The second Trump administration has sought to terminate federal employees in unprecedented numbers, using mass terminations of probationary employees, reductions in force (RIFs), and other initiatives.
These terminations have placed massive pressure on the Merit Systems Protection Board (MSPB), which resolves appeals from terminated federal employees. The MSPB has already received more than 11,000 appeals this fiscal year.
Class actions seem like an attractive way to manage this onslaught of employee appeals. But so far, the MSPB’s attitude towards class actions has been mixed. The MSPB has entertained class actions in cases challenging the termination of probationary employees. But in RIF cases, the MSPB has denied requests for class status, before allowing discovery and without providing a detailed explanation of the reasons for the denial.
What is a class action?
A class action is a lawsuit brought by a person or small group of people, seeking to raise legal claims on behalf of a larger group of people with similar claims. For example, a person injured by a product might bring a lawsuit seeking to represent all people injured by the same product.
Class actions enhance access to justice. When many people are affected by the same allegedly illegal conduct, not everyone will have the means to hire a lawyer and pursue their claims. But all affected individuals can benefit from a class action. Class actions can also help make the work of courts and other decision-making tribunals more manageable. And in some cases, defendants might even prefer class actions to litigating a multitude of individual disputes.
In federal court, class actions are governed by a provision known as “Rule 23” (more specifically, Rule 23 of the Federal Rules of Civil Procedure). This rule sets forth the standards that a court should apply to decide whether a case can move forward as a class action. For example, the plaintiff must show that there are common legal or factual issues affecting the claims of all members of the proposed class.
Each class action has a class definition—a description of the members of the class. For example, in a product defect case, the class definition might be something like, “All individuals who purchased the product from 2020 to 2022 and were injured by the product.” Class actions typically work on an “opt out” basis, meaning that everyone within the class definition is considered part of the case, unless they choose to opt out.
The MSPB’s class action rule
Prior to this year, the MSPB had not allowed a class action in many years, perhaps going back to 1997 in a case called Adzell v. Office of Personnel Management in which veterans challenged a policy regarding veterans’ preference.
However, the MSPB’s rules clearly permit class actions. See 5 C.F.R. § 1201.27. The rules state that an MSPB case should be allowed to proceed as a class when it is “the fairest and most efficient way to adjudicate a dispute.” In making that determination, the judge should be “guided but not controlled” by the rule governing class actions in federal court.
Despite this clear authorization for class actions, MSPB judges have historically been reluctant to grant class status. But new circumstances call for new approaches.
Class actions in the era of DOGE downsizing
In the face of the Trump administration’s unprecedented attack on federal workers, employees and their advocates have sought to use class actions to assert their rights.
First, probationary employees sought to challenge their terminations in class actions. At least twenty of these cases were filed by employees at different agencies. After the filing of the MSPB cases, many probationary employees were reinstated as a result of court orders, raising questions about whether and how the MSPB appeals would proceed.
So far, class certification has been granted at two agencies, the Department of Homeland Security and Department of Interior. At both agencies, large numbers of terminated probationary employees remain on administrative leave after being reinstated. Further, many employees at DHS have not received backpay.
Class certification requests remain pending at several agencies, including agencies like HHS and the Department of Commerce where probationary employees were re-terminated after they were reinstated.
Class certification has also been denied at several other agencies on the basis that the cases are likely moot for most employees because they have been reinstated to active duty and provided backpay. Importantly, none of the probationary employee class actions have been denied for any reason other than likely mootness.
Second, employees have sought to challenge RIFs through class actions. But those attempts have uniformly been rejected. The MSPB has even denied class action where an entire agency (USAID) was eliminated, a seemingly ideal case for a class action because every employee was affected in the same way by the same action.
In RIF cases, the MSPB has denied class certification quickly—as soon as one day after the filing of the case—by issuing a short template order explaining why class certification was not appropriate.
The MSPB’s reasons for denying class certification in RIF cases
The MSPB has given three main reasons for denying class certification in RIF cases:
- Concerns about use of class members’ personal information (From a class certification denial order: “The nature of RIF actions presents difficulties in managing them as part of a class appeal with respect to protecting personally identifiable information of putative class members.”)
- Need for individual consideration (“RIF actions generally require an individualized review of appellants’ performance and competitive levels.”)
- Possibility of consolidation of appeals as an alternative to class status (Common issues “can be addressed efficiently, if later found appropriate by the adjudicating administrative judge, as a consolidation under 5 C.F.R. § 1201.36.”)
There are significant questions about these justifications for denying class certification.
The first two factors (personal information and individual consideration) would only come into play for certain legal theories, not others. For instance, these concerns could apply if a class action alleged errors in employees’ retention factors (e.g., tenure and performance reviews). Such errors might arguably need to be assessed individually and with use of personal information.
But these concerns would not apply to class actions that focus on other narrow agency-wide issues. For example, if an agency decided not to do retention rankings at all, that failure could be challenged without any need to consider personal information or individual circumstances.
It is true that a narrowly-focused case, like the one described above, would omit more individual arguments that some employees might like to raise. But that should not matter to class certification, which is supposed to be based on the arguments raised in the proposed class action itself.
Further, employees’ individual issues can be managed in at least two ways. First, employees could be told to opt out of the class action if they would like to pursue those issues. Second, the class action might be treated as an “opt-in” class, meaning that employees would only become part of it if they chose to proceed on the narrow theory of the class action. Under either of these approaches, a class action could remain an efficient mechanism to address a narrow agency-wide issue affecting a large number of employees, even while a smaller number of employees chose to pursue individual issues.
To the extent personal information remains a concern, there are techniques available to address it. For example, federal courts routinely issue orders that restrict the sharing and use of information.
Finally, the possibility of consolidation does not necessarily provide reason to deny class status. Consolidation refers to the process by which individual appeals filed by employees might be grouped together. But this system is much more burdensome and costly than a class action. Employees would still have to file appeals individually, which can be a daunting process, and one in which employees often use attorneys who charge legal fees. The MSPB must create a separate docket and issue separate orders in each case. Further, because the docket in MSPB cases is not public, it is challenging for employees and their counsel to identify parallel cases and seek consolidation.
Many of the MSPB’s concerns with class actions could be alleviated through opt-in classes that raise narrow agency-wide issues. Because employees would affirmatively choose to participate, there would be no use of personal information without employee consent. Employees seeking to pursue individual issues could simply ignore the opportunity to opt in. And an opt-in process is more efficient than having hundreds or thousands of individual appeals separately filed and docketed.
Conclusion
As the Trump administration continues to terminate huge numbers of employees through RIFs, it will become more challenging for employees to pursue individual appeals and for the MSPB to resolve them. It is already hard enough for many laid-off employees to hire an attorney. It will become harder as the lawyers who represent employees at the MSPB take on more cases and have less capacity. Meanwhile, the MSPB’s caseload will grow larger and larger. Under these circumstances, one can hope that the MSPB will reconsider its reluctance to permit RIF class actions.
-Danny Rosenthal, attorney at James & Hoffman