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MSPB Certifies Rare Class Appeals for HUD and OPM Probationary Firings

federal employee rights federal employment mspb appeals probationary employees reduction in force Dec 12, 2025

For many federal employees, being labeled “probationary” has long felt like being disposable. February 2025 seemed to confirm that fear when HUD and OPM terminated hundreds of probationary and trial-period employees in near-identical fashion. Now, in a move that is both rare and significant, the Merit Systems Protection Board (MSPB) has put those employees back into the legal conversation.

What Happened in February—and Why It Was Different

In January 2025, OPM issued a guidance memo that prompted agencies to identify probationary or trial-period employees who were deemed “not mission critical” or “not top performers.” HUD and OPM responded by generating lists and issuing mass terminations in mid-February. Roughly 91 employees at OPM and 312 at HUD received nearly boilerplate notices stating only that they were probationary and therefore being let go. There were no individualized performance or misconduct findings and no reduction-in-force (RIF) notices.

That uniformity matters. The scale, timing, and identical language signaled something more systemic than ordinary probationary removals.

Why MSPB Certification Is a Big Deal

MSPB almost never certifies class actions. Doing so for probationary employees—who typically have minimal appeal rights—is virtually unheard of. Yet here, the Board certified two classes: one for affected OPM employees and one for HUD employees. Rather than treating these as hundreds of isolated cases, MSPB will resolve the shared legal questions once for everyone in each class.

The judge explicitly found that a class action is the “fairest and most efficient” way to address what appears to be a single agency decision implemented en masse.

The Core Legal Theory: A RIF in Disguise

The central argument is straightforward: these were layoffs, not true probationary terminations. Under 5 C.F.R. part 351, when employees are separated due to reorganization, shifting priorities, or budgetary reasons, agencies must follow RIF procedures. Those procedures come with MSPB appeal rights. Calling the action “probationary” does not eliminate those obligations if the substance looks like a RIF.

The next phase of litigation will focus on jurisdiction—whether MSPB can treat these cases as RIFs at all. That answer will apply to every member of the certified classes.

Rescissions and Administrative Leave Don’t Automatically Fix Things

After public backlash, some terminations were “rescinded,” or employees were placed on administrative leave. MSPB precedent is clear: a true rescission requires restoring the employee to the status quo ante—grade, pay, tenure, back pay, and a clean personnel record. Partial fixes rarely moot an appeal. The judge noted that full restoration was not clearly happening, which keeps these cases alive.

Critical Deadlines and Individual Strategy

Class members will receive notice and have 35 days to opt out by filing an individual appeal. For many, staying in the class allows counsel to litigate the major structural questions once. Others—particularly those with discrimination, retaliation, whistleblower, or hostile-work-environment claims—may need parallel EEO or OSC paths. This is a decision that turns on individual facts and should be made carefully.

Why This Matters Beyond HUD and OPM

These cases ask questions with service-wide implications: Can agencies terminate hundreds of newer employees at once and bypass RIF protections by invoking probationary status? Does a partial walk-back erase legal harm? And what message does this send to the federal workforce?

For employees caught in that February sweep, the message from MSPB is clear: this was not “just bad luck.” It is being treated as a systemic issue, and meaningful options now exist.

Legal Disclaimer: The information provided in this article is for informational purposes only and should not be construed as legal advice. While I am a federal employment attorney, this post does not create an attorney-client relationship. Every situation is unique, and legal outcomes depend on specific facts and circumstances.

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