Fired Under Article II? You May Be Able to Sue in Federal Court

Last Updated: May 3, 2026 Reading Time: 11 min

Two federal court rulings in April 2026 quietly changed the appeal map for fired federal employees. If your termination letter cites "Article II of the Constitution" as the legal basis, the Merit Systems Protection Board (MSPB) may not be your only option. You may be able to sue directly in federal district court. This is not theoretical: Judge Furman in the Southern District of New York and Judge Nachmanoff in the Eastern District of Virginia both ruled this way in April. Most fired employees do not know about these rulings yet.

Key Takeaways

• Two April 2026 federal court rulings (Comey v. DOJ, April 28; Comans v. FEMA, April 15) hold that Article II-cited terminations fall outside MSPB jurisdiction and can go directly to federal district court.
• The first thing to do after receiving a termination letter is read it for the legal authority cited, not call a lawyer. The letter tells you which forum applies.
• The 30-day MSPB clock does NOT toll the federal court clock. If you file only with MSPB and MSPB later disclaims jurisdiction, your federal court window may have already closed.
• The OPM rule eliminating MSPB RIF appeals (RIN 2026-02576) is NOT finalized. Current MSPB rights still exist.
• The 386,826 federal employees separated in 2025-26 include 10,436 formal RIFs, a roughly 35-fold spike over the historical baseline of about 300 per year.

What Just Changed: Two April 2026 Rulings

The legal mechanism is straightforward. Federal employee termination disputes traditionally go through MSPB under the Civil Service Reform Act of 1978 (CSRA). The CSRA gives MSPB exclusive jurisdiction over most adverse actions. Federal courts generally cannot hear these cases first, the doctrine known as CSRA channeling.

Two April 2026 rulings created a narrow but important exception:

Comey v. DOJ, S.D.N.Y., April 28, 2026. Judge Furman denied DOJ's motion to dismiss. The termination letter for the plaintiff cited "Article II of the Constitution" as the basis for removal, with no reference to the CSRA. Judge Furman ruled this disclaimer of statutory authority placed the case outside the CSRA framework:

"Defendants' sole reliance on the Constitution places the case outside the universe of cases Congress intended the MSPB to resolve."

Comans v. FEMA, E.D. Va., April 15, 2026. Judge Nachmanoff retained federal court jurisdiction over the removal of a FEMA Chief Financial Officer on the same theory. The Comans ruling came two weeks earlier and signaled the direction of the law before Furman put it in writing in a higher-profile case.

Both rulings turn on the same logic: when the government's own termination letter affirmatively disclaims civil service authority and asserts a constitutional theory instead, the case is no longer "channeled" through MSPB. The employee can go to federal district court.

This is a narrow exception. It applies only to employees whose letters cite Article II as the sole or primary basis. If your letter cites Title 5 (the CSRA), the standard MSPB process still applies. If it cites both, you may need to file in both forums to preserve all rights.

How to Read Your Termination Letter (Step-by-Step)

The first 48 hours after receiving a termination notice matter more than most fired employees realize. The letter contains the answer to where you fight. Most attorneys' first question is "what does the letter actually say." Bring the letter and your SF-50 to any consultation.

What to look for in the letter:

1. The cited legal authority. Does it reference 5 U.S.C. § 7513 or § 7543 (CSRA adverse-action provisions)? Does it reference "Article II of the Constitution"? Does it reference 5 CFR Part 351 (RIF rules)? The cited authority determines your forum.
2. The effective date. Your appeal clocks start running on this date, not the date you received the letter.
3. The reason for the action. Performance, conduct, RIF, abolishment of position, lack of confidence, "the President's constitutional authority," etc.
4. The notice period. Career competitive service employees are entitled to 30 days advance notice under 5 U.S.C. § 7513. SES career appointees get a minimum 7 days notice + MSPB appeal under § 7543.
5. The appeal-rights statement. Most letters include a section explaining your appeal rights. Read it carefully. If the appeal-rights paragraph references MSPB but the cited authority is Article II, that mismatch itself may be relevant evidence for federal court jurisdiction.

Reading Your SF-50: The Codes That Determine Your Rights

The SF-50 (Notification of Personnel Action) is the official record of the action taken against you. The Notice of Action (NOA) code in Block 5-A is the single most important field for determining your appeal rights.

SF-50 NOA Codes for Separation

NOA Code	Action Type	Typical Forum
302	Resignation (voluntary)	Generally no MSPB appeal; potential federal court if coerced or constitutional violation
312	Retirement	No MSPB appeal (voluntary); OPM benefits dispute possible
317	Death	N/A
330	Transfer	No appeal (lateral movement)
350	RIF Separation	MSPB appeal under 5 CFR Part 351
351	RIF Separation (Reduction-in-Force)	MSPB appeal under 5 CFR Part 351
352	RIF Separation (SF-52)	MSPB appeal under 5 CFR Part 351
385	Involuntary Separation	MSPB appeal if competitive service career employee; consult attorney

Other SF-50 Blocks Worth Reading

• Block 5-B: Description of the action (additional context for the NOA code)
• Block 5-C: Authority for action (may reference statute, regulation, or constitutional provision)
• Block 5-D: Reason for action (the agency's stated rationale)
• Block 24: Tenure (1 = career; 2 = career-conditional; 3 = indefinite/temporary). Tenure affects MSPB appeal rights.
• Block 34: Position occupied (1 = competitive service; 2 = excepted service; 3 = SES). Excepted service employees have different appeal rights than competitive service.

If your SF-50 was issued AFTER you were already locked out of agency systems, save the email or PDF in a personal account and print a hard copy. Lost SF-50s can be reissued, but doing so takes time, time you may not have under the 30-day MSPB clock.

The Jurisdiction Decision Tree

This decision tree is text-based for accessibility. Walk through it with your termination letter in hand:

1. Does your letter cite Article II of the Constitution as the basis for removal?

   • Yes, only Article II: You may have direct federal court jurisdiction (per Comey and Comans). MSPB will likely disclaim. File in federal court within the applicable statute of limitations (consult an attorney for your specific claim type).
   • Yes, Article II AND Title 5 (CSRA): File in both forums to preserve rights. The MSPB 30-day clock and the federal court clock both run.
   • No, only Title 5 (CSRA): Standard MSPB appeal applies. File within 30 days of the effective date.
   • No legal authority specified: Likely a procedural defect. Consult an attorney within 7 days. The MSPB 30-day clock still runs.

2. Are you a probationary employee (under 12 months in your current position)?

   • Generally no MSPB appeal under 5 USC 7511. Exceptions: marital status discrimination, partisan political reasons. EEO and federal court avenues may still apply for constitutional or discrimination claims.

3. Did your letter cite "performance" as the basis?

   • If you are competitive service career, you have MSPB appeal rights under Chapter 43 (performance-based) or Chapter 75 (adverse action) of Title 5. 30-day clock applies.

4. Was the action a RIF (Reduction in Force)?

   • File MSPB appeal within 30 days. Note: OPM's proposed rule RIN 2026-02576 would transfer RIF appeals to OPM and strip judicial review, but it is NOT finalized as of today. Current MSPB right still exists.

The most expensive mistake fired employees make: assuming MSPB is the only option, filing only there, and missing the federal court window. The MSPB clock does not toll the federal court clock.

The 386,826 Federal Employees Affected

Partnership for Public Service derived this figure from OPM payroll data covering January 20, 2025 through January 2026. The breakdown:

Category	Headcount	Notes
Deferred Resignation Program (DRP)	136,822	Accepted buyout; technically "voluntary" but litigation challenging this characterization is ongoing
Formal Reductions in Force (RIF)	10,436	OPM-code-certified separations under 5 CFR Part 351
Other separations (retirements, resignations, expirations)	~239,568	Includes accelerated normal retirements, voluntary quits, term/temp expirations
Total	386,826

The 10,436 formal RIFs represent roughly 35x the historical baseline of ~300 per year. HHS and USAID alone accounted for 77.9% of all formal RIF separations. If you work at HHS or USAID, you are statistically far more likely to be in this dataset than a colleague at, for example, the Department of Energy.

For workforce-level context, see State of the Federal Workforce 2026, our flagship 2026 report with 50+ verified statistics on federal employment.

What to Do in the First 48 Hours

A practical action checklist for the first 48 hours after receiving a termination letter:

1. Save everything in personal storage. Forward your termination letter, SF-50, and recent emails to a personal email address. Save a PDF of your eOPF if you can still access it. Once your network access is revoked, you may not be able to retrieve these.
2. Read the legal authority cited. Article II, Title 5, 5 CFR Part 351, or something else? Use the decision tree above.
3. Note the effective date and calendar the deadlines. 30 days for MSPB. 45 days for EEO counselor contact. Federal court varies. Calendar all of them today.
4. Document your performance history. Your most recent 3 years of performance ratings, awards, and any positive reviews matter for both MSPB and federal court arguments. Save them now.
5. Consult a federal employment attorney within 7 days. Several firms offer free or low-cost initial consultations specifically for fired federal employees. Bring the letter, your SF-50, and your performance history.
6. Do not resign or sign anything in exchange for the firing being characterized differently. "Resign in lieu of removal" can foreclose appeal rights and may waive claims. Talk to an attorney before signing anything.
7. Apply for unemployment (UCFE) immediately. State workforce agencies process UCFE for furloughed/fired federal employees. Apply even if you plan to appeal: UCFE benefits cushion the gap and do not waive any other claims.

The most important step is the second one. The termination letter tells you where to fight.

What Has NOT Changed (Despite What You May Have Heard)

Several specific things have not changed, despite extensive coverage that may suggest otherwise:

• MSPB still exists. It still has jurisdiction over most CSRA adverse actions, including most RIF appeals. Appeals filed today are still being heard.
• The OPM proposed rule (RIN 2026-02576) eliminating MSPB jurisdiction over RIF appeals is NOT finalized. Comment period closed March 12, 2026. The rule remains proposed. Anyone telling you MSPB has been stripped of RIF jurisdiction is wrong.
• The 30-day MSPB appeal deadline is still 30 days. Despite jurisdictional questions, the clock runs from the effective date and missing it forfeits the appeal.
• Schedule Policy/Career conversions have not occurred yet. OPM finalized the rule in February 2026 targeting ~50,000 positions, but no employees have been actually converted as of today. If your position is converted, you become at-will only AFTER the conversion takes effect.

For the technical details of how the OPM RIF performance rule interacts with seniority, see the OPM RIF Performance Rule 2026 deep-dive. For broader RIF preparation context, the RIF Survival Guide 2026 walks through retention registers, bump and retreat rights, and severance.

Related Reading

The protections that have eroded for federal employees in early 2026 include collective bargaining rights for DoD civilians (DoD Union Contract Termination Survival Guide), RIF retention math under the proposed performance-based rule (OPM RIF Performance Rule 2026), and the broader workforce-restructuring picture (State of the Federal Workforce 2026). Together they form the context for why so many termination letters now cite constitutional authority instead of statutory authority.

Estimate Your Severance Before You File

Severance is not automatic. Whether you qualify depends on your separation type, years of service, and salary at the time of separation. Use the free FedTools Severance Pay Calculator to estimate what you may be owed under 5 U.S.C. § 5595. If you are also retirement-eligible (50+ with 20 years, or any age with 25 years), the FERS Retirement Calculator helps you compare an annuity-now scenario against a fight-for-reinstatement scenario.

Run your severance estimate →

Frequently Asked Questions

Can a fired federal employee sue in federal court instead of going to MSPB?

Sometimes. Two April 2026 federal court rulings (Comey v. DOJ in S.D.N.Y. on April 28; Comans v. FEMA in E.D. Va. on April 15) held that when a termination letter cites Article II of the Constitution as the sole basis, MSPB has no jurisdiction and the employee may sue in federal district court. If your letter cites only Title 5 (CSRA), the standard MSPB process applies. If it cites both, file in both forums.

What does it mean if my termination letter cites "Article II"?

It means the agency is asserting the President's constitutional removal authority over executive officers as the legal basis for your termination, instead of the Civil Service Reform Act. Two April 2026 rulings hold that this disclaimer of CSRA authority places the case outside MSPB jurisdiction. The remedy is to file in federal district court.

What is the deadline to appeal a federal employee termination?

30 calendar days for an MSPB appeal under 5 USC 7701, measured from the effective date of the action. 45 days for an EEO complaint under 29 CFR Part 1614. Federal court direct actions vary by claim type but are typically longer. The hidden trap: filing only with MSPB does NOT toll the federal court clock. If MSPB later disclaims jurisdiction, your federal court window may have already closed.

What are the SF-50 NOA codes that signal an involuntary termination?

Codes 350-352 indicate RIF separations (involuntary). Code 385 is involuntary separation. Code 302 is voluntary resignation. Code 312 is retirement. The NOA code in Block 5-A of your SF-50 is the single most important field for determining your appeal rights. Always check it before filing.

Should I file in both MSPB and federal court at the same time?

If your termination letter cites both Title 5 (CSRA) and Article II authority, yes, file in both forums to preserve all rights. Filing only with MSPB while MSPB later disclaims jurisdiction can cause your federal court statute of limitations to expire. The MSPB clock does not toll the federal court clock. Consult a federal employment attorney before filing in either forum.

Has the OPM proposed rule eliminating MSPB RIF appeals been finalized?

No. OPM's proposed rule RIN 2026-02576 was published February 10, 2026. Comment period closed March 12, 2026. As of today, the rule remains a proposed rule. Current MSPB jurisdiction over RIF appeals still exists. Anyone telling you MSPB has been stripped is wrong.

I am a probationary employee. Can I appeal to MSPB?

Generally no. Under 5 USC 7511, probationary employees do not have MSPB appeal rights for adverse actions. The exceptions are terminations based on marital status discrimination or partisan political reasons, which retain MSPB review. Probationary employees may also have EEO complaint rights for discrimination claims and federal court avenues for constitutional claims.

If I win, can I get my job back and back pay?

Possibly. The Back Pay Act (5 USC 5596) authorizes restoration to the position you would have held, with back pay, lost benefits, and interest if you prevail. MSPB and federal courts can both order reinstatement and back pay. Practical recovery varies by case complexity, agency cooperation, and the specific cause of action.

How is the 386,826 figure broken down?

Per Partnership for Public Service: 136,822 separated via the Deferred Resignation Program (technically voluntary), 10,436 via formal RIF (5 CFR Part 351), and approximately 239,568 via standard retirements, resignations, and expired appointments between January 20, 2025 and January 2026. HHS and USAID alone accounted for 77.9% of the formal RIF actions.

Do I need a lawyer?

Yes, in most cases. Federal employee termination law is technical and the jurisdictional rules are evolving. The 30-day MSPB clock and 45-day EEO clock run fast. Several law firms offer free or low-cost initial consultations specifically for fired federal employees. The most useful first action is reading your termination letter carefully for the legal authority cited, then bringing the letter and your SF-50 to a consultation.

A Note on Legal Advice

This post is informational, not legal advice. Federal employee termination law is technical and the jurisdictional rules are changing in real time. The rules described here apply to most federal employees in most situations, but every termination has unique facts. If you have been fired and you are considering an appeal, consult a federal employment attorney within 7 days of receiving your letter. The 30-day MSPB clock and 45-day EEO clock run fast.

Related Resources

• OPM RIF Performance Rule 2026: Full Technical Breakdown: The proposed scoring formula, three-rule package, and current status
• State of the Federal Workforce 2026: The 386,826 separations figure in full workforce context
• DoD Union Contract Termination Survival Guide: The CBA protections roughly 300,000 DoD civilians lost in April 2026
• RIF Survival Guide 2026: Retention registers, bump and retreat rights, severance
• Severance Pay Calculator: Estimate what you may be owed
• FERS Retirement Calculator: Compare annuity-now vs fight-for-reinstatement scenarios

Sources: Partnership for Public Service: Federal Workforce One Year Into Trump Administration · GovExec: Feds Trump Fired Can Take Appeals Directly to Federal Court · Lawfare: Maurene Comey's Firing Exposes the Limits of Thunder Basin · Federal Register: RIN 2026-02576 (OPM Proposed RIF Appeal Rule) · 5 U.S.C. § 7513 (Adverse Actions) · 5 U.S.C. § 5596 (Back Pay Act) · MSPB.gov Jurisdiction Overview · EEOC Pre-Complaint Process