Elizabeth Mitchell: Senior Staff Writer

On January 20, 2025, President Donald J. Trump issued Executive Order 14,158—“Establishing and Implementing the President’s ‘Department of Government Efficiency’ (DOGE).” This order reorganized the U.S. information service and appointed Elon Musk as Senior Advisor to the President and de facto Head of the Department of Government Efficiency (DOGE). The initiative aimed to cut government spending and overhaul federal operations.

In January 2025, at the direction of DOGE, Acting Director Charles Ezell of the Office of Personnel Management (OPM) emailed nearly all federal employees. His message, titled “The Fork in the Road,” introduced the Deferred Resignation Program. The program required employees to choose by February 6: either resign or continue under new workforce reforms, including mandatory return-to-office requirements. Those who resigned received paid administrative leave until September 30 or until they secured other employment, whichever came first. Those who chose to stay had to return to in-office work. Roughly 75,000 employees accepted the resignation offer.

The program applied to full-time federal employees, excluding military service members, U.S. Postal Service workers, national security and immigration enforcement personnel, and employees whose agencies issued specific exemptions.

Although OPM oversees hiring, benefits, and personnel policies across the federal government, employment attorneys and union representatives questioned whether it held the legal authority to grant paid administrative leave to employees outside its own agency.

Courts must determine whether unions can satisfy associational standing requirements while representing thousands of federal workers affected by uniform employment actions. The resolution will shape whether unions can challenge executive-driven employment policies and defend the due process rights of public employees nationwide.

The Deferred Resignation Program triggered confusion and multiple legal challenges, including disputes over associational standing and the extent to which unions could represent affected employees. In response, three unions—the American Federation of Government Employees (AFGE), the American Federation of State, County, and Municipal Employees (AFSCME), and the National Association of Government Employees (NAGE)—filed a lawsuit in federal court on behalf of their members.

The unions claimed that the program violated federal law, exceeded OPM’s statutory authority, and lacked proper congressional funding. They asserted two causes of action under the Administrative Procedure Act (APA) and requested a temporary restraining order or preliminary injunction.

Judge George O’Toole of the U.S. District Court for the District of Massachusetts dismissed the case on standing grounds, declining to address the legal merits. Under Article III of the Constitution, federal courts only decide actual “Cases” or “Controversies.” To establish standing, a plaintiff must show: (1) a concrete injury or a likelihood of one; (2) a causal link to the defendant’s conduct; and (3) that the requested relief would likely redress the injury. 

Because the plaintiffs were unions, not individuals, they needed to establish associational standing to pursue their claims. An organization may sue on behalf of its members if it satisfies three criteria: (1) the members would have standing in their own right; (2) the interests at stake align with the organization’s purpose; and (3) the claim and the requested relief do not require individual member participation.

The Department of Justice (DOJ) opposed the unions’ lawsuit, focusing on the third prong from Hunt v. Washington State Apple Advertising Commission. The DOJ argued that each employment decision involved unique facts—such as job performance and role-specific duties—which required individualized evidence. Because of this, the DOJ contended that unions could not proceed without involving individual members, which disqualified them from associational standing.

Courts split on the issue. In AFGE v. OPM, a Massachusetts federal judge agreed with the DOJ and ruled that the unions lacked standing. The court reasoned that each employment decision involved distinct circumstances and thus required individual participation. The ruling allows the administration’s “Fork in the Road” directive to move forward, leading probationary employees to resign or risk termination.

In contrast, Judge William Alsup of the Northern District of California issued a preliminary injunction against OPM and ordered agencies to reinstate terminated employees. He found that the mass terminations likely violated federal law and that the unions had met the requirements for associational standing. 

These conflicting rulings exposed a deeper divide in how courts interpret the Hunt framework when applied to broad employment actions across the federal workforce. The Supreme Court imposed a temporary stay on the California ruling but limited its intervention to reviewing the standing of nonprofit plaintiffs. The Court left the issue of union standing unresolved, underscoring the doctrinal complexity surrounding associational standing in mass federal employment cases. 

Broader employment law principles highlight what is at stake. In Board of Regents v. Roth, the Court held that a non-tenured professor with a fixed-term contract lacked a property interest in continued employment and had no right to a hearing upon non-renewal. In Perry v. Sindermann, the Court recognized that an informal tenure system could create a legitimate expectation of continued employment, which triggered due process protections. Although both cases involved individual plaintiffs, they shaped the legal understanding of job security and procedural fairness—principles that unions now aim to extend to large groups of federal employees. 

Courts must determine whether unions can satisfy associational standing requirements while representing thousands of federal workers affected by uniform employment actions. The resolution will shape whether unions can challenge executive-driven employment policies and defend the due process rights of public employees nationwide.