2 Lawsuits (and 1 Lawsuit Threat) Target Trump’s Early Moves

U.S. President Donald Trump’s flurry of Month 1 executive orders, memorandums and actions has led to several counteractions, including lawsuits, from affected agencies, workers and unions. This article aims to get you up to speed on the latest news.

Initial action: Trump shakes up the National Labor Relations Board (NLRB) with firings.

Counteraction: Former NLRB member Gwynne Wilcox filed a lawsuit on Wednesday, Feb. 5, in the U.S. District Court for the District of Columbia against President Trump and the person he installed as the new board chair, claiming her termination violated the National Labor Relations Act (NLRA). The filing is notable since this court case could test the limits of Presidential authority over independent agencies such as the NLRB.

Wilcox, a Democrat, was installed as a board member in August 2021 by then-President Joe Biden and assumed the acting chair role on Dec. 17, 2024, after Lauren McFerran’s term expired. Wilcox’s board term was scheduled to run through Aug. 27, 2028. However, Trump fired Wilcox on Jan. 27 as part of a series of transactions that also included elevating Marvin Kaplan to NLRB chair. With plans to fill open board seats with Republicans, Trump aims to flip the agency to be more employer friendly.

In her lawsuit, Wilcox stated her ouster violated the NLRA’s requirement that the President can fire NLRB members only “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” On Jan. 28, Wilcox told media outlets that, in her termination letter, Trump wrote that the NLRB hasn’t fulfilled its responsibilities and he believes he has the right to remove a board member at will.

“When Congress established the National Labor Relations Board almost 90 years ago, it made sure that the law would protect its independence from political influence,” Wilcox said in a statement. “My removal, without cause or process, directly violates that law.”

The Supreme Court’s 1935 decision in Humphrey’s Executor v. United States has supported removal protections for many independent agencies. Recent lawsuits, though, have alleged that shields against at-will removal are an unconstitutional limit on a President’s power.

Wilcox is seeking a court order to be reinstated to the board.

Initial action: Federal worker “deferred resignation” program made public.

Counteraction: Three federal unions on Tuesday, Feb. 4, filed a lawsuit in the U.S. District Court for the District of Massachusetts against the Office of Personnel Management (OPM) and its acting director, Charles Ezell, claiming the Trump administration’s “deferred resignation” program is illegal.

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) claim the resignation offer — sent to most federal workers in a Jan. 28 email titled “Fork in the Road” — violates the Administrative Procedure Act (APA) and the Antideficiency Act. The latter law bars agencies from obligating funds Congress has yet to appropriate. Legal experts state that because the continuing resolution that’s currently funding the federal government expires on March 14, the government can’t legally commit to the portion of the program that promises to pay those who resign until Sept. 30.

As currently structured, the program gives employees until Thursday, Feb. 6, to decide whether or not to quit. Besides questioning the validity of the unconventional workforce reduction program, the unions, at the very least, are asking to extend the decision deadline for at least two months.

“The ‘Fork Directive’ is a blatant attempt to undermine the merit-based foundation of our civil service,” said NAGE president David J. Holway on Feb. 4. “NAGE will not allow our members to be intimidated into making hasty decisions based on misleading information. The administration must be held accountable for this unlawful directive, and we are committed to protecting the rights and jobs of our members.”

As the lawsuit process begins, 12 Democratic attorneys general (AGs) on Monday, Feb. 3, warned federal employees about taking the OPM offer, claiming it is “misleading.”

In a joint statement, AGs from Arizona, California, Connecticut, Delaware, Hawaii, New Jersey, New York, Michigan, Minnesota, New York, Vermont and Washington told federal workers to “be cautious and follow the guidance of their unions to protect their rights.” They also advised that “these supposed offers are not guaranteed.”

Initial action: Executive order eliminates federal remote work option.

Counteraction: Federal unions, including AFGE, have called the President’s return-to-office (RTO) directive illegal since it violates terms in existing collective bargaining agreements (CBAs). In a statement released on Monday, Feb. 3, AFGE explained that telework provisions have been incorporated for several years into many federal unions’ CBAs with agencies. As such, it promised to “aggressively defend” its contracts.

“Federal employees should know that approved union contracts are enforceable by law, and the President does not have the authority to make unilateral changes to those agreements,” said AFGE leader Everett Kelley. “AFGE members will not be intimidated. If our contracts are violated, we will aggressively defend them.”

The union also issued a document that it said separates “myth” and “fact” on current federal telework practices.

As a counter-counteraction, OPM’s Ezell sent a memo to department and agency heads later on Feb. 3 that called provisions in union contracts that limit an agency’s ability to set telework policy “likely unlawful and unenforceable,” and stated that setting telework eligibility is a “management right.”

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