Nearly three months have passed since agencies began mass terminations of probationary employees. In that time, there have been several court decisions on the issue, a series of appeals filed at the MSPB, and a new executive order on probationary employees. Here’s where things stand:
Court orders involving mass terminations of probationary employees
Currently, there is no court order forcing agencies to rehire terminated probationary employees or stop further terminations of probationary employees.
To summarize:
- Two courts issued preliminary orders requiring reinstatement of terminated probationary employees.
- Higher courts then stayed those orders, meaning that the orders are no longer in effect.
- Importantly, the appellate courts did not say the terminations were proper. Rather, the courts found that employees should challenge the terminations through administrative channels such as the Merit Systems Protection Board (MSPB).
- Appeals are still ongoing, so it is possible the reinstatement orders will be put back into effect.
Without active court orders protecting employees, agencies may choose to fire probationary employees again. The Department of Commerce did so in April. Some other agencies have refused to provide backpay or placed some employees on unpaid leave.
Recently, a court instructed agencies to email probationary employees explaining that they were not fired for poor performance, but as part of government-wide mass terminations. We understand many employees received these emails in the past few days. The court also barred the Office of Personnel Management from instructing agencies to terminate employees.
There are several other ongoing court cases that do not relate specifically to mass terminations of probationary employees, but raise overlapping issues:
- Lawsuits challenging the dismantling of agencies such as USAID, the CFPB, and the Federal Mediation and Conciliation Services (FMCS), where many employees were laid off. A court order has reversed recent layoffs at the CFPB, and another court is poised to issue a similar order for FMCS and other agencies.
- Lawsuits opposing layoffs at the Department of Education. A hearing in two cases was held on April 25. The judge hasn’t yet issued a decision.
- A challenge by unions and non-profits to the executive order that required agencies to conduct mass layoffs.
MSPB class actions challenging the terminations of probationary employees
As discussed in a prior post, a coalition of law firms filed class appeals at the MSPB challenging the mass terminations of probationary employees. These appeals argue that agencies broke the law by terminating large groups of employees as part of a workforce restructuring, while violating procedures for a reduction in force (RIF).
The MSPB class actions are ongoing. In several cases, the parties are awaiting decisions as to class certification. In others, the parties are conducting discovery. In some cases, the administrative judge has indicated that he or she is considering dismissal of the case on the grounds that it may be moot. (We discuss the mootness issue below.)
Here is a case-by-case update:
- Department of Agriculture: The Administrative Judge issued a “show cause” order indicating that she is considering dismissal on mootness grounds. The Administrative Judge asked for additional information from the Agency on efforts to reinstate probationary employees and make them whole. The Agency’s response is due on May 9, 2025, and the employees can respond by May 16, 2025.
- Department of Commerce: Awaiting a decision on class certification. Appellants filed a class certification brief on April 29, 2025, and the Agency responded on May 6, 2025.
- Department of Education: In discovery regarding class certification.
- Department of Energy: The Administrative Judge issued a “show cause” order indicating that she is considering dismissal on mootness grounds. The Administrative Judge asked for additional information from the Agency on its efforts to reinstate probationary employees and make them whole. The Agency’s response is due on May 9, 2025, and Appellants can respond by May 16, 2025.
- Department of Health and Human Services: Awaiting a decision on class certification. Appellants filed a class certification brief on April 29, 2025, and the Agency responded on May 6, 2025.
- Department of Homeland Security: Awaiting a decision on class certification. Appellants filed a class certification brief on April 29, 2025, and the Agency responded on May 6, 2025.
- Department of Housing and Urban Development: Awaiting a decision on class certification. Appellants filed a class certification brief on May 2, 2025, and the Agency’s deadline to respond is May 9, 2025.
- Department of the Interior: The Administrative Judge issued a “show cause” order indicating that she is considering dismissal on mootness grounds. The Administrative Judge asked for additional information from the Agency on efforts to reinstate probationary employees and make them whole. The Agency’s response is due on May 9, 2025, and the employees can respond by May 16, 2025.
- Department of Transportation: In discovery regarding class certification.
- Department of the Treasury: Awaiting a decision on class certification. Appellants filed a class certification brief on May 9, 2025.
- Department of Veterans Affairs: In discovery regarding class certification.
- Environmental Protection Agency: In discovery regarding class certification.
- Executive Office of the President: In discovery regarding class certification.
- Federal Deposit Insurance Corporation: In discovery regarding class certification.
- General Services Administration: In discovery regarding class certification.
- National Archives and Records Administration: Awaiting a decision on class certification. Appellants filed a class certification brief on April 29, 2025, and the Agency responded on May 6, 2025.
- Office of Personnel Management: In discovery regarding class certification.
- Small Business Administration. Awaiting a decision on class certification. Appellants filed a class certification brief on April 28, 2025, and the Agency responded on May 5, 2025.
- USAID: Awaiting a decision on class certification. Appellants filed a class certification brief on April 29, 2025, and the Agency responded on May 6, 2025.
Are the cases moot?
Some agencies have argued that the MSPB appeals are moot because terminated employees have been reinstated and provided backpay. The agencies have asked judges to dismiss the appeals.
We oppose these arguments. Many employees have not been made fully whole. Full compensation includes not only reinstatement and backpay but also:
- Restoring all benefits
- Granting leave that employees would have earned while fired
- Providing pay increases or bonuses that employees would have earned during that time
- Returning employees to active duty
Further, even if agencies have provided all of this relief, the government is actively appealing the court orders under which employees were reinstated.
As of today, none of the judges in the MSPB class actions has issued a decision on the mootness issue.
Is the MSPB still operating?
Yes. Administrative judges at the MSPB are still handling cases and issuing decisions. Currently, the MSPB Board lacks a quorum due to President Trump’s termination of Cathy Harris. This does not stop cases from proceeding before administrative judges, who may issue initial decisions that become final if neither party appeals, and who may also order some relief immediately even if a party does appeal. If a party loses before the administrative judge and petitions for review by the Board, the case may remain stalled until the Board regains a quorum.
Do employees need to do anything to be covered by the class appeals?
Right now, employees do not need to do anything to be covered by these appeals. If a judge grants class certification, covered employees will likely receive a notice describing next steps.
If employees wish to raise claims other than failure to follow the 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.
Employees can check for updates here or on our Bluesky feed. We may also send major updates (like notifications about class certification decisions) to employees who have filled out the intake form here. Please only complete the form once.
Other legal action
Several unions are pursuing grievances over the mass firing of probationary employees. In addition, the Office of Special Counsel previously found that the terminations “appear to have been carried out in a manner inconsistent with federal personnel laws.” After President Trump replaced the Special Counsel, the office reversed its position and announced that it would close its investigation. Employees recently sent a letter asking OSC to reconsider this move.
Probationary employee executive order
On April 24, 2025, President Trump issued an executive order regarding probationary employees. The executive order attempts to create a new system in which employees are automatically fired at the end of their probationary period unless they “demonstrate why their continuation of employment. . . is in the public interest,” and the agency submits a certification to that effect. The executive order also purports to rescind current regulations on probationary employees. The legality of this executive order is likely to be challenged.
-Danny Rosenthal, attorney at James & Hoffman