As agencies begin a second round of deferred resignations, unions revive legal challenge

As federal agencies take steps to revive the Trump administration and Elon Musk’s controversial program to allow employees to resign from their posts but continue getting paid until the end of the 2025 fiscal year, federal employee unions renewed their own effort to challenge its legality in court.

The Housing and Urban Development Department on Monday became the latest agency to relaunch the deferred resignation program, following similar announcements over the weekend at the Defense Department and Small Business and General Services administrations. At HUD, the program will be open to applicants between now and April 11, according to an email to employees obtained by Government Executive.

The rationale provided by HUD’s Office of the Chief Human Capital Officer for renewing the ‘Fork in the Road’ directive seemed to acknowledge many of the program’s initial criticisms; namely, that the shifting explanations and concerns over whether the government could continue paying resignees through a lapse in appropriations depressed workers’ participation.

“During the initial opt-in period for DRP, many employees expressed concerns about the validity of the program because agencies were under a temporary continuing resolution through March 14, 2025,” the email states. “This uncertainty may have prevented some employees from taking advantage of the program. Since passage of a full-year continuing resolution, many employees have asked if the program would be available again.”

Amid the renewed rollout of the deferred resignation program at individual agencies, the American Federation of Government Employees, the American Federation of State, County and Municipal Employees and the National Association of Government Employees filed a new amended complaint Monday in its lawsuit challenging the program.

U.S. District Judge George A. O’Toole Jr. in February declined to block the first round of the program from being implemented, finding he lacked jurisdiction, due to the requirement that federal workers’ employment claims be channeled first through the Merit System Protection Board and unions’ claims should first go before the Federal Labor Relations Authority.

The new filing asserts that the administration should have been required to issue new regulations in creating the deferred resignation program, which through the traditional notice-and-comment period would have allowed officials to iron out kinks and address employees’ concerns. Instead, the unions argued, the program was concocted for the express purpose of avoiding rules governing voluntary separation incentive payments—which are capped at $25,000—and reduction-in-force regulations, as well as as a “pretext” for removing wide swathes of nonpartisan civil servants to make way for the hiring of political cronies.

“The DOJ and FBI, Trump said, personify the ‘deep state’ as they are filled with ‘thousands and thousands’ of ‘RINOs and with Democrats’ that have been there for decades,” the unions wrote. “In another speech, he criticized the ‘deep state’ workers who ‘work with the Democrats and the Republicans, and those are the Republicans I don’t like.’ . . .  The scattershot approach of the Fork Directive—which does not set a target for specific goals, agencies, positions or functions—can only be understood as an effort to hollow out the federal government to allow the administration to make room for the administration’s partisan hiring.”

And the unions outlined a litany of examples where employees who sought to take the administration’s up on its deferred resignation offer were ultimately told they were required to stay on the job, fired anyway, or both.

“For example, one of plaintiff AFSCME’s members was employed by the [Agriculture Department] at the time of the Fork directive,” the complaint states. “She accepted the directive and resigned on Feb. 10, 2025, by replying to OPM’s email. She never received a response. Four days later, she was terminated as a probationary employee and received correspondence from the USDA that she was ineligible for the Fork directive.

“A week after that, she was told by USDA that it was required to honor the Fork Directive for probationary employees. Days later, she received yet another email stating she was ineligible because of the nature of her appointment and because her position was funded by then-frozen [U.S. Agency for International Development] grants. She has yet to receive responses or clarification from OPM. She has yet to be paid.”