Trump administration’s 'deferred resignation' deadline blocked until next week

Updated at 4:59p.m. ET

A federal judge in Massachusetts on Thursday ordered the Trump administration to cease all activities aimed at implementing Trump and Elon Musk’s controversial "deferred resignation" program until next week.

On Tuesday, the American Federation of Government Employees, AFSCME and the National Association of Government Employees sued the Office of Personnel Management in an effort to halt the program, which offered most federal workers the chance to quit this month while retaining their pay and benefits until the end of September, provided they agree to resign by midnight Thursday. The unions argued that the program violates the Anti-Deficiency Act by pledging federal payments past the current March 14 government funding deadline and its ever-changing provisions and legal justifications violate the Administrative Procedures Act.

U.S. District Judge George A. O’Toole Jr., a Clinton appointee, said he would enjoin the program until the parties can meet to deliver oral arguments, a hearing for which is now set for Monday afternoon.

“In aid of the preparation or consideration of the issues as presented by both sides, I am enjoining the defendants from implementing the ‘Fork’ directive,” he said at a brief hearing Thursday. “I think that’s about as far as I want to go today, and I look forward to the completion of your paper submissions.”

At the unions’ request, O’Toole also ordered the government to email all employees who received the original deferred resignation offer an update by Thursday evening to inform them that the deadline to accept or decline the offer will be delayed until at least Monday of next week.

In a legal brief defending the program, the Justice Department argued that the 1978 Civil Service Reform Act bars unions from challenging agency personnel policy in court, instead requiring them to first seek redress from the Federal Labor Relations Authority—or for individual employees to seek relief either from the Merit Systems Protection Board of U.S. Office of Special Counsel.

“If an employee believes that he resigned under coercion or misrepresentation, he may utilize the statutory scheme to challenge his departure,” the administration wrote. “[In] concrete cases, then, an employee may very well challenge the aspects of deferred resignations of which plaintiffs complain. Similarly, if an employee thinks that the resignation was accomplished in conflict with some extant federal rule, guidance or statute, he may assert that within the administrative scheme.”

The government’s arguments make no mention of the fact that according to OPM’s draft deferred resignation agreement, a resigning employee must waive “forever” their right to pursue litigation related to their resignation, as well as the rights of any applicable union that may represent them. And decisions on whether to rescind resignation agreements expressly cannot be reviewed by the MSPB.

Amid the court maneuverings, confusion continues to permeate discussion of the program. The National Treasury Employees Union said Thursday that Internal Revenue Service workers, who were previously offered the same deferred resignation program as much of the rest of the federal workforce, will in fact need to work until May 15, even if they accept the deal.

“Not only is this a clear case of bait-and-switch—they were originally told they would be paid not to work through Sept. 30—but it proves that the terms of OPM’s so-called offer are unreliable and cannot be trusted,” said NTEU National President Doreen Greenwald. “We do welcome the admission, however, that IRS employees are vital to the agency mission. By requiring IRS employees to stay on the job longer than promised, the administration is proving what NTEU has been saying all along: IRS employees are essential and without them, the jobs that the American people depend upon will not get done.”

And according to NBC News, management at the Education Department seemed to confirm some workers’ fears that agency heads could indeed cancel employees’ resignation agreements, leaving them with no recourse to recoup the pay and benefits they were promised.