Earlier today, an administrative judge at the Merit Systems Protection Board agreed to let terminated probationary employees at the Department of Homeland Security proceed as a class. This means that the appeal may seek a remedy for all terminated probationary employees at DHS (with some exceptions, described below). The class certification order is here.
What does the order mean for fired DHS workers?
The judge certified a class meeting the following definition:
“[A]ny agency employees serving in a probationary or trial period who were issued termination notices between February 14-20, 2025, pursuant to the February 14, 2025, instructions from DHS leadership.”
The class includes employees from any part of DHS. The judge rejected an argument by the Agency that the case should be limited to certain subcomponents.
Exceptions
There are three exceptions to the above class definition:
First, the class does not include anyone who signed a Deferred Resignation Program agreement or a similar agreement waiving their rights to challenge their termination.
Second, the class does not include anyone who was truly terminated based on specific, individual performance or conduct issue.
Third, the class does not include anyone who was past their probationary or trial period when they were terminated. If you’re not sure whether this applies to you, you can read our “Am I really probationary?” guide.
Employees who fall within these groups may wish to file an individual appeal. We encourage employees to seek advice from an independent lawyer regarding their individual circumstances and options.
Employees in this situation should act quickly so their appeal is not considered untimely. To be safe, we recommend filing within two weeks of today (May 23). However, employees should consult an independent lawyer regarding the filing deadline.
What happens next?
Members of the class will receive a notice, informing them that the class has been certified; that they meet the class definition; and that they will become part of the class action and will be bound by any decision in this appeal, unless they opt out by filing an individual appeal by June 22, 2025.
For employees who already filed their own MSPB appeal, the judge’s order states that their appeals will be dismissed and subsumed into the class action, “unless they timely elect to proceed individually.” It is not yet clear how employees should make this election.
Class members who wish to raise additional claims that are not raised by this class action—for example, alleging that they were targeted for termination based on their race or gender—may want to consider opting out. Generally speaking, a class action case can address claims that are shared by the entire class, but not claims that are unique to one particular class member. We encourage employees to seek advice from an independent lawyer regarding their individual circumstances and options.
What does this mean for probationary workers at other agencies?
In March 2025, a coalition of law firms filed class appeals for fired probationary and trial employees at 20 agencies. You can find a list of agencies covered by these class appeals here. Our latest case-by-case updates are available here.
Today’s order is the MSPB’s first decision on class certification in these cases—and a hopeful sign that other appeals will be allowed to proceed on a class basis. However, this decision isn’t binding on other MSPB Administrative Judges, and agencies continue to oppose class certification in most cases.
What law firms are involved in this effort?
Most of the appeals, including the DHS appeal discussed above, are being pursued by a group of four firms: Brown Goldstein & Levy, Cohen Milstein Sellers & Toll, Gilbert Employment Law, and James & Hoffman.
For some agencies, a different set of firms or organizations may be involved. 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.
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You can follow further updates here and on our Bluesky account.
-Sejal Singh, attorney at James & Hoffman