MSPB Ruling: Federal Employees Can't Be Fired After Probation Without Due Process

Disclaimer: This article provides general information, not legal advice. Consult a federal employment attorney for your specific situation.

An MSPB administrative judge just ruled that agencies cannot fire tenured federal employees using probationary termination rules, even if they claim the employee was "automatically terminated" under new Civil Service Rule XI.

The case, Laboy v. CISA, could affect thousands of federal employees who were terminated after their probationary periods ended but without the due process protections they were legally entitled to.

Here's what happened, who this protects, and what you should do if this applies to you.

Key Takeaways

• MSPB ruled CISA violated an employee's due process rights by firing him one day after his probation ended
• Statutory protections under 5 U.S.C. 7511-7513 override conflicting executive order regulations
• If you were terminated after your probationary period ended without 30 days notice and 7 days to respond, you may have a case
• Multiple similar cases are pending with the same fact pattern
• CISA has until March 5, 2026 to appeal to the full MSPB board

The Case: Laboy v. CISA

Denyzio Laboy worked in the Equal Employment Opportunity office at the Cybersecurity and Infrastructure Security Agency (CISA). His one-year probationary period ended on November 5, 2025.

CISA terminated him on November 6, 2025.

One day too late.

Because Laboy had already become a tenured employee on November 5, CISA was required to provide him with full due process protections before termination:

• 30 days advance written notice stating specific reasons
• At least 7 days to respond orally and in writing
• Right to representation by an attorney
• Written decision with specific reasons
• Right to appeal to MSPB

CISA provided none of this. They used probationary termination procedures instead, giving no notice and no reason.

The Judge's Ruling

Administrative Judge Steven Giballa ruled in Laboy's favor. The key finding: when OPM regulations conflict with statutory protections, the statute wins.

The judge ordered:

• Reinstatement to his position at CISA
• Back pay from November 2025 through reinstatement
• Full restoration of benefits and leave

Why This Matters: Civil Service Rule XI

In April 2025, President Trump signed an executive order creating Civil Service Rule XI. This rule changed how probationary periods work:

Before Rule XI:

• Employees automatically became tenured after their probationary period ended
• Agencies had to actively terminate probationary employees before the anniversary date

After Rule XI:

• Agencies must "affirmatively certify" employees within 30 days of their anniversary
• Without certification, employees are supposedly "automatically terminated"
• Agencies no longer required to give reasons for probationary terminations

Some agencies used this rule to terminate employees after their probationary periods ended, claiming the automatic termination provision applied retroactively.

The Laboy ruling says that's wrong. Once you become tenured, your statutory rights kick in immediately. An executive order cannot override those protections.

Who This Ruling Protects

Definitely Protected

1. Employees terminated after their probationary period ended, even by one day
2. Career competitive service employees who completed their one-year probationary period
3. Excepted service employees who completed their two-year trial period
4. Employees whose agencies claimed "automatic termination" under Rule XI after the anniversary date

Not Protected by This Ruling

1. Employees properly terminated during their probationary period
2. Employees terminated on or before their anniversary date
3. Schedule Policy/Career (Schedule F) employees, who have a different legal framework

What To Do If This Happened To You

If you were terminated after your probationary period ended without receiving the due process protections described above, take these steps immediately:

Step 1: Document Everything

Gather these documents:

• Your SF-50 showing your appointment date
• Your termination notice (if you received one)
• Any communications about your termination
• Your personnel file if accessible

Step 2: Calculate Your Dates

Compare your appointment date to your termination date. For competitive service, your probationary period is one year. For excepted service, it's two years.

If your termination date was after your anniversary date, you may have a case.

Step 3: Contact Help

Reach out to:

• A federal employment attorney (Gilbert Employment Law is handling multiple similar cases)
• Your union representative (if applicable)
• MSPB to understand the appeal process

Step 4: File an MSPB Appeal

Tenured employees have the right to appeal adverse actions to MSPB. There are strict deadlines, typically 30 days from the effective date of the action. Don't wait.

The Bigger Picture: Schedule F and RIF Concerns

This ruling arrives at a critical time for federal employees. Here's the context:

Schedule Policy/Career (Schedule F): OPM estimates roughly 50,000 career employees will be reclassified as "at-will" under this new schedule in 2026. These employees would lose civil service protections entirely.

RIF Freeze Expired: The RIF freeze from the continuing resolution expired January 30, 2026. New RIFs are now possible.

OPM's MSAC Proposal: OPM has proposed moving probationary employee appeals from the independent MSPB to OPM's own Merit System Accountability and Compliance office. This would give OPM control over both directing terminations and adjudicating appeals, eliminating meaningful independence.

The Laboy ruling is good news because it reinforces two important principles:

1. Statutory protections cannot be eliminated by executive order alone
2. Due process rights are constitutional, even for federal employees

What Happens Next

CISA has until March 5, 2026 to appeal to the full MSPB board. If they appeal and lose, the ruling becomes binding precedent that other employees can cite.

Attorney Chloe Barrett from Gilbert Employment Law, who represented Laboy, says her firm is handling multiple similar cases with identical fact patterns. A favorable full board decision could help many federal employees win reinstatement.

Evaluate Your Options

If you're facing a potential termination or separation, understand all your options before making decisions.

Use our free Severance Pay Calculator to estimate what you'd receive if separation is inevitable.

If you're considering early retirement, check our VERA Eligibility Checker to see if you qualify.

For full retirement planning, the FERS Retirement Calculator can help you understand your pension and benefits.

Important Dates to Watch

Date	Event
November 5, 2025	Laboy became tenured
November 6, 2025	CISA terminated Laboy (one day too late)
January 2026	MSPB Administrative Judge rules in Laboy's favor
January 30, 2026	RIF freeze from CR expired
March 5, 2026	Deadline for CISA to appeal to full MSPB board

Frequently Asked Questions

What does tenured mean for federal employees?

A tenured federal employee has completed their probationary period, typically 1 year for competitive service or 2 years for excepted service. Tenured employees have full civil service protections under 5 U.S.C. 7511-7513, including advance notice, opportunity to respond, and appeal rights before termination.

How do I know if I'm a tenured or probationary federal employee?

Check your SF-50 (Notification of Personnel Action). Your probationary period typically ends one year after your appointment date for competitive service, or two years for excepted service. If that anniversary has passed and you haven't received a termination notice, you should be tenured.

What is Civil Service Rule XI?

Civil Service Rule XI was created by President Trump's April 2025 executive order. It requires agencies to certify probationary employees for continued employment within 30 days of their anniversary date. Without certification, employees are supposedly automatically terminated. However, the MSPB ruled this rule cannot override statutory due process protections.

Can the MSPB ruling be overturned?

CISA can appeal to the full MSPB board by March 5, 2026. If the full board upholds the ruling, it becomes binding precedent. Either party could then appeal to the U.S. Court of Appeals for the Federal Circuit. However, the core principle that statutes override conflicting regulations is well-established law.

Does this ruling protect me from a RIF?

Not directly. RIFs follow different procedures under 5 CFR Part 351. However, tenured employees have "bump and retreat" rights in RIFs that probationary employees lack. If you're tenured, you have more RIF protections than if agencies could reclassify you as probationary.

Sources

• Federal News Network: MSPB: Tenured employees can't be fired under probationary period rules
• 5 U.S.C. 7513: Cause and procedure
• White House: Strengthening Probationary Periods in the Federal Service
• Gilbert Employment Law: Probationary Period Rules
• Government Executive: Probationary appeal rights under further threat by OPM proposal

Related Resources

• Severance Pay Calculator: Estimate your federal severance pay
• VERA Eligibility Checker: See if you qualify for early retirement
• RIF Survival Guide 2026: Complete guide to federal layoffs
• Federal Workforce Outlook 2026: Current trends and what to expect