Legal Grounds for Challenging a RIF
If you were separated from HHS as part of the July 14 Reduction in Force, your deadline to file an MSPB appeal is August 13 — but the deadline to retain FPG is August 4 at 6 PM ET.
We’re here to help you fight back.
Deadline to Retain FPG for Your HHS MSPB RIF Appeal
When a federal agency conducts a Reduction in Force (RIF), it must follow strict rules. If it fails to do so, affected employees have the right to challenge the action through the Merit Systems Protection Board (MSPB). At Federal Practice Group, we’ve already begun filing coordinated appeals for employees across multiple agencies, including HHS. Here are some of the most serious legal issues we’re seeing — and why your separation may be reversible.
What Are the Legal Grounds for Challenging a RIF?
MSPB appeals often succeed when an agency fails to follow the regulations that govern reductions in force. Under 5 C.F.R. Part 351, agencies must follow strict rules for grouping employees, calculating retention scores, and issuing separation notices. When these rules are violated, employees may have legal grounds for challenging a RIF.
Based on our work with affected employees — including those at HHS — here are some of the most serious legal problems we’re seeing:
Improper Competitive Areas
Many agencies, including HHS, have defined competitive areas as narrowly as the branch level, which is not appropriate under RIF regulations. Employees doing similar work in the same office may have been split into different competitive areas, denying them the right to compete for retention.
This is a major legal issue and central to many appeals.
Procedural and Notice Errors
We’ve seen RIF notices with the wrong dates, missing appeal rights, and even cases where the notice was issued after the effective date. These errors may constitute “harmful procedural error” — a basis for reversal under MSPB law.
One frequent issue with the RIF Notices issued by HHS concerns the performance scores used in retention decisions. We’ve seen suspicious combinations of ratings that don’t match employees’ actual reviews. Incorrect ratings can change your adjusted service computation date — potentially directly impacting whether you keep your job.
What Is a Harmful Procedural Error?
Not every agency mistake is grounds for reversal. But if the agency’s error likely changed the outcome of your case, it may qualify as a harmful procedural error.
The Merit Systems Protection Board defines harmful error in 5 C.F.R. § 1201.4(r) as:
“Harmful error. Error by the agency in the application of its procedures that is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. The burden is upon the appellant to show that the error was harmful, i.e., that it caused substantial harm or prejudice to his or her rights.”
Understanding whether your case involves a harmful procedural error is critical. This is where experienced legal representation can make all the difference.
Elimination of Funded or Statutory Work
Some agencies have eliminated positions even though Congress fully funded those programs or the work is required by law. In other cases, functions have been reassigned to contractors or other divisions without justification.
These facts may support arguments that the RIF was not a “bona fide” reorganization — meaning a genuine, good-faith restructuring — and should be rescinded.
What Makes a RIF Action Unlawful
Not every layoff during a reduction in force is legal. Under federal regulations, agencies must follow strict procedures when selecting employees for separation. When they fail to comply with these rules, the resulting RIF action may be reversed on appeal.
Common legal violations that may render a RIF action unlawful can include:
- Creating improperly narrow competitive areas that limit retention rights
- Issuing RIF notices with procedural or factual errors
- Using inaccurate or manipulated performance ratings
- Eliminating positions that are still funded or legally required
- Reassigning essential duties to contractors without justification
Even one of these issues could give you a strong legal basis to challenge your separation — but you must act quickly. The Merit Systems Protection Board (MSPB) imposes strict deadlines, and appeals must be built on solid evidence.
Deadline to File
It’s critical to file within the deadline: 30 days from the effective date of your separation or the date you received the notice informing you of the effective date of your separation, whichever is later. For most HHS employees whose separation date was July 14, that means the appeal must be filed by August 13, 2025.
Possible Outcomes of a Successful MSPB Appeal
If your appeal is granted, you may be entitled to:
- Recovery of attorneys’ fees
- Reinstatement to your previous role, along with back pay and benefits
- Recredit of any lost leave, retirement service, and time
- Cancellation of any involuntary retirement, if that occurred
Even if you’ve already accepted another position or plan to move forward in your career, the MSPB can still award legal remedies — including possible financial compensation. These results, however, hinge on filing a strong appeal from the outset.
Know Your Rights, Protect Your Career
If you’ve received a RIF notice, it’s critical to understand that not every separation is lawful just because it’s labeled a reduction in force. Agencies must follow strict legal procedures, and when they don’t, employees have the right to challenge those actions.
Whether you suspect issues with how your competitive area was defined, problems with your notice, or inconsistencies in how positions were eliminated, these concerns could form the foundation of a strong appeal.
The attorneys at Federal Practice Group have deep experience identifying procedural errors, analyzing RIF structures, and building compelling cases for federal employees. If you believe your separation may have violated your rights, we’re here to help you understand your options and take action.