Kennedy Said "Better People": What Every Career Fed Should Know About RIF Protections

Last Updated: April 23, 2026 Reading Time: 11 min

HHS Secretary Kennedy told Congress he replaced 20,000 fired HHS workers with "a better group of people." Separately, an AP investigation this month documented ICE hiring 12,000 officers with prior misconduct, failed police academies, and incomplete background checks via Direct Hire Authority that bypassed standard safeguards. Both stories tell career federal employees the same thing: understand your RIF protections, because your retention register standing is the legal wall between you and an arbitrary separation. This guide is not about the politics. It is about the law and the concrete actions every career fed should take this month.

Key Takeaways

• Kennedy's "better group" quote, said at congressional hearings on April 16 and 21, 2026, describes a personnel-quality judgment, not organizational necessity. Federal employment lawyers call this a textbook pretext argument for MSPB appeals.
• RIF retention registers follow four factors in strict statutory order: tenure group, veterans preference subgroup, length of service, performance. A higher-ranked employee cannot be separated before a lower-ranked one.
• Veterans hold the strongest individual RIF protection. 30%-disabled vets are Subgroup AD and have retreat rights across 5 grade levels.
• You have 30 calendar days from the effective date to file an MSPB appeal. That window does NOT extend for late-found evidence.
• If you're separated, register on the Reemployment Priority List within 2 years to get statutory recall priority over outside hires.
• OPM has a proposed rule (FR 2026-04377) that would reorder retention to put performance ahead of veterans preference. Comment period closed May 4, 2026. Not yet final.

What Kennedy Actually Said

At congressional hearings on April 16, 2026 (House Ways and Means; House Appropriations LHHS Subcommittee) and April 21, 2026 (Senate Appropriations; House Energy and Commerce), HHS Secretary Robert F. Kennedy Jr. defended the elimination of approximately 20,000 HHS positions (10,000 via RIF, 10,000 via incentives/attrition).

Three statements matter legally:

1. "We've replaced them with a better group of people who are actually going to address chronic health." Reported by NBC News and multiple outlets. This is the 2,434-upvote Reddit quote.

2. "I do not [believe HHS suffered from the cuts]. We are now rightsizing." April 21, Senate Appropriations.

3. Kennedy acknowledged hiring 12,000 new HHS employees. He told senators, "We will have made up all the employees that we lost." He also acknowledged that hiring into previously eliminated positions could invite legal challenges from laid-off employees.

Kennedy also stated the firings were White House-directed, not agency preference. That admission is itself significant: RIF law requires agencies to justify separations on their own organizational grounds, independent of political directives.

Why Those Statements Matter Legally

Under 5 U.S.C. Chapter 35 and implementing regulations at 5 CFR Part 351, a RIF must be justified through organizational reasons: budget constraints, lack of work, or restructuring. A RIF cannot be used to remove employees based on perceived performance quality, ideological fit, or individual suitability. Those are the legal standards for Chapter 43 performance-based removal (which requires a PIP, notice, and appeal rights) or Chapter 75 adverse action (which requires 30-day notice and appeal rights).

When an agency official characterizes a RIF as replacing employees with a "better group," that framing realigns the stated purpose from organizational necessity to personnel quality. That is what federal employment lawyers call a pretext argument: evidence that the stated organizational reason masks a different, impermissible motive.

Affected HHS employees have ~30 days from the effective date of their personnel action to file an MSPB appeal. Kennedy's public statements, if introduced in that appeal, directly contradict the agency's obligation to justify the RIF on organizational grounds. That does not guarantee a win. It does shift the evidentiary posture substantially in the employee's favor.

The RIF Retention Register: How It Actually Works

Under 5 U.S.C. § 3502 and 5 CFR § 351.501, when a RIF occurs, every employee within a "competitive area" is placed on a retention register ranked by four factors in strict order:

Factor 1: Tenure Group

• Group I: Career employees not on probation (highest priority)
• Group II: Probationers and career-conditional employees
• Group III: Term, temporary, and similar (lowest priority)

Factor 2: Veterans Preference Subgroup

Within each tenure group, employees are divided into:

• Subgroup AD: Veterans with 30%+ service-connected disability (highest)
• Subgroup A: All other preference-eligible veterans
• Subgroup B: Non-veterans

Factor 3: Length of Service

Measured via the Service Computation Date for RIF (SCD-RIF), which includes active military service if creditable.

Factor 4: Performance Ratings

Average of most recent performance ratings. Under current rules, this serves as a tiebreaker when factors 1-3 are equal.

The rule: An employee in a higher group or subgroup CANNOT be separated before an employee in a lower group or subgroup within the same competitive level. This is statutory, not discretionary. An agency that violates the order is subject to reinstatement via MSPB appeal.

Three Legal Mechanisms That Block "Replacement Hiring"

1. Position abolishment must be genuine

A RIF requires actual abolishment of positions. If the agency eliminates a position via RIF and then posts the same or substantially equivalent position, it raises pretext questions. Courts and MSPB have consistently held that agencies cannot use a RIF as a backdoor for-cause removal.

Kennedy's explicit testimony that HHS is hiring 12,000 replacements for the ~20,000 separated could be used as direct evidence on this point. An agency cannot say "we don't need these jobs anymore" during the RIF process and then say "we're refilling these jobs with better people" six months later.

2. Competitive areas and competitive levels

Employees in the same competitive level (same grade, series, employment conditions) in the same competitive area compete for retention. Agencies cannot artificially carve out competitive areas to exclude certain employees from the retention register. The boundaries of the competitive area are themselves subject to MSPB review.

3. Reemployment Priority List (RPL)

Under 5 CFR Part 330 Subpart B, if an agency RIFs an employee and then fills that position (or any position the employee qualifies for within 2 years), the RPL-registered former employee has priority over outside hires. The catch: you must affirmatively register on the RPL. Registration is NOT automatic at separation.

Your Tenure Group Is the Most Important Number You Don't Know

Most federal employees cannot say off the top of their head what tenure group they're in. You should be able to. Your SF-50 shows it in Block 24 (Tenure). Check it:

• If you're career and past probation: Group I
• If you're career-conditional or on probation: Group II
• If you're term or temporary: Group III

If you're Group I with veterans preference and long service, your retention register ranking is substantially above most colleagues. If you're Group III, your ranking is substantially below. This has real consequences when agencies are determining who goes first.

The ICE Counterpoint: How Hiring Standards Are Being Applied

Separately but relevantly, the AP's April 17, 2026 investigation found ICE's unprecedented hiring surge (from ~10,000 to 22,000+ officers in about four months) used Direct Hire Authority that bypassed many of the safeguards career feds rely on.

AP-documented specifics:

• 220,000+ applications, 12,000 hired
• Some applicants started working on tentative status before background checks completed
• Training at FLETC reduced from ~6 months to ~6 weeks
• Non-ICE training programs "severely curtailed" to make room
• Direct Hire Authority bypassed competitive rating, ranking, and veterans preference in hiring
• Named individual hires with prior misconduct (felony assault charges, failed police academies, false-arrest lawsuits, bankruptcies)

The point is not that Direct Hire Authority is illegal (it's not; it's authorized under 5 U.S.C. § 3304 when OPM certifies a critical hiring need). The point is that when agencies want to hire fast, DHA lets them cut corners that standard competitive hiring would catch. Career feds watching their own agencies RIF should note: when agencies want people out, they apply procedures by the book. When they want people in, those procedures become flexible.

OPM's Proposed Rule: What Would Change

On March 5, 2026, OPM published a proposed rule (FR Doc. 2026-04377) that would reorder RIF retention factors to:

1. Tenure group
2. Performance (moved up)
3. Veterans preference (moved down)
4. Length of service

The comment period closed May 4, 2026. The rule is NOT yet final. If finalized, it would mean performance ratings determine retention order before veterans preference does. That's a material change. Veterans groups and unions have filed heavy opposition. If finalized, the rule would likely face APA and constitutional challenges.

Until the rule is final, the existing order (tenure, veterans, length, performance) controls. If your agency attempts to apply the proposed order prematurely, that is itself appealable.

Your April 2026 Action Checklist

Five things every career fed should do this month, especially if you're in an agency undergoing restructuring:

1. Pull your SF-50 and verify tenure group

Block 24 shows your tenure group. If it's wrong, correct it with HR now, not during a RIF.

2. Confirm veterans preference status

Block 23 shows preference code. If you're a 30%-disabled veteran, verify you're coded AD, not just A. Disability rating documentation from VA must be on file.

3. Request your SCD-RIF in writing

Your Service Computation Date for RIF determines length-of-service ranking. It includes creditable military service. Ask HR in writing to confirm it and provide the calculation. Errors are common and costly at RIF time.

4. Save your recent performance ratings

Pull the last 3-5 years of performance appraisals. Save copies to personal storage. Under the current rule performance is a tiebreaker; under the proposed rule it would be a primary factor.

5. Know your union's RIF legal support

AFGE, NTEU, NFFE, and agency-specific unions offer RIF appeal support. If you're a member, know the contact path. If not, membership may pay for itself at a single RIF event.

If You've Already Been Separated

File within 30 days

MSPB appeals must be filed within 30 calendar days of the effective date of the personnel action. This window is strict. The MSPB online portal at mspb.gov accepts filings. Specific grounds to raise in your appeal:

• Retention register errors (wrong tenure group, veterans preference, or SCD-RIF)
• Competitive area manipulation
• Pretext (public agency statements contradicting the organizational justification)
• Procedural errors (notice timing, SF-50 language, furlough vs. separation distinctions)

Consult a federal employment attorney early. Free initial consultations are common.

Register on the RPL

Register with your former agency's HR office. RPL gives you statutory recall priority for 2 years from separation. Keep your contact information, qualifications, and availability dates updated.

Calculate your severance

Schedule F employees, RIF-separated career employees, and most other excepted-service employees maintain severance eligibility under 5 U.S.C. § 5595. Use the Severance Pay Calculator to know your number before you accept any separation agreement.

Consider VERA and VSIP if offered

If your agency offers Voluntary Early Retirement Authority or Voluntary Separation Incentive Pay before the RIF hammer drops, run the numbers. Use the VERA Eligibility Checker and the FERS Retirement Calculator. VERA + VSIP together may substantially exceed what you'd receive post-RIF.

Calculate Your Numbers

• Severance Pay Calculator: Know your separation pay before accepting anything.
• VERA Eligibility Checker: Voluntary Early Retirement eligibility.
• FERS Retirement Calculator: Full retirement vs. MRA+10 modeling.
• High-3 Calculator: Pin down your actual High-3 salary.

Frequently Asked Questions

What did Kennedy actually say about replacing HHS workers?

At congressional hearings on April 16 and 21, 2026, Kennedy said "We've replaced them with a better group of people who are actually going to address chronic health." He also acknowledged hiring 12,000 new HHS workers and said "we will have made up all the employees that we lost." He told senators the firings were White House-directed.

Why do Kennedy's statements matter legally?

A RIF must be justified on organizational grounds, not personnel quality. Characterizing it as replacing with a "better group" describes personnel quality, which is the Chapter 43 standard for performance removal (not RIF). Employment lawyers call this a pretext argument. Affected employees can cite the quotes in MSPB appeals.

What order do RIF retention registers follow?

Four factors in strict order: (1) Tenure group; (2) Veterans preference subgroup (AD > A > B); (3) Length of service via SCD-RIF; (4) Performance ratings as tiebreaker. Higher-ranked employees cannot be separated before lower-ranked ones in the same competitive level.

Can an agency RIF me and then refill my job?

Not legally. A RIF requires actual position abolishment. If the agency refills the same or substantially equivalent position, it raises pretext questions. Courts and MSPB have held agencies cannot use RIF as a backdoor for-cause removal. You also have RPL recall priority for 2 years.

How do I file an MSPB appeal on a RIF?

File within 30 calendar days of the effective date via mspb.gov. Cite retention register errors, veterans preference violations, or pretext evidence. Consult a federal employment attorney early. The 30-day window does not extend.

What happened with ICE hiring?

AP investigation documented ICE hiring 12,000 officers through Direct Hire Authority that bypassed competitive ranking and veterans preference. Officers with prior misconduct, failed police academies, and false-arrest lawsuits were hired. Some started working before background checks completed. Training was cut from ~6 months to ~6 weeks.

Do veterans get RIF priority?

Yes, the strongest individual RIF protection. Subgroup AD (30%+ disability) is highest, Subgroup A (other preference-eligible) is next, Subgroup B (non-veteran) is lowest. Preference-eligible veterans cannot be separated before non-veterans in the same tenure group and competitive level. 30%-disabled veterans have retreat rights across 5 grade levels.

What is the Reemployment Priority List?

Statutory recall mechanism under 5 CFR Part 330. Register within 2 years of separation to get priority over outside hires when your agency fills positions you qualify for. Must be affirmatively registered; not automatic. Keep your information current.

Related Resources

• RIF Survival Guide 2026: Step-by-step from notice to appeal to recovery.
• Federal Rehiring After DOGE Cuts 2026: The separate but adjacent rehiring story.
• Former Federal Employees Job Market 2026: Post-separation career transition.
• Severance Pay Calculator
• VERA Eligibility Checker
• FERS Retirement Calculator

Sources

• 5 U.S.C. § 3502: RIF retention standards.
• 5 CFR Part 351: Implementing RIF regulations.
• OPM Proposed Rule FR Doc 2026-04377: Proposed retention-order change.
• AP Investigation: ICE Hiring Spree: Primary investigation source.
• GovExec, Kennedy Senate testimony: Kennedy's acknowledgment of hiring plans.
• MSPB Appeal Filing Portal: Where to file a RIF appeal.
• 5 CFR Part 330 Subpart B: Reemployment Priority List rules.
• 5 U.S.C. § 3304: Direct Hire Authority.
• 5 U.S.C. § 5595: Severance pay eligibility.
• OPM RIF Guide: Official OPM overview.