Special counsel determines some probationary layoffs violate law, asks for intervention

The Office of the Special Counsel (OSC) has determined that six probationary employees were improperly terminated, asking an employment body to intervene and temporarily bar the removals in a matter that could impact thousands of recently fired employees.

In redacted filings now shared publicly, special counsel Hampton Dellinger said the firing of the probationary employees likely violated laws requiring that employees be removed for cause, asking the Merit Systems Protection Board (MSPB) to issue a 45-day stay blocking the terminations.

Dellinger concluded that the probationary firings violate the law governing the civil service, as well as the principles underpinning the merit-based hiring system.

“These principles establish that all federal employees, including those in a probationary status, should be evaluated based on individual performance,” Dellinger said in a statement.

“If agencies wish to terminate probationary employees not for performance or conduct, but as part of a general restructuring or downsizing, they must initiate a reduction in force (RIF) and follow the relevant procedures for that process,” he added in one of the filings.

“This requirement is not a simple bureaucratic technicality — compelling agencies to assess the specific fitness of each employee prior to terminating them ensures that outstanding employees are not arbitrarily lost and that terminations are truly in the best interests of the federal service.”

GovExec first obtained and reported Dellinger’s determination, prompting release of documents that would normally be sealed from the public.

The Office of the Special Counsel is responsible for investigating illegal actions taken against employees, including cases of whistleblower reprisal.

Dellinger concluded that the probationary firings constitute a prohibited personnel practice and asked the MSPB, a quasi-judicial board, to take action, creating a process for the employees to be reinstated to their jobs.

The MSPB has three days to deny the stay, or it will take effect.

The Trump administration has demanded the firing of probationary employees, a group of roughly 200,000 employees who were hired up to one or two years ago, depending on the agency.

Dellinger’s review of the matter was first prompted a request from Democracy Forward, which asked the OSC to review “all similarly situated probationary employees.” Their complaint has since been expanded to include employees at other federal agencies.

“Today’s news from the Office of Special Counsel confirms what we have long known: the mass termination of federal workers is unlawful, and Trump’s only plan here seems to be to inflict chaos and suffering on the American people and the federal workers who serve them as opposed to using our government to better the lives of working Americans, families, and communities across the country,” Democracy Forward President Skye Perryman said in a statement.

“It is among the many harmful and unlawful actions being taken by this Administration without regard for impact or purpose,” Perryman said.

Dellinger appears to be responding to the wider request.

“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,” his office said in a statement.

Dellinger himself is in the midst of a battle fighting his own termination.

Though special counsels are appointed to a five-year term, Dellinger was fired by Trump earlier this month. A judge has temporarily reinstated him to his post, and the Supreme Court on Friday rebuffed a Trump administration request, declining to take up an emergency appeal.

And the MSPB has also seen its work impacted by Trump firings. A federal judge also reinstated MSBP Chair Cathy Harris after Trump fired her.

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