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Class actions challenge mass terminations of probationary employees at the Merit Systems Protection Board

Danny RosenthalLeave a comment

Update May 9, 2025: The current status of the class appeals is discussed in a new post here.

A coalition of law firms is pursuing class action appeals at the Merit Systems Protection Board (MSPB) to challenge the Trump administration’s mass terminations of probationary and trial employees. This post provides an update on the appeals.

What has been filed at the MSPB?

So far, class action appeals have been filed for employees at the following agencies:

  • FDIC – Filed February 28, 2025
  • Department of Interior – Filed March 4, 2025
  • USDA – Filed March 4, 2025
  • VA – Filed March 4, 2025
  • DHS – Filed March 5, 2025
  • EPA – Filed March 5, 2025
  • Department of Transportation – Filed March 7, 2025
  • Small Business Administration – Filed March 7, 2025
  • CFPB – Filed March 7, 2025
  • Department of Treasury – Filed March 10, 2025
  • Health and Human Services – Filed March 10, 2025
  • USAID – Filed March 10, 2025
  • OPM – Filed March 10, 2025
  • US Digital Service – Filed March 10, 2025
  • Department of Energy – Filed March 11, 2025
  • Department of Education – Filed March 11, 2025
  • GSA – Filed March 11, 2025
  • Housing and Urban Development – Filed March 12, 2025
  • National Archives and Records Administration – Filed March 12, 2025
  • Department of Commerce – Filed March 14, 2025

Each appeal will seek to cover all components of these agencies. For example, the Treasury appeal will seek to include IRS employees.

Which employees are covered?

Each appeal names a few employees as representatives of a proposed class of all employees at each agency who were terminated on the grounds that they were in their probationary or trial period. We expect that an MSPB Administrative Judge will decide in the coming months whether each appeal can proceed on a class basis. Once these decisions are made, we will know more about who is covered.

What is the basis for the appeals?

The appeals argue that federal agencies broke the law through mass terminations of probationary and trial employees.

Specifically, agencies allegedly conducted a “reduction in force” (RIF) by terminating large numbers of employees as part of an attempt to downsize the federal government. Yet, agencies disregarded mandatory procedures for RIFs.

Under federal regulations, agencies must follow RIF procedures when they separate employees as part of a “reorganization,” which includes a “planned elimination, addition, or redistribution of functions or duties in an organization.” 5 CFR § 351.201, 203. The RIF procedures include notice of 60 days to employees in most cases, along with other protections.

According to regulations and case law, probationary employees have the right to appeal to the MSPB when an agency fails to follow RIF procedures.

The appeals will seek reinstatement and backpay.

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

At this time, employees do not need to do anything to be covered by these appeals. If class certification is granted, covered employees will likely receive a notice describing next steps.

If employees wish to raise claims other than failure to 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.

How does this differ from the action taken by the Office of Special Counsel?

The MSPB appeals raise some of the same arguments that the Office of Special Counsel asserted in obtaining temporary relief for certain employees at several agencies.

However, the technical legal bases for the actions are different. The Special Counsel is arguing that agencies may have committed prohibited personnel practices, while the MSPB appeals are based directly on failure to follow RIF procedures.

So far, the Office of Special Counsel has obtained temporary relief for terminated probationary employees at USDA, as well as a handful of specific employees at other agencies. We understand that this relief is currently limited to reinstatement for a period of 45 days.

On March 5, the D.C. Circuit issued an order permitting the removal of Special Counsel Hampton Dellinger. On March 6, Dellinger announced that he was dropping his lawsuit seeking reinstatement.

Which law firms are involved?

Most of the appeals will be pursued by a group of four firms: Brown Goldstein & Levy, Cohen Milstein Sellers & Toll, Gilbert Employment Law, and James & Hoffman.

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.

For some agencies, a different set of firms or organizations may be involved.

How can I track the progress of the appeals?

Updates will be posted here and on our Bluesky account.

Here is our prior post on terminations of probationary employees.

-Danny Rosenthal, partner at James & Hoffman.

Can you be fired if you don’t respond to Elon’s latest email?

federalworkerrightsLeave a comment

Earlier today–on a Saturday afternoon–federal government employees received an email instructing them to “reply to this email with approx. 5 bullets of what you accomplished last week.” The email provided a deadline of 11:59 PM on Monday. A few hours earlier, Elon Musk had previewed the email, commenting that “failure to respond will be taken as a resignation.”

Is it unclear what Musk is trying to do here. One way to interpret the email is as an attempt to humiliate federal employees by making them justify their job–not to their supervisor or agency management, but to some other entity. (The emails were sent from HR@opm.gov.) In doing so, the email worsens morale and may lead to resignations, which advances Musk’s project of shrinking the federal workforce. Another possibility is that the email is a loyalty test, a way of identifying which employees will respond to an unusual request from outside their chain of command.

The email raises several questions. What if an employee is on leave on Monday? What if all of their work is classified?

But the question most pressing for federal employees is whether their job is at risk if they ignore the email. We can’t answer that question definitively. But it might be that the answer is relatively simple: if agency management tells an employee to respond, the employee should do so. Failure to follow such a directive would arguably constitute insubordination. But absent such a directive from within their agency, it seems an employee could not easily be charged with insubordination for ignoring the email, nor could an employee be deemed to have resigned by ignoring it. (On the latter point, see Nick Bednar’s helpful analysis here.) If an employee is instructed by agency leadership to not respond, the employee should follow that instruction as well.

This is because employees generally have an obligation to comply with an “authorized order of a superior officer.” Phillips v. Gen. Servs. Admin., 878 F.2d 370, 373 (Fed. Cir. 1989) (emphasis added). But here, the directive arrived in an unsigned email from HR@opm.gov. It seems unlikely that HR@opm.gov could be deemed any employee’s “superior officer,” at least for employees who do not work at OPM itself.

Of course, this does not mean that employees face no risk if they ignore the email, even if they have not been directed to respond by management within their agency. In the current climate, all federal government employees face a risk of termination, even when there is no legal basis to fire them.

However, it may be that the real challenge posed by the email is to supervisors and agency leaders. Will they instruct their subordinates to respond to the request despite its bizarre and humiliating nature?

Update on litigation challenging probationary employee terminations

Danny RosenthalLeave a comment

As of today, James & Hoffman has received about 800 inquiries from terminated probationary employees. Thanks to those who contacted us. A few updates:

  • Given the volume of inquiries, we have not been able to respond individually to everyone. Instead, we will send an email soon in which we provide information on next steps.
  • We currently envision filing class action complaints at Merit Systems Protection Board (MSPB) prior to the 30-day deadline for filing an MSPB appeal.
  • We have begun coordinating with labor unions and other law firms on these efforts, and we will continue that process.
  • The arguments we envision raising are different from those submitted to the Office of Special Counsel by Democracy Forward and the Alden Law Group (see here).

For more information, please see our prior post. Updates may also be posted on our Bluesky account.

Mass terminations of probationary employees: is there any recourse?

Danny RosenthalLeave a comment

UPDATE February 24, 2025, 230 PM The Office of Special Counsel, an independent government agency, has reportedly made an initial finding that the mass terminations are illegal and has asked the Merit Systems Protection Board to issue a “45-day stay on the firing decisions.” We do not yet know the details of this finding or the request to the MSPB.

Several federal agencies have begun mass terminations of probationary employees. Other agencies are expected to follow soon.

The administration is targeting probationary employees because they lack certain legal protections that apply to permanent employees. For background on the rights of probationary employees, we recommend this article by Suzanne Summerlin at Just Security.

Still, there are potential avenues to challenge these terminations.

For employees represented by a union, we recommend consulting the union to see if a grievance can be filed under a collective bargaining agreement. Some agreements permit grievances on behalf of probationary employees while others do not.

Other legal claims may be available as well.

If an agency has terminated some but not all probationary employees, employees should consider whether the selection was discriminatory. Federal agencies may not discriminate on the basis of race, sex, sexual orientation, gender identity, disability status, or age. Likewise, agencies cannot target employees on the basis of partisan political reasons or marital status, nor can they retaliate against employees who have complained of various kinds of illegal discrimination.

Importantly, all of these protections apply to probationary employees. Thus, for example, a legal claim may arise if two probationary employees perform similar job duties and have similar performance reviews, but only the employee in a protected group is fired.

On the other hand, different claims may be available if an agency terminates most or all probationary employees, or terminates all probationary employees within particular offices or performing specific functions. Employees might argue that a blanket termination of this kind really constitutes a reduction in force (RIF), even if not labeled as a RIF by the agency, and that the agency has failed to follow the RIF procedures established in regulations. These procedures include notice of 60 days in most cases. Probationary employees have the right to challenge a RIF that is not conducted in accordance with the required procedures. (5 CFR 351.202 (establishing broad coverage of RIF procedures and appeal rights))

More broadly, the administration may be violating the Administrative Procedures Act and the U.S. Constitution through its unprecedented attempt to cripple federal agencies. For example, the administration’s attacks on USAID and the CFPB have led to lawsuits raising these claims.

***

James & Hoffman is considering legal action on behalf of probationary employees affected by mass terminations. For an update as of February 16, 2025, see this post.

If you are in this situation, feel free to fill out our survey. You can also search for lawyers who may be able to represent you in a directory published by the National Employment Law Association.

“DOGE Workforce Optimization”: the latest executive order targeting federal employees

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Updated February 13, 2025

Earlier this week, the Trump administration announced a sweeping new effort to downsize the federal workforce. Reflecting the degree of control now exercised by the Department of Government Efficiency over federal personnel policy, the executive order is titled, “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative.”

Much remains unknown about how this order will be implemented. Parts of the order have already been challenged in court by a coalition of unions representing workers inside and outside government. Other parts of the order may yet be challenged.

The core provisions of the order can be divided into two categories: (1) provisions related to terminating current employees, and (2) provisions related to hiring new employees.

Terminations

To start with terminations, the order directs agencies to prepare for “large-scale” layoffs, known as reductions in force (RIFs). The order designates the following categories of employees for potential layoffs: Employees who “perform functions not mandated by statute or other law”; employees who work on DEI initiatives; and employees who “are not typically designated as essential during a lapse in appropriations.”

This order does not specify particular numbers or percentages of employees to lay off. It also does not say when agencies should conduct layoffs.

Apparently, agencies are expected to conduct these mass terminations on top of firing most probationary employees.

Also related to terminations, but likely with a smaller and less immediate effect, the order directs OPM to develop new “suitability criteria,” which may provide a basis for terminating employees in the future.

Hiring

On the hiring front, the order requires agencies (via a plan to be developed by OMB) to “hire no more than one employee for every four employees that depart.” While not directly affecting current employees, this provision would appear potentially devastating to numerous critical government functions.

A person seeking to defend the administration might argue that this restriction is no more onerous than the hiring freeze previously announced via Presidential memorandum. But the freeze was limited to 90 days, except at the IRS. This new order is framed as a long-term restriction. (There is a provision for reassessment after 240 days.)

Separately, the order inserts DOGE into the hiring process across the entire federal government. Among other provisions, an agency cannot fill a vacancy for a career position without DOGE’s approval, unless the agency head overrules DOGE. This is a remarkable restriction. It appears the agency chain of command for hiring is now: (1) Agency head, (2) DOGE, (3) everyone else at the agency.

Exceptions

The provisions described above are subject to some exceptions:

  • None of the provisions apply to military personnel.
  • The 4-for-1 hiring restriction and RIF provision do not apply to “functions related to public safety, immigration enforcement, or law enforcement.”
  • Agency heads may exempt positions “necessary to meet national security, homeland security, or public safety responsibilities.”
  • The OPM Director may grant exceptions.
  • The 4-for-1 hiring restrictions does not apply to the IRS, which is subject to an indefinite hiring freeze under a prior presidential memorandum.

This is a preliminary analysis, not necessarily addressing all aspects of the order.

For updates on issues affecting federal workers, follow our Bluesky page.

Does termination affect a federal employee’s retirement benefits?

federalworkerrightsLeave a comment

As the Trump administration seeks to downsize the federal government, some employees may be assessing their potential financial situation in the event of termination. Retirement benefits are an important part of the picture.

Fortunately, for the vast majority of employees, termination has no negative effect on retirement benefits, at least once those benefits are vested. (We discuss vesting timelines below.) This remains true even if the employee is accused of misconduct. There are a few narrow exceptions, discussed at the end of this post.

Some caveats before we go further: Federal retirement rules are complicated. For advice specific to your situation, consider consulting a union, attorney, or other expert. The discussion below applies to most federal employees covered by the Federal Employees’ Retirement System (FERS), which took effect in 1987. We do not discuss less common benefits such as the annuity supplement.

Federal employee retirement benefits

Federal employees generally receive three types of retirement benefits: (1) participation in the thrift savings plan, (2) an annuity based on salary and years of service, and (3) social security. We now discuss each.

Thrift savings plan

Federal employees are immediately vested in the thrift savings plan as to their own contributions and the agency’s matching contributions. This means the employee is entitled to keep those funds regardless of what may happen with their employment.

As to the agency’s 1% automatic contribution, an employee becomes vested after working in the government for three years, or two years for some narrow categories of employees.

For more details, see here and page 5 here.

An employee’s benefits under the thrift savings plan are not affected by termination, once the employee is vested.

Annuity

There are several paths through which a federal employee can become entitled to an annuity. Under most of these paths, it does not matter whether the employee was terminated or left government voluntarily.

First, an employee can choose to immediately start receiving an annuity if they fall into any of these categories:

In these categories, an employee’s eligibility is not affected by termination.

Certain categories of employees may be entitled to a full annuity earlier than set forth above. These include law enforcement officers, firefighters, CBP officers, and air traffic controllers, who become eligible after 25 years of service, or after 20 years of service at age 50. 5 USC 8412(d)(1) and 8412(e).

In addition, as a general matter, employees who are involuntarily terminated can retire early after 25 years of service, or after 20 years of serve at age 50, with some exceptions. 5 U.S.C. 8414(b).

However, for these categories of employees, the employee may lose the right to retire early if removed “for cause on charges of misconduct or delinquency.” 5 USC 8412(d)(1) and 8412(e); 5 U.S.C. 8414(b). But this does not affect the employee’s eligibility for regular retirement as described above. We discuss further at the end of the post.

Social security

Social security benefits are not affected by termination.

The situations in which termination affects retirement benefits

There are rare cases in which termination may affect retirement benefits.

First, if you are terminated before you are vested, then your benefits may be affected. As noted above, employees are typically vested after three years of service for the TSP and five years of service for an annuity. However, you always remain entitled to your own TSP contributions and the government’s matching contributions, even if you are terminated with less than three years of service.

Second, in certain cases, employees may lose the right to retire early if removed for misconduct. However, this limitation does not apply if you have reached normal retirement milestones (like age 60 with 20 years of service). Also, it does not apply to employees separated for performance issues or due to a reduction in force. Further, there are legal options for challenging an accusation of misconduct affecting retirement benefits.

Third, employees may lose retirement benefits if convicted of certain serious crimes such as espionage (5 USC 8312), and in other similar situations (5 USC 8313, 8314).

Finally, different rules may apply to foreign service officers, employees of the VA covered by Title 38, workers hired into the government before 1987, and other limited categories of employees.

For updates on issues affecting federal workers, follow our Bluesky page.

-Danny Rosenthal and Charlotte Schwartz, attorneys at James & Hoffman.

Deferred resignation: where things stand with one day left

Danny RosenthalLeave a comment

UPDATE February 6, 2025: Today’s deadline for accepting deferred resignation has been suspended by a federal judge in Massachusetts. OPM has been directed to notify employees of this development. A further hearing will occur next week.

Nearly every day since OPM announced the deferred resignation program, the administration has issued a new document or email seeking to sweeten the deal and convince more employees to resign. With one day until the February 6 deadline, where do things stand?

For one thing, the program was finally challenged in court. Several unions of federal employees argue that OPM violated the Administrative Procedure Act, which requires agencies to follow certain procedures and avoid arbitrary action. The unions say that the program violates the Act because OPM failed to adequately explain the program, provided inconsistent information, made promises it may be unable to keep, and for other reasons. The unions do not appear to ask for the program to be permanently ended, but argue that it should be suspended (or the February 6 deadline should be extended) while OPM attempts to develop an adequate legal justification and explanation for the program.

The suit was filed was filed in Massachusetts, where two of the plaintiff unions are headquartered. It has been assigned to Judge George O’Toole, a Clinton appointee.

The other major development is that OPM issued a formal agreement to govern deferred resignation. Soon after, OPM revised the agreement to address obvious legal deficiencies, while adding a cover memo attempting to assure employees the agreement is legally binding. The quick revision of the agreement is another sign of the sloppiness of the program.

It’s worth taking a close look at OPM’s argument that the agreement is binding, which appears at the bottom of page 1 and continues onto page 2 of the memo. There are several notable aspects of this section.

First, OPM asserts that the agreement is binding in the sense that, “were the government to backtrack on its commitments, an employee would be entitled to request a rescission of his or her resignation.” Even assuming this is true, it falls far short of genuine enforceability. OPM is not saying here that employee would be entitled to recoup the promised benefits if the administration violates the agreement, but merely that employees could rescind their resignation and come back to work. But that option may not be available if, for example, the employee has taken another job. And it’s unclear what would happen if an employee’s position was eliminated after the employee resigned.

Second, OPM cites two legal cases in footnotes, but those cases do not appear to fully support the administration’s claims. For example, OPM cites one case to bolster its statement that “separation
agreements entered into between an agency and its employees are legally binding.” But that case does not involve an employee successfully enforcing a separation agreement against the government. Rather, in that case, employees entered a separation agreement and then sought to withdraw and rescind their resignations. The agency denied withdrawal, relying on a provision stating that withdrawal could only occur upon proof of extreme hardship. The court found the limitation on withdrawal binding on the employee, ruling for the government.

In other words, the case finds only that an agency can hold an employee to the employee’s decision to resign–not that an employee can hold an agency to the promises in a separation agreement.

And the text of the OPM’s deferred resignation agreement does not resolve questions about enforceability. Paragraph 10 of the revised agreement states that agencies can rescind the agreement in their “sole discretion … which shall not be subject to review at the Merit Systems Protection Board (MSPB) or any other forum.” This suggests the agency can decide at any time to revoke the agreement, and the employee can do nothing about it.

Likewise, Paragraph 13 of the revised agreement sets forth a very broad waiver of any legal action related to the worker’s employment or the deferred resignation program. The plain language of this provision appears to make it impossible for an employee to pursue legal action to enforce the agreement. (It also bars the employee from pursuing any other legal action stemming from their employment, like a claim for sexual harassment or improper pay.)

For more information on the legal viability and enforceability of the program, we recommend Nick Bednar’s two detailed analyses at Lawfare. We also recommend that employees consult an attorney if they are thinking of accepting the offer. Updates on the lawsuit challenging the program may be posted on our Bluesky account.

-Danny Rosenthal, partner at James & Hoffman

Breaking down the lawsuits challenging “Schedule Policy/Career”

Charlotte SchwartzLeave a comment

As of today, three separate lawsuits have been filed to challenge President Trump’s plan to reclassify federal workers into “Schedule Policy/Career” (formerly Schedule F). Two of these suits were filed by unions representing federal employees. A third was filed by an organization that represents federal employee whistleblowers.

The suits differ on four significant dimensions: (1) The venues in which they were filed, (2) The type of injury they assert, which may determine whether a court can hear the case, (3) The specific acts they challenge, and (4) The sources of law invoked to support those challenges.

Before describing the suits, we provide some background.

Background

These lawsuits challenge two related actions the President is trying to take. The first is the creation of “Schedule Policy/Career.” The second is an effort to disregard or eliminate regulations that OPM promulgated during the Biden administration. which made it considerably more difficult to implement something like “Schedule Policy/Career.” The administration needs to take both of these steps in order to fully realize the president’s plan to strip civil service protections from thousands of federal employees.

The suits raise arguments under three sources of law: the Civil Service Reform Act, the Administrative Procedure Act, and the U.S. Constitution. We elaborate on each below.

The Civil Service Reform Act (CSRA) was enacted in 1978 and strengthened via amendments in 1990. Through this statute, Congress provided federal employees with robust job protections, such as protection against termination without cause (for most non-probationary employees). Congress also required that agencies hire most federal employees through competitive processes to ensure that employees are selected based on merit, not political loyalty to a particular party or candidate.

The statute allows the President and OPM to except employees from these requirements, only when “necessary” and as warranted by “conditions of good administration.” 5 U.S.C. § 3302.

The CSRA also provides that civil service protections may not apply to positions “determined to be of a conditional, policy-determining, policy-making or policy-advocating character.” 5 U.S.C. § 7511(b)(2). That term has long been understood to refer solely to political, non-career appointees. For example, the Merit Systems Protection Board, the entity that adjudicates many federal employee claims of wrongful termination, has held that these terms are “only a shorthand way of describing positions to be filled by so-called ‘political appointees.’” Currently, those non-career, political positions are housed in Schedule C of the excepted service.

The Administrative Procedure Act (APA) provides broad rules governing actions taken by most federal agencies. As a general matter, the APA requires agencies to engage in reasoned decision-making. When an agency wants to take an action in the form of a final rule, the APA requires the agency to use certain procedures, known as notice and comment rulemaking. The agency has to provide the public with notice of the rule it is proposing and an opportunity to comment on the rule. Then the agency must review those comments and explain why it is or is not changing its proposed rules in line with those comments.

For example, the Biden administration used notice and comment rulemaking under the APA to issue its regulations protecting civil servants. OPM issued a 24-page notice explaining the reasons for the rule and how it would operate in September 2023, received and reviewed over 4,000 comments, and then issued a 68-page notice of final rulemaking in April 2024.

When an agency wants to rescind a rule that it has promulgated using notice-and-comment rulemaking, it has to use the same process used to issue the rule—providing notice to the public, accepting comments, and analyzing those comments.

The Fifth Amendment to the U.S. Constitution provides that the government cannot deprive an individual of their property without due process of law. The Supreme Court has held that restrictions on loss of employment, like those provided to federal employees in the CSRA, can create a property right in continued employment. Constitutional due process protections then attach to that property interest.

The three lawsuits

Below we briefly describe the three lawsuits that have been filed so far:

  • NTEU v Trump (complaint here)

On the night of President Trump’s inauguration, shortly after he issued an executive order reinstating and amending the Schedule F, the National Treasury Employees Union (NTEU) filed a lawsuit challenging the order. The suit was filed in the District Court for the District of Columbia and has been assigned to Judge Cobb, a Biden appointee. This court is subject to review by the D.C. Circuit Court of Appeals, a court with seven active judges appointed by Democratic presidents and four active judges appointed by Republican president.

NTEU is a union that represents thousands of federal employees across 37 departments and agencies, including Agriculture, Commerce, Defense, Energy, and Health and Human Services, Justice, Treasury, the Interior, and Homeland Security.

NTEU filed the lawsuit on behalf of itself as an organization, not its members. NTEU asserts that it is injured as an organization because the executive order has required it to divert a significant amount of resources away from its ordinary activities.

NTEU’s complaint includes four counts. In the first count, NTEU argues that the President is violating 5 U.S.C. § 3302, which states that employees can only be place din the excepted where “necessary” or warranted by “conditions of good administration.” NTEU claims that the executive order does not meet those criteria.

In the second count, NTEU argues that the President exceeded statutory authority by attempting to strip adverse action protections from employees other than non-career, political appointees, violating the longstanding understanding that only such employees are excluded from these protections.

The third count argues that the Executive Order violates the Constitution by seeking to deprive federal employees of their constitutional due process rights in their employment.

The fourth count argues that the Executive Order violates the Administrative Procedure Act because it seeks to rescind regulations without going through the required procedures.

NTEU is requesting, as remedies, that the court declare the executive order unlawful, and enjoin the President, the OPM director, and the named agency heads from implementing, enforcing, or complying with the order.

When NTEU filed a similar suit under the first Trump administration, the Government asserted two major defenses: (1) NTEU’s claims were premature because no one had been placed into the new schedule yet, and (2) Any challenge would need to be raised through internal administrative channels rather than in court. NTEU did not have an opportunity to respond to those arguments before the Schedule F executive order was rescinded. We can expect similar defenses to be raised again now.

  • PEER v Trump (complaint here)

On January 28, 2025, Public Employees for Environmental Responsibility (PEER) filed a lawsuit in the District of Maryland. It has been assigned to Judge Xinis, an Obama appointee. This court is subject to review by the Fourth Circuit Court of Appeals, a court with eight active judges appointed by Democratic presidents, six active judges appointed by Republican presidents, and one active judge originally nominated by President Clinton and then re-nominated by President George W. Bush .

PEER is a non-profit that provides pro bono legal services to public employee whistleblowers in cases related to environmental laws and scientific integrity. PEER is asserting an injury on the basis that the executive order has significantly increased fear and concerns about retaliation by federal employees, which impedes PEER’s ability to learn about, expose, and remedy the wrongdoing that the organization exists to address.

PEER’s complaint includes four counts. The first count largely mirrors the first count of NTEU’s complaint, arguing that that the executive order violates 5 U.S.C. § 3302, because the proposed exceptions from the competitive service are neither “necessary” nor warranted by “conditions of good administration.”

PEER’s second count is similar to the third count in NTEU’s complaint, invoking the constitutional due process rights of federal employees.

The third and fourth count, like NTEU’s fourth count, challenge President Trump’s declaration that the Biden civil service regulations are now “inoperative.”

PEER is requesting that the court declare the executive order null and void and enjoin the OPM director from implementing it, and require OPM to enforce the Biden civil service regulations unless and until they are rescinded via notice and comment rulemaking.

  • AFGE v Trump (complaint here)

On January 29, 2025, AFGE and ASCME filed a lawsuit against the President, the head of OPM, and OPM. It has been assigned to Judge Cobb on the basis that it is related to the NTEU action.

AFGE is the largest federal employee union, representing approximately 800,000 federal employees in every state, including nurses, border patrol agents, scientists, civilian employees of the military, and employees who administer Social Security benefits.

AFSCME represents around 1.4 million government employees, including many federal employees—among them, employees of the FAA and DOJ.   

This lawsuit differs from the other suits in several ways.

First, the suit is brought on behalf of the unions and their members; by contrast, the NTEU suit is brought only on behalf of the union itself. This choice does not affect the substance of the claims in the case, but it does affect technical procedural defenses that the Government may raise.

Further, unlike the other lawsuits, this suit does not challenge the creation of Schedule Policy/Career or the directive to place employees into that category. Instead, it targets the administration’s attack on the Biden civil service regulations. And the lawsuit only raises claims under the Administrative Procedure Act, not the CSRA or Constitution.

The lawsuit includes two counts.

The first count argues that the OPM Director and OPM have violated the APA by holding the Biden civil service regulations “inoperative” without going through notice and comment rulemaking.

The second count argues that all defendants are acting without statutory authority by attempting to rescind the Biden civil service regulations while circumventing the requirements of the APA.

Where the suits will go from here

Notably, as of today, the plaintiffs in these lawsuits have not sought an immediate stop to the administration’s actions via a preliminary injunction or temporary restraining order. This distinguishes the lawsuits from several others filed against the Trump administration, like the challenge to the administration’s attack on birthright citizenship. The organizations may have held off on seeking immediate relief due to the perception that federal employees have not yet been directly affected by the administration’s actions (e.g., because employees have not yet been placed into Schedule Policy/Career).

Ordinarily, the United States has 60 days to respond to a complaint filed against it. Under that schedule, a response will be due in March.

Updates on the lawsuits may be posted on our Bluesky feed.

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

Does the new FAQ on “deferred resignation” change anything?

Danny RosenthalLeave a comment

Not really.

Earlier today, OPM revised its FAQ page regarding the “deferred resignation” program. OPM then emailed the new content to federal employees. The new FAQ page is accessible here. For comparison, the original FAQ page is archived here. Our original analysis of the “deferred resignation” program is here.

OPM is obviously trying to make the program sound more appealing. For instance, the original page said that in “rare cases,” employees would have to continue working after agreeing to resign. Now, in response to a question about whether employees will have to work, OPM simply says “no.”

Likewise, OPM originally acknowledged that agency policies might prevent employees from taking another job prior to their resignation dates. Now, in response to a question about whether employees may get another job, OPM enthusiastically responds, “absolutely!” (This is followed by an assertion that public sector jobs are less productive than private sector jobs.)

And in another attempt to sell the program, the new page says: “You are most welcome [to] stay at home and relax or to travel to your dream destination [after accepting deferred resignation]. Whatever you would like.”

Notably, however, OPM has not published any new formal memos effectuating these changes. OPM’s prior memo remains in effect. It states that employees will be placed on administrative leave after resigning, but makes an exception where agencies decide that the employee needs to continue working to transition their duties. The memo does not waive any agency policies or regulations regarding outside work. It does not guarantee employees the opportunity to go on vacation. It does not establish that employees are protected from termination or RIF after accepting deferred resignation.

Meanwhile, the closest thing to an official description of the program remains the original email to employees and the “deferred resignation letter” set forth in the email. That email has not been retracted or amended.

And OPM has said nothing further to explain the legal basis for the program or how employees can enforce the promises the administration is making. On that point, Nick Bednar has published a helpful discussion of the legal issues raised by the program.

Workers could certainly use the new FAQ page to push back if a manager takes a stance contrary to the FAQ (for example, requiring an employee to work after accepting deferred resignation). On the other hand, a manager could plausibly respond that the FAQ is not an official statement of policy.

The bottom line is that the revised FAQ does not seem to represent a real change to the program, but rather a new strategy for advertising it. Or perhaps a more accurate label would be false advertising.

-Danny Rosenthal, partner at James & Hoffman

Deferred resignation: what we know so far (updated)

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UPDATE February 6, 2025: Today’s deadline for accepting deferred resignation has been suspended by a federal judge in Massachusetts. OPM has been directed to notify employees of this development. A further hearing will occur next week.

UPDATE February 5, 2025: We’ve published a new post discussing the latest developments on deferred resignation, including the lawsuit challenging it and OPM’s new memo and agreement.

UPDATE Jan 30, 2025: We have published a separate post on OPM’s new FAQ page about the “deferred resignation” program.

Last night, OPM sent an email to federal employees offering “deferred resignation.” Like many of the administration’s pronouncements, the email was sloppily drafted, making it hard to pin down the specifics of the policy. Indeed, OPM has published an FAQ page and memo that substantially clarify (if not change) the details of the program. Here’s what we know so far.

First, the email itself: After making threats about plans to downsize and reshape the federal workforce, the email sets forth a “deferred resignation letter” that may be submitted by federal employees. The letter states that the employee will resign effective September 30, 2025. In the meantime, the employee will be “exempt from any ‘Return to Office’ requirements.” Further, the employee “will maintain … current compensation and … benefits,” which suggests that employee will not be subject to termination during this period. The employee acknowledges that agencies will “likely make adjustments” prior to the resignation date, which might include “reducing” duties or placing employees on leave. The employee commits to assist the agency with “reasonable and customary tasks and processes to facilitate my departure.”

To summarize, employees agree to resign in exchange for a promise that they may continue working remotely prior to the date of resignation. The deal seems to include some protection from termination prior to resignation, but the letter does not say so explicitly. The employee is not relieved of the obligation to work for the agency until the date of resignation, although agencies may remove duties at their discretion.

Second, OPM published an FAQ page regarding the program. According to the FAQ, employees will not be required to work prior to their resignation date, except in “rare cases.” In fact, the page refers to this period as a “nice vacation.” These points are notably absent from the OPM email and letter, which instead make the somewhat contradictory promise that employees won’t be required to work in person (implying that work may continue remotely). The FAQ page indicates that the resignation letter does not bar an employee from getting another job while on the federal government payroll, but that other policies may prohibit this. (For example, agencies may require prior authorization for outside work.) The page provides some other details as well.

Third, OPM sent a memo to agencies that describes yet a third version of the program. Under this memo, employees who accept deferred resignation should “promptly” be placed on “paid administrative leave.” The only exception is for situations in which the “agency head determines that it is necessary for the employee to be actively engaged in transitioning job duties.”

Fourth, big questions remain regarding the program. To start, who exactly is eligible? While OPM apparently sent the email to all or most of the federal workforce, the program has exclusions. It does not apply to “positions related to immigration enforcement and national security,” a potentially broad category. It also does not apply to “any other positions specifically excluded by your employing agency.” But it’s unclear how employees would know if they have been excluded. Thus, recipients cannot be sure whether they are eligible. USPS employees and military personnel are also excluded.

Another open question is whether the promises in the letter and FAQ are enforceable. What if an employee opts in to the program, but the Government lays them off or stops paying them prior to the resignation date, contrary to the promise that compensation will continue at current levels? Or what if an agency makes all of its resigned employees continue working full time, despite OPM’s statement that work should only occur in “rare cases”?

The email and FAQ page arguably constitute an implied contract that employees could enforce in the Court of Federal Claims under the Tucker Act. But I am not aware of any precedent addressing this issue on similar facts. And it’s not clear that a violation of the policy would give rise to any administrative remedy such as an appeal to the Merit Systems Protection Board.

Further complicating enforcement, the letter and FAQ include vague language with poorly defined exceptions, such as the statement that agencies can exclude “other positions” and that employees will only have to work in “rare cases.” Further, there are multiple documents describing the program with different information about how it works.

Thus, in deciding whether to accept “deferred resignation,” employees need to ask themselves this question: do I trust this administration to follow through on the stated parameters of the program?

This is a preliminary analysis based on information available on the morning of January 29. We will update this page as things develop. Updates will also be posted on our Bluesky feed.

-Danny Rosenthal, partner at James & Hoffman, P.C.