Update May 9, 2025: The current status of the class appeals is discussed in a new post here.
A coalition of law firms is pursuing class action appeals at the Merit Systems Protection Board (MSPB) to challenge the Trump administration’s mass terminations of probationary and trial employees. This post provides an update on the appeals.
What has been filed at the MSPB?
So far, class action appeals have been filed for employees at the following agencies:
- FDIC – Filed February 28, 2025
- Department of Interior – Filed March 4, 2025
- USDA – Filed March 4, 2025
- VA – Filed March 4, 2025
- DHS – Filed March 5, 2025
- EPA – Filed March 5, 2025
- Department of Transportation – Filed March 7, 2025
- Small Business Administration – Filed March 7, 2025
- CFPB – Filed March 7, 2025
- Department of Treasury – Filed March 10, 2025
- Health and Human Services – Filed March 10, 2025
- USAID – Filed March 10, 2025
- OPM – Filed March 10, 2025
- US Digital Service – Filed March 10, 2025
- Department of Energy – Filed March 11, 2025
- Department of Education – Filed March 11, 2025
- GSA – Filed March 11, 2025
- Housing and Urban Development – Filed March 12, 2025
- National Archives and Records Administration – Filed March 12, 2025
- Department of Commerce – Filed March 14, 2025
Each appeal will seek to cover all components of these agencies. For example, the Treasury appeal will seek to include IRS employees.
Which employees are covered?
Each appeal names a few employees as representatives of a proposed class of all employees at each agency who were terminated on the grounds that they were in their probationary or trial period. We expect that an MSPB Administrative Judge will decide in the coming months whether each appeal can proceed on a class basis. Once these decisions are made, we will know more about who is covered.
What is the basis for the appeals?
The appeals argue that federal agencies broke the law through mass terminations of probationary and trial employees.
Specifically, agencies allegedly conducted a “reduction in force” (RIF) by terminating large numbers of employees as part of an attempt to downsize the federal government. Yet, agencies disregarded mandatory procedures for RIFs.
Under federal regulations, agencies must follow RIF procedures when they separate employees as part of a “reorganization,” which includes a “planned elimination, addition, or redistribution of functions or duties in an organization.” 5 CFR § 351.201, 203. The RIF procedures include notice of 60 days to employees in most cases, along with other protections.
According to regulations and case law, probationary employees have the right to appeal to the MSPB when an agency fails to follow RIF procedures.
The appeals will seek reinstatement and backpay.
Do employees need to do anything to be covered by the appeals?
At this time, employees do not need to do anything to be covered by these appeals. If class certification is granted, covered employees will likely receive a notice describing next steps.
If employees wish to raise claims other than failure to RIF procedures, they should consider separate legal action. Generally, when a federal employee files a complaint or appeal involving their termination, they may be precluded from pursuing other legal options. We encourage employees to seek advice from an independent lawyer regarding their individual circumstances and options.
Generally, under MSPB rules, the 30-day deadline for individual appeals is put on hold for members of a proposed class while a judge decides whether a case can proceed as a class action. 5 CFR 1201.27.
How does this differ from the action taken by the Office of Special Counsel?
The MSPB appeals raise some of the same arguments that the Office of Special Counsel asserted in obtaining temporary relief for certain employees at several agencies.
However, the technical legal bases for the actions are different. The Special Counsel is arguing that agencies may have committed prohibited personnel practices, while the MSPB appeals are based directly on failure to follow RIF procedures.
So far, the Office of Special Counsel has obtained temporary relief for terminated probationary employees at USDA, as well as a handful of specific employees at other agencies. We understand that this relief is currently limited to reinstatement for a period of 45 days.
On March 5, the D.C. Circuit issued an order permitting the removal of Special Counsel Hampton Dellinger. On March 6, Dellinger announced that he was dropping his lawsuit seeking reinstatement.
Which law firms are involved?
Most of the appeals will be pursued by a group of four firms: Brown Goldstein & Levy, Cohen Milstein Sellers & Toll, Gilbert Employment Law, and James & Hoffman.
The appeal for USAID employees is being pursued with the American Federation of Government Employees (AFGE) as co-counsel.
The appeal for CFPB employees is being pursued with Towards Justice as co-counsel.
For some agencies, a different set of firms or organizations may be involved.
How can I track the progress of the appeals?
Updates will be posted here and on our Bluesky account.
Here is our prior post on terminations of probationary employees.
-Danny Rosenthal, partner at James & Hoffman.