Hampton Dellinger - who heads the United States Office of Special Counsel* was on February 10, 2025 discharged by Secretary of the Treasury Bessent, presumably at the direction of Donald Trump. Last week the Supreme Court stayed its hand until the expiration of the TRO granted by U.S. District Judge Amy Berman Jackson who has extended the TRO for a few days as she prepares her ruling on a decision certain to be appealed.
There are miles of bad road ahead for Dellinger as Associate Justices Neil Gorsuch and Samuel Alito objected to the majority's alloiwng the TRO to expire - rather than reverse it. Gorsuch and Alito argued that at the time of the founding no English court would have issued such an order against an agent of the King. Gorsuch and Alito therefore complained that "[t]he court effectively commanded the President and other Executive Branch officials to recognize and work with someone whom the President sought to remove from office." [emph. added]
Dellinger's agency principally protects civil service employees from harassment and discrimination.
It prosecutes cases before the Merit Systems Protection Board. The Director - Dellinger - was himself temporaily reinstated by a divided D.C. Court of Appeals.
Upon his restoration by District Judge Amy Berman Jackson Dellinger issued an appeal to the Merit Systems Protection Board. It names six employees at six agencies - who represent a potential class of thousands threatened with discharge by the Musk-led so-called `Department of Governmental Efficiency', and the OMB's assertedly temporary "pause memo" suspending federal grants, barring "DEI" measures and the "green new deal" etc..
The MSPB
“Since the Civil Service Reform Act was passed in 1978, the merit system principles have guided how federal government agencies hire, manage, and, if necessary, remove federal employees. These principles establish that all federal employees, including those in a probationary status, should be evaluated based on individual performance."
Dellinger added: “Firing probationary employees without individualized cause appears contrary to a reasonable reading of the law, particularly the provisions establishing rules for reductions in force. Because Congress has directed that OSC 'shall' protect government employees from PPPs, I believe I have a responsibility to request a stay of these actions while my agency continues to investigate further the apparent violation of federal personnel laws."
The Special Counsel believes other probationary employees are similarly situated to the six workers for whom he currently is seeking relief. Dellinger is considering ways to seek relief for a broader group without the need for individual filings with OSC.
“Since the Civil Service Reform Act was passed in 1978, the merit system principles have guided how federal government agencies hire, manage, and, if necessary, remove federal employees. These principles establish that all federal employees, including those in a probationary status, should be evaluated based on individual performance."
Dellinger added: “Firing probationary employees without individualized cause appears contrary to a reasonable reading of the law, particularly the provisions establishing rules for reductions in force. Because Congress has directed that OSC 'shall' protect government employees from PPPs, I believe I have a responsibility to request a stay of these actions while my agency continues to investigate further the apparent violation of federal personnel laws."
The Special Counsel believes other probationary employees are similarly situated to the six workers for whom he currently is seeking relief. Dellinger is considering ways to seek relief for a broader group without the need for individual filings with OSC.
*[The OSC is a prosecuting agency protecting civil service employees, not a special counsel like Jack Smith who, inter alia,indicted Donald Tump for inciting the January 6, 2021 attempt to obstruct the lawful transfer of power to President Joe Biden.]
- 2/26/25
Oversight agency [OSC] finds Trump’s federal worker firings unlawful, asks for some employees to be reinstated - GOVERNMENT EXECUTIVE
The findings could have sweeping impacts for the tens of thousands of recently dismissed workers.
An independent federal oversight agency - the Office of Special Counsel - has deemed at least some of President Trump’s mass firings of probationary period employees unlawful, creating a pathway for those employees to regain their jobs. The news site Government Executive reports:
The Office of Special Counsel, the agency responsible for investigating illegal actions taken against federal employees, issued its decision for six employees, each at different agencies. While the decision was technically limited in scope, it could have immediate impact on all terminated staff at those six agencies and could set a wide- ranging precedent across government. It has not been made public and was provided to Government Executive by a source within the government. OSC, which did not provide the document to Government Executive, verified its authenticity.
OSC has turned the case over to the quasi-judicial Merit Systems Protection Board for enforcement of its findings and is so far requesting a 45-day stay on the firing decisions. The agency said it will use that time to further investigate the dismissals and determine the best way to mitigate the consequences from the apparent unlawful actions.
MSPB has three business days to issue a decision on the stay request. If it does not act by that deadline, the stay will go into effect. Henry Kerner is thought to have recused himself from the case as he previously led OSC.
Differing Violations
Before the expiration of the stay, OSC can issue a request for a corrective action to the employees’ agencies. That would likely seek to get the employees reinstated with back pay. If the agencies refuse OSC’s request, it can initiate corrective action litigation before MSPB. OSC can also seek disciplinary action against the individuals responsible for taking the unlawful personnel actions against the employees.
Special Counsel Hampton Dellinger, who leads OSC, found differing violations for the complainants on the case: for one set, he said, the government has violated the federal statute that governs the termination of employees in their probationary periods. For the second set, Dellinger said in the decision that was co-signed by Deputy Special Counsel Bruce Fong that the Trump administration had essentially issued layoffs without engaging in the government's reduction-in-force procedures.
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