This post summarizes the current state of litigation at the MSPB in several important areas. (Given the large volume of appeals and the fact that MSPB dockets are not public, we can’t provide a comprehensive overview of cases pending there, and we apologize for any oversights.)
Probationary employee terminations
It’s now been more than a year since federal agencies terminated 24,000 probationary workers. Most of those workers were eventually reinstated, but thousands were subsequently re-fired, and others have not received backpay for the period in which they were wrongfully terminated.
Workers continue to challenge these terminations at the Merit Systems Protection Board. Below we summarize the current status of the cases that remain active:
- Department of Homeland Security: Class certification was granted, but the administrative judge did not accept the workers’ argument that they were fired in a de facto RIF. The workers have appealed to the U.S. Court of Appeals for the Federal Circuit. (See more information below.)
- Department of Interior: Class certification was granted. The parties are waiting for a ruling from the administrative judge regarding the MSPB’s jurisdiction over the case.
- Department of Health and Human Services: Class certification was granted. The parties will soon proceed with further discovery.
- Department of Housing and Urban Development: Class certification was granted. The parties are engaged in discovery.
- Office of Personnel Management: Class certification was granted. The parties are engaged in discovery.
- Department of Commerce: The parties are waiting for a ruling on class certification. (See more information below.)
DHS class action: on appeal at the Federal Circuit
So far, the DHS case is the only one of the class actions in which an MSPB administrative judge has ruled on the de facto RIF theory. Unfortunately, the judge found in favor of the agency. She concluded that, because the agency did not follow the requirements for conducting a RIF, the MSPB cannot hear the employees’ claims that the agency violated their rights under the RIF statute and regulations.
The workers have appealed this decision to the U.S. Court of Appeals for the Federal Circuit. They are represented on appeal by Jennifer Bennett of Gupta Wessler, whose accomplishments include four unanimous Supreme Court victories on behalf of workers.
Under the current schedule, the workers will submit their opening brief to the Federal Circuit in June. Further briefing will follow, with oral argument likely to take place in 2027.
HHS class action: class certification granted
The most recent case to receive class certification is HHS, where at least 1600 probationary workers were re-terminated in May 2025. Class certification was granted on March 9, 2026. If employees do not wish to participate in the case, they must opt out by April 13, 2026. Class members will receive a notice with information on how to opt out.
Department of Commerce class action: dozens of employees reinstated, class certification pending
Like HHS, the Department of Commerce re-terminated many probationary workers after reinstating them. However, approximately 50 of those workers were then reinstated for a second time–hopefully on a permanent basis–in recent months.
This group of workers was reinstated because they completed their probationary period between the original termination date (February 27, 2025), and the date of the re-terminations (April 10, 2025). Counsel in the MSPB class action argued that the agency wrongly terminated these workers without due process. Soon after, the agency offered reinstatement to the employees.
Meanwhile, class certification remains pending as to the larger group of terminated probationary employees. The workers submitted their most recent class certification motion on December 16, 2026, and further briefs have been filed in January and March. (See here, here, and here). The parties are awaiting a decision.
RIF appeals
Many workers have filed MSPB appeals to challenge RIFs. Unfortunately, the MSPB has refused to hear these cases on a class basis, even when the employees raised common issues such as the agency’s failure to create retention registers before terminating employees. We offered our take on this issue in a prior post.
As far as we know, the MSPB has not yet issued rulings on any of the Trump administration RIFs. Two of the largest RIFs took place at USAID and HHS. Here’s what we know about the status of MSPB cases challenging those RIFs.
USAID: Thousands of USAID employees filed MSPB appeals to challenge their terminations. An administrative judge has consolidated most of these cases into a number of different groups. As far as we can tell, the grouping of employees has been based primarily on which law firm represents the workers. For example, all workers represented by James & Hoffman were consolidated with others represented by the firm. Several of the USAID RIF cases are now in discovery, with depositions likely to start in coming months.
HHS: We understand that MSPB judges have started consolidating HHS RIF appeals according to sub-agency (e.g., CDC cases together, FDA cases together, etc). This approach differs from that described for the USAID RIF litigation described above.
We believe the first approach (consolidating employees represented by the same counsel) has significant benefits over the second because it is easier to manage a proceeding in which all workers are represented by the same counsel.
Whistleblower and free speech cases
The Trump administration has aggressively gone after federal employee whistleblowers and those who engage in speech critical of the government. Many of these workers have filed appeals at the MSPB. There are too many individual cases to list here, but our firm is involved in some significant cases pending before the MSPB, including:
- Appeals filed by EPA employees who signed a letter objecting to the Trump administration’s policies that sideline science. Politico recently reported that the EPA ethics office concluded that the workers were exercising their constitutional rights and did not violate any ethics law or policy. Nevertheless, the agency fired at least fourteen employees who signed the letter.
- MSPB and OSC actions filed by employees who were fired after raising objections to the Trump administration’s plans to dismantle HUD’s fair housing enforcement programs.
Article II removal cases
The administration has also asserted that it has authority under the constitution to terminate certain employees without providing any reason or due process, ignoring the procedures established by Congress for removal of federal employees. Some of these employees prevailed in challenges to their termination before an MSPB administrative judge. The MSPB Board is now considering the issue, with the administration arguing that the Board must defer to the administration’s position. Many other similar cases have been put on hold pending the Board’s decision.
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These cases, and others currently pending at the MSPB, will decide critical questions about the president’s ability to slash the federal workforce and punish employees who expose misconduct and criticize the government. So far, there have been few final rulings in these cases. But we can expect to see many more cases decided by the MSPB this year, with proceedings at the Federal Circuit to follow.
-Danny Rosenthal and Charlotte Schwartz, attorneys at James & Hoffman