Today, a U.S. District Judge, in a lawsuit filed by federal union American Federation of Government Employees (AFGE) on February 4, ordered OPM to delay processing of the “Fork in the Road” deferred resignation program. The program will be delayed until at least Monday, February 10. The previous deadline was today, Thursday, February 6 at 11:59 PM EST.
The Next Court Proceedings
The temporary injunction was issued by U.S. District Judge George O’Toole in Boston, MA. Another hearing is scheduled in court for Monday afternoon at 2 p.m. where arguments are expected to be heard about the legality of the program. AFGE has alleged that OPM violated the Administrative Procedures Act, the Antideficiency Act and the Appropriations Clause to the U.S. Constitution. There is a high potential that the program could be paused beyond Monday while the litigation is ongoing. If so, it could take a significant amount of time for OPM to reissue the Fork in the Road offer, if at all.
This has left many federal employees, including many of our clients in a quandary as to whether the program will survive. Additionally, there are related questions as to Voluntary Early Retirement Authority (VERA) offers that OPM has been extending as many agencies have required federal employees to accept the resignation offer as part of receiving VERA approval. From news reports, Judge O’Toole has ordered the temporary injunction on the Fork in the Road offer until Monday and also ordered OPM to notify all employees of this pause in the program today by email. The final order has not yet been posted on the court’s docket.
What does it all Mean?
From the details coming out of the U.S. District Court of Massachusetts, the judge wants the parties to file initial arguments about the legality of the Fork in the Road program through briefs and then is planning to have oral argument. It would not surprise me if Judge O’Toole pauses the program while the litigation is ongoing. If so, federal employees would continue to work normally until a decision is made, and after that there will likely be appeals of any decision. Ultimately, a case like this could eventually end up at the U.S. Supreme Court.
If the judge does not grant a permanent injunction on the Fork in the Road Program, then I would imagine that OPM might extend the deadline a bit further for people still interested in participating in the program. Basically, it is just too soon to tell whether or not the Fork in the Road program will survive. We should know something early next week after the Government and AFGE make their arguments.
