A 45-day stay ordered by the MSPB requires that laid off probationary employees be placed in the positions that they held prior to their firing. Image: Jonathan Weiss/Shutterstock.com
The MSPB has blocked the firings of some 5,900 Agriculture Department probationary employees and ordered them reinstated, in an order that represents a major escalation of the legal disputes over similar firings across the government.
A 45-day stay ordered by MSPB member Cathy Harris requires that probationary employees laid off from the department since February 13 “shall be placed in the positions that they held prior” to their firing. It came at the request of the Office of Special Counsel, which had asked for the stay while it decides whether to bring formal charges that the firings violated federal personnel law.
The order follows a similar one the MSPB issued last week, also at the OSC’s request, against the firings of one employee each in a sample of six departments and agencies—Agriculture, Education, Energy, HUD, OPM and VA. That was seen as a test for possible similar cases against entire agencies, a prediction that has now proven accurate with the new case involving all of Agriculture.
As in the first request, the OSC argued that there is evidence of violations of requirements to provide even probationary employees with a specific notice of deficiency when firing them by using boilerplate language that they had not demonstrated that their continued employment would “be in the public interest.” It also repeated the argument of the first that the layoffs constituted a reduction in force but did not follow laws and rules governing RIFs such as those giving retention preferences for veterans and for employees with high performance ratings.
“Because there is a possibility that additional individuals . . . may be affected by these probationary terminations, and given the assertions made in OSC’s initial stay request and the deference to which we afford OSC in the context of an initial stay request, I find that there are reasonable grounds to believe” that the department committed a prohibited personnel practice, Harris wrote.
In addition to reinstating the employee the OSC cited, she said “all other probationary employees whom the agency has terminated since February 13, 2025, pursuant to letters stating, ‘The [a]gency finds, based on your performance, that you have not demonstrated that your further employment at the [a]gency would be in the public interest,’ shall be placed in the positions that they held prior to the probationary terminations.”
Following the order, Special Counsel Hampton Dellinger called on “all federal agencies to voluntarily and immediately rescind any unlawful terminations of probationary employees.” He noted that OPM recently revised the email it sent in January that started the process to deny that it was ordering the layoffs and to say instead that they are at an agency’s discretion. That came after a federal district court paused, largely on the same grounds as in the two cases before the MSPB, the continued firing of probationary employees at six other agencies—NPS, BLM, VA, DoD, SBA, and FWS.
Dellinger added, “My agency will continue to investigate and take appropriate action on prohibited personnel practices including improper terminations of probationary employees. Voluntarily rescinding these hasty and apparently unlawful personnel actions is the right thing to do and avoids the unnecessary wasting of taxpayer dollars.”
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