A federal judge has temporarily barred the federal government from conducting reductions in force while the government is shut down, according to unions suing the government over the RIFs. 

Senior U.S. District Judge Susan Illston said in court that “the evidence suggests that the Office of Management and Budget and the Office of Personnel Management have taken advantage of the lapse in government spending, in government functioning, to assume all bets are off, the laws don’t apply to them anymore,” according to The Washington Post.

Illston is expected to issue a written order later today.

Federal employee unions had sought a temporary restraining order to stop the RIFs, arguing that they violate the Antideficiency Act, which prohibits the government from spending money it doesn’t have.

Illston "said the unions are likely to prove that the administration’s issuance of reduction-in-force notices to more than 4,000 federal employees during the shutdown is illegal, exceeds its authority, and is arbitrary and capricious," the plaintiffs said in a news release. "The judge ordered the administration to issue no further RIF notices and to take no action to enforce the RIF notices it has already issued in offices at the defendant agencies where the unions represent employees."

“[T]he uncontroverted record establishes that defendants have been and are continuing to direct federal employees to work illegally during the shutdown, preparing and issuing RIF notices to their fellow employees,” the plaintiffs said in an Oct. 14 reply brief.

The government has made multiple procedural arguments that the unions cannot challenge the RIFs conducted last week. For example, it said RIFs did not constitute final agency action and that the court did not have jurisdiction over the matter.

The Justice Department attorney who argued before Illston Wednesday said she was not prepared to discuss the merits of the government’s argument. According to NOTUS, that led Illston to ask, “This hatchet is falling on the heads of employees all across the nation, and you’re not even prepared to address whether that’s legal?”

In a declaration filed in court, an OMB official said other agencies were contemplating RIFs, but he did not specify which agencies or how far along they were with their plans.

Illston ordered the government to provide more information within two days on the RIF notices it has already issued, according to the unions.

The RIFs initially affected about 4,100 employees, but “as a result of data discrepancies and processing errors,” nearly 800 Health and Human Services employees mistakenly received notices, according to a declaration from OMB senior adviser Stephen Billy. HHS is reinstating those employees, which news outlets have reported were at the Centers for Disease Control and Prevention.

The RIFs hit the departments of Commerce, Education, Energy, HHS, Housing and Urban Development, Homeland Security and Treasury, as well as the Environmental Protection Agency. USDA was unaffected.

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