MSPB Restores 6 Federal Employees to Employment for Now
The Merit Systems Protection Board (MSPB) ruled favorably yesterday for terminated probationary federal employees. The ruling was significant as it could help other federal employees terminated while on probation. Terminated probationary employees should seek federal 
employment counsel to preserve their rights.
Probationary Federal Employees
Most federal employees begin their federal employment in a probationary status that lasts one year before they are converted to permanent employees. Usually, there is a narrow basis on which to challenge federal probationary period appeals. During this probationary period, federal agencies can terminate them without much effort and for practically any reason.
Probationary Period Termination Appeals
Probationary employees still have the right to challenge their terminations based on partisan political or marital statusdiscrimination at the MSPB. Additionally, probationary employees can file appeals through the Equal Employment Opportunity (EEO) complaint process for discrimination or at the Office of Special Counsel (OSC).
Government Efforts to Fire Probationary Federal Employees
As most federal employees know, the government started firing probationary employees over the last 2 weeks. This resulted from a January 20, 2025 memorandum issued by the Office of Personnel Management (OPM) seeking lists of all federal agency probationary employees employed. The number of terminations was massive in scope and exact numbers are unavailable right now. In addition, there are still probationary employes on the job that could be subject to termination who have not been terminated yet. Best estimates put the number of affected employees at approximately 220,000. Furthermore, some probationary employees have already filed appeals with the OSC or MSPB, which are likely pending review. In a case handed down last night, the MSPB stayed the probationary terminations of six employees based on the legal arguments made by the OSC.
How did the OSC get Involved, and What did they Argue?
Several federal employees filed a complaint about their probationary terminations with the OSC. The OSC reviewed their cases and agreed. They filed cases with the MSPB for six federal employees fired in their probationary periods. The OSC requested a stay of the terminations and asked that the government delay them because it appeared that the government had violated federal law. Specifically, the OSC alleged that the government was engaged in prohibited personnel practices under the U.S. Code. The MPSB opinion listed the OSC arguments:
“[The] OSC states that the personnel actions at issue, i.e., the probationary terminations, violate the following laws and regulations governing RIFs and probationary terminations: (1) 5 U.S.C. § 3502; (2) 5 C.F.R. part 351; and (3) 5 C.F.R. § 315.801 et seq. SRF, Tab 1 at 12-13. OSC asserts that the identified statute and regulations concern five of the nine merit system principles.” MSPB Opinion, page 4.
OSC Argued Five Key Points
The OSC argued that the government disregarded 5 prohibited personnel practices from the U.S. Code, including:
Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.
All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.
The Federal work force should be used efficiently and effectively.
Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.
Employees should be—
(A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes.”
MSPB Opinion, page 5.
One of the major arguments that the OSC made was that the government attempted to conduct a Reduction-in-Force without providing probationary employees their rights and due process. The OSC made other arguments as well. The MSPB reviewed the OSC request to stay the six probationary terminations and approved it. The MSPB Decision is listed here. The MSPB ordered that the six employees be returned to their positions for now. The stay is expected to last at least 45 days and perhaps a lot longer.
What are the Next Steps for Probationary Employees?
Since the OSC received a stay of probationary employee removals from the MSPB, federal employees now seem to have a better chance of appealing their blanket terminations. Indeed, given the MSPB ruling, many federal probationary employees will argue that they were not provided RIF rights either. Many may also argue, given the public statements made, that the terminations were the result of political discrimination. There may be other legal arguments made that have not been focused on yet.
Strategy Considerations for Probationary Employees?
We have been advising probationary federal employees that if they are terminated, they should consider appealing to the MSPB or OSC, depending on their situation. The process may not be fast, given that the OSC case is in litigation, but you could lose your right to challenge the termination if you wait beyond 30 days to file with the MSPB. The best advice is to seek legal counsel and ensure you preserve your rights in the best manner possible.
Contact Us
If you are a federal probationary employee in need of legal assistance, please call our office at (703) 668-0070 or through our website. Our lawyers represent federal employees nationwide before their federal agencies, the MSPB and other forums.
Social Media Use by Federal Employees
For the past 7-10 years, we have seen social networking issues continue to arise in our representation of federal employees in the federal workplace. The bottom line is that it general makes sense to avoid using social media in the federal workplace. Numerous issues keep arising with federal 
employees being subject to discipline or even removal for use of social media. We frequently represent federal employees accused of misconduct involving social media in the federal workplace. Some tips and thoughts follow.
Pitfalls of Social Media Use in the Federal Workplace
Federal agencies use information posted on Facebook, X, Instagram, Linked In and other social networking sites when they discipline federal employees. Many federal employees have had to appeal these issues to the Merit Systems Protection Board (MSPB) when they receive serious discipline or removal.
Anything that is posted on a social networking site like Facebook or X can potentially be brought back into the federal workplace. Some federal agencies have removed federal employees for their use of social media. Delfora v. Dep’t of Navy, 2024 MSPB LEXIS 4141 (July 15, 2024) (Appellant removed, in part, for posting an article on workplace violence on social media; Vidal v. Army, 2011 MSPB Lexis 4788 (Aug. 5, 2011) (Agency removed employee because of alleged anxiety producing comment on Facebook that was reported at work).
Other Social Media Cases of Concern
Other federal agencies have also attempted to discipline federal employees where they have called in sick, but then used posted information on social networking sites to show that the employee was untruthful in using sick leave. Hunter v. Dep’t of Navy, 2011 MSPB Lexis 3159 (May 11, 2011) (involving allegation that the appellant had called in sick to watch the Superbowl but had posted information on Facebook that he was not really sick).
Other issues that seem to be developing where Federal employees are found to have posted comments to social networking websites while at work (on duty). Sometimes, these have resulted in charges that the federal employee has been compensated for person time spent on social media. All sorts of potential issues could develop in such a situation. If an agency is looking to discipline a federal employee, they could potentially charge them for “time card” issues alleging that they were receiving pay but not actually working or perhaps for neglecting their duties while they were on Facebook, X, etc.
The Use of Facebook, X, Instagram and Other Social Networking Websites at Work
Typically, the use of Facebook and other social media websites by federal human resources officials and supervisors at federal agencies has not been in the form of direct monitoring (which would be problematic and potentially illegal). However, other federal employees or supervisors have reported the social media content of other employees to Human Resources personnel in the past. As you see the real issue that has developed in the context of federal employment is that other co-workers often times print out the postings made by other federal employees and then report them.
Sometimes these individuals, who are “friends,” “followers” or connections on social networking sites allege that the federal employee involved has posted inappropriate, discriminatory or even harassing comments. The most likely situation would be where a federal employee posts inappropriate or angry comments about their supervisor and another co-worker prints out the comments and brings them into work.
Once this information is in the hands of the federal agency, often times they can find a legitimate connection to incorporate the issue into a disciplinary or even a removal action. While there is a right to some privacy and even the First Amendment, often times a connection (or nexus) to the Federal workplace can be found to enable the Federal agency involved to take disciplinary action related to off duty activities. The MSPB and the Federal Circuit have generally held that off duty activities can be subject to discipline where it could cause the public or co-workers, to question or lose confidence in the Federal agency involved. See Stump v. Department of Transportation, 761 F.2d 680, 681-82 (Fed. Cir. 1985).
Know your Agency’s Rules on the Use of Government Internet or Computers
Lastly, it is important to take a look at your agency’s policy on use of government internet or computers. Often, many policies will restrict social media usage. One example is from the Department of Commerce and can be found here.
Contact Us
Be careful what you post on social networking sites. Also, be very careful about sharing access to your social networking sites with others at work in the federal workplace. If a federal employee or supervisor finds themselves in a difficult situation as a result of using social networking websites, they should contact an attorney familiar with these types of Federal employee issues to advise them in how to best to defend against disciplinary investigations or disciplinary actions that result. We can be contacted for possible representation in these cases.
On January 20, 2025, President Trump issued a Presidential Memorandum (PM) directing federal agencies to, as soon as practicable, take all necessary steps to terminate remote work arrangements and require employees to return to work in person at their respective duty stations on a full-time basis, provided that the department and agency heads shall make exemptions they deem necessary. On January 22, 2025, more detailed guidance was provided on the Return to Office through the Office of Personnel Management. The OPM guidance instructs agencies to revise their telework policies to require employees to work full time at their respective duty stations, unless excused from this requirement based on disability, qualifying medical condition, or other compelling reason certified by the agency head and the employee’s supervisor. OPM’s guidance recommends that agencies be in full compliance with the PM within 30 days.
Things to Keep in Mind
Communicate with Leadership
One of the first key things to keep in mind with the Return to Office order is to maintain open lines of communication with your supervisors and leadership. Every employee’s circumstances will be different and making sure to keep your supervisor and leadership informed of your specific situation and any barriers you may have for a Return to Office may help down the road in trying to obtain an exception to the requirement. Such exceptions will need to be based on compelling reasons and be approved by the employee’s supervisor and agency head. It is not yet clear what will qualify as compelling reasons, but one example that has been discussed pertains to military spouses who work remotely. It is likely that there will be other exceptions as well.
Medical Conditions, Disability, and Reasonable Accommodation
The OPM guidance instructs that employees can be excused from the Return to Work order based on disability or qualifying medical condition. For employees who already have such conditions on file with their agency and are working with Reasonable Accommodations in place, employees should make sure that these accommodations address telework or remote work to ensure that they remain in place as the Return to Office process unfolds. For those employees who have a disability or qualifying medical condition, but do not have a reasonable accommodation in place yet, the employees should work quickly to initiate those requests to seek accommodations that will address their specific conditions and needs. The Rehabilitation Act still protects reasonable accommodations that can include telework.
Union-Related Issues
Some employees who are members of bargaining units within federal agencies may be covered by previously negotiated collective bargaining agreements that address remote work and telework. Currently, it appears that OPM will not interfere with those agreements. However, it is likely that efforts may be taken to change those agreements. Such efforts will take time to unfold but employees should remain aware of their Union’s activities in this regard. Furthermore, the likelihood of litigation over many of these return to work orders by national unions remains high.
Avoidance of Discipline
Once deadlines are established for Return to Office, employees who fail to do so and are not on approved reasonable accommodations or who do not have an exemption based on compelling reason could run into disciplinary issues for failure to follow directives. In the event that such discipline is issued, employees should be cognizant of their rights to respond to such disciplinary actions and challenge those actions through established procedures.
Deferred Resignation
Federal employees were recently notified, on January 28, 2025, of an option for a deferred resignation. The deferred resignation instructs employees to make an election by February 6, 2025, and will theoretically provide employees with leave pay until September 30, 2025. For those employees who cannot physically return to the office, this may seem like a reasonable alternative. However, federal employees should be cautious of this program and seek legal advice before making any such election. The legal basis for the program is not clearly established which may subject the program to legal challenge. There is also the potential that the deadline could be extended or curtailed. It is just too soon to tell.
The program’s email also fails to provide much-needed clarity around how the program would be implemented, whether administrative leave would be utilized, who would be required to continue working, and how an election may impact an employee’s ability to transfer to a different position. Due to these various unknowns, employees should speak with experienced legal counsel before electing to participate.
Contact Us
It is important for a federal employee with telework issues or considering the deferred resignation issues to speak with counsel. Berry & Berry, PLLC represents federal employees in these types of federal employment issues and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding these or other federal employment issues.
Merit Systems Protection Board Online Appeals
The Merit Systems Protection Board (MSPB) recently overhauled its electronic appeal system, e-Appeal. The new system is now the only way to electronically file MSPB cases as of October 2023. When pursuing a case before the MSPB, it is therefore important for a federal employee to understand the latest procedures for filing an appeal and accessing case records. The only alternative to filing online this way is to rely on physical mail, which can be slower, and which carries the risk of important documents getting lost in the mail. As a result, it is generally a good idea to use the e-Appeal system for an MSPB appeal as it is faster and more reliable. It is also required for appellant attorney representatives to register as e-filers, meaning only self-represented (pro se) filers may rely solely on physical mail if desired.
Background for the Changes
In short, the old e-Appeal system was two decades old and needed revamping. Users could only access one case at a time, and overall, the system was clunkier and harder to use than it needed to be. As a result, the MSPB developed a better, newer e-Appeal portal and launched it in late 2023. While it is not perfect, it is a significant improvement upon the old system. The MSPB’s e-filing regulations were updated for the new system, and they are located at 5 C.F.R. § 1201.14.
Basics for Filing an E-Appeal
The basic procedures for filing an appeal have not changed much, but there are a few things that are still very important to keep in mind. Likely the most important aspect to understand is that an appeal and any supporting documents you may want to include—must be timely filed. This generally means filing within 30 days of the action that is being appealed. Exceptions or extensions for time to file can be made in unusual circumstances, but it is never a good idea to rely on such a request being granted, especially when a request is made close to or after the normal deadline has passed. For e-filing, technical issues with the e-Appeal system can also be grounds for extension of filing time under certain circumstances, but it is always a good idea to file with extra time to spare just in case you run into technical issues.
Filing the MSPB Online Appeal
Filing an appeal on the e-Appeal system is fairly straightforward. The portal takes you through all the necessary steps to obtain the necessary information and allows you to include supplemental documents. While the process is designed to be accessible to individuals representing themselves, there are a few parts of the e-Appeal filing process where legal advice is necessary. For instance, there is a section that asks for details about the basis of your appeal. Here, it is usually a good idea to include at least a summary of your legal arguments for the appeal. The Form 185 summarizes the types of arguments or claims that may be applicable, but these can be more complex than they seem. So, it is generally a great idea to consult with an attorney as early as possible, so that you do not lose the opportunity to raise important arguments.
Two-Factor Authentication for MSPB Appeals
The e-Appeal system uses email-based two-factor authentication (2FA) for added security. Once you register as an e-filer and begin working on a draft appeal, the system first presents you with important information about timeliness of filing, limitations on the MSPB’s jurisdiction, and similar preliminary items. Then, although there can be a lot of information to fill out, there are only three basic stages of drafting the appeal: “Appellant and Agency Information,” “Agency Action” (i.e., what happened that you are appealing), and “Representation” (i.e., whether you are pro se or designating a representative).
Note that if an attorney or other representative submits the form from their account on your behalf, you will have to separately register as an e-filer yourself and connect your account to the case—otherwise, case documents will be mailed to you even if your representative is a registered e-filer.
E-Appeal vs. Uploading a Completed Form 185: What’s the Difference?
When using the e-Appeal system, you can also upload a separately-completed PDF of Form 185 after filling out the webform, or you can just fill out the information requested by the portal. The portal essentially walks you through Form 185 and puts it together for you at the end. If you do both, your Initial Appeal document will appear to be a doubled copy, but that is not a problem—and in some cases it may be easier to format certain fields as desired, complete the Designation of Representative portion, or perform other actions on a PDF copy of the form that you can then upload. Either way, it is important to ensure all necessary information is included somewhere.
Effect of E-Filing an Appeal
The main reason to e-file an MSPB case is because, in addition to being the preferred system, you will then receive (and can file) all case documents electronically via the portal, with email notifications of new filings. As such, you will be informed of the latest developments in your case as soon as there is a new document available, and you can therefore react accordingly and plan your next steps as quickly as possible rather than waiting to learn of developments in the mail. Once your case is filed, the rest of the case’s filings will generally take place via electronic submissions to the portal by all parties. Additionally, the portal allows an e-filer to see the full case record, general case information including agency representative contact information, a list of pleadings you have submitted, and a “Case Associations” tab that shows any connected or otherwise related cases.
Caveats to E-Filing
While the e-Appeal system has many advantages to the alternative method of paper filings, there are a few potential pitfalls to watch out for. For example, you are still required to stay up to date on the electronic docket. This includes making sure that your email’s spam filter is not blocking notification of new submissions in the case. Similarly, you must keep your contact information up to date with any changes. There are also a few special categories of pleadings or other types of filings that cannot be completed on the e-Appeal portal. Additionally, you cannot file something with sensitive or classified information, you cannot serve a witness with a subpoena using the system, and you cannot request a case to be treated as a class (group) appeal via the electronic system. There are special rules that must be followed for these and other special types of filings.
Regarding the timeliness of filings, the rules may seem a bit inconsistent and there are also some exceptions. Generally, the system will stamp pleadings with the submission time in Eastern time, regardless of where the filer uploads it from—but the actual timeliness does depend where the filer uploads it from. (This default may be further modified if an Administrative Judge states, for example, that they will consider the timeliness of filings based on their own time zone and not the filer’s).
Conclusion
While the MSPB e-Appeal system is intended to be accessible regardless of whether you are represented, there are a variety of nuances and considerations for e-filing, between filing the appeal itself and proceeding with the case. Because of the often convoluted legal and procedural issues that may arise in the MSPB process, and because every case is different, it is a good idea to consult with legal counsel regarding this area of law and how best to pursue your situation and issues. MSPB online appeals are an important part of the appeals process.
If you are a federal employee seeking representation before the MSPB, you can contact us via our website, www.berrylegal.com, or by phone at (703) 668-0070, to arrange an individual consultation. We also maintain an MSPB-specific legal blog covering similar types of legal and practical issues.
