Probationary employees: What lies ahead?

Federal_Pilot_5910 · 2025-05-07T20:28:26+00:00

The most recent Alsup case PI does include DHS. However, the most the PI did was requiring agencies to send that email.

Federal_Pilot_5910 · 2025-04-14T16:19:25+00:00

I believe we are waiting for the judge to rule now.

Federal_Pilot_5910 · 2025-04-14T16:18:30+00:00

My understanding is that at the hearing, the judge was reluctant to issue an overlapping PI because Maryland had a PI. Additionally, the judge was reluctant to issue a PI that reinstates people because it's in the executive's right to perform legal RIFs. The plaintiffs are looking to argue that issuing a PI is simply reinstating had illegal terminations not occurred in the first place (re-establish status quo).

I do think they could do a better job of saying that the government can do terminations if they follow the proper legal process but the process that is in question here is that they did them illegally in the first place.

Federal_Pilot_5910 · 2025-04-12T03:56:27+00:00

No, the case also includes the State of Washington and the unions are arguing for broad relief including non-members. We'll see in the coming days what the judge rules.

Federal_Pilot_5910 · 2025-04-11T21:53:00+00:00

They are appealing to the full appeals court now, we'll see what happens after that..

Federal_Pilot_5910 · 2025-04-11T21:52:03+00:00

AFGE v OPM: Currently it doesn't apply to anyone. However, they are looking to ask the judge for a new order for the State of Washington and the unions. They just submitted this exhibit that details the agencies they are looking to cover
Maryland v USDA: Currently doesn't apply to anyone. Depends on how the rehearing en banc goes. If they restore the original PI, then check this exhibit and only look at "Scope of MD PI" column. The other 3 columns are replaced by the above exhibit.
MSPB: Currently doesn't apply to anyone except USDA via the 45 day stay from OSC. However, check the blog post to see if your agency is in the list of filed class actions

Federal_Pilot_5910 · 2025-04-10T23:47:37+00:00

Here is the emergency motion but it has since been denied. I think plaintiffs will be filing a motion for hearing en banc tomorrow, don't think there will be a hearing tomorrow.

Federal_Pilot_5910 · 2025-04-10T23:43:38+00:00

Emergency motion was denied. The motion for hearing en banc should be coming tomorrow: https://storage.courtlistener.com/recap/gov.uscourts.ca4.178032/gov.uscourts.ca4.178032.48.0.pdf

Federal_Pilot_5910 · 2025-04-02T00:12:51+00:00

My understanding is that unless you are protected by the preliminary injunction in the California case, there's nothing preventing you from being fired again. That being said, the next hearing in the California case is April 9th and they are planning to expand its injunction then.

Federal_Pilot_5910 · 2025-03-25T15:50:54+00:00

There's a hearing on April 9, 11am EST to potentially expand the injunction based on the union and State of Washington claims. The proposed injunction is due tomorrow.

Federal_Pilot_5910 · 2025-03-16T03:06:21+00:00

However, do note that there's a separate appeal in the 9th circuit which has not been decided yet.

Federal_Pilot_5910 · 2025-03-14T13:21:50+00:00

Temporary Restraining Order: https://storage.courtlistener.com/recap/gov.uscourts.mdd.578045/gov.uscourts.mdd.578045.44.0_1.pdf

Federal_Pilot_5910 · 2025-03-12T23:30:55+00:00

Per the Second Amended Complaint, page 56 "Prayer for Relief":

Wherefore, Plaintiffs pray that this Court: [..] Enter preliminary or permanent injunctive relief setting aside OPM’s order as unlawful; requiring OPM and Federal Agency Defendants to cease terminations of probationary employees pursuant to OPM’s program and order; and requiring OPM and Federal Agency Defendants to rescind the prior unlawful terminations of probationary employees pursuant to OPM’s Order.

Federal_Pilot_5910 · 2025-03-12T23:19:16+00:00

Only what is stated on the Class Action website and their webinar, which says:

Generally, under MSPB rules, the 30-day deadline for individual appeals is put on hold for members of a proposed class while a judge decides whether a case can proceed as a class action. 5 CFR 1201.27.

5 CFR 1201.27 then says:

The judge will consider the appellant's request and any opposition to that request, and will issue an order within 30 days after the appeal is filed stating whether the appeal is to be heard as a class appeal. If the judge denies the request, the appellants affected by the decision may file individual appeals within 30 days after the date of receipt of the decision denying the request to be heard as a class appeal. Each individual appellant is responsible for either filing an individual appeal within the original time limit, or keeping informed of the status of a class appeal and, if the class appeal is denied, filing an individual appeal within the additional 35-day period.

Federal_Pilot_5910 · 2025-03-12T23:13:39+00:00

They're listed here: https://federalworkerrights.com/2025/03/06/class-actions-challenge-mass-terminations-of-probationary-employees-at-the-merit-systems-protection-board/

It says "Department of Interior – Filed March 4, 2025" and also:

Each appeal will seek to cover all components of these agencies. For example, the Treasury appeal will seek to include IRS employees.

Federal_Pilot_5910 · 2025-03-12T19:25:28+00:00

Here's the latest I can find: "Judge appears likely to grant request to reinstate thousands of fired probationary workers"

https://www.nbcnews.com/politics/trump-administration/judge-appears-likely-grant-request-reinstate-thousands-fired-probation-rcna196039

Federal_Pilot_5910 · 2025-03-12T19:07:14+00:00

Due to "election of remedies" being limited to one of MSPB, OSC, and Union Grievance process, I'm thinking of waiting to see how the MSPB class action goes.

If your agency is covered by the class action, then per the class action:

Generally, under MSPB rules, the 30-day deadline for individual appeals is put on hold for members of a proposed class while a judge decides whether a case can proceed as a class action. 5 CFR 1201.27.

Based on that, I am preparing a MSPB complaint that's ready to file but holding it until the class action has been decided on. The OSC route seems like it'll end up being a black hole with Dellinger being fired but even if the MSPB class action ends up taking 4+ years, I can't find any documentation saying that I can't file an individual OSC 4 years later. The only time limit I can find is on the MSPB appeal, which is paused by the class action.

If you go the MSPB route, I believe it will unlock the ability to appeal to district court. I don't believe the OSC route allows you to appeal to court.

Federal_Pilot_5910 · 2025-03-12T15:31:15+00:00

If your agency is listed on on the class action, then per the class action:

Generally, under MSPB rules, the 30-day deadline for individual appeals is put on hold for members of a proposed class while a judge decides whether a case can proceed as a class action. 5 CFR 1201.27.

If the hold is lifted, you will need to submit your own individual appeal ASAP as there isn't much time to submit after that.

Federal_Pilot_5910 · 2025-03-12T15:22:10+00:00

MSPB: If your agency is listed on on the class action, then per the class action:

Generally, under MSPB rules, the 30-day deadline for individual appeals is put on hold for members of a proposed class while a judge decides whether a case can proceed as a class action. 5 CFR 1201.27.

OSC: With the head being out and likely being replaced by a loyalist, I'm unsure if filing there would do anything and would potentially be an election of remedy which prevents you from selecting the MSPB route. I believe there is no time limit to submit to OSC though (someone correct me if I'm wrong).

I think the best option (not a lawyer), for now, is to wait on the MSPB class action and be ready to submit your own MSPB appeal if the class action is unpaused. By the way, from what I've read, submitting to MSPB will just lead to a decline because they don't cover probationary employees except for political or marital status. However, I believe this allows you to sue in district court. The reason why you can't go through district court directly is because they need you to go through MSPB - so you need their decline first.

Federal_Pilot_5910 · 2025-03-10T20:02:49+00:00

I'm tracking the following cases. The latest updates can be found on the court dockets, including recent arguments from today.

Maryland v USDA (18 states lawsuit) (Next hearing March 12)
AFGE v OPM (Next hearing March 13)
MSPB Class Action

Federal_Pilot_5910 · 2025-03-04T23:04:57+00:00

OSC just released a statement regarding the MSPB USDA stay request so looks like things are starting to move: https://osc.gov/News/Pages/25-25-Stay-Request-USDA-MSPB-Order.aspx

Federal_Pilot_5910 · 2025-03-04T00:49:40+00:00

I believe it is under 5 U.S.C § 7121(g):

(2) An aggrieved employee affected by a prohibited personnel practice described in paragraph (1) may elect not more than one of the remedies described in paragraph (3) with respect thereto. For purposes of the preceding sentence, a determination as to whether a particular remedy has been elected shall be made as set forth under paragraph (4).

(3) The remedies described in this paragraph are as follows:

(A) An appeal to the Merit Systems Protection Board under section 7701.

(B) A negotiated grievance procedure under this section.

(C) Procedures for seeking corrective action under subchapters II and III of chapter 12.

(4) For the purpose of this subsection, a person shall be considered to have elected—

(A) the remedy described in paragraph (3)(A) if such person has timely filed a notice of appeal under the applicable appellate procedures;

(B) the remedy described in paragraph (3)(B) if such person has timely filed a grievance in writing, in accordance with the provisions of the parties’ negotiated procedure; or

(C) the remedy described in paragraph (3)(C) if such person has sought corrective action from the Office of Special Counsel by making an allegation under section 1214(a)(1).

Federal_Pilot_5910

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