The order requires their agencies—Education, Energy, HUD, OPM, VA and Agriculture—to reinstate them in their prior positions with no changes in duties for 45 days while the OSC looks into their firings. Image: Image: Rena Schild/Shutterstock.com
By: FEDweek StaffThe MSPB has granted the Office of Special Counsel’s request to temporarily block the firings of six probationary employees, ordering their agencies to reinstate them, in a first case potentially opening the door for similar challenges from thousands more.
“Considering the deference that should be afforded to OSC in the context of an initial stay request and the assertions made in the instant stay request, I find that there are reasonable grounds to believe” that the employing agencies committed prohibited personnel practices, MSPB member Raymond Limon wrote in an order representative of each case.
The OSC alleged that the employees had been fired without the type of specific description of inadequate performance needed for firing even a probationary employee, and that agencies failed to follow reduction in force rules providing protections such as advance notice and preference for veterans and those with high performance ratings.
While not ruling on those allegations, the order cites the OSC’s assertions that “none of the six relators had any noted performance deficiencies” and that “the agencies misused the relators’ probationary status to effect de facto RIFs without following the requisite RIF laws and regulations.” That met the standard that a stay request “need only fall within the range of rationality” to be granted, it says.
The order requires their agencies—Education, Energy, HUD, OPM, VA and Agriculture—to reinstate them in their prior positions with no changes in duties for 45 days while the OSC conducts a further investigation into whether to bring a formal complaint to the MSPB. The “stays” potentially could be extended pending such a complaint.
“These stays represent a small sample of all the probationary employees who have been fired recently so our work is far from done,” the Special Counsel Hampton Dellinger said in a statement. “Agency leaders should know that OSC will continue to pursue allegations of unlawful personnel actions, which can include asking MSPB for relief for a broader group of fired probationary employees. I urge agency leaders to voluntarily and immediately rescind any and every unlawful termination of probationary employees.”
Dellinger currently is remaining in office under a similar situation; a court has temporarily blocked his firing by the White House while it considers his contention that the firing did not meet the legal standards for firing someone in his position.
The order comes as tens of thousands of probationary employees have been fired, commonly through emails containing boilerplate language such as that their “performance has not been adequate to justify further employment.” Those firings are continuing this week at agencies including DoD and VA.
Several lawsuits already are pending in federal court challenging the layoffs and several law firms are preparing to bring class action-type cases directly to the MSPB.
Number of Cases Received in
MSPB’s Regional and Field Offices
Fiscal Year 2025
The MSPB meanwhile posted a notice showing that in the two weeks ending February 22, its hearing offices received more than 2,400 appeals—more than had been filed collectively since last September—presumably many of them involving probationary employees challenging their removals on similar grounds.
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