The DRP lawsuit brought by federal employee unions to block the Trump administration’s Deferred Resignation Program has, so far, failed to stop it. Two suits filed in early 2025 were dismissed on jurisdictional grounds without any court ruling on whether the program itself was lawful, and the lead case is now on appeal before the U.S. Court of Appeals for the First Circuit, with no argument date reported as of mid-2026.
What the Unions Were Challenging
The Office of Personnel Management emailed the deferred resignation offer, popularly called “Fork in the Road,” to executive branch employees on January 28, 2025.1Congress.gov. Deferred Resignation Program Legal Overview Employees who accepted would resign effective September 30, 2025, but would be placed on paid administrative leave in the interim, drawing full salary and benefits without being required to work.2U.S. Department of Health and Human Services. HHS Deferred Resignation Program
The template agreement required participants to “forever waive” any judicial or administrative claim against their agency tied to their employment or the resignation offer. Only agency heads, not employees, could rescind the agreement, and OPM classified the separation as voluntary, making participants ineligible for severance.1Congress.gov. Deferred Resignation Program Legal Overview3AFGE. Deferred Resignation Program4OPM. Deferred Resignation Program FAQs for Agency HR
OPM cited existing provisions of Title 5 and regulations under the Administrative Leave Act, and in a February 4, 2025 memorandum asserted that “nothing in the deferred resignation program requires congressional approval.”5OPM. OPM Memo on Legality of Deferred Resignation Program The unions disagreed on nearly every point.
AFGE v. Ezell: The Lead Case
On February 4, 2025, the American Federation of Government Employees, joined by AFSCME and the National Association of Government Employees, sued in the U.S. District Court for the District of Massachusetts. The complaint challenged the program under the Administrative Procedure Act and the Antideficiency Act, arguing the offer was arbitrary and capricious, lacked a proper legal basis, and promised payments Congress had not appropriated.6Federal News Network. Union Lawsuit Seeks to Block Deferred Resignation Program7Civil Rights Litigation Clearinghouse. AFGE v. Ezell
Judge George A. O’Toole Jr. initially paused the February 6 acceptance deadline, then extended the pause. On February 12, 2025, he dissolved the restraining order and denied preliminary relief.8FedScoop. Unions Lack Standing to Challenge Deferred Resignation, Judge Rules Two rulings drove the outcome.
First, the judge found the unions lacked Article III standing. Citing the Supreme Court’s 2024 decision in FDA v. Alliance for Hippocratic Medicine, he held that organizations cannot establish standing by diverting resources in response to a government action or by pointing to speculative membership loss. The unions were challenging a policy affecting their members, not themselves.9Democracy Docket. Order in AFGE v. Ezell
Second, applying the Thunder Basin framework, Judge O’Toole ruled that the Civil Service Reform Act and the Federal Service Labor-Management Relations Statute provide the exclusive channels for disputes between federal employees, their unions, and federal employers. Claims had to go first to the Merit Systems Protection Board or the Federal Labor Relations Authority. The district court therefore lacked subject matter jurisdiction over the APA claims.9Democracy Docket. Order in AFGE v. Ezell The acceptance window closed that evening at 7 p.m.8FedScoop. Unions Lack Standing to Challenge Deferred Resignation, Judge Rules
The Amended Complaint
The unions did not drop the case. On March 31, 2025, they filed an amended complaint with new theories designed to get past the jurisdictional wall.10Government Executive. Agencies Begin Second Round of Deferred Resignations, Unions Revive Legal Challenge7Civil Rights Litigation Clearinghouse. AFGE v. Ezell
The new theories did not save the case. On September 24, 2025, the district court dismissed the suit with prejudice, again holding that the CSRA and FSLMRS provided exclusive procedures that precluded judicial review under the APA.7Civil Rights Litigation Clearinghouse. AFGE v. Ezell
The First Circuit Appeal
AFGE appealed to the U.S. Court of Appeals for the First Circuit on October 8, 2025, and filed its appellate brief on February 6, 2026.11Workers Legal Defense. Litigation Tracker As of mid-2026, no oral argument date or ruling has been publicly reported.7Civil Rights Litigation Clearinghouse. AFGE v. Ezell
NTEU v. Trump: The Parallel Case
The National Treasury Employees Union filed a parallel challenge in the U.S. District Court for the District of Columbia. On February 20, 2025, Judge Christopher R. Cooper denied the union’s request for a temporary restraining order and preliminary injunction, ruling that the court likely lacked subject matter jurisdiction and that the claims belonged before the FLRA under the Federal Service Labor-Management Relations Statute.12FindLaw. NTEU v. Trump As of mid-2025, NTEU had not appealed.13Congress.gov. Deferred Resignation Program Legal Overview
The Antideficiency Argument
A distinct legal question ran alongside the union litigation: whether promising pay through September 30, 2025, violated the Antideficiency Act, which bars agencies from obligating funds Congress has not appropriated. When the program launched, the government was operating under a continuing resolution set to expire March 14, meaning no appropriation existed for most of the promised payments.
Senator Patty Murray and Representative Rosa DeLauro, the ranking Democratic appropriators, wrote OPM on February 5, 2025, arguing the program “incurs a multi-billion dollar cost on behalf of the federal government that has not been authorized or appropriated by Congress.”14U.S. Senate Committee on Appropriations. Top Appropriators: Deferred Resignation Scheme Is Deceptive, Legally Questionable A July 2025 analysis noted that the template’s unilateral rescission clause may have blunted the advance-obligation concern, because agencies could cancel contracts at any time. A separate argument persisted that if DRP payments effectively functioned as voluntary separation incentive payments exceeding the $25,000 statutory cap, that could independently violate the Act. The Government Accountability Office reads the Act broadly enough to cover any statutory spending cap; the Department of Justice reads it more narrowly.15Government Executive. Why Federal Program Paying Employees Not to Work May Violate Spending Laws No court or oversight body has issued a definitive ruling on the question.
Why No Court Has Ruled on the Merits
The recurring obstacle in both cases has been the same: federal employment disputes generally must run through the administrative channels Congress built for them. Under Thunder Basin, when a statutory scheme provides an exclusive review process, plaintiffs cannot bypass it by filing directly in district court. Both Judge O’Toole and Judge Cooper concluded that the Civil Service Reform Act and the Federal Service Labor-Management Relations Statute set up exactly that kind of exclusive scheme, funneling union grievances to the FLRA and individual employee claims to the MSPB.
The practical effect is that the underlying questions the unions raised, whether the DRP was properly authorized, whether it evaded the VSIP cap, whether it obligated unappropriated funds, have not been answered by any court. The dismissals turned on who could sue where, not on whether the program was lawful.
What This Means for Employees Who Signed
For employees who accepted the offer and later see the government fail to deliver on its terms, the legal path is narrow. The waiver clause in paragraph 12 required participants to “forever waive” and release all claims against their agency, and OPM asserted that an agency head’s decision to rescind enrollment was “not subject to review by the Merit Systems Protection Board or any other forum.”3AFGE. Deferred Resignation Program
Employment attorneys have questioned whether the waiver would hold up. The one-sided rescission clause, allowing agencies but not employees to cancel, risks rendering the contract illusory for lack of mutuality. The waiver is also unlikely to bar claims for events occurring after signing, and employees over 40 retain statutory review and rescission rights under the Older Workers Benefit Protection Act that cannot be waived away.16Federal News Network. The Government Paid $4.5 Billion to Feds Who Took the DRP
Even so, remedies against the federal government are limited. Courts generally do not apply equitable estoppel to force the Treasury to pay. A narrow opening may exist where an employee can prove “serious affirmative misconduct” by the agency, but one analysis concluded that if the executive branch breaks its promise, “the courts may not offer any remedy” and Congress may be the only realistic source of relief.17Lawfare. Will Employees Who Resign Have a Remedy Individual DRP-related claims, if brought, would generally need to start at the MSPB or FLRA rather than in federal court.
Where the Case Goes From Here
The First Circuit will decide whether the district court was right that the CSRA and FSLMRS strip federal courts of jurisdiction over challenges like this one. If the appeals court agrees, the DRP will have survived judicial review without any court ever addressing its legality. If the First Circuit reverses, the case would return to the district court to take up the APA, Antideficiency Act, and separation-of-powers arguments on the merits. Until then, the program stands, roughly 143,904 employees were approved for it between January and June 2025 according to GAO,18GAO. Federal Agency Workforce Changes: Update for January to June 2025 and the questions the unions raised remain unresolved.