Reductions in Force during a lapse in appropriations

A couple of weeks ago, the administration stated that any lapse in appropriation may result in widespread Reductions in Force (“RIF”); now, ten days into the lapse, it appears as if the administration is following through. It has been widely reported that several agencies are sending out RIF notices.

Can they actually do that during a lapse in appropriations?

Well, like any legal question, the answer is a bit complex, but it does appear to be problematic from a legal standpoint.

The Anti Deficiency Act (“ADA”, 31 U.S.C.S § 1341) explicitly prohibits the federal government from incurring financial obligation without appropriations unless otherwise authorized by law. The Act further limits the use of unpaid personal service exceeding that authorized by law to “emergencies involving the safety of human life or the protection of property”. Id. § 1342. The statute specifically excludes regular functions of government which the suspension of “would not imminently threaten the safety of human life or the protection of property”. Id.

So, what are the practical implications of this as it relates to a RIF?

A RIF requires a lot of complex administrative work by the agency (preparing retention registers, preparing lists, issuing notices, etc.). It would be hard to argue that any of this work would fit into the narrow exception of human safety and protection of property required by § 1342. As such, it would appear that any work performed by agency personnel operating under a lapse of appropriations may violate the ADA.

Another possible issue is the creation of future financial obligation. A RIF can trigger a legal obligation to pay severance separated employees. See 5 U.S.C.S. § 5595. If the agency lacks the appropriated funds to pay the severance, then separating employees via a RIF would create an unfunded obligation, which would appear to violate the ADA.

So, what can you do about it?

If you are a federal employee (furloughed or otherwise), realize that you have rights. While your right to appeal a RIF typically does not trigger until you are actually separated, it is important to speak to an attorney who focuses on Federal Employment Law to ensure that you preserve your rights.

Attorney Advertisement. Nothing in the above should be considered legal advice, and no attorney/client relationship is being formed by this post.