Federal employment board pauses firing of 6 probationary staffers

A quasi-judicial board has temporarily blocked the firing of six federal employees who were terminated as the Trump administration directed agencies to oust probationary staffers — an early determination that the widespread firings may be illegal.

The order from the Merit Systems Protection Board (MSPB) returns those employees to their positions for 45 days — allowing the Office of the Special Counsel (OSC) to continue an investigation after finding the firings were likely illegal.

“The available evidence indicates that the agencies improperly used the relators’ probationary status to accomplish RIFs without affording them the substantive rights and due process to which they are entitled during the same,” the MSPB wrote in their order, referencing the OSC’s findings.

Special counsel Hampton Dellinger, who initially petitioned the MSPB, said late Tuesday that his work was “far from done” and urged agency heads to “immediately rescind any and every unlawful termination of probationary employees.”

The Trump administration earlier this month directed agencies to fire employees still on probation, a group of an estimated 200,000 workers who were hired within the past year or two. The probationary period varies by agency and also determines when employees are promoted. 

The order impacts only the six employees, each at different agencies, who brought claims to the OSC. 

Dellinger said earlier this week he plans to continue investigating the broader legality of the widespread firings. 

In his own recommendations to the MSPB, he found the firing of the employees equated to a runaround of federal laws requiring a reduction in force (RIF) for any layoffs. Probationary employees, while easier to terminate, must still be let go for cause, and the government is required to show proof of poor performance.

“I am very grateful the MSPB has agreed to postpone these six terminations,” Dellinger said in a statement.

“These stays represent a small sample of all the probationary employees who have been fired recently so our work is far from done,” he continued. “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.”

The special counsel added, “I urge agency leaders to voluntarily and immediately rescind any and every unlawful termination of probationary employees.”

The claims from the six employees were first brought to the OSC by Democracy Forward, alongside Alden Law Group, which specializes in employment law.

“The Merit Systems Protection Board’s decision to grant this stay is the correct result of a clearly unlawful and massively disruptive action by the Trump administration,” Democracy Forward President Skye Perryman said in a statement.

“We will continue to urge the Office of the Special Counsel and the MSPB to follow the law, protect all federal workers, investigate misconduct, and uphold the independence and integrity of our civil service.”

President Trump has targeted both Dellinger and the director of the MSPB, Cathy Harris, pushing to oust both.

But Dellinger and Harris have both been temporarily returned to their posts in decisions that have since been appealed by the Trump administration.

The Supreme Court last week declined to take an emergency appeal from the Justice Department in Dellinger’s case, determining it must still work its way through the court system.

Updated at 8:55 a.m. EST