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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.