On February 4, 2025, several Federal unions filed suit in the United States District Court for the District of Massachusetts, claiming that the Trump Administration’s Deferred Resignation Program or “Fork in the Road” initiative was, in short, arbitrary and capricious, and illegal in numerous ways, including the Appropriations Clause of the Constitution. Both are alleged Administrative Procedures Act (APA) violations.
After initially issuing a limited temporary restraining order (TRO) preventing the implementation of the “Fork Directive,” the judge determined that the unions lack standing to challenge the program in order to meet the legal standing for a TRO. The judge explained that a plaintiff seeking a temporary restraining order or a preliminary injunction must establish four familiar elements: (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm to the plaintiff in the absence of preliminary relief, (3) a balance of pertinent equities tips in plaintiff’s favor, and (4) that the requested injunction would be consistent with the public interest.
In his decision to dissolve the TRO, the judge stated that the unions have not established that they are likely to succeed on the merits of their two APA claims because the Court doesn’t have jurisdiction. He also stated the unions lacked standing because they didn’t have; “a personal stake in the dispute”, were not directly impacted by the directive, and that they must exhaust administrative remedies, via the Labor-Management Relations Statute as the union’s claims fall within the Statute’s scheme.
With that backdrop, could the Courts have provided the unions a roadmap for successfully challenging the real statutory labor relations violations? For example, it’s a violation of the Statute for management officials to deal directly with bargaining unit employees on changes in working conditions. One could argue the Fork in the Road email did just that.
Another possible violation was a failure on the part of the OPM leadership and executive agencies, to provide national unions their statutorily required National Consultation Rights on the new initiative. There could also be claims that the Fork Directive was implemented without providing the unions notice and an opportunity to request bargaining, much less completing bargaining before implementation.
Any of the above-mentioned violations would seem to provide the unions with the “personal stake in the dispute” and direct impact that was lacking in their initial complaint. This would eliminate the need to rely solely on APA violations.
As for the exhaustion of administrative remedies, while the application of the exhaustion doctrine is generally mandatory for labor relations disputes, there are certain exceptions to this rule. Futility, inadequate remedy, irreparable harm and constructive exhaustion, would provide unions an opportunity to seek intervention from the Courts.
For example, The unions could claim that exhaustion of administrative remedies would be futile, as pursuing an unfair labor practice would be pointless and ineffective since the government hasn’t appointed a Federal Labor Relations Authority General Counsel in almost a decade, and that person has the sole authority to issue an unfair labor practice (ULP) complaint. The ULP complaint would seem to be the only vehicle that would allow for the legitimate completion of the administrative process under the Statute.
Could the unions also argue that, because of the lack of a General Counsel to prosecute the ULP, that there can be no “meaningful review” as the FLRA Regional Offices do not have the authority to grant the requested relief and waiting for the administrative process to conclude (since there hasn’t been a Senate confirmed General Counsel in almost a decade) would result in irreparable harm to employees, and unions. Thus, immediate judicial review is necessary to prevent irreparable harm.
While I’m not a lawyer and don’t play one on TV, this may be food for thought for some that are.
Ed Davis recently retired for the Federal government to pursue other endeavors in the private-sector. He has over 20 years in federal-sector human resources in a number of agencies, with a majority of his two decades of experience in labor and employee relations.
