Labor & Employment Law Daily Wrap Up, AGENCY NEWS—Special Counsel Dellinger succeeds in getting MSPB to stay terminations of ‘small sample’ of probationary employees, (Feb 26, 2025)

By Brandi O. Brown, J.D.

“Agency leaders should know that OSC will continue to pursue allegations of unlawful personnel actions, which can include asking MSPB for relief for a broader group of fired probationary employees.”

Last night, the U.S. Office of Special Counsel (OSC) announced that the U.S. Merit Systems Protection Board has granted its initial requests to stay the terminations of six probationary employees across various executive branch agencies in a nonprecedential stay order. The stays were requested late last week by Special Counsel Hampton Dellinger, whose own removal has been stymied thus far by a federal court.

Dellinger had determined there were reasonable grounds to believe that the agencies involved engaged in prohibited personnel practices under 5 U.S.C. § 2302(b)(12) by terminating the employees in violation of federal laws and regulations governing probationary terminations and reductions in force.

The request went before Member Raymond A. Limon.

Stays granted. In its order granting the stays, the MSPB wrote that “[p]articularly considering the deference that must be afforded to OSC at this initial stage,” it had found there were “reasonable grounds to believe that each of the six agencies engaged in a prohibited personnel practice under 5 U.S.C. § 2302(b)(12).” OSC had reasonably alleged that each agency took a personnel action under 5 U.S.C. § 2302(a) when it terminated these employees, and it had identified laws and regulations related to the reductions in force that it believed the agencies violated.

The order notes that OSC had argued that “5 U.S.C. § 3502 and 5 C.F.R. part 351 concern, among other merit system principles, 5 U.S.C. § 2301(b)(6) and 5 U.S.C. § 2301(b)(8)(A), which provide that employees should be retained on the basis of the adequacy of their performance, separated when they cannot or will not improve their performance to meet required standards, and protected against arbitrary action.” Applying the “ordinary, contemporary, common meaning” to the term “directly concerning” used in 2302(b)(12), in the absence of a statutory or regulatory definition or other clear explanation in the legislative history, MSPB explained that, when considered along with the deference to be afforded to the OSC, it was “reasonable to posit 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 to find “reasonable grounds to believe that the above-captioned agency terminated the relator during the relator’s probationary period in violation of 5 U.S.C. § 2302(b)(12).”

Postponement. The stays provide the employees with a 45-day postponement of their terminations and provide the OSC additional time to investigate the circumstances surrounding those terminations to determine whether a prohibited personnel practice has occurred.

Dellinger responds. “I am very grateful the MSPB has agreed to postpone these six terminations," said Special Counsel Hampton Dellinger. “These stays represent a small sample of all the probationary employees who have been fired recently so our work is far from done. Agency leaders should know that OSC will continue to pursue allegations of unlawful personnel actions, which can include asking MSPB for relief for a broader group of fired probationary employees. I urge agency leaders to voluntarily and immediately rescind any and every unlawful termination of probationary employees."

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