MSPB orders temporary reinstatement of nearly 6,000 probationary workers at USDA

The Merit Systems Protection Board on Wednesday ordered the reinstatement of between 5,600 and 5,900 Agriculture Department workers who were fired as part of the Trump administration’s governmentwide purge of recently hired, promoted or transferred federal employees.

Following his work securing 45-day stays for six federal employees terminated as part of the mass firing of employees still in their probationary periods that began last month, U.S. Special Counsel Hampton Dellinger on Feb. 28 requested reinstatement for all probationary workers at USDA. The department has offered shifting numbers on how many were swept up in the purge, though it is estimated that the decision will affect between 5,600 and 5,900 employees.

According to the lead employee challenging their firing—listed in filings as John Doe, who was until recently a GS-5 forestry technician—they had never been counseled or disciplined for their performance, and had received a rating of “fully successful” by his supervisor just a month prior to his firing. The employee’s supervisor reportedly would have urged management to retain him, but was not informed of his impending ouster until hours before termination notices were sent out.

The decision to grant the stay was made by MSPB Member Cathy Harris, whose own termination was permanently enjoined by a federal judge Tuesday. USDA has five “working days” to reinstate all of the nearly 6,000 workers, who will be protected from termination until at least April 18. Fellow MSPB Member Raymond Limon issued the first decision temporarily reversing probationary firings last week.

In a statement Wednesday, Dellinger applauded MSPB for its decision, and called on agencies to rescind their own probationary purges.

“Agencies are best positioned to determine the employees impacted by these mass terminations,” Dellinger said. “That’s why

In Dellinger’s request for a “systemic stay” on USDA’s probationary terminations, he again highlighted that OPM directed agencies to fire probationary workers en masse, providing form letters to send to affected employees and contravening statutes requiring such actions to be individualized and performance based, as well as circumventing the rules governing reductions in force. A sample of 29 different termination notices to probationers were identical, OSC found.

“OSC’s investigation confirmed that USDA made no attempt to assess the individual performance or conduct of any of these probationary employees before deciding whether to terminate them—the decision to retain a particular probationary employee depended entirely on whether their position was designated as mission-critical,” Dellinger wrote. “Whether USDA terminated each probationary employee therefore depended entirely on the nature of that employee’s position, not on the adequacy of their performance or fitness for federal service.”