Appeals board creates new path to renew reversals of probationary firings

At least one agency’s staff impacted by the mass dismissals of probationary workers can pursue their reinstatements as a class, the panel that hears federal employees’ challenges to firings has for the first time ruled, creating a new path for sweeping reversals of those terminations. 

Hundreds of recently hired and subsequently fired employees at the Homeland Security Department will be part of a class action alleging their dismissals were unlawful after a Merit Systems Protection Board administrative judge granted the request. The DHS ruling was the first to come down after a consortium of lawyers filed similar challenges on behalf of fired probationary employees at 20 federal agencies. 

“I find that a class appeal is the fairest and most efficient way to adjudicate the appeal and that the putative class counsel and named appellants will adequately represent the interests of the parties,” said Sara Snyder, the chief administrative judge for MSPB’s western regional office. 

DHS fired around 370 employees in February after the Office of Personnel Management instructed agencies across government to begin dismissing their probationary staff, typically those hired or promoted in the previous one or two years. The class does not include employees who were actually fired due to individual performance issues, those not in their probationary period or those who enrolled in the deferred resignation or other separation incentive program. 

The named appellants in the case worked at the Federal Emergency Management Agency and the Cybersecurity and Infrastructure Security Agency and the Trump administration sought to have the class limited to those workers, but Snyder denied that request. 

Probationary employees do not typically enjoy the right to MSPB appeals, but the appellants argued the actions were actually reductions in force disguised as something else. Any RIF can be challenged before MSPB and Snyder asked both parties to in the coming weeks submit their arguments as to whether MSPB has jurisdiction in the case. 

Kevin Owen, a partner at Gilbert Employment Law, one of the firms that brought the cases, called Snyder’s decision an “important step” and noted MSPB has not typically certified class action cases. Employees at the other 19 agencies represented by Owen and the legal consortium are still waiting for a class certification decision. The Trump administration has in several of those cases sought to dismiss them as moot, given that agencies have reinstated employees under a now-defunct court order. The board has so far suggested that because those employees are currently on paid administrative leave, they are still not in the same status as they were prior to their firings. 

“They’re not going to be able to dispose of these cases based on some flimsy HR parlor tricks,” Owen said. 

Owen expressed confidence the DHS case was the first of many to see class certification, noting the facts of all the cases are nearly identical. 

The firings were “not an agency-by-agency decision or manager-by-manager decision, but rather something dictated by OPM,” Owen said. He added the cases have only been assigned to three different judges. 

There have been some significant changes to the status of probationary employees and MSPB since the original firings. President Trump issued an executive order in April that allowed probationers to be fired for any reason, overriding current regulation dictating they must be dismissed as a result of performance or conduct. Snyder said that order did not apply to the DHS probationers. 

While most probationary employees have been hired back, some—such as many of those at the departments of Commerce, Health and Human Services and Housing and Urban Development—have already been re-fired. Many others have received, under court order, a notice that their dismissals were not for performance as originally indicated. 

MSPB, meanwhile, is now operating without a quorum on its central board after Trump fired Cathy Harris and the Supreme Court allowed that firing to remain in place. Administrative judges at the regional level can still issue initial decisions, though any further appeal would languish until a quorum is restored. 

If the federal employees are successful at the regional level, their reinstatements would be implemented while the case awaits action before MPSB’s central board. If they lose the case, Owen said he would take it directly to the federal circuit for review.