Labor & Employment Law Daily Wrap Up, AGENCY NEWS—MSPB orders temporary stay of USDA probationary employees’ terminations, (Mar 6, 2025)

By Brandi O. Brown, J.D.

All of the workers who received the one-sentence termination stating, “The [a]gency finds, based on your performance, that you have not demonstrated that your further employment at the [a]gency would be in the public interest,” were reinstated, for now.

On March 5, 2025, newly reinstated MSPB member Cathy Harris issued a nonprecedential stay order in a petition filed by the Office of Special Counsel on behalf of USDA probationary employees who were part of the mass layoffs instituted by the Trump administration in February.

45-day stay. The order requires that, during the pendency of the 45-day stay, the probationary employees who have been terminated “since February 13, 2025, pursuant to letters stating, ‘The [a]gency finds, based on your performance, that you have not demonstrated that your further employment at the [a]gency would be in the public interest,’ shall be placed in the positions that they held prior to the probationary terminations” and that the agency should not “effect any changes” in their “duties or responsibilities that are inconsistent with their salary or grade level, or impose upon them any requirement which is not required of other employees of comparable position, salary, or grade level[.]”

Alleged RIF regs not followed. In its petition, the OSC had contended that 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 11-12.” OSC also asserted that the “identified statute and regulations concern five of the nine merit system principles[.]” OSC asserted that it had “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 RIF procedures,” and that it “improperly circumvented RIF regulations, which provide for an orderly process of determining which employees are retained, rather than separated, and ensuring that those decisions are made according to merit-based factors.”

Reasonable grounds to believe. The MSPB found that, with the deference to be afforded to OSC under these circumstances, there were “reasonable grounds to believe that the agency engaged in a prohibited personnel practice under 5 U.S.C. § 2302(b)(12)” against the Doe employee. First, OSC had reasonably alleged that the agency took a personnel action under 5 U.S.C. § 2302(a) when it terminated Mr. Doe and other probationary employees. Second, OSC identified RIF-related laws and regulations it believed the agency violated. Third, OSC had reasonably argued that “5 U.S.C. § 3502 and 5 C.F.R. part 351, which prescribe RIF procedures that take into account efficiency or performance ratings, directly concern the merit system principle set forth in 5 U.S.C. § 2301(b)(6) and 5 U.S.C. § 2301(b)(8)(A).”

And there were also reasonable grounds to believe that the agency terminated the other probationary employees in violation of 5 U.S.C. § 2302(b)(12), the MSPB explained.

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