Attorneys for Federal Employees — Nationwide
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Today at a Glance
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Probationary Periods: In its first precedential ruling under the 2025 probationary rules, the MSPB held that a DHS employee's trial appointment expired on its own because the agency never certified him, even though the termination notice came a day late.
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"Voluntary" Separations: A new exit survey of more than 2,000 former career feds finds nearly three-quarters left under pressure, incentives, or an involuntary action. The law still presumes a resignation is voluntary unless you show coercion or misinformation, and the appeal clock is 30 days.
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Open Season: Open Season runs November 9 through December 14. OPM says it found roughly 50,000 deceased people still on FEHB and PSHB rolls, and the rules now require proof of eligibility for every family member you add.
Top Stories:
1. The MSPB Issues Its First Ruling Under the New Probationary Rules — a Trial Period Now Ends on Its Own Unless the Agency Certifies You, Even When the Termination Notice Comes Late
Source: Merit Systems Protection Board (precedential decision), October 22, 2026
TL;DR: On October 22, the Merit Systems Protection Board issued Laboy v. Department of Homeland Security, 2026 MSPB 10, its first precedential decision applying Civil Service Rule XI, the probationary-period rule created by Executive Order 14284 in April 2025; FEDweek and FedSmith reported it Tuesday. The appellant, an excepted-service Equal Employment Specialist hired November 6, 2023, with a two-year trial period, was emailed at 3:33 p.m. on November 6, 2025, his second anniversary, that management had decided not to retain him, effective that day. An administrative judge reversed, finding he had completed two years of service and was an "employee" entitled to notice and a reply under 5 U.S.C. § 7511(a)(1)(C). The full Board reopened the case on its own motion and reversed: because DHS never certified that finalizing his appointment "advances the public interest," the appointment expired automatically at the end of his tour of duty on November 5, 2025, and he never became an employee with appeal rights. The Board acknowledged that DHS's required written notice came a day late and "stated—erroneously—that the appellant's appointment expired on that date," but held that "nothing in Civil Service Rule XI indicates that an agency's failure to provide this prior notice would invalidate the automatic termination." It also held that whether OPM's rule violated the Administrative Procedure Act is a question for the federal courts, not the Board, and dismissed the appeal for lack of jurisdiction.
For federal employees, this means:
- Completing a probationary or trial period no longer makes you a tenured employee. Under 5 C.F.R. § 11.5, your service ends on the last day of the period unless a designated official certifies in writing, within the final 30 days, that finalizing your appointment advances the public interest.
- The rule also requires a meeting with a designated official at least 60 days before the period ends and a retention decision within the last 30 days. Mark those dates, ask in writing whether the certification has been made, and keep the answer.
- A late or mistaken notice did not save this appellant; the Board called it "significant" that he worked only "a few hours to at most 1 day" past the expiration date because of an apparent agency error. If a certification is missed through administrative error, § 11.5(j) lets the agency head petition OPM within 30 days to reinstate you; only the agency can file it.
Legal Insight
Civil Service Rule XI, 5 C.F.R. §§ 11.1–11.6, treats probationary and trial periods as appointments that expire on their own; the Board's footnote 12 calls them "the equivalent of term appointments," whose expiration is not an adverse action appealable under 5 U.S.C. chapter 75. For terminations on or after September 2, 2026, OPM's rule at 5 C.F.R. part 751 (91 Fed. Reg. 49072 (Aug. 3, 2026)) is the only administrative appeal for most probationers: it reaches only partisan political or marital-status discrimination, or skipped procedures when the termination rests on pre-appointment conditions; it must be e-filed with OPM within 30 calendar days of the effective date; and excepted-service employees outside 5 C.F.R. part 307, this appellant's category, get no appeal under it. Discrimination, whistleblower reprisal, and other prohibited personnel practice claims still go to the EEOC, the Office of Special Counsel, or the Board under their own authorities, and a final Board decision can be challenged in the Federal Circuit within 60 days under 5 U.S.C. § 7703(b)(1)(A). If you are nearing the end of a probationary or trial period or receive a non-certification notice, consult a federal employment attorney immediately; the clocks are short.
2. A New Exit Survey Says Nearly Three in Four Former Feds Left Under Pressure — but the Law Presumes a Resignation Is Voluntary, and the Clock to Prove Otherwise Is 30 Days
Source: Federal News Network, November 3, 2026
TL;DR: A new "exit survey" of more than 2,000 former career federal employees from 55 agencies who left on or after November 5, 2024, finds that nearly three-quarters separated because of pressure, incentives, or an involuntary action, Federal News Network reported Tuesday; Government Executive also covered it. The survey was conducted by the Accountability and Reform Research Consortium, a group of university researchers convened by the Volcker Alliance, and the authors caution that the sample is nonrandom. Politicization of their work or agency was the top reason given for leaving, listed by nearly half among their three main reasons. On the researchers' 0-to-1 "coercion score," employees who were laid off averaged 0.75, those who retired as planned averaged 0.17, and those who took the deferred resignation program averaged 0.50, which the authors said typically reflected an offer accepted out of fear of a layoff, removal, or reassignment; OPM has maintained that most 2025 separations were voluntary. Probationary employees reported the highest coercion of any tenure group, and 85 percent of respondents strongly disagreed that their departures were handled with dignity; still, 87 percent of those laid off or removed said "yes" or "maybe" to returning to federal service.
For federal employees, this means:
- If you resign or retire because you were told a RIF (Reduction in Force), removal, or reassignment was coming, the law still presumes your departure was voluntary. The Board treats it as an appealable removal only if you show coercion or misleading agency information; a choice between unpleasant options is not coercion by itself unless the agency knew it had no reasonable basis for the threatened action.
- The deadline is unforgiving: the appeal must be filed within 30 days of the effective date of the separation, or 30 days after you receive the agency's decision, whichever is later (5 C.F.R. § 1201.22(b)(1)).
- Document the pressure as it happens: the emails, the deadlines, who said what. Evidence created at the time is what separates a successful involuntary-separation appeal from a jurisdictional dismissal.
Legal Insight
Under 5 U.S.C. §§ 7512 and 7513(d), only a removal or other listed adverse action is appealable to the Board; a resignation or retirement is presumed voluntary, and the appellant must make a nonfrivolous allegation of coercion or agency misinformation to get a jurisdictional hearing. Garcia v. Dep't of Homeland Sec., 437 F.3d 1322 (Fed. Cir. 2006) (en banc). The survey's "coercion score" is not the legal test, but the facts it measured (threats of layoff or removal, deadlines, lack of alternatives) are what the Board examines, and a separation agreement you signed, such as a deferred resignation agreement, may contain waiver language limiting what you can now challenge. If you left under pressure and believe the agency misled you, consult a federal employment attorney about whether the 30-day clock can still be met or excused for good cause under 5 C.F.R. § 1201.22(c).
3. Open Season Opens Monday — OPM Says It Found About 50,000 Deceased People Still on Health-Plan Rolls, and the Rules Now Require Proof of Eligibility for Every Family Member You Add
Source: FEDweek, November 3, 2026
TL;DR: The federal benefits Open Season runs Monday, November 9, through Monday, December 14, 2026, and closes at 11:59 p.m. for FEHB (the Federal Employees Health Benefits Program) and PSHB (the Postal Service Health Benefits Program), according to OPM. Enrollee premiums rise 10.9 percent on average in FEHB and 8.2 percent in PSHB, and enrollees in departing plans who do not pick a new one will be moved to Compass Rose Standard (FEHB) or FEP Blue Focus (PSHB), FEDweek reports. Separately, OPM said this week that a match of enrollment records against a Treasury Department death-records database identified approximately 50,000 deceased individuals still listed on FEHB and PSHB enrollments and $96.3 million in improper payments made after the date of death, including $70.6 million in government premium contributions and $25.7 million in retirement payments, as reported by FEDweek. It follows a rule change this year requiring proof of eligibility whenever a family member is added, including during Open Season.
For federal employees, this means:
- If you add a spouse or child during Open Season, expect to prove eligibility. Under 5 C.F.R. § 890.302(a)(1)(i), you must provide proof, such as a marriage or birth certificate, "at the time a family member is added to an enrollment, including during an initial opportunity to enroll, any open season, due to a qualifying life event, or at any other time a family member is added."
- Your carrier, your employing office, or OPM can request that proof at any time. If you do not respond within 60 calendar days, the family member is removed; removal is prospective unless fraud or intentional misrepresentation is found, and coverage is reinstated retroactively if you later supply acceptable proof (5 C.F.R. § 890.308(e)–(f)).
- If a family member is removed, you may request reconsideration in writing from your employing office within 60 calendar days; it must issue a written final decision within 30 days. Children remain eligible until 26, and a child of any age who cannot support themselves because of a disability that began before 26 stays eligible (§ 890.302(b)).
Legal Insight
The FEHB statute, 5 U.S.C. § 8905, lets an employee enroll for self only, self plus one, or self and family; OPM's regulations define family members and eligibility verification (5 C.F.R. §§ 890.302, 890.308), and Open Season elections are governed by 5 C.F.R. § 890.301, so an election missed by December 14 generally waits for the next Open Season or a qualifying life event. OPM is now matching rolls against outside death records and auditing family-member eligibility, so an enrollee who leaves an ineligible person on a plan, such as a former spouse after a divorce, faces removal, and where misrepresentation is found the loss of coverage dates back to when eligibility ended.
Legal Tip of the Day
Write Down the Pressure While It Is Happening
If someone tells you that a layoff, removal, or reassignment is coming and suggests that you resign or retire instead, slow down before you decide. Ask the agency to put the offer, the deadline, and the reason in writing, and keep a private timeline outside government systems with dates, names, and what was said. Notes made at the time carry more weight than memories rebuilt later. Ask what deadlines are running for each option, because different forums and different types of separation can have very different filing windows. Do not assume that signing something or leaving quietly keeps every option open. Have a federal employment attorney read any agreement before you sign it.
In Case You Missed It
A few quick hits from our recent posts:
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Disclaimer:
This briefing is for general informational purposes only and does not constitute legal advice or create an attorney‑client relationship. Federal employment law is fact‑specific and time‑sensitive; you should consult a qualified attorney about your own situation and deadlines. Past results do not guarantee future outcomes.
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