Author: Charlotte Schwartz

On July 17, 2025, an administrative judge at the Merit Systems Protection Board agreed to let terminated probationary and trial period employees at the Department of the Interior challenge their terminations as a class. That means that the class appeal can seek a remedy for all terminated probationary employees at the Interior Department (with some exceptions, discussed below). The class certification order is available here.

While DOI employees were reinstated as a result of other litigation brought in federal court, the agency did not make these employees whole. Many are still on administrative leave. This class action means that these employees will be able to pursue remedies for these harms together.

What does the order mean for fired DOI workers?

An MSPB Chief Administrative Judge certified a class with the following definition

“The class will consist of any agency employees serving in a probationary or

trial period who were issued termination notices between February 14-18, 2025, in

response to a January 20, 2025, guidance memorandum issued by the Office of

Personnel Management.”

This class includes employees from any part of DOI. The administrative judge also rejected an argument by the Agency that the case should be limited to people who are still on administrative leave.

Exceptions to the Class Definition

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 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 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.

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 August 21, 2025.

For employees who already filed their own MSPB appeal, the judge’s order states that they will receive a separate notice saying that their appeals subsumed into the class action, “unless they timely elect to proceed individually.” That means that your individual case will be subsumed into the class action, unless you opt out. 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 employees 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. This is the second probationary employees’ class action to be certified by the MSPB—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. Further, the MSPB has denied class certification in cases challenging mass terminations at the CFPB and USDA, because the Agency proved that they have reinstated virtually all members of the class, provided them with back pay, and made them whole.

What law firms are involved in this effort?

Most of the appeals, including the Department of Interior appeal discussed here, are being pursued by a group of four firms: Brown Goldstein & Levy, Cohen Milstein Sellers & Toll, Gilbert Employment Law, and James & Hoffman.

Some appeals are being pursued with a different set of firms as co-counsel, including  the American Federation of Government Employees (AFGE) and Towards Justice.

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You can follow further updates here and on our Bluesky account.

-Sejal Singh, attorney at James & Hoffman

UPDATE: This post was updated on April 24, 2025, to include a link to comment on OPM’s proposed rule.

In a long-anticipated development, OPM published its proposed rule to implement Schedule Policy/Career, formerly known as Schedule F, and to rescind regulations issued by the Biden administration to protect civil servants. What does this mean for federal workers?

Background

On Friday, April 18, the Office of Personnel Management announced that it would soon be publishing a proposed rule in the federal register titled “Improving Performance, Accountability and Responsiveness in the Civil Service.” The rule was published on April 23, 2025, and the public has 30 days from that date to provide comments on the rule. Comments can be made online at: https://www.regulations.gov/commenton/OPM-2025-0004-0001

The proposed rule closely follows an executive order issued by President Trump on inauguration day, which we discuss here.

The main goal of the rule is to deny job protections to a much larger number of federal employees than at any other time since 1883. Under the rule, at least tens of thousands more federal employees will likely be designated “at will,” meaning that they can be fired for no reason at all, without any right to appeal.

However, the proposed rule does not provide any specific guidance on who will be placed in that category. On that question, the most detailed information is still a memo published by OPM in January. The proposed rule also does not make any immediate change to any employee’s status.

The proposed rule has two major components: (1) rescinding regulations issued by the Biden administration to protect civil servants and (2) codifying Schedule Policy/Career. We discuss each in turn, along with other changes previewed by the rule, before broadly describing the notice-and-comment process.

The Proposed Rule would Rescind the Biden administration’s civil service regulations

In April 2024, OPM finalized regulations that provided important protections for federal employees. On inauguration day, President Trump declared these regulations inoperative via an executive order. But generally speaking, executive orders cannot supersede regulations. Thus, the Trump administration now seeks to eliminate the Biden regulations through its new proposed rule.

In explaining these regulations, we will use the term “Chapter 75 protections” to refer to protections for federal employees under 5 U.S.C. Chapter 75. Under that chapter, most federal employees cannot be fired without cause, and agencies must follow certain procedures before attempting to terminate them, such as providing advance notice of potential termination. These crucial protections have existed since the passage of the Civil Service Reform Act in 1978.

The Biden administration’s regulations did three things to clarify and solidify these protections.

First, the regulations reaffirmed that employees retain their Chapter 75 protections when they are involuntarily moved into a new job category such as Schedule Policy/Career. While this has been the law in the D.C. Circuit since at least 1954, and has been codified in regulations since at least 1968, the 2024 regulations made clear that this principle would apply to newly created excepted service categories, such as Schedule Policy/Career.

Second, the 2024 regulation reaffirmed the limited nature of an exception to Chapter 75 protections. Specifically, Chapter 75 does not apply to individuals “whose position has been determined to be of a confidential, policy-determining, policy-making, or policy-advocating character.” 5 U.S.C. § 7511(b)(2). The Biden regulations clarified that the phrase “confidential, policy-determining, policy-making, or policy-advocating” refers specifically to non-career political appointees. In other words, career employees cannot be denied Chapter 75 protections under this exception.

Finally, the 2024 regulations created procedures that apply when moving individuals or positions from the competitive service to the excepted service, or from one excepted service schedule to another, including, importantly, a right of appeal to the Merit Systems Protection Board (MSPB).

While Executive Order 14171 purported to render most of these regulations “inoperative,” OPM’s newly proposed rule seeks to formally rescind all of this.

The Proposed Rule Would Codify Schedule Policy/Career in the Code of Federal Regulations

While careful to say that Schedule Policy/Career exists by virtue of Executive Order 14171, OPM’s proposed rule would incorporate it into the code of federal regulations, which would make it harder for a future administration to eliminate the new job category.

In addition, the new regulations would do various things to implement Schedule Policy/Career, including:

• Provide a definition of “excepted service” that would allow for employees with competitive status to still be located within the excepted service. This appears designed to ensure that employees could be hired using competitive procedures, and retain other advantages associated with competitive status, but still denied all adverse action protections – i.e. they could still be fired for any reason or no reason and without any appeal rights.
• Provide a new definition of “noncareer position,” to mean one that carries no expectation of continued employment beyond the presidential administration. In contrast, “career” would mean any position that is not “noncareer.” These definitions would be used to clarify which positions belong in Schedule C, and which belong in Schedule Policy/Career.
• State that career employees are
  • 1) not required to pledge personal loyalty to to the President or his policies, but;
  • 2) must diligently implement the President’s policies, and that failure to do so is grounds for dismissal.
• Exclude Schedule Policy/Career positions from Chapter 43 performance-based removal procedures.

The Rule Previews Changes for Administrative Judges, Including MSPB AJs

In its defense of the legality of this rule, OPM argues that the government must be allowed to fire administrative judges (AJs) without cause, at least if they work under a commission whose members also have removal protections, such as the Merit Systems Protection Board or National Labor Relations Board. According to OPM, it would be unconstitutional to permit “double layers of for-cause removal protection.” Thus, at-will removal must be applied to the administrative judges or the commission members at these agencies, if not both.

If accepted by the courts, OPM’s assertion would represent a sea-change in numerous agencies that employ AJs. Especially notable, this would apply to the Merit Systems Protection Board itself. In other words, OPM is arguing that the the very same AJs charged with enforcing job protections for federal employees should themselves be fireable without cause.

OPM is not proposing to implement this view in the current rule, and it notes that this issue is entangled with ongoing litigation over the President’s ability to fire the heads of multi-member independent commissions without cause. This includes a lawsuit concerning Trump’s attempt to fire MSPB Board Member Cathy Harris. Nonetheless, this statement all but guarantees that, if the Supreme Court holds that the statutory limits on the President’s ability to remove heads of these commissions is constitutional, then OPM will take the position that AJs within those commissions can be fired at will.

This would apply to not only MSPB AJs, but hundreds of other AJs at other independent commissions. These include the FLRA, the NLRB, and the Nuclear Regulatory Commission, an agency charged with ensuring the safe use of radioactive materials.

Rulemaking Process

OPM is required to follow a process called notice-and-comment rulemaking when it issues rules that apply to agencies other than OPM itself. The Administrative Procedure Act governs the process for notice-and-comment, and provides avenues for challenging proposed rules.

Any interested person can submit comments about the proposed rule. Such persons may be directly affected by the rule, such as federal employees, but need not be. Experts on the issue area, concerned citizens or taxpayers, or anyone else with something to say about the rule can submit a comment.

Pursuant to the APA, OPM will be required to review every comment and either incorporate the changes proposed by the comments, or sufficiently explain why it will not do so.

Additional hurdles apply when an agency is seeking to rescind a rule it previously promulgated through notice-and-comment. The agency has to weigh the reliance interests engendered by the rule it seeks to rescind, and has to consider alternatives.

An agency’s failure to sufficiently consider comments it receives, including its failure to reasonably weigh reliance interests or alternatives outlined in such comments, can be grounds for setting the new rule aside.

You can submit comments about OPM’s rule here: https://www.regulations.gov/commenton/OPM-2025-0004-0001

This post does not constitute legal advice. For advice specific to your situation, consider consulting an attorney. If you are represented by a union, consider discussing the issue with someone from the union.

-Charlotte Schwartz, attorney at James & Hoffman.

In its hasty attempt to dismantle the civil service by firing probationary employees, the Trump administration swept in numerous employees who, although in the early days of a new position, were entitled to greater civil service protections due to prior federal service. This post provides a general overview of the circumstances in which employees can count their prior federal service to get greater protections under the law. For advice on your specific situation, we recommend consulting an attorney or your union, if you have one.

Under 5 U.S.C. 7513, an “employee” is protected from termination without cause. Further, the government must provide certain procedural protections, including at least 30 days’ advance notice, an opportunity to respond, and a written decision with the specific reasons for the decision. Needless to say, agencies did not follow these requirements when they sent template, near-identical notices to terminate employees in recent weeks.

But these protections only apply to workers who meet the definition of “employee” in 5 U.S.C. 7511. This definition excludes some federal workers, such as many competitive service employees in their probationary period (their first year on the job) and excepted service employees in their trial period (their first two years on the job).

However, if an employee worked in the federal government before they started their most recent role, they might meet the definition of “employee” even if they are in their first year or two of their current position. The statute lays out two routes for doing so. These routes differ depending on whether an employee’s most recent position was in the competitive or excepted service.

Competitive Service

1. Current continuous service

The most straightforward way for a competitive service employee to count prior federal service is through the “current continuous service” route. Under 5 U.S.C. 7511(a)(1)(A)(ii), an individual in the competitive service “who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less” is entitled to protections provided by 5 U.S.C. 7513.

The prior federal service does not have to have been at the same agency or even in the same or a similar job. There are only two catches:

First, there cannot be a break in service of even a single workday. 5 C.F.R. 752.402. A break in service of even a couple of days will prevent you from meeting this definition.

Second, the prior service cannot have been in an appointment that was limited to a year or less. If you had a one-year fellowship, even if it was effectively the same job, you cannot count that time.

2. Counting prior service toward completion of the probationary period

If you had a short break in service or if your prior service was a one-year appointment, you might still be able to count your prior service under 5 C.F.R. 315.802. That regulation says that your prior federal service counts if it meets the following criteria:

If you previously had a one-year fellowship that led to permanent employment, or had a short break in service, you might qualify for greater civil service protections based on this route.

Excepted Service

If your most recent position was in the excepted service, it is a little harder to count your prior federal service.

1. Current continuous service

5 USC 7511(a)(1)(C)(ii) provides protections to an individual in the excepted service who has “completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less.”

For those who are eligible for a veterans’ preference, only one year of prior service is required. 5 U.S.C. 7511(a)(1)(B).

Just like in the competitive service, there cannot be a break in service of even a single workday. 5 C.F.R. 752.402. A break in service of even a couple of days will prevent you from meeting this definition.

Unlike the competitive service though, you also have to show that your prior service was in “the same or [a] similar position.” The regulations define “similar positions” as: “positions in which the duties performed are similar in nature and character and requires substantially the same or similar qualifications, so that the incumbent could be interchanged between the positions without significant training or undue interruption to the work.”

2. Counting prior service toward completion of the trial period

The MSPB has held that excepted service employees can count prior service toward completion of their trial period under the same circumstances as can competitive service employees. See McCrary v. Dep’t of the Army, 103 M.S.P.R. 266 (2006).

That means you can count your prior service toward completion of your trial period if :

If you previously had one-year fellowships that led to permanent employment, or had a short break in service, you might qualify for greater civil service protections based on this route.

I meet one of these definitions! Now what?

If a federal worker meets one of the above definitions, that person likely is an “employee” under 5 U.S.C. 7511 and has civil service protections under 5 U.S.C. 7513, including protection from termination without cause and procedural protections. Employees in this situation may have claims that are different from those that will be raised in class action appeals recently filed at the MSPB and should consider filing an individual appeal. Civil Service Strong has published a guide to filing MSPB appeals here. We also recommend that employees consult with an lawyer or labor union regarding their rights and appeal options.

-Charlotte Schwartz, senior associate at James & Hoffman.