The firings of over 5,000 probationary employees at the Agriculture Department may have been unlawful, and the workers should be reinstated for at least the next 45 days, a federal civil service board ruled Wednesday.
U.S. Merit Systems Protection Board Chair Cathy Harris issued the order after the Office of Special Counsel alleged that the Agriculture Department had "engaged in prohibited personnel practices" to carry out the mass firings.
The ruling affects only Agriculture Department workers, but numerous government agencies have carried out similar mass firings of probationary employees, meaning Wednesday's action could prove damaging to President Donald Trump’s efforts to slash the federal workforce.
Special counsel Hampton Dellinger praised Harris' decision in a statement and said he was "calling on all federal agencies to voluntarily and immediately rescind any unlawful terminations of probationary employees.”
The Agriculture Department did not immediately respond to a request for comment.
The White House did not directly address the board's order in response to NBC News' request for comment. In a statement Thursday, a spokesperson focused instead on Dellinger himself being removed from office after a court ruled in favor of the Trump administration in its effort to remove him. The court ruling prompted Dellinger to drop a lawsuit he had filed over his firing.
“After the D.C. Circuit Court vindicated the President’s right to remove the Special Counsel, Dellinger dismissed his case," White House deputy press secretary Anna Kelly said. "Dellinger is no longer an employee of the government, therefore his views and opinions are irrelevant. President Trump will continue to root out the vast waste, fraud, and abuse across the Executive Branch."
The Agriculture Department last month notified probationary workers — new employees who'd been on the job less than a year or workers who'd been promoted — that they were being let go because of "performance" issues.
“The Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest,” the emails said.
One employee, identified only as John Doe, testified that he had received only positive reviews. The letter to him — and the other identical letters to other probationary employees — "provided no explanation of how his performance was deficient or any other individualized analysis."
Harris said the special counsel, whose office is separate from that of former special counsel Jack Smith, found there was other evidence that the firings had nothing to do with performance, including that they came after guidance from the Office of Personnel Management to the Agriculture Department and other government agencies “to terminate all probationary employees that it had not designated as ‘mission critical.’”
The special counsel "has reasonable grounds to believe that the agency terminated probationary employees not to eliminate poor performers, but instead as part of a reorganization," which requires the agency to use proper "reduction in force," or RIF, procedures, Harris' ruling said.
She said the special counsel's office "asserts in this regard that proper application of RIF regulations could allow some probationers to keep their jobs or be reassigned to new positions, and the agency’s failure to follow RIF procedures deprived Mr. Doe and the other probationary employees of an additional period of employment, compensation, benefits, career transition assistance information, possible accrual of tenure, as well as due process rights."
Dellinger requested the 45-day reinstatement period to “minimize the adverse consequences of the apparent prohibited personnel practice” while his office "further investigates these allegations and the agency’s 'systemic action to terminate probationary employees,'" Harris noted.
The Trump administration has sought to fire both Harris and Dellinger. On Tuesday, a federal judge in Washington, D.C., found that Harris' firing was unlawful and that she cannot be removed, a decision the administration is appealing.
Another federal judge issued a similar ruling in Dellinger's case Saturday. A federal appeals court reversed that decision Wednesday, removing Dellinger from his job while his case is considered.
The Office of Personnel Management guidance that led to the thousands of probationary workers' being fired was officially rescinded Tuesday after a federal judge in California found that the agency had greatly overstepped its bounds.
“The Office of Personnel Management does not have any authority whatsoever under any statute in the history of the universe to hire and fire employees within another agency,” U.S. District Judge William Alsup found.
The new guidance says OPM "is not directing agencies to take any specific performance-based actions regarding probationary employees.”
“Agencies have ultimate decision-making authority over, and responsibility for, such personnel actions,” it says.
The Trump administration is aiming to cut at least 10% of the federal workforce. It has enlisted Elon Musk and the newly created Department of Governmental Efficiency to help slash budgets and personnel.
The White House last week directed federal agencies to prepare for mass layoffs, and a memo released this week showed the Department of Veterans Affairs is preparing to cut as many as 80,000 employees by August.
