Author: federalworkerrights

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

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

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

As readers may know, this website is maintained by James & Hoffman, a law firm in DC dedicated to representing labor unions and employees. Over the past six months, the firm has been involved in numerous efforts to challenge the Trump administration’s attack on the federal workforce, including pursuing class actions on behalf of terminated probationary employees, representing whistleblowers, and challenging reductions in force. The firm is now seeking to hire a lawyer to assist with these efforts and participate in the remainder of the firm’s practice. The job posting is available here and reprinted below:

James & Hoffman is seeking to immediately hire an associate for a one-year term position with the possibility of conversion to a permanent position.

Based in Washington, DC, the firm represents labor unions and employees. In the past six months, the firm has grown its longstanding federal employment practice to meet the need created by the Trump administration’s unprecedented attack on the federal workforce. For instance, the firm has developed class actions on behalf of probationary employees at the Merit Systems Protection Board, and is working closely with other firms, labor unions, and nonprofits on these cases. Aside from its federal employee work, the firm’s other practice areas include representing unions and private sector employees at arbitration, administrative agencies, and in court.

To meet the demands of the firm’s increased workload, the firm seeks to add a new associate, ideally starting in August or September 2025. The associate would join the firm for a one-year term, with the possibility of conversion to a permanent position at the end of the year. The associate is expected to spend a significant portion of their time on litigation involving federal employees, but would also work throughout the firm’s practice.

Priority will be given to candidates with at least two years of litigation experience, which may include government positions or clerkships.

Salary is dependent on experience, and ranges from $95,000-$135,000. We also offer a competitive benefits package.

To apply, please send a cover letter, resume, law school transcript, and up to two writing samples to Michael Ellement.

Applications will be reviewed on a rolling basis, but interested applicants are encouraged to apply as soon as possible.

An interesting aspect of yesterday’s Supreme Court decision on RIFs is that it doesn’t mention the so-called “channeling doctrine.” This doctrine provides that federal employees often cannot go directly to court to raise legal claims related to their employment. Instead, those claims must be raised in other forums such as the Merit Systems Protection Board.

There are two reasons why the Supreme Court could have been expected to address channeling. First, it was the Government’s lead argument in seeking a stay of the lower court’s preliminary injunction. From page 15 of the Government’s stay application: “As a threshold matter, respondents brought their claims in the wrong forum challenging the wrong actions. The district court lacked jurisdiction over this dispute related to federal personnel actions.”

Second, as reflected in the quote above, channeling is generally considered an issue of the court’s jurisdiction—meaning its power to hear the case at all. Typically, courts address jurisdictional issues before they address the parties’ other arguments. Courts follow this sequence because, if don’t have jurisdiction, they lack the power to address the merits of the case.

Here, though, the Supreme Court ignored channeling completely. The Court said it was lifting the preliminary injunction “[b]ecause the Government is likely to succeed on its argument that the Executive Order and Memorandum are lawful—and because the other factors bearing on whether to grant a stay are satisfied.” (The “other factors” mentioned by the Court are the balance of the equities, irreparable harm, and the public interest, none of which would likely involve channeling.)

In other words, the Court relied on its assessment of the merits of the parties’ arguments, without accepting the Government’s lead argument that the Court lacked power to hear the case. And this now appears to be a pattern: in a prior order allowing agencies to terminate probationary employees, the Court did not mention channeling either. Instead, the court found that the plaintiffs lacked standing.

We should be wary of reading too much into yesterday’s very brief order, but the absence of channeling seems significant. It might signal that a majority of the Court disagrees with the strong form of channeling proposed by the Government in this case, or at least that some pivotal justices haven’t made up their mind on the issue. For example, five justices might be inclined to hold that claims from nonprofit orgainzations and localities (who were among the plaintiffs in the RIF case) cannot be channeled because those plaintiffs cannot bring their claims to administrative forums like the MSPB. If a majority of the Court ultimately rejects the Government’s position on channeling, that would be a consequential development, because the Government is using the same defense against numerous other pending lawsuits involving federal employees.

Notably, Justice Alito dissented from the Supreme Court’s most recent channeling decision in Elgin v. Department of Treasury, where the Court ruled against employees seeking to challenge their terminations in court. Justice Alito’s dissent was joined by Justices Ginsburg and Kagan. Those justices objected to the Court’s use of the doctrine to preclude judicial review of constitutional claims by federal employees.

Thus, only three current justices joined the majority in Elgin—Chief Justice Roberts, Justice Thomas, and Justice Sotomayor. Further, it seems possible that one of those three, Justice Sotomayor, has changed her view in light of recent events such as President’s Trump’s firing of an MSPB Board member, in line with a Fourth Circuit decision from last month. If so, the key question may be whether all three of President Trump’s appointees (Justices Gorsuch, Kavanaugh, and Barrett) would join the Chief Justice and Justice Thomas to form a five-justice majority supporting a strong form of channeling. This assumes that Justice Alito would maintain his skepticism of channeling.

Another possibility is that a majority of the Court is prepared to side with the Government on channeling, but that one or two justices (likely including Justice Kagan) negotiated with their colleagues to remove any mention of channeling from yesterday’s opinion, in exchange for not filing or joining a separate opinion. This would suggest that the Court will eventually adopt the Government’s channeling argument. But for now, the opinion preserves hope for litigants seeking to obtain judicial review of the Trump administration’s attack on the federal workforce.

-Danny Rosenthal, attorney at James & Hoffman.

Earlier today, the Supreme Court lifted a preliminary injunction that had stopped many federal agencies from moving forward with layoffs of tens of thousands of employees. The court’s order is here; the full Supreme Court docket is here.

What did the Supreme Court say?

The Court provided little explanation of its decision. In an unsigned order, the Court briefly stated that the administration is “likely to succeed” in showing that it was lawful for President Trump to direct agencies to conduct RIFs. The Court added that it was “express[ing] no view on the legality of any Agency RIF.”

For those not following the case, the scope of the opinion may be confusing. How can the court allow the RIFs to go forward, while saying it is not assessing the legality of any agency RIF?

The answer lies in the Court’s statement that it was only addressing the legality of a specific executive order issued by President Trump (EO 14210) and a related memorandum issued by OPM and OMB. The executive order instructed agencies to “promptly undertake preparations to initiate large-scale reductions in force (RIFs), consistent with applicable law.” The executive order also provided further instructions on how the RIFs should be conducted, such as “prioritiz[ing]” “offices that perform functions not mandated by statute or other law…, including all agency diversity, equity, and inclusion initiatives.”

In other words, the Court held that it was likely permissible for the President to issue these instructions to agencies. However, the Court did not address the legality of any further action taken by agencies–including the specific RIFs conducted by a number of agencies so far. Thus, the opinion leaves room for further litigation.

[In a separate post, we discussed the absence from the Supreme Court’s opinion of any mention of the so-called “channeling doctrine,” which the Government asserted as a barrier to courts hearing the case at all.]

Citing the limited nature of the Court’s opinion, Justice Sotomayor concurred. In a short opinion, she suggested that she would find RIFs unlawful if they “restructured federal agencies in a manner inconsistent with congressional mandates.” Yet, she noted, the Executive Order directs agencies to engage in restructuring that is “consistent with applicable law.” She emphasized that the Court has not reviewed any specific RIF plans created under the Executive Order, and that the district court remains free to assess whether any such plans are lawful.

In a 14-page dissent, Justice Jackson disagreed with the Court’s order. She concluded that the President does not have the constitutional authority to unilaterally direct major reorganizations of government agencies. She also complained that the Court disregarded relevant factors such as irreparable harm to the party seeking the injunction.

No other justice issued a separate opinion.

Which agencies are affected?

Today’s Supreme Court decision addresses the preliminary injunction issued in one particular case, brought in the Northern District of California by a coalition of unions, nonprofits, and others. That preliminary injunction stopped RIFs at the following agencies: OMB, OPM, DOGE (USDS), USDA, Commerce, Energy, HHS, HUD, Interior, Labor, State, Treasury, Transportation, VA, AmeriCorps, Peace Corps, EPA, GSA, NLRB, NSF, SBA, and SSA.

As a result of today’s decision, RIFs may now move forward at those agencies, unless there is a separate court order that stops the RIFs. For instance, a separate court order blocked RIFs in parts of HHS.

Several other agencies are covered by separate lawsuits, and many of those lawsuits have led to orders preventing RIFs. These include the Consumer Financial Protection Bureau, the Department of Education, Federal Mediation and Conciliation Services, and others. These agencies are not directly afected by today’s Supreme Court order.

What does this mean for employees whose received a RIF notice at the agencies covered by the lower court’s preliminary injunction?

At several agencies affected by today’s decision, such as HHS, employees had already received RIF notices. Further, in most cases, the separation dates on those RIF notices has already passed.

We do not yet know how the agencies will treat these employees. The most aggressive stance would be for the agencies to claim that these employees are now terminated, retroactive to the termination dates in their RIF notices. For instance, the Department of Commerce took this approach in regard to terminated probationary employees after the Supreme Court lifted a lower court order stopping those terminations. On the other extreme, agencies could issue new RIF notices, providing another 60-day notice period. Or agencies could take a middle approach.

However, RIFs at the affected agencies could still be challenged in court. As discussed above, today’s decision does not address the legality of any specific agency RIF plans, but rather the President’s authority to order RIFs in general. Several cases are already challenging specific agency RIFs, and more such cases may be filed.

What does this mean for employees who have not yet received a RIF notice, but may receive one in the future?

Several agencies will likely move forward with RIFs now that the preliminary injunction from the Northern District of California has been lifted. By regulation, employees generally must be given 60 days notice of a RIF. This period can be shortened to 30 days, but only when OPM finds that the RIF was “caused by circumstances not reasonably foreseeable.” 5 C.F.R. 351.801(b).

What legal options remain to challenge RIFs?

The Court’s order preserves a number of options to challenge RIFs.

First, while addressing the President’s general authority to order RIFs, the opinion does not weigh in on the legality of any specific agency RIF plan. Further, the opinion does not rule that courts lack jurisdiction to consider such challenges.

As a result, parties may still raise specific challenges to RIFs, such as claiming that a RIF destroys an agency’s ability to perform functions mandated by Congress. Several courts have relied on such arguments to stop RIFs. It remains to be seen how the Supreme Court will view these issues.

Further, employees may still claim that agencies are not correctly following the intricate procedures set forth in regulations for conducting a RIF. Such claims can generally be decided by the Merit Systems Protection Board. And unions may claim in grievances that agencies are violating those regulations or collective bargaining agreements. Today’s decision does not affect these pathways.

-Charlotte Schwartz and Daniel Rosenthal, attorneys at James & Hoffman

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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

As reported in several outlets, House Republicans are seeking to pay for tax cuts by slashing federal employee retirement benefits. Last week, a committee narrowly approved the proposed cuts. The language appears to be here.

The proposed legislation would cut retirement benefits in several ways. We focus here on one element: an effort to force new federal employees to either accept at-will status or pay an extra 5% of their salary per year into the Federal Employee Retirement System (FERS).

Fortunately for current employees, the proposal is limited to employees “initially appointed to a covered position after the date of the enactment of this section.” (It is unclear whether the change would apply to someone who leaves and reenters government service or who switches from one type of covered position into another.) Within the category of new employees, the proposal applies to most civil servants covered by FERS.

Under the proposal, employees must choose whether “to be employed on an at-will basis.” This choice must be made before the end of the employee’s probationary period. And the choice is “irrevocable,” meaning that employees cannot later change their mind.

For those who accept at-will status, the legislation broadly strips them of rights to challenge a termination. They can be fired “for good cause, bad cause, or no cause at all.” Further, this extends to other “adverse actions,” presumably including suspension, demotion, or similar actions.

The legislation could even be read to preclude employees from challenging their terminations through the process for raising equal employment opportunity claims, such as claims of discrimination on the basis of race, sex, disability, and other characteristics. It is not clear that legislators intended to extinguish such claims, and there are good arguments against such a reading. But the legislation makes an exception only for claims of prohibited personnel practices under 5 USC 2302, which generally must be pursued through the Office of Special Counsel. This narrow exception arguably implies that all other claims are lost. (There is another exception that applies only to employees of the legislative branch.)

If employees choose not to give up these rights, then they will need to pay an additional 5% of their salary towards FERS retirement benefits. Currently, most new employees pay 4.4% under 5 USC 8422 (calculated by starting with 10.6% and subtracting the private sector social security tax of 6.2%). That rate would increase to 9.4%.

The increased contribution rate would not translate to greater benefits. Rather, employees would be paying more to receive the same annuity—which will be cut from current levels under other parts of the proposed legislation.

In sum, under the proposal, new employees have a choice: (1) give up nearly all of their job protections, or (2) lose 5% of their salary per year.