Today, the U.S. Office of Special Counsel (OSC) filed an amicus curiae or “friend of the court” brief in Interested Terminated Probationary Employee—Commerce v. U.S. Office of Personnel Management (OPM) and related cases which are now before the Merit Systems Protection Board (MSPB). OSC opposes the probationary employees’ petition to have the MSPB review the “mass termination” of probationary employees.
The probationary employees argue that the firings violated OPM regulations, thereby resulting in a prohibited personnel practice (PPP). OSC, an independent federal agency charged with safeguarding the merit system by investigating and seeking corrective and disciplinary action for prohibited personnel practices, has already evaluated the bases for the “mass” firings and determined that they do not constitute PPPs.
OSC’s brief explains that probationary employees are “at-will” employees that Federal agencies may summarily terminate for any reason not otherwise prohibited by law. Whistleblower retaliation would be an example of a prohibited basis for firing a probationary employee. OSC’s position is based on the plain meaning of the OPM regulations at issue and is supported by the history of the Civil Service.
OSC believes that OPM’s effort to encourage agencies to more effectively use the probationary period as a screening mechanism is an appropriate attempt to advance merit system principles, to support a stronger, more deliberate federal workforce, and to bring agencies into compliance with the law and historic purpose of the probationary period.