I previously posted a video about some basic rules about how RIFs are conducted in the federal government and the statutory and regulatory basis. I want to expand on these rules as these RIFs are arriving in people’s inboxes so that they know what their rights are.

These challenges will largely proceed through the Merit Systems Protection Board (MSPB), and then on further appeal through the Court of Appeals for the Federal Circuit. That typically means that an employee has 30 days from the date of the RIF to challenge the RIF before the Board, meaning that a complaint must be filed by that time. An EEO case has 45 days to file. Failure to file within these time limits may affect your rights.

If you are facing a RIF/layoff and you need to speak with a lawyer about your options, I have time slots every day to speak with affected employees about their options. The link to find a time is here: https://kingramlaw.cliogrow.com/book/3c6d013e6e6edf71ca5de413ba02ecfe.

Below I address some of the issues with the RIFs that may be a basis for challenging any particular reduction in force action. There are many ways of challenging the process and this is an overview of some of the options available to federal employees.

Mishandling of RIF process

The RIF process itself requires that the Agencies follow specific rules for assessing employees’ in terms of tenure of employment, veterans’ preference, length of service, and performance ratings. (See 5 U.S.C. § 3502). Employees are placed on a retention register and then, based on their position on the register, they are terminated or demoted in the order of preference. When an employee is selected for a RIF, they can still “bump” or “retreat” to jobs that are available if they are qualified for the job and meet other specific rules.

There are a number of rules that govern this that an Agency may run afoul of in this regard. Aside from the discrimination and retaliation challenges (below), there is always the possibility of simple malfeasance in protecting certain employees, for example, that may run afoul of the rules in the regulations.

Each individual’s situation will be different as to what their rights are, particularly given that the retention registers will be created extremely quickly and may include incorrect information or may even simply not be compliant with the processes under the regulation.

The speed at which these RIFs may take place is also deeply concerning, but not itself a reason to reverse the RIFs.

Discrimination / Retaliation Challenge

One thing that has happened in the past and is likely to happen in the future is that managers will try to protect certain favored employees and to throw other employees under the bus by manipulating the RIF process. Doing so is not just a problem under the RIF process regulations, it is also potentially a violation of anti-discrimination and whistleblower retaliation laws, if the motivation for doing so is unlawful.

Proving such discrimination may be difficult in the context of a reduction in force that is run within the regulations. If the Agency creates otherwise lawful registers and simply applies the process laid out in the regulations, that will likely go a long way towards proving that discrimination was not a factor.

One area where that might not be the case would be where the Agency demotes or terminates employees largely on the basis of performance reviews, if those performance reviews were done in a discriminatory manner. For example, many times employees will have their performance reviews downgraded because they have received a reasonable accommodation, such as telework, and therefore do not engage in face-to-face meetings as often as management would perhaps like, leading to a lower “communication” rating. This would likely be discriminatory, and to the extent it was relied upon in the RIF process, that decision would be itself the product of discrimination.

Making these challenges before the MSPB requires evidence, however, and it may be difficult to obtain evidence or to prove that, ultimately, the RIF outcome was changed by the discriminatory prior decision. If an entire Agency is subjected to a RIF (like USAID almost certainly will be), then even the most egregious acts of discrimination would have not ultimately changed the decision, and the MSPB will be able to do nothing about the RIF.

Regulatory Challenge

One way of fighting back against layoffs is to look to the regulations for layoffs and to show that the layoffs do not qualify under the regulations to special treatment. Agencies must be able to justify layoffs and RIFs with evidence to show that they meet the regulations requirements if they are to be processed as such under the federal regulations. That is not clear at this point, and employees may be able to challenge that these RIFs are actually “bona fide.”

Layoffs and RIFs can be seen as an exception to the normal rules for terminating federal employees under Chapter 75 (“efficiency of the service” actions) and Chapter 43 (performance actions). The concept of a layoff as contained in the regulations forsees that there are specific grounds for the supposed ‘layoff’ including “reorganization.” The Agency must prove (with evidence) that its reduction in force meets one of the bases in the regulation.

Each agency shall follow this part when it releases a competing employee from his or her competitive level by furlough for more than 30 days, separation, demotion, or reassignment requiring displacement, when the release is required **because of lack of work; shortage of funds; insufficient personnel ceiling; reorganization; the exercise of reemployment rights or restoration rights; or reclassification of an employee’s position die [sic] to erosion of duties . . . . (5 C.F.R. § 351.201 (link) (italics added)).

It seems unlikely that the Agency will be able to claim, for a large pool of employees, lack of work, a personnel ceiling, use of reemployment rights, or reclassifications. The only exception that appears to be viable is “reorganization.” If the Agency cannot use one of these grounds, it will have to use Chapters 75 and 43 procedures and prove, for each employee, that the individualized grounds for each employee has been met.

It would be incredibly difficult to terminate a mass of employees on Chapter 43 grounds. Essentially, Chapter 43 requires a substantial amount of work from the Agency seeking to improve the performance of the employee. Only when that fails can the Agency take an action to downgrade or to separate the employee under Chapter 43. Given that the vast majority of federal employees are not on performance improvement plans already, this would be virtually impossible to do in the time frames the administration is seeking.

Chapter 75, on the other hand, is far more straightforward, but still difficult for the Agency to prove. The only requirement for the Agency is to show that the termination is for the “efficiency of the service,” meaning the Agency will be more efficient without the particular worker doing this particular job. There is no requirement of a performance improvement plan being issued or any attempts to improve the employee’s performance. Where it may be difficult is this: normally agencies make their efficiency showing before the MSPB by demonstrating misconduct or poor performance, i.e., that someone (anyone) could do the job better because the employee is not meeting expectations. In the case of the layoffs happening now, the problem would be that the service is not getting more efficient. That argument is much harder to make when you’re not seeking to replace someone, just to empty out the government. There is a questionable efficiency gain for shuttering entire offices, for example.

The main issue then, is if the Agencies proceed under reorganization, what is there to stop them? Prior case law at the MSPB and the appeals court generally gives Agencies wide discretion when it comes to supporting a ‘reorganization.’ But there are many open questions that will have to be answered through litigation about what qualifies as a bona fidereorganization. This will likely depend on characteristics of the coming reductions in force that have not yet occurred, as well as on statements from the President, DOGE, and other administration officials that may put at jeopardy the “reorganization.”

Administrative Procedure Act and Impoundment Control Act Challenge

There is a further challenge that likely cannot be presented before the MSPB, and that is a challenge brought under the Impoundment Control Act (”ICA”). Generally such claims are brought through the federal courts (not the MSPB).

The ICA is a statute that prevents the President and the Executive Agencies from withholding spending that Congress has authorized. If Congress has authorized the spending, federal agencies cannot simply withhold the spending for their own reasons. The ICA has a specific requirement for spending that is withheld (called an impoundment) that requires the Agency to undertake the spending unless Congress has acted through a bill to excuse such spending. This has been used in the past to require Agencies to take actions where there is no legitimate room for a discretionary act.

The Administrative Procedure Act (APA) is the legal vehicle by which the government can be forced to undertake the spending. The MSPB may not have jurisdiction to entertain such a claim. Under the APA, the federal government has been required to engage in spending that the Agencies have sought to prevent because withholding the spending is “arbitrary,” “capricious,” or “otherwise not in accordance with the law.” See 5 U.S.C. § 701*.* The courts can force an Agency to make payments under certain circumstances pursuant to the ICA. See Ohio v. U.S. Army Corps of Eng’rs, 259 F. Supp. 3d 732 (N.D. Ohio 2017). In that case, the federal court ordered the government (the Corps of Engineers) to pay for aspects of dredging that the Corps was refusing to pay for. The Agency could not withhold payment under the ICA based on its own interpretation of the applicable statutes and regulation.

Whether this same argument can be used to force the Administration to pay for the salaries of federal employees and to keep certain offices or programs (or even whole agencies) going remains to be seen. Nevertheless, in certain circumstances the argument may be viable.

Conclusion

There are many ways of challenging a Reduction in Force, some better than others. If you are the subject of a RIF, I strongly encourage you to discuss your situation with an attorney as soon as possible as you will have a limited time to challenge the action.