The Merit Systems Protection Board moved Wednesday to block the Trump administration’s attempt to fire thousands of probationary workers at the Agriculture Department, saying the action may have violated the law.
MSPB issued a 45-day stay on the firings to give special counsel Hampton Dellinger more time to review the cases.
Mr. Dellinger said the pause applies to more than 5,000 department employees who have been ousted since Feb. 13.
“I want to thank the MSPB for granting this important stay,” Mr. Dellinger said. “Agencies are best positioned to determine the employees impacted by these mass terminations.”
He went on to urge all federal agencies to rescind their “unlawful” firings of probationary employees.
The probationary employees — generally, those with less than a year of service in their jobs — have become a major battleground over President Trump’s executive powers.
His Office of Personnel Management prodded agencies to review their probationary employees and get rid of the nonessential ones, as part of an attempt to slim down government. Probationary employees lack full civil service protections and are supposed to be easier to fire.
But Mr. Dellinger, who as special counsel investigates adverse federal personnel decisions, said probationary workers have some protections and the mass firings crossed those lines.
His role in the fight is particularly noteworthy because Mr. Trump has moved to fire Mr. Dellinger from his post. A federal judge has blocked that firing, leaving him in place to thwart some of Mr. Trump’s other firings.
The Justice Department argued that’s exactly why Mr. Trump needs the power to fire Mr. Dellinger.
“In short, a fired special counsel is wielding executive power, over the elected executive’s objection, to halt employment decisions made by other executive agencies,” acting Solicitor General Sarah M. Harris said in arguments asking the Supreme Court justices to keep Mr. Dellinger out of office while he challenges his firing.
The Supreme Court demurred on that, and Mr. Dellinger remains in office and active.
Mr. Dellinger was appointed by President Biden to a five-year term. Under the law, he can only be fired for cause. The Justice Department argues that violates the president’s powers.
Mr. Trump has also tried to fire the head of the MSPB, but again ran into a judge’s blockade.
“Cathy A. Harris shall continue to serve as a member of the Merit Systems Protection Board until her term expires pursuant to 5 U.S.C. § 1202, unless she is earlier removed for inefficiency, neglect of duty, or malfeasance in office under that statute,” U.S. District Judge Rudolph Contreras ordered.
The Justice Department has appealed that decision.
In addition to the Agriculture Department employees, Mr. Dellinger has won a pause on the firings of six probationary workers across multiple agencies.
A federal judge in California last week ruled that the OPM had no power to direct agencies to fire probationary employees. This week OPM revised its guidance to make that clear — though it still prods other agencies to review their rosters and make their own decisions about whom to ax.
