Court fight over RIFs continues after Supreme Court ruling

BlackHays

15 hours ago

Originally published Court fight over RIFs continues after Supreme Court ruling on July 10, 2025 15:44 by https://federalnewsnetwork.com/workforce/2025/07/court-fight-over-rifs-continues-after-supreme-court-ruling/ at Federal News Network

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A Supreme Court ruling this week gave the Trump Administration the go-ahead to move forward with broad agency reorganization and staff reduction plans, at least for the time being. But it’s looking increasingly likely that agencies will have to, at a minimum, publicly disclose what those plans are as the fight over the administration’s downsizing plans continues in trial and appellate courts.

In an order Wednesday afternoon, U.S. District Court Judge Susan Illston indicated she hasn’t been persuaded by the government’s argument that the agency RIF and reorganization plans (ARRPs) are shielded by deliberative process privilege and ordered the government attorneys to respond by Monday with arguments about why they continue to believe the full contents shouldn’t be released.

The order came shortly after an urgent filing by union attorneys in the wake of Tuesday’s Supreme Court ruling, which found that President Trump generally had the authority to order agencies to come up with staff reduction plans. But importantly, the attorneys noted, the court explicitly said it was not ruling on the legality of the plans themselves.

“The ARRPs and related documents are highly relevant to the issue that the Supreme Court’s order expressly leaves open,” they wrote, while noting that they believe RIFs under the still-secret plans are now imminent. “The ARRPs and related documents will shed light on the scope and nature of actions implementing these orders, and, in particular, whether defendants are ‘engag[ing] in reasoned decisionmaking,’ which means that the agency actions must be both ‘reasonable and reasonably explained.’”

Dozens of RIF plans ready to implement

In its application to the Supreme Court for the emergency stay the court granted Tuesday, the government disclosed that 40 separate RIF plans at 17 agencies were ready to be implemented, and were only being blocked by a preliminary injunction Judge Illston issued last month.

In her order Wednesday, Illston said the government will at least need to disclose which agencies those are by Monday. She also indicated that after privately reviewing a handful of the RIF plans in her chambers, she is inclined to order their release in full.

“The court is of the view that, at minimum, the final versions of the ARRPs at the 17 agencies referenced before the Supreme Court are not covered by the deliberative process privilege,” she wrote. “If defendants considered these RIFs enjoined by the court’s preliminary injunction, then it follows that the RIFs resulted from the defendant agencies’ ARRPs. As such, the ARRPs at these agencies are likely not pre-decisional and deliberative documents. Even if they were, the court finds persuasive plaintiffs’ arguments about the qualified nature of the privilege.”

Under the February workforce reduction executive order the Supreme Court preliminarily upheld this week, federal agencies were required to submit their RIF plans in two phases: the first by March 13 and the second by April 14. According to the government’s court filings, at least some of those plans have received implementation approval from the Office of Management and Budget and the Office of Personnel Management.

Government argues RIF plans are sensitive documents

Nonetheless, the administration has maintained that the documents should be shielded by a protective order because they contain highly sensitive information and because they remain “predecisional.”

“No ARRP is ever final,” Stephen Billy, an OMB senior advisor, told Judge Illston’s court in a declaration filed in May. “ARRPs are living documents that are always subject to change as agency needs and circumstances may dictate, or simply due to an agency rethinking or reconsidering an issue. They may change drastically as a result of new leadership joining an agency, as agency officials are confirmed by the Senate to their posts. Indeed, the non-final and frequently changing nature of ARRPs is one of the reasons OMB and OPM requested that the agencies submit monthly progress reports in May, June, and July.”

Recourse for individual workers

In addition to possible court challenges that might stem from the release or implementation of the individual agencies’ AARPs, individual workers who are ultimately subjected to RIFs would still have recourse before the Merit Systems Protection Board and the Court of Appeals for the Federal Circuit.

During the MSPB process, agencies would have the burden to prove that they complied with federal RIF regulations when they decided to terminate a particular employee, said Michael Fallings, a managing partner at the law firm Tully Rinckey. And that hasn’t always been the case in the RIFs the administration has conducted so far.

“One of the most common things we’ve seen were errors in what the employee’s service computation date was, or there were errors in what their performance evaluation ratings were for certain periods,” he said. “In some of these large agencies like the Department of Veterans Affairs or other agencies where it’s likely not the whole agency is trying to be dismantled, but just a certain group of employees, the agency has to prove that a certain employee is within the right competitive level and the competitive group. And that means that those employees are performing similarly situated duties. So what an employee could do is investigate to determine whether they’re part of that correct group and whether they’re performing the similarly situated duties to those other employees. And whether they’re ranked properly does have to do with their tenure and their job performance as well.”

But the Supreme Court also left open the possibility that any particular agency’s ARRP could be invalidated by courts before individual employee terminations even begin.

“The Supreme Court is really commenting on the administration’s powers and what it can do in reshaping the government,” Fallings said. “It is permitting the administration to take efforts to reduce the size of the workforce. But it doesn’t mean that how the administration ultimately does so would be meritorious. There still may be and will be rulings on whether it’s done correctly.”

Originally published Federal News Network