The most successful appeals often hinge on catching a single, outcome-changing error early. Image: 3rdtimeluckystudio/Shutterstock.com
By: Attorney Justin Schnitzer, fedelaw.comFederal agencies have received the green light to restart mass layoffs. On July 8, the Supreme Court lifted a lower-court injunction, allowing the administration’s executive-order RIF plans to proceed while lawsuits continue. While this doesn’t approve every cut, it does mean agencies can move forward now, with individual challenges fought on a case-by-case basis.
This guide is not personal legal advice but outlines practical strategies that have worked in real-world RIF appeals. It covers common agency mistakes, legal grounds that hold up, how to choose the right forum, and potential remedies.
Legal Grounds to Challenge a RIF
1. Procedural Due Process & Harmful Procedural Error
Agencies must follow RIF rules under 5 C.F.R. Part 351. This includes providing proper notice, accurate reasons, correct retention ranking, and lawful assignment rights (“bump/retreat”). Common errors include incorrect notice dates, missing appeal rights, and miscalculated retention standings.
2. Retention Factors Misapplied
Retention standing is based on tenure, veterans’ preference, service computation date (SCD), and recent performance ratings. Any miscalculation here can significantly change outcomes.
3. Bump/Retreat Errors
Under Subpart G, mishandled assignment rights—especially between permanent and term positions—can violate the law. You may have a right to displace employees in lower tenure groups or retreat to positions you’ve previously held.
4. Competitive Area Manipulation
Overly narrow competitive areas can unlawfully exclude you from positions you could fill elsewhere in the organization. This can be challenged with evidence showing integrated operations.
5. Transfer-of-Function & Reorganization Issues
Agencies sometimes label work moves as “abolitions” to avoid transfer rights. The real test is the actual movement of functions, not labels.
6. Veterans’ Preference Violations
Veterans’ preference applies to RIF retention as well as hiring. Failure to apply it correctly remains a strong appeal argument.
Relevant Case Law
Holland v. Department of the Army (MSPB 1999) is especially relevant today. The case involved improper placement of an employee into a term position instead of a permanent position, affecting retention rights. The Board ordered reassignment to the permanent position, back pay, and interest.
The Board relied on Jones v. Department of the Army (1990), establishing that agencies cannot sidestep permanent placement rights by offering temporary roles first.
Choosing the Right Venue
- Default: Start at MSPB, then appeal to the U.S. Court of Appeals for the Federal Circuit.
- Mixed Cases: If discrimination is claimed, start at MSPB, then go to federal district court (per Kloeckner and Perry).
- Union Contracts: Some cases go through negotiated grievance procedures instead.
Filing Deadlines
- MSPB appeals: within 30 days of the effective date or decision receipt.
- EEO (mixed cases): contact an EEO counselor within 45 days.
Possible Remedies for an Unlawful RIF
- Reinstatement/Reassignment: Return to correct position if separation or demotion is reversed.
- Back Pay and Benefits: Includes interest, service-credit restoration, leave, and retirement adjustments.
- Attorney’s Fees: Available for prevailing employees meeting legal standards.
- Bump/Retreat Corrections: Placement into the lawful position, not an alternative chosen by the agency.
Steps to Build a Strong RIF Appeal
- Gather Records Quickly: Retention register, SCD, performance-credit math, veterans’ preference documentation.
- Audit Assignment Rights: Compare facts to 5 C.F.R. § 351.701 and related provisions.
- Challenge Competitive Areas with Evidence: Show integrated operations to widen your competitive area.
- Fix eOPF Errors: Ensure all records are accurate before filing.
- Choose the Right Forum: Plan for MSPB → Federal Circuit or MSPB → District Court depending on claims.
- Track Class Actions: Watch for orders that may affect timelines.
Bottom Line
The Supreme Court’s July 8 decision opened the door for agency RIFs, but regulations still apply, and agencies can be held accountable for violations. The most successful appeals often hinge on catching a single, outcome-changing error early. Move quickly, document thoroughly, and map your facts directly to the governing regulations and precedent cases.
Attorney Justin Schnitzer (see, fedelaw.com) represents federal employees in cases of employment violations just as he would want to be represented, all with the aim of achieving decisive victories. His passion for employment law and the fight for fundamental fairness began when he served as a judicial intern for the Equal Employment Opportunity Commission. He is admitted to the State Bar of Maryland.
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See also,
What to Know About the New Federal Application Process
Top 10 Provisions in the Big Beautiful Bill of Interest to Federal Employees
A Pre-RIF Checklist for Every Federal Employee, From a Federal Employment Attorney
Work Longer or Take the FERS Supplement Now: Which is Better?
