Federal board orders USDA to temporarily reinstate dismissed probationary workers

The Merit Systems Protection Board (MSPB) has ordered the U.S. Department of Agriculture (USDA) to temporarily reinstate all probationary employees fired by the Trump administration.

The decision from the quasi-judicial board will allow just under 6,000 USDA employees to return to their posts for the next 45 days.

MSBP agreed with arguments from the Office of the Special Counsel, finding “reasonable grounds to believe that the agency terminated probationary employees not to eliminate poor performers, but instead as part of a reorganization, which required the use of [reduction in force] procedures.”

The MSPB order is the first since it agreed last week with a plea from Special Counsel Hampton Dellinger to temporarily reinstate probationary employees at six agencies – opening the door for consideration of other similarly situated federal workers.

The Trump administration last month ordered the firing of probationary employees – those who were either hired or promoted within the last year of two, a status that varies by agency.

Following a court loss however, the Office of Personnel Management updated its guidance on the matter, stressing that whether to fire probationary employees was up to each agency.

“Agencies are best positioned to determine the employees impacted by these mass terminations. That’s why I am calling on all federal agencies to voluntarily and immediately rescind any unlawful terminations of probationary employees,” Dellinger said in a statement on MSPB’s Wednesday decision.

“Voluntarily rescinding these hasty and apparently unlawful personnel actions is the right thing to do and avoids the unnecessary wasting of taxpayer dollars.” 

Dellinger had argued that agencies falsely cited bad performance in their rationale for dismissing employees, as probationary employees must still be fired for cause. Dellinger said agencies failed to assess each employee and were instead using the process to conduct widespread layoffs – something the government requires be done through the reduction in force process.

Dellinger has said he would continue to review similar actions at other impacted agencies.

Democracy Forward, which initially brought the complaint to the Office of the Special Counsel, applauded the decision.

“The Merit Systems Protection Board has again confirmed that the Trump-Vance administration’s firing of tens of thousands of hard-working federal employees is unlawful. We are gratified that this unlawful action has been stayed for USDA employees, and we remain committed to ensuring the tens of thousands of other civil servants receive this same reprieve,” Skye Perryman, the group’s president, said in a statement.

Dellinger and the head of the MSPB, Cathay Harris, were also previously fired by the Trump administration. Judges have returned both Harris and Dellinger to their posts, though the Trump administration has appealed each ruling.