John Doe v. Department of Housing and Urban Development

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SPECIAL COUNSEL DOCKET NUMBER

EX REL. JOHN DOE, 1 CB-1208-25-0016-U-1

Petitioner,

v.

DATE: February 25, 2025

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT,

Agency.

THIS STAY ORDER IS NONPRECEDENTIAL 2

Hampton Dellinger , Esquire, Washington, D.C., for the petitioner.

John Doe , pro se.

Javes Myung , Esquire, Washington, D.C., for the agency.

BEFORE

Raymond A. Limon, Member

ORDER ON STAY REQUEST

Pursuant to 5 U.S.C. § 1214(b)(1)(A), the Office of Special Counsel (OSC)

requests that the Board stay the probationary terminations of six former Federal

1

I find it appropriate to grant the relator’s request for anonymity in this matter.

Accordingly, the matter has been recaptioned as “John Doe.”

2

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

employees (the relators), including the above-captioned former employee/relator,

for 45 days while OSC further investigates their complaints. 3 For the reasons

discussed below, OSC’s request is GRANTED.

BACKGROUND

On February 21, 2025, OSC filed six stay requests, including the instant

request. Special Counsel ex rel. John Doe v. Department of Housing and Urban

Development, MSPB Docket No. CB-1208-25-0016-U-1, Stay Request File

(SRF), Tab 1. In the stay requests, OSC asserts that it has reasonable grounds to

believe that the named agencies engaged in prohibited personnel practices under

5 U.S.C. § 2302(b)(12) by terminating the relators in violation of the Federal laws

and regulations governing reductions-in-force (RIFs) and probationary

terminations. Id. at 5.

OSC alleges that, between February 12 and February 14, 2025, the agencies

terminated the six relators, all of whom were probationary employees, from

Federal service. Id. at 6, 16. OSC asserts that the probationary terminations

occurred concurrently with a significant number of other Federal employee

terminations. Id. at 6. OSC avers that the language in each of the six termination

notices was “quite similar” and did not address any specific issues with the

relators’ performance or conduct. Id. In each stay request, OSC summarizes the

circumstances surrounding the termination of the six relators. Id. at 7-11.

These summaries indicate that none of the six relators had any noted performance

deficiencies. 4 Id. With its stay request, OSC provides copies of the six

termination letters and statements from the relators made under penalty of perjury

attesting to the circumstances surrounding each of the terminations. Id. at 26-65.

3

The stay requests pertaining to the five other former employees/relators have been

separately docketed.

4

For example, one relator, a 100% disabled veteran, was terminated from his position

on the same day that his supervisor had commended him for his “willingness to go

above and beyond.” SRF, Tab 1 at 7, 26-29.

3

ANALYSIS

Under 5 U.S.C. § 1214(b)(1)(A)(i), OSC “may request any member of the

Merit Systems Protection Board to order a stay of any personnel action for

45 days if [OSC] determines that there are reasonable grounds to believe that the

personnel action was taken, or is to be taken, as a result of a prohibited personnel

practice.” Such a request “shall” be granted “unless the [Board] member

determines that, under the facts and circumstances involved, such a stay would

not be appropriate.” 5 U.S.C. § 1214(b)(1)(A)(ii). OSC’s stay request need only

fall within the range of rationality to be granted, and the facts must be reviewed

in the light most favorable to a finding of reasonable grounds to believe that a

prohibited personnel practice was (or will be) committed. E.g., Special Counsel

ex rel. Aran v. Department of Homeland Security , 115 M.S.P.R. 6, ¶ 9 (2010).

Deference is given to OSC’s initial determination, and a stay will be denied only

when the asserted facts and circumstances appear to make the stay request

inherently unreasonable. 5 E.g., Special Counsel v. Department of Veterans

Affairs, 50 M.S.P.R. 229, 231 (1991).

At issue in the instant stay requests is 5 U.S.C. § 2302(b)(12), which

provides that it is a prohibited personnel practice to “take or fail to take any other

personnel action if the taking of or failure to take such action violates any law,

rule, or regulation implementing, or directly concerning, the merit system

principles contained in [5 U.S.C. § 2301].” 5 U.S.C. § 2301, in turn, enumerates

nine merit system principles for Federal personnel management. 5 U.S.C.

§ 2301(b)(1)-(9). Thus, to establish that an agency’s action constitutes a

prohibited personnel practice under 5 U.S.C. § 2302(b)(12), the following three

5

In contrast, a court issues a temporary restraining order, followed by a preliminary

injunction, only in “extraordinary” circumstances and not as a matter of right.

See Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 24 (2008)

(“A preliminary injunction is an extraordinary remedy never awarded as of right.”);

see also Fed. R. Civ. P. 65 (authorizing courts to issue temporary restraining orders and

preliminary injunctions).

4

factors must be met: (1) the action constitutes a “personnel action” as defined

in 5 U.S.C. § 2302(a); (2) the action violates a law, rule, or regulation; and

(3) the violated law, rule, or regulation is one that implements or directly

concerns the merit system principles. See Special Counsel v. Harvey,

28 M.S.P.R. 595, 599-600 (1984), rev’d on other grounds sub nom., Harvey v.

Merit Systems Protection Board, 802 F.2d 537 (D.C. Cir. 1986). 6

Here, OSC states that the personnel actions at issue, i.e., the probationary

terminations, violate the following laws and regulations governing RIFs and

probationary terminations: (1) 5 U.S.C. § 3502; (2) 5 C.F.R. part 351; and

(3) 5 C.F.R. § 315.801 et seq. SRF, Tab 1 at 12-13. OSC asserts that the

identified statute and regulations concern five of the nine merit system principles.

Id. at 13 (citing 5 U.S.C. § 2301(b)(1), (2), (5), (6), (8)(A)). These five identified

principles are as follows:

 Recruitment should be from qualified individuals from

appropriate sources in an endeavor to achieve a work force from

all segments of society, and selection and advancement should be

determined solely on the basis of relative ability, knowledge, and

skills, after fair and open competition which assures that all

receive equal opportunity.

 All employees and applicants for employment should receive fair

and equitable treatment in all aspects of personnel management

without regard to political affiliation, race, color, religion,

national origin, sex, marital status, age, or handicapping

condition, and with proper regard for their privacy and

constitutional rights.

 The Federal work force should be used efficiently and effectively.

 Employees should be retained on the basis of the adequacy of

their performance, inadequate performance should be corrected,

6

The Board’s decision in Harvey, 28 M.S.P.R. at 599, references section 2302(b)(11).

The Veterans Employment Opportunities Act of 1998 added a new prohibited personnel

practice at 5 U.S.C. § 2302(b)(11), resulting in the redesignation of the former (b)(11)

to (b)(12). Blount v. Office of Personnel Management, 87 M.S.P.R. 87, ¶ 2 n.2 (2000).

5

and employees should be separated who cannot or will not

improve their performance to meet required standards.

 Employees should be—

(A) protected against arbitrary action, personal favoritism, or

coercion for partisan political purposes.

According to OSC, the available evidence indicates that the agencies

improperly used the relators’ probationary status to accomplish RIFs without

affording them the substantive rights and due process to which they are entitled

during the same. SRF, Tab 1 at 13. OSC asserts that official directives, public

statements, and the relators’ termination notices signal that the relators were

terminated not because they failed to meet expectations during their trial periods,

but rather because of a purported lack of work, shortage of funds,

and reorganization—reasons that require the use of RIF procedures. Id. at 15-17.

Accordingly, OSC avers that there are reasonable grounds to believe that the

agencies improperly circumvented RIF regulations, which “provide for an orderly

process of determining which employees are retained rather than separated and

ensuring that those decisions are made according to merit-based factors.” Id.

at 17. Additionally, OSC asserts that two of the relators were in the competitive

service; OSC avers that these two relators were therefore entitled to, but did not

receive, written notice containing, at a minimum, “the agency’s conclusions as to

the inadequacies of [their] performance or conduct.” Id. at 19 (quoting 5 C.F.R.

§ 315.804(a)).

Particularly considering the deference that must be afforded to OSC at this

initial stage, see supra p. 3, I find that there are reasonable grounds to believe

that each of the six agencies engaged in a prohibited personnel practice under

5 U.S.C. § 2302(b)(12). First, OSC reasonably alleges that each agency took a

personnel action under 5 U.S.C. § 2302(a) when it terminated these individuals.

SRF, Tab 1 at 4, 12-13; see Cooper v. Department of Veterans Affairs,

6

2023 MSPB 24, ¶ 9 (recognizing that section 2302(a)(2)(A) defines “personnel

action” as including, among other things, disciplinary or corrective actions,

decisions regarding pay or benefits, and any other significant change in duties,

responsibilities, or working conditions); Smart v. Department of the Army,

98 M.S.P.R. 566, ¶ 10 (recognizing that a probationary termination is a personnel

action under 5 U.S.C. § 2302(a)(2)(A)), aff’d, 157 F. App’x 260 (Fed. Cir. 2005).

Second, OSC identifies laws and regulations related to RIFs that it believes

the agencies violated. SRF, Tab 1 at 12-13. In this regard, OSC asserts that the

probationary terminations violated 5 U.S.C. § 3502 and 5 C.F.R. part 351 because

the agencies misused the relators’ probationary status to effect de facto RIFs

without following the requisite RIF laws and regulations. 7 Id. at 13-18;

see Bielomaz v. Department of the Navy, 86 M.S.P.R. 276, ¶ 11 (2000) (indicating

that probationary employees are included in RIF procedures); see also Coleman v.

Federal Deposit Insurance Corporation, 62 M.S.P.R. 187, 189-90 (1994)

(holding that an appellant who lacked status to directly appeal his termination to

the Board could nonetheless claim that his termination was part of an improper

RIF).

Third, OSC argues that 5 U.S.C. § 3502 and 5 C.F.R. part 351 concern,

among other merit system principles, 5 U.S.C. § 2301(b)(6) and 5 U.S.C.

§ 2301(b)(8)(A), which provide that employees should be retained on the basis of

the adequacy of their performance, separated when they cannot or will not

improve their performance to meet required standards, and protected against

arbitrary action. SRF, Tab 1 at 13. The term “directly concerning” as used in

5 U.S.C. § 2302(b)(12) is undefined by statute or regulation, and the legislative

history of the Civil Service Reform Act of 1978 provides no clear explanation as

to the intended meaning of the term. See Harvey, 28 M.S.P.R. at 602. Absent a

7

As the legislative history of the Civil Service Reform Act explains, “[t]he

probationary or trial period . . . is an extension of the examining process to determine

an employee’s ability to actually perform the duties of the position.” S. Rep.

No. 95-969, at 45 (1978).

7

distinct definition in a statute or regulation, the words in a statute are assumed to

carry their “ordinary, contemporary, common meaning.” Dean v. Department of

Agriculture, 99 M.S.P.R. 533, ¶ 16 (2005) (citing Perrin v. United States,

444 U.S. 37, 42, (1979); Union Pacific R.R. Co. v. Hall, 91 U.S. 343, 347 (1875);

Butterbaugh v. Department of Justice, 91 M.S.P.R. 490, ¶ 13 (2002), rev’d on

other grounds, 336 F.3d 1332 (Fed. Cir. 2003)). The primary dictionary

definition of the adverb “directly” is “in a direct manner.” Directly, Merriam-

Webster.com, https://www.merriam-webster.com/dictionary/directly (last visited

Feb. 25, 2025); see Maloney v. Executive Office of the President , 2022 MSPB 26,

¶ 13 (explaining that, in interpreting the “ordinary, contemporary, common

meaning” of words, the Board may refer to dictionary definitions). The primary

dictionary definition of the verb “concern” is “to relate to: be about.” Concern,

Merriam-Webster.com, https://www.merriam-webster.com/dictionary/concern

(last visited Feb. 25, 2025). Thus, the ordinary meaning of “directly concerning”

is to relate to something without an intervening element. Cf. United States v.

Regan, 221 F. Supp. 2d 666, 671 (E.D. Va. 2002) (applying dictionary definitions

to interpret “directly concerned” in a separate statutory context and finding that

the term means to relate to something in a straightforward manner).

Applying this meaning, and affording OSC the requisite deference at this

stage, see supra p. 3, I find it is reasonable to posit that 5 U.S.C. § 3502 and

5 C.F.R. part 351, which prescribe RIF procedures that take into account

efficiency or performance ratings, directly concern the merit system principle set

forth in 5 U.S.C. § 2301(b)(6) and 5 U.S.C. § 2301(b)(8)(A). 8 See Wilburn v.

Department of Transportation, 757 F.2d 260, 262 (Fed. Cir. 1985) (explaining

that the RIF regulations reflect a congressional concern for fairness and limit an

agency’s discretion in filling a vacancy during a RIF); cf. Motor Vehicle Mfrs.

8

Because I find that OSC has made a sufficient showing regarding 5 U.S.C. § 2301(b)

(6), (8)(A) vis-à-vis 5 U.S.C. § 3502 and 5 C.F.R. part 351, I need not address OSC’s

allegations regarding 5 C.F.R. § 315.801 et seq. or the three other identified merit

system principles at this time.

8

Ass’n of U.S. v. State Farm Nut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983) (finding

that an agency action would be arbitrary and capricious under the Administrative

Procedure Act when, among other things, it has entirely failed to consider an

important aspect of the problem or offered an explanation for its decision that

runs counter to the evidence before the agency). This finding is consistent with

the Board’s longstanding application of the well-established maxim that a

remedial statute should be broadly construed in favor of those whom it was meant

to protect. Willingham v. Department of the Navy, 118 M.S.P.R. 21, ¶ 14 (2012);

see Dean, 99 M.S.P.R. 533, ¶ 19 (applying this maxim in interpreting the term

“relating to” for purposes of the Veterans Employment Opportunities Act of

1998).

Considering the deference that should be afforded to OSC in the context of

an initial stay request and the assertions made in the instant stay request, I find

that there are reasonable grounds to believe that the above-captioned agency

terminated the relator during the relator’s probationary period in violation of

5 U.S.C. § 2302(b)(12).

ORDER

Based on the foregoing, granting OSC’s stay request is appropriate.

Accordingly, a 45-day stay of the relator’s probationary termination is

GRANTED. The stay shall be in effect from February 25, 2025, through and

including April 10, 2025. It is further ORDERED as follows:

(1) During the pendency of this stay, the relator shall be placed in the

position the relator held prior to the probationary termination;

(2) The agency shall not effect any changes in the relator’s duties or

responsibilities that are inconsistent with the relator’s salary or

grade level, or impose on the relator any requirement which is not

required of other employees of comparable position, salary, or grade

9

level;

(3) Within 5 working days of this Order, the agency shall submit

evidence to the Clerk of the Board showing that it has complied

with this Order;

(4) Any request for an extension of this stay pursuant to 5 U.S.C.

§ 1214(b)(1)(B) and 5 C.F.R. § 1201.136(b) must be received by the

Clerk of the Board and the agency, together with any further

evidentiary support, on or before March 26, 2025; and

(5) Any comments on such a request that the agency wants the Board to

consider pursuant to 5 U.S.C. § 1214(b)(1)(C) and 5 C.F.R.

§ 1201.136(b) must be received by the Clerk of the Board on or

before April 2, 2025.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.