Reversals of probationary dismissals now have a fresh avenue for renewal, as a review panel has devised a new process.

In a landmark decision, the Merit Systems Protection Board (MSPB) has granted a request for a class action, allowing hundreds of recently hired and subsequently fired employees at the Department of Homeland Security (DHS) to collectively pursue their reinstatements. This marks the first time the MSPB has ruled that a class of agency staff affected by mass dismissals of probationary workers can proceed as a collective.

The class action includes employees who allege their dismissals were unlawful, but does not include those 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. Probationary employees, who typically do not enjoy the right to MSPB appeals, argued that the actions were actually reductions in force disguised as something else.

The Trump administration had sought to limit the class to only those workers, but this request was denied by Sara Snyder, the chief administrative judge for MSPB's western regional office. If they lose the case, the federal employees, represented by Kevin Owen of Gilbert Employment Law, one of the firms that brought the cases, plan to take it directly to the federal circuit for review.

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, including the Department of Veterans Affairs and the Department of Defense. The firings were allegedly dictated by the Office of Personnel Management (OPM).

Notably, President Trump issued an executive order in April that allows probationers to be fired for any reason, but this order does not apply to the DHS probationers. 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 MSPB is currently operating without a quorum on its central board after Trump fired Cathy Harris, and the Supreme Court allowed that firing to remain in place. This means that administrative judges at the regional level can still issue initial decisions, but any further appeal would languish until a quorum is restored.

Any RIF can be challenged before MSPB, and Snyder has asked both parties to submit their arguments as to whether MSPB has jurisdiction in the case. 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. Many others have received a notice that their dismissals were not for performance as originally indicated.

This decision is an "important step" according to Kevin Owen, a partner at Gilbert Employment Law. The named appellants in the case worked at the Federal Emergency Management Agency and the Cybersecurity and Infrastructure Security Agency. The cases of probationary employees being dismissed have only been assigned to three different judges. If the class action is successful, it could set a precedent for other federal employees who have been unlawfully dismissed.