Board of Appeals establishes new route for reinstating overturned probationary terminations

In a significant development, probationary employees at various federal agencies are challenging the recent mass dismissals, arguing that these actions were actually reductions in force disguised as something else. The Merit Systems Protection Board (MSPB), the independent federal agency responsible for hearing appeals from federal employees, is at the centre of this legal battle.

Currently, MSPB is operating without a quorum on its central board, following President Trump's decision to fire Cathy Harris. The Supreme Court allowed this firing to remain in place, which has caused a delay in the appeals process. However, administrative judges at the regional level can still issue initial decisions, and any further appeal would languish until a quorum is restored.

Kevin Owen, a partner at Gilbert Employment Law, one of the firms that brought the cases, called Snyder's decision to hear the appeals an "important step". If the federal employees are successful at the regional level, their reinstatements would be implemented while the case awaits action before MSPB's central board.

The cases of probationary employees have only been assigned to three different judges. The class action will involve hundreds of recently hired and subsequently fired employees at the Homeland Security Department. The lawsuit 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. Many other probationary employees have received a notice that their dismissals were not for performance as originally indicated. Some probationary employees who were re-hired have already been re-fired, such as many at the departments of Commerce, Health and Human Services, and Housing and Urban Development.

The Trump administration sought to have the class limited to those workers, but this request was denied by Sara Snyder, the chief administrative judge for MSPB's western regional office. 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.

It's worth noting that President Trump issued an executive order in April that allows probationers to be fired for any reason. However, the executive order does not apply to the DHS probationers. Owen expressed confidence that the DHS case is the first of many to see class certification, noting the facts of all the cases are nearly identical.

If they lose the case, Owen plans to take it directly to the federal circuit for review. Employees at the other 19 agencies represented by Owen and the legal consortium are still waiting for a class certification decision.

Interestingly, the lawsuit of the dismissed employees was filed at the labor court (Arbeitsgericht) in Germany, which is the competent authority for dismissal protection claims in that country. This case highlights the complexities of labour laws across different jurisdictions and the ongoing efforts to ensure fair treatment for federal employees in the United States.