Federal board stays firing of six probationary workers, opening door to further challenges

A quasi-judicial body within the U.S. government granted requests to stay the terminations of six fired probationary workers Tuesday, potentially clearing a path for similar challenges.

The U.S. Merit Systems Protection Board, a body within the executive branch that hears appeals from federal workers, granted the requests by the independent Office of Special Counsel, which had found “there are reasonable grounds to believe that agencies engaged in prohibited personnel practices.” 

The decision delivers a win to federal probationary workers who have been subject to the mass firings at multiple federal agencies after at least one other attempt to pause the terminations in federal court failed. And advocates who filed the initial complaint with OSC are already looking into broadening the scope of the pause. 

In a Tuesday press release, Democracy Forward and Alden Law Group said they’re working “to expand the stay to cover all probationary federal employees who were unlawfully terminated.” 

The initial complaint filed with OSC earlier this month urged the independent federal investigative agency to review the firings. On Monday, OSC confirmed that Special Counsel Hampton Dellinger filed the requests with the MSPB on Friday. Those requests sought 45-day stays in the “impermissible terminations” of the six workers. Specifically, OSC said terminating the employees appears to flout federal laws governing probationary firings and reductions in force. That action by OSC was first reported by Government Executive. 

According to a redacted copy of one of Dellinger’s requests, the agencies where the affected probationary employees worked were the Office of Personnel Management and the departments of Veterans Affairs, Education, Energy, Housing and Urban Development, and Agriculture.

Democracy Forward and Alden Law Group later supplemented the complaint on Saturday to add 14 additional agencies. According to their press release, while the MSPB stay covers the six representative employees, “the complaint requests that OSC seek relief on behalf of all similarly situated probationary employees.”

In addition to the advocates, OSC has also indicated there could be further legal action. In its Monday statement on the requests, OSC said Dellinger believes that there are other probationary workers “similarly situated to the six workers for whom he currently is seeking relief” and he is “considering ways to seek relief for a broader group without the need for individual filings with OSC.”

While firings have often cited “performance” as a reason, workers and their unions have pushed back on those claims, saying agencies lack evidence. Unions have also challenged the personnel actions in federal court, though a federal judge last week denied a request for injunctive relief on standing grounds.  

In a statement from Dellinger included in the OSC’s release, the special counsel pointed to the merit system principles established in the Civil Service Reform Act that guide federal agencies, saying those principles establish that all federal employees should be evaluated on individual performance, including probationary workers.

“Firing probationary employees without individualized cause appears contrary to a reasonable reading of the law, particularly the provisions establishing rules for reductions in force,” Dellinger said.

OSC’s mission, per its website, is to “safeguard the merit system by protecting federal employees and applicants from prohibited personnel practice. According to the example stay request, OSC said it can request any member of the Merit Systems Protection Board to order a 45-day stay if the special counsel determines there are reasonable grounds to believe that a personnel action was or will be taken “as a result of a prohibited personnel practice.” 

In its release, the OSC noted that it doesn’t typically comment on requests for stays before a decision is made by the MSPB and Dellinger didn’t comment publicly on the request before “its apparent disclosure by one of the agencies named as a respondent.” The special counsel, however, provided his statement as the requests were being discussed publicly. 

This story was updated Feb. 26 to reflect the MSPB decision.