On December 2, an administrative judge at the Merit Systems Protection Board (MSPB) certified two more class actions for terminated probationary employees, covering probationary and trial period employees from the Department of Housing and Urban Development (HUD) and the Office of Personnel Management (OPM).
That means that terminated probationary who fall within the class definition in the cases (discussed further below) will be covered by the MSPB appeals. The class certification orders are available here for HUD and OPM.
Who is covered by the HUD class action?
The HUD class includes: “any agency employees serving in a probationary or trial period who were issued termination notices on or about February 14, 2025, in response to a January 20, 2025, guidance memorandum issued by the Office of Personnel Management.”
There are three exceptions to the 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. This exception does not apply to most people, and it does not apply to people who received a termination letter saying that they were terminated based on performance, but who was really fired as part of a mass termination of probationary workers.
Third, the class does not include anyone who was past their probationary or trial period when they were terminated. Employees who are not sure whether this applies can read our “Am I really probationary?” guide and seek advice from an independent lawyer.
Employees who fall within these three exceptions 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.
What happens next in the HUD class action?
If you are covered by the class definition, you do not need to do anything to be included in the class action. 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.
If you are covered by the class definition and do not want to be included in the class action, you have the opportunity to opt out. Typically, this is most relevant to class members who wish to raise additional claims that are not raised by this class action. For example, employees 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. To opt out, class members must file an individual appeal by January 1, 2026.
We encourage employees to seek advice from an independent lawyer regarding their individual circumstances and options.
It is possible there may be further negotiation and litigation regarding the scope of the class definition above, which could delay the proceedings and potentially impact the scope of the class definition (e.g. who’s included, and who’s not). However, unless and until that happens, the deadline for opt-out is January 1, 2026.
Who is covered by the OPM class action?
The administrative judge’s decision defines the OPM class as: “any agency employees serving in a probationary or trial period who were issued termination notices on or about February 13-14, 2025, in response to a January 20, 2025 guidance memorandum issued by the agency,” with the same exceptions outlined above for HUD. However, the Agency has said it plans to object to this definition.
What happens next in the OPM class action?
The administrative judge has paused further proceedings in order to resolve a dispute about who belongs in the OPM class. Next, both parties will file additional briefings to make arguments about the scope of the class. Then the administrative judge will make a final decision. Once that happens, class members will receive notice and have an opportunity to opt-out.
What law firms are involved in this effort?
Most of the appeals, including the HUD and OPM appeals discussed here, are being pursued by a group of four firms: Brown Goldstein & Levy, Cohen Milstein Sellers & Toll, Gilbert Employment Law, and James & Hoffman.
For the HUD appeal, the lead law firm is Gilbert Employment Law. For the OPM appeal, the lead law firm is Brown Goldstein & Levy.
–Emily Postman, attorney at James & Hoffman