the last of these acts expired in 1984, and Republicans tried and failed to include renewed reorganization authority in the recently passed reconciliation bill. Without a statutory basis, presidents may no longer engage in unilateral reorganizations. The Trump administration has initiated RIFs for the purpose of effecting an unlawful reorganization, which threatens to frustrate the ability of federal agencies to faithfully execute the laws enacted by Congress. (Claims brought under the Administrative Procedure Act are also common but generally flow from the failure of the agency to consider the effect of its RIF on its ability to execute the law.)

In most cases, plaintiffs allege that the president has used RIFs as a vehicle for unauthorized reorganization. Executive Order 14210 explicitly “commences a critical transformation of the Federal bureaucracy” and directs agencies to develop “reorganization plans.” Office of Personnel Management (OPM) guidance further establishes the connection between the RIFs and reorganization. The guidance states that the “Agency RIF and Reorganization Plans” should achieve a “significant reduction in the number of full-time equivalent (FTE) positions by eliminating positions that are not required.” Agencies were required to submit reorganization plans explaining which units would be eliminated and to identify the specific personnel tools, including RIFs, “the agency intends to use to achieve efficiencies.” There is little question that the Trump administration employed RIFs as a mechanism for reorganization.

While the legal theories are similar across cases, the scope of the challenge varies. In American Federation of Government Employees v. Trump, plaintiffs challenged the implementation of RIFs in over 20 agencies, seeking to enjoin the implementation of Executive 14210 in its entirety. After reviewing the history of the Reorganization Acts, Judge Illston concluded, “The simple proposition that the President may not, without Congress, fundamentally reorganize the federal agencies is not controversial: constitutional commentators and politicians across party lines agree that sweeping reorganization of the federal bureaucracy requires the active participation of Congress.” She held that Executive Order 14210 itself effected an unlawful reorganization and, therefore, preliminarily enjoined its enforcement across all defendant agencies.

Other cases, however, have brought targeted claims against specific agencies. This narrower focus allows plaintiffs to demonstrate specific injuries from RIFs and point to the precise laws that will go unenforced as a consequence of declining administrative capacity. In New York v. McMahon, plaintiffs limited their claims to RIFs initiated within the Department of Education. In granting a preliminary injunction, Judge Myong Joun identified the concrete ways in which the agency could no longer carry out its statutory functions. Describing the impact on the Office of Civil Rights, for example, he observed that “this is a case where the Department can no longer effectuate vital statutory functions specifically tasked to it.”

The strongest separation-of-powers cases involve agencies that Trump has expressly targeted for elimination. For example, in Executive Order 14217—titled “Commencing the Reduction of the Federal Bureaucracy”—Trump ordered the elimination of the Presidio Trust, the Inter-American Foundation, the U.S. African Development Foundation, and the U.S. Institute of Peace. In Executive Order 14242, Trump instructed the secretary of education to “take all necessary steps to facilitate the closure of the Department of Education.” These explicit directives make it easier for plaintiffs to argue that the RIFs are not ordinary personnel actions but instead part of an unconstitutional effort to dismantle agencies created by Congress.

To date, plaintiffs have had considerable success convincing district courts that the Trump administration’s use of RIFs constitutes an unconstitutional reorganization of the federal government. Still, questions of justiciability remain the greatest obstacle to these challenges and are likely to prove pivotal on appeal. Two recent Supreme Court decisions further call into question whether these RIF decisions will survive the appellate process.

Trump v. American Federation of Government Employees

In the past two weeks, the Supreme Court has stayed two preliminary injunctions related to RIFs. In Trump v. American Federation of Government Employees, the Supreme Court stayed Judge Illston’s preliminary injunction that had barred agencies from implementing Executive Order 14210. In a brief, unsigned opinion, the majority reasoned that the government was “likely to succeed on its argument that the Executive Order and Memorandum are lawful,” emphasizing that the district court had enjoined the entire order without assessing the legality of specific agency reorganization plans—none of which were before the Court. The Court expressed “no view on the legality of any Agency RIF and Reorganization produced or approved pursuant to the Executive Order and Memorandum.”

Justice Sonia Sotomayor concurred in the stay but wrote separately to clarify that, while the president cannot restructure agencies contrary to congressional mandates, Executive Order 14210 instructs agencies to act “consistent with applicable law.” Because the legality of the individual agency reorganization plans had not yet been reviewed, she concluded that the district court remained free to evaluate them “in the first instance.”

Justice Ketanji Brown Jackson dissented, warning that the stay effectively authorized an unprecedented and unlawful restructuring of the federal government. She described the executive order as a “unilateral decision to ‘transform’ the Federal Government,” bypassing the constitutional requirement that Congress authorize such reorganizations. Citing historical practice, Jackson asserted that Executive Order 14210 exceeded any permissible scope of executive authority.

She further criticized the Court for intervening at this early stage without an adequate record. In writing “from its lofty perch far from the facts,” the Court lacked “the capacity to fully evaluate, much less responsibly override, reasoned lower court factfinding.” Jackson recounted how the district court had reviewed 68 sworn declarations and conducted in camera review of four agency plans. That record, she explained, showed sweeping agency-wide layoffs—up to 93 percent in some cases—and efforts to “practically wipe out” entire agencies. The government submitted only a single declaration in opposition. The district court found that plaintiffs were likely to succeed in proving the executive order would “intentionally or negligently flout the tasks Congress has assigned,” thereby violating the separation of powers. Jackson stressed that such factual findings deserved deference and that the majority’s perfunctory conclusion showed a troubling disregard for the appropriate standard of review.

Beyond procedure, Jackson warned of serious real-world consequences. The reorganization plans, she argued, threatened critical government functions, including food safety, disaster relief, environmental protection, veterans’ health care, and public education. She described the executive order as a “wrecking ball” and highlighted its potential to “discard and disable the democratic system that created those laws.” The president’s power, she reminded the Court, “must stem either from an act of Congress or from the Constitution itself.” Echoing Youngstown, she argued that the president was acting at the “lowest ebb” of authority—against the express or implied will of Congress. In conclusion, Jackson condemned the Court’s decision as “hubristic and senseless,” arguing that it undermined the historical relationship between the branches and exposed the public to irreparable harm while the judiciary abdicated its constitutional role.

In isolation, the Supreme Court’s decision in American Federation of Government Employees v. Trump—and particularly Justice Sotomayor’s willingness to join the majority—suggests that the district courts may continue to adjudicate the validity of RIFs but must do so in a piecemeal fashion. Broad injunctions that categorically block all personnel decisions of the executive branch are likely to face skepticism. District courts must instead evaluate whether individual agency reorganization plans comply with statutory and constitutional limits. Overall, the Supreme Court’s short decision suggests skepticism of claims that the president lacks authority to direct RIFs within agencies, raising questions about the viability of separation-of-powers claims more generally.

McMahon v. New York

The week after deciding Trump v. American Federation of Government Employees, the Supreme Court cast further doubt on the viability of RIF-related claims. In McMahon v. New York, the Court stayed Judge Joun’s injunction blocking RIFs at the Department of Education. The majority provided no reasoning. Justice Sotomayor, however, implicitly suggested that the majority’s rationale rested on a finding that the plaintiffs lacked standing. Again, justiciability has been the primary point of contention within the district courts. Nevertheless, the Supreme Court has not yet issued a definitive ruling on whether state and organizational plaintiffs have standing to challenge RIFs in district court.

Justice Sotomayor’s dissent—joined by Justice Jackson and Justice Elena Kagan—in McMahon v. New York sharply criticized the majority’s decision to stay the district court’s injunction. She argued that the RIFs were part of a broader effort to dismantle the department in violation of both its organic statute and the Constitution’s separation of powers. Citing Executive Order 14242 and public statements by Secretary Linda McMahon, Sotomayor concluded that the administration’s intent was not to reorganize for efficiency, but to “gut” the agency entirely—an action she described as “functionally repealing” congressional law through mass terminations alone. The concluding paragraph of her introduction reveals frustration with the Supreme Court’s refusal to take the current moment in American politics seriously and is worth quoting at length:

When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it. Two lower courts rose to the occasion, preliminarily enjoining the mass firings while the litigation remains ongoing. Rather than maintain the status quo, however, this Court now intervenes, lifting the injunction and permitting the Government to proceed with dismantling the Department. That decision is indefensible. It hands the Executive the power to repeal statutes by firing all those necessary to carry them out. The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution’s separation of powers is grave.

Sotomayor began her analysis with the history of the Department of Education and a separate provision of law that permits limited reorganization of the department. Under 20 U.S.C. § 3473, the secretary of education may reorganize some specifically enumerated offices within the department provided she gives 90 days’ notice to Congress. Generally, however, the provision prohibits the reorganization or abolition of entities within the Department of Education.

Sotomayor defended the district court’s injunction as a measured and fact-based response to a serious constitutional violation. She emphasized that the lower court had developed a substantial evidentiary record showing that entire divisions were eliminated and statutory responsibilities left unfulfilled. She noted that the “Government, for its part, submitted no evidence to rebut the factual record compiled by plaintiffs. Nor did it argue that the Executive could singlehandedly abolish the Department.” The district court’s preliminary injunction and the court of appeals’s refusal to stay that injunction reflected a reasoned response to ongoing lawlessness within the Department of Education.

On appeal, the government mostly relied on jurisdictional and standing arguments. Sotomayor dismisses these arguments. In response to the government’s contention that the plaintiffs had failed to establish actual or imminent harm for purposes of standing, Sotomayor said that the government’s claim “is belied by both the record and common sense” because the plaintiffs “rely on a range of Department services that support their operations and allow them to receive federal funding.” In regard to the argument that these sorts of claims must be channeled through the MSPB, she responded that plaintiffs are “not challenging individual employment decisions, nor are they suing for the benefit of individual Department employees”—“they are challenging the effective dismantling of the Department itself.”

Finally, Sotomayor concludes with a reflection on the obligations of the president:

The President must take care that the laws are faithfully executed, not set out to dismantle them. That basic rule undergirds our Constitution’s separation of powers. Yet today, the majority rewards clear defiance of that core principle with emergency relief. Because I cannot condone such abuse of our equitable authority, I respectfully dissent.

Concluding Thoughts

What follows are several concluding thoughts after six months of RIFs and lawsuits challenging the dismantling of the administrative state.

First, the Supreme Court has not issued a ruling on the merits. Its orders permit RIFs to continue during the pendency of these cases. In the end, district courts—and the Supreme Court—may conclude that the Trump administration has exceeded its constitutional and statutory authority by removing such a large swath of the federal service. That said, much of the damage is done. After the decision in American Federation of Government Employees v. Trump, the Department of Health and Human Services formally finalized many of its RIF decisions, separating employees from their positions. Even if the courts award these employees with backpay and reinstatement, many employees will choose not to return to the federal government. The reputation of the federal government as an employer has been tainted regardless of the outcome of these cases. The reputational loss will have a long-term impact on the growth and maintenance of administrative capacity within federal agencies and the ability of these agencies to faithfully execute the law.

Second, I remain skeptical of the separation-of-powers claims being made by the plaintiffs and the willingness of the Supreme Court to adopt these claims. These claims make sense for the agencies where the president has explicitly instructed agency leaders to eliminate the agency through RIFs and other measures. The U.S. Agency for International Development is a creature of statute, and the president cannot dissolve it by executive order.

That said, the Trump administration has pursued significant RIFs in agencies not targeted for elimination. How does one distinguish between personnel management committed to agency discretion and unconstitutional deconstruction? How does a court determine the number of employees needed for the agency to fulfill its statutory missions? Does the agency need five, 50, or 500 employees? As a rule, courts are uncomfortable micromanaging the distribution of agency resources. To be clear, claims by the Trump administration in executive orders and statements to the press make evident the pretextual goal of eliminating many of these agencies or subunits within these agencies. Yet finding a generally applicable rule that allows courts to separate meaningful managerial decisions from intentional maladministration proves difficult.

I maintain that the strongest claims will come from procedural challenges to the RIFs brought by employees themselves. Indeed, setting aside the constitutional arguments, ample evidence suggests that agencies have failed to follow the procedures prescribed by 5 U.S.C. § 3502 and OPM’s regulations. Federal employees have a constitutional right to due process and a substantive right to a lawfully executed RIF. I concede that those claims may come too late, but I believe they are necessary to preserve the rights of federal employees and protect the system designed by Congress.

Third, the inability of federal employees to have their claims heard in federal court poses a tremendous problem. State and organizational plaintiffs have difficulty establishing a concrete injury traceable to the RIFs. Historically, federal courts have not excused federal employees from the exhaustion requirement when the MSPB lacks a quorum. Today, the MSPB lacks a quorum, preventing it from issuing final decisions in the cases brought by federal employees. The loss of a quorum is directly attributable to Trump’s decision to remove Chair Cathy Harris from the board.

Consequently, federal employees lack any venue in which to vindicate their constitutional rights to a due-process hearing. In a new working paper, Todd Phillips and I argue that federal courts should excuse exhaustion requirements when the MSPB lacks a quorum, especially when the president causes the quorum loss. To hold otherwise rewards presidents for disabling agencies, prevents the faithful execution of the law, and denies employees an opportunity to vindicate their constitutional rights. In a recent opinion, the Fourth Circuit reached the same conclusion, holding that the MSPB’s lack of a quorum raised “serious questions as to whether the [Civil Service Reform Act’s] adjudicatory scheme continues to function as intended.” The D.C. Circuit may be moving in a direction that allows some consideration of employees’ claims. Allowing federal employees greater access to federal courts comports with recent moves by the courts to relax exhaustion requirements. Determining whether this argument will persuade other U.S. courts of appeals requires federal employees to challenge RIFs within the federal courts.

Fourth, I am working on a longer research project that traces the history and use of RIFs across American history. The project will hopefully provide new arguments for litigants seeking to challenge RIFs while simultaneously offering reforms to the civil service that balance the rights of federal employees with the need for organizational flexibility. More soon.