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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

Nearly three months have passed since agencies began mass terminations of probationary employees. In that time, there have been several court decisions on the issue, a series of appeals filed at the MSPB, and a new executive order on probationary employees. Here’s where things stand:

Court orders involving mass terminations of probationary employees

Currently, there is no court order forcing agencies to rehire terminated probationary employees or stop further terminations of probationary employees.

To summarize:

• Two courts issued preliminary orders requiring reinstatement of terminated probationary employees.
• Higher courts then stayed those orders, meaning that the orders are no longer in effect.
• Importantly, the appellate courts did not say the terminations were proper. Rather, the courts found that employees should challenge the terminations through administrative channels such as the Merit Systems Protection Board (MSPB).
• Appeals are still ongoing, so it is possible the reinstatement orders will be put back into effect.

Without active court orders protecting employees, agencies may choose to fire probationary employees again. The Department of Commerce did so in April. Some other agencies have refused to provide backpay or placed some employees on unpaid leave.

Recently, a court instructed agencies to email probationary employees explaining that they were not fired for poor performance, but as part of government-wide mass terminations. We understand many employees received these emails in the past few days. The court also barred the Office of Personnel Management from instructing agencies to terminate employees.

There are several other ongoing court cases that do not relate specifically to mass terminations of probationary employees, but raise overlapping issues:

• Lawsuits challenging the dismantling of agencies such as USAID, the CFPB, and the Federal Mediation and Conciliation Services (FMCS), where many employees were laid off. A court order has reversed recent layoffs at the CFPB, and another court is poised to issue a similar order for FMCS and other agencies.
• Lawsuits opposing layoffs at the Department of Education. A hearing in two cases was held on April 25. The judge hasn’t yet issued a decision.
• A challenge by unions and non-profits to the executive order that required agencies to conduct mass layoffs.

MSPB class actions challenging the terminations of probationary employees

As discussed in a prior post, a coalition of law firms filed class appeals at the MSPB challenging the mass terminations of probationary employees. These appeals argue that agencies broke the law by terminating large groups of employees as part of a workforce restructuring, while violating procedures for a reduction in force (RIF).

The MSPB class actions are ongoing. In several cases, the parties are awaiting decisions as to class certification. In others, the parties are conducting discovery. In some cases, the administrative judge has indicated that he or she is considering dismissal of the case on the grounds that it may be moot. (We discuss the mootness issue below.)

Here is a case-by-case update:

• Department of Agriculture: The Administrative Judge issued a “show cause” order indicating that she is considering dismissal on mootness grounds. The Administrative Judge asked for additional information from the Agency on efforts to reinstate probationary employees and make them whole. The Agency’s response is due on May 9, 2025, and the employees can respond by May 16, 2025.

• Department of Commerce: Awaiting a decision on class certification. Appellants filed a class certification brief on April 29, 2025, and the Agency responded on May 6, 2025.

• Department of Education: In discovery regarding class certification.

• Department of Energy: The Administrative Judge issued a “show cause” order indicating that she is considering dismissal on mootness grounds. The Administrative Judge asked for additional information from the Agency on its efforts to reinstate probationary employees and make them whole. The Agency’s response is due on May 9, 2025, and Appellants can respond by May 16, 2025.

• Department of Health and Human Services: Awaiting a decision on class certification. Appellants filed a class certification brief on April 29, 2025, and the Agency responded on May 6, 2025.

• Department of Homeland Security: Awaiting a decision on class certification. Appellants filed a class certification brief on April 29, 2025, and the Agency responded on May 6, 2025.

• Department of Housing and Urban Development: Awaiting a decision on class certification. Appellants filed a class certification brief on May 2, 2025, and the Agency’s deadline to respond is May 9, 2025.

• Department of the Interior: The Administrative Judge issued a “show cause” order indicating that she is considering dismissal on mootness grounds. The Administrative Judge asked for additional information from the Agency on efforts to reinstate probationary employees and make them whole. The Agency’s response is due on May 9, 2025, and the employees can respond by May 16, 2025.

• Department of Transportation: In discovery regarding class certification.

• Department of the Treasury: Awaiting a decision on class certification. Appellants filed a class certification brief on May 9, 2025.

• Department of Veterans Affairs: In discovery regarding class certification.

• Environmental Protection Agency: In discovery regarding class certification.

• Executive Office of the President: In discovery regarding class certification.

• Federal Deposit Insurance Corporation: In discovery regarding class certification.

• General Services Administration: In discovery regarding class certification.

• National Archives and Records Administration: Awaiting a decision on class certification. Appellants filed a class certification brief on April 29, 2025, and the Agency responded on May 6, 2025.

• Office of Personnel Management: In discovery regarding class certification.

• Small Business Administration. Awaiting a decision on class certification. Appellants filed a class certification brief on April 28, 2025, and the Agency responded on May 5, 2025.

• USAID: Awaiting a decision on class certification. Appellants filed a class certification brief on April 29, 2025, and the Agency responded on May 6, 2025.

Are the cases moot?

Some agencies have argued that the MSPB appeals are moot because terminated employees have been reinstated and provided backpay. The agencies have asked judges to dismiss the appeals.

We oppose these arguments. Many employees have not been made fully whole. Full compensation includes not only reinstatement and backpay but also:

• Restoring all benefits
• Granting leave that employees would have earned while fired
• Providing pay increases or bonuses that employees would have earned during that time
• Returning employees to active duty

Further, even if agencies have provided all of this relief, the government is actively appealing the court orders under which employees were reinstated.

As of today, none of the judges in the MSPB class actions has issued a decision on the mootness issue.

Is the MSPB still operating?

Yes. Administrative judges at the MSPB are still handling cases and issuing decisions. Currently, the MSPB Board lacks a quorum due to President Trump’s termination of Cathy Harris. This does not stop cases from proceeding before administrative judges, who may issue initial decisions that become final if neither party appeals, and who may also order some relief immediately even if a party does appeal. If a party loses before the administrative judge and petitions for review by the Board, the case may remain stalled until the Board regains a quorum.

Do employees need to do anything to be covered by the class appeals?

Right now, employees do not need to do anything to be covered by these appeals. If a judge grants class certification, covered employees will likely receive a notice describing next steps.

If employees wish to raise claims other than failure to follow the RIF procedures, they should consider separate legal action. Generally, when a federal employee files a complaint or appeal involving their termination, they may be precluded from pursuing other legal options. We encourage employees to seek advice from an independent lawyer regarding their individual circumstances and options.

Generally, under MSPB rules, the 30-day deadline for individual appeals is put on hold for members of a proposed class while a judge decides whether a case can proceed as a class action. 5 CFR § 1201.27.

Employees can check for updates here or on our Bluesky feed. We may also send major updates (like notifications about class certification decisions) to employees who have filled out the intake form here. Please only complete the form once.

Other legal action

Several unions are pursuing grievances over the mass firing of probationary employees. In addition, the Office of Special Counsel previously found that the terminations “appear to have been carried out in a manner inconsistent with federal personnel laws.” After President Trump replaced the Special Counsel, the office reversed its position and announced that it would close its investigation. Employees recently sent a letter asking OSC to reconsider this move.

Probationary employee executive order

On April 24, 2025, President Trump issued an executive order regarding probationary employees. The executive order attempts to create a new system in which employees are automatically fired at the end of their probationary period unless they “demonstrate why their continuation of employment. . . is in the public interest,” and the agency submits a certification to that effect. The executive order also purports to rescind current regulations on probationary employees. The legality of this executive order is likely to be challenged.

-Danny Rosenthal, 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.

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.

Please note that this post does not constitute legal advice about your individual circumstances, and our firm only represents you if you have a signed representation agreement with our firm.

Background: Two courts ordered agencies to rehire federal workers.

After the Trump Administration’s mass terminations of probationary and trial employees in February,  a coalition of law firms filed approximately twenty class actions at the Merit Systems Protection Board (MSPB), challenging the terminations. At the same time, unions, nonprofits, and states filed suit in federal court, calling for an injunction to halt the terminations and put federal workers back on the job while litigation progresses.

Last month, two federal courts agreed, ordering the Trump Administration to reinstate thousands of probationary federal workers in two separate decisions. First, Judge Alsup of the Northern District of California granted a preliminary injunction requiring reinstatement of employees at six agencies: Veterans Affairs, Agriculture, Interior, Energy, Defense, and Treasury. Second, Judge Bredar of the District of Maryland issued a preliminary injunction and opinion requiring reinstatement of employees at eighteen agencies. Together, the temporary court orders issued by Judges Alsup and Bredar required the government to reinstate the vast majority of terminated probationary employees. 

Both judges correctly recognized that the Government broke the law through its unprecedented mass terminations of probationary employees. They held that plaintiffs were likely to succeed on the merits, and that allowing the Trump administration to continue with the terminations during litigation would cause irreparable harm.

Their orders provided an early victory for all those affected by the illegal terminations. However, the government quickly appealed both decisions.

What just changed?

On Tuesday, April 8, 2025, the Supreme Court put an indefinite pause on the Northern District of California’s order, which required six agencies to reinstate probationary workers. Then, on Wednesday, April 9, 2025, the Fourth Circuit Court of Appeals also paused the District of Maryland’s order, which applied to a broader set of agencies. That means that right now, neither of those orders are in effect.

These decisions do NOT mean that the Trump Administration’s mass terminations of probationary workers were legal. These decisions were not about the merits of the argument that the government violated the law when it terminated thousands of probationary workers. Rather, these decisions are about who can challenge the Trump Administration’s illegal mass layoff and what process they have to use to do so.

The plaintiffs in the Northern District of California case were third-party groups (like non-profits) who argued that the government’s mass termination of federal workers hurt them. The plaintiffs in the Maryland case were nineteen states and the District of Columbia, arguing that violations of the RIF rights harmed them. In each of those cases, the Administration is arguing that—because these claims are about federal workers’ rights—they have to go to the MSPB before they can go to federal court. The Administration is also arguing that those third-party groups don’t have “standing” (that is, that they don’t have the right to bring those cases).

This week, the Supreme Court and the Fourth Circuit said that it is not clear that those third-party groups or state Attorneys General can bring these claims. Those courts did not say that the terminations were lawful—in fact, they didn’t address the legality of the terminations at all.

What does that mean for terminated probationary employees?

Without a court order in place, some agencies may attempt to reinstitute their prior terminations of probationary employees.

On April 10, the Commerce Department began firing probationary and trial period workers again—saying that because the Maryland order was no longer in effect, the Department was “reverting [workers’] termination action to its original effective date.” If you work at another agency and have received a similar letter, you may contact us at FedEmpClass@jamhoff.com, but please note this would be for our informational purposes only.

What does this mean for the pending MSPB class appeals?

The class action appeals filed by James & Hoffman and other law firms at the MSPB are still moving forward. Most cases are currently in discovery.

On a practical level, the decisions this week may embolden the Administration to begin targeting workers for termination again. But that doesn’t make it legal to do so.

At this time, employees do not need to do anything to be covered by these appeals. Individuals who are not named plaintiffs may benefit from relief achieved in a class action, if the class is certified. Further, employees do not need to be clients of the firm to benefit from the class action.

* * *

Finally, we want to acknowledge that this is a destabilizing and difficult time for federal workers. We are committed to continuing to challenge these unlawful firings at the MSPB.

-Sejal Singh, attorney at James & Hoffman

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The deferred resignation program is back, at least for some agencies. Anecdotally, employees seem more open to accepting the second round. The last few months have been taxing. Probationary employees have been terminated, then placed in limbo as they are reinstated under temporary court orders. Employees have been forced to report their accomplishments to Elon Musk. Many have received RIF notices, and others fear that a notice is on the way. Some employees have been told that they are being placed into Schedule Policy/Career. With each of these developments, resignation looks more appealing.

Weighing the benefits and costs

And yet, the value of the offer has fallen. In January, employees were being promised eight months of pay, through September 30. Now, it is less than six months. But the true value of the offer is less than that.

To illustrate, imagine that an employee fears an imminent RIF. If the employee receives a RIF notice in mid-April, they should remain on the payroll until mid-June, assuming the agency provides the 60 day notice typically required by regulations. Thus, accepting deferred resignation means that the employee would be paid through the end of September rather than the middle of June, a benefit of about three and a half months beyond what the employee likely would have received if RIF’ed.

This calculation does not take into account that accepting deferred resignation likely means losing the right to severance pay (for those eligible) and unemployment compensation. This further reduces the value of the offer. And beyond that, there may be an impact on retirement benefit options, depending on the terms of the agency’s offer.

For employees who fear placement in Schedule Policy/Career, it is also worth noting that current regulations provide that employees retain their civil service protections if placed in the new schedule. See 5 C.F.R. § 302.602(c)(ii). So long as this regulation remains in place, such employees would likely not face immediate termination and would have the right to challenge their termination.

For these reasons, the value of deferred resignation may be less than it appears, even assuming the government keeps its word. What about the costs? 

Obviously, by accepting deferred resignation, employees give up the possibility of continued employment with the government after September 30. Employees must also forfeit the ability to pursue any legal claim related to their employment. This includes claims related to the employee’s termination, as well as claims for discrimination, harassment, and denial of reasonable accommodation, to name a few examples. 

Importantly, for probationary or trial employees who were terminated in February or March, those who sign a deferred resignation agreement may give up their right to participate in MSPB class actions or other legal claims challenging their terminations. For now, agencies have reinstated most of these employees, and many agencies have paid or have promised backpay. But those actions were based on temporary court orders. If the court orders expire or are reversed, agencies could potentially revoke those reinstatements, reassert the original terminations, and perhaps even seek to recoup backpay. It is unclear whether the affected employees would then have any recourse if they signed the deferred resignation agreement.

Is the new deferred resignation program more enforceable?

We previously described significant concerns regarding the enforceability of the deferred resignation program. For the most part, the new iteration faces the same problems.

It is difficult to analyze these issues as a general matter because the proposed agreements now seem to vary by agency. Some agencies appear to have addressed a few of the most glaring flaws in the prior agreement, such as the provision allowing the agency to revoke the offer at any time in its sole discretion, even after an employee had accepted it. 

But still, there is no clear path to enforceability. As a general matter, courts have usually not allowed federal government employees to enforce contracts that govern their employment. The past few months have not brought any new statute or regulation to change this doctrine. Thus, it is unclear whether employees will have any recourse if they accept the agreement but are then terminated before September 30. 

There are also some new provisions that raise concerns in the deferred resignation agreements that have been provided to employees.

For example, at the Department of Labor, employees were offered an agreement with this provision:

“Employee shall not be subject to furlough, termination, reduction in force or layoff as a result of an agency-initiated reorganization or reduction in force.” 

This provision seems to imply that an employee who accepts the agreement could nevertheless be terminated, so long as the termination is initiated by OPM, DOGE, or the President. Notably, the administration has sought to give more power to OPM and DOGE to meddle in agency personnel decisions.

A similar provision appears in the deferred resignation agreement for the Department of Transportation. By contrast, the agreement for Department of Interior does not contain this language. Yet, it includes a new provision permitting the agency to violate the agreement based on “events outside [its] control,” which arguably could include a directive from OPM, DOGE, or the President.

For these reasons, the possibility remains that an employee might be fired even if they accept the offer, and that there would be no legal avenue to challenge the termination.

We have not yet reviewed draft agreements for other agencies, so we cannot speak to the specifics of those agreements. 

Conclusion

Of course, there is no single right decision for everyone. Whether inclined to stay or go, employees should make their decision with a full understanding of the facts. For those seriously considering the offer, we recommend seeking further specific advice from a labor union, attorney, or other expert, if possible.

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.