Special counsel ends suit to remain in job amid battle for probationary workers
The head of the Office of the Special Counsel (OSC) is ending his legal bid to remain in his post after being fired by President Trump, calling into question the future of an office that has been battling to return fired federal workers to their posts.
Special counsel Hampton Dellinger’s announcement comes one day after a federal appeals court panel greenlighted Dellinger’s termination until they resolve the case, an indication that the court may ultimately side with the Trump administration.
“This new ruling means that OSC will be run by someone totally beholden to the President for the months that would pass before I could get a final decision from the U.S. Supreme Court,” he said.
“I think the circuit judges erred badly because their willingness to sign off on my ouster — even if presented as possibly temporary — immediately erases the independence Congress provided for my position, a vital protection that has been accepted as lawful for nearly fifty years. Until now,” Dellinger continued.
Dellinger said losing the independence of the office “could be immediate, grievous, and, I fear, uncorrectable.”
His announcement takes the pressure off the Supreme Court by opting against filing an emergency appeal to the justices seeking his immediate reinstatement. Already, the high court punted the Trump administration’s emergency appeal at an earlier stage of the case, but the court had not weighed in on the underlying legality of the firing.
“And given the circuit court’s adverse ruling, I think my odds of ultimately prevailing before the Supreme Court are long,” Dellinger wrote.
Dellinger has filed numerous complaints with the Merit Systems Protection Board (MSPB), scoring early victories in asking it to return fired probationary employees to their jobs, arguing they were wrongfully terminated.
The Trump administration ordered the firing of as many as 220,000 federal workers hired or promoted within the last year or two, a status that varies by agency.
In filings before the quasi-judicial board, Dellinger had argued the Trump administration failed to follow civil service law, claiming to fire each for performance reasons without doing an individual assessment. Dellinger said the move was akin to layoffs, requiring the government to instead embark on a reduction in force.
Dellinger scored two initial wins before the MSPB, which agreed to reinstate six federal workers across different agencies for 45 days as it continues to weigh the matter.
Building on that action, the MSPB on Wednesday ordered the U.S. Department of Agriculture to return nearly 6,000 fired probationary workers to their jobs for 45 days.
In addition to protecting federal workers from so-called prohibited personnel practices, the Office of the Special Counsel is another avenue for whistleblower reporting and is tasked with protecting them from reprisal. The office also investigates Hatch Act violations of federal workers accused of electioneering.
“Today would have marked my one-year anniversary as head of the Office of Special Counsel. For the rest of my life I will regret that I could not make it to the milestone. I tried,” Dellinger wrote in his statement.
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