Probationary Employee Removals and the District Courts
As expected, the Trump administration’s efforts to optimize the federal government’s workforce are being challenged in various court cases.
There are 94 U.S. district courts, which include 89 districts across the 50 states and one each in the District of Columbia, Puerto Rico, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands.
As of January 2025, Congress has authorized 677 permanent district judgeships for these courts.
One of the latest issues is the firing of probationary employees. A large number of federal probationary employees are impacted. The actual number may eventually be in the tens of thousands.
There is no way to know how many case decisions will be issued by district courts on this issue. Some cases will find that the president has the authority as the chief executive to make these decisions, while others find that removing these employees violates various statutes and regulations.
The final decision is likely to be issued by the U.S. Supreme Court.
With the overlapping layer of legal documents, there is plenty of room for disagreement.
A recent decision, widely covered in the mainstream press, found that the removal of probationary employees was likely illegal and provided temporary relief to a coalition of labor unions and organizations seeking to stop the Trump administration’s reduction in the size of the federal workforce.
Another district court decision allowed at least some layoffs to continue.
The most recent decision is from the district court in the District of Columbia. It is a lengthy, well thought out decision as one might expect from a judge who can reasonably assume this case will probably go to the Supreme Court. This recent case found that the President did not go through the necessary steps to fire the Special Counsel whom President Biden had appointed to a five-year term. The decision reinstating the special counsel, which was immediately appealed, will now wind its way through the judicial system.
While these early decisions are not the final answer to the questions raised in these cases, they do serve the purpose of slowing the rate of change in the federal government—a primary purpose of the lawsuits by those who do not agree with changes being implemented.
Role of the Office of Special Counsel
Complicating an already complex scenario, the Office of Special Counsel (OSC) recently requested the Merit Systems Protection Board (MSPB) to issue a stay, or pause, on the Trump administration’s terminations of six probationary federal employees. The agency says it believes that these terminations are not permissible on the grounds they violated prohibited personnel practices.
OSC essentially agreed with the unions’ position that agencies are not following proper procedures for terminating probationary employees or initiating reductions in force (RIFs).
OSC wrote in its stay request:
In accordance with its legal responsibility to safeguard the merit system, OSC seeks this stay because the probationary terminations at issue in this matter appear to have been effectuated in a manner inconsistent with federal personnel laws. In most cases, probationary employees in the competitive service may only be terminated if their performance or conduct demonstrates that they are unfit for federal employment. 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.
OSC also issued a press release on the topic that stated:
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 MSPB subsequently issued a stay request on the termination of six probationary employees. As noted by Special Counsel, Hampton Dellinger in a press release:
[A] 45-day postponement of their terminations because OSC found reasonable grounds to believe that agencies engaged in prohibited personnel practices (PPPs)….I am very grateful the MSPB has agreed to postpone these six terminations. These stays represent a small sample of all the probationary employees who have been fired recently so our work is far from done. Agency leaders should know that OSC will continue to pursue allegations of unlawful personnel actions, which can include asking MSPB for relief for a broader group of fired probationary employees. I urge agency leaders to voluntarily and immediately rescind any and every unlawful termination of probationary employees.
On Saturday, March 1, the district court judge ruled that President Trump illegally fired special counsel Hampton Dillinger and ordered the Trump legal team not to interfere with him in any way.
“Therefore, it is null and void, and plaintiff is and shall be the special counsel of the Office of Special Counsel for the remainder of his five-year term unless and until he is removed in accordance with 5 U.S.C. §1211(b),” she said.
Removal of Special Counsel and MSPB Chair Upended By District Courts
While the outcome of these issues is important to the many probationary employees who have been removed from their positions, the case has taken on elements that would make for a lively soap opera.
There is a strong political element underlying all of this. There are also strong personal elements. These have already led to one trip to the Supreme Court in an early skirmish of future events.
Earlier this week, the Trump administration reiterated a request to the Supreme Court to lift an order by a federal judge that instructed President Trump to temporarily reinstate Hampton Dellinger as the head of the Office of Special Counsel.
This came after President Joe Biden appointed Dellinger to a five-year term as the head of the office. After Dellinger was fired in a February 27 email that did not specify the reason for his dismissal, Dellinger challenged his removal in court. The temporary restraining order issued by a district court was extended to March 1st to give the judge more time to consider the briefs filed by both sides and draft an opinion.
On Saturday, March 1, district court judge Amy Berman Jackson issued a decision that President Trump illegally fired special counsel Hampton Dillinger and ordered the Trump legal team not to interfere with him in any way.
Jackson concluded Dellinger’s duties, which include holding executive branch officials accountable for ethics breaches and entertaining whistleblower complaints, were independent from the president. The position is a rare exception to the president’s generally vast domain over the executive branch.
“Therefore, it is null and void, and plaintiff is and shall be the special counsel of the Office of Special Counsel for the remainder of his five-year term unless and until he is removed in accordance with 5 U.S.C. §1211(b),” she said.
This is the portion of law that reads:
The Special Counsel shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years….The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.
The Department of Justice immediately filed an appeal of the decision.
The argument posed is that the judge has imposed an unconstitutional limit on the power of the President to oversee the executive branch. The legal team argued that Mr. Dellinger exercises core executive powers, which must be under the control of the president. But, rather than doing this, they argued he is impinging the president’s authority by working against the firing of probationary federal employees.
Judge Berman concluded in her decision:
The Office of Special Counsel is not assigned responsibilities that include furthering the administration’s agenda; it is the Special Counsel’s job to look into and shine light on a set of specific prohibited practices so that the other bodies, in the appropriate exercise of their constitutional authority, can take whatever action they deem to be appropriate. To do this as Congress intended that he should, he must remain entirely free of partisan or political influence, and that is why the statute survives scrutiny even under the most recent precedent.
Obviously, there is more to come with a personal side of the political quagmire. To add more spice to this political sideshow, President Trump demoted MSPB Chair Cathy Harris on his first day in office from her role as chair of the MSPB, effectively reducing her influence on the board’s operations.
On February 10, 2025, the President fired Harris with a one-sentence email without citing a cause for her removal. Harris then filed a lawsuit on February 11. She argued her dismissal violated federal law and Supreme Court precedent protecting independent agency officials from arbitrary removal. She asserted that her removal disregarded statutory requirements and the constitutional principles of separation of powers.
On February 18, U.S. District Court Judge Rudolph Contreras issued a temporary restraining order reinstating Harris as chairwoman while her lawsuit is adjudicated. This order keeps her in place until February 23, 2025, when she must file for a preliminary injunction to extend her reinstatement.
Update: On March 4, Harris was reinstated to her position after a judge issued a permanent injunction.
So, in this political/personal interest drama that is now playing out, the reinstated Special Counsel will pursue a case before the MSPB with a Board Member who has also been reinstated after both were removed from their offices by President Trump whose administration is pursuing firing a large number of probationary employees.
Their personal cases against the President will be playing out at the same time as the cases regarding probationary employees. The court system will eventually resolve this drama. No doubt, the court decisions will likely be appealed and eventually go to the Supreme Court in one form or another.
Summary
When President Trump was elected, it was predictable that the courts and judicial bodies (FLRA, MSPB) would be very busy—perhaps even overwhelmed with federal employees trying to save their jobs and the unions trying to preserve their rights and incoming dues from those they represent.
The bureaucracy in the federal government does not like change. Over time, layers of rules, regulations, and statutory requirements have been included that frequently work to prevent any changes just because of the difficulty of making them. Trying to make substantive changes, even for a president of the United States, is a monumental task.
In his first term, President Trump initiated numerous changes. With great fanfare, when President Biden took office, many or most of the Trump changes were obliterated with a flurry of executive orders.
Turnabout is fair play, and many or most of those Biden executive orders impacting the federal workforce were obliterated when President Trump started his second term of office. As happened in his first term, the federal employee unions and various interest groups have marched back into court to preserve the status quo and various privileges of the federal workforce.
Some of the changes now being sought by the Office of Special Counsel would actually increase the job protection for probationary employees, probably significantly beyond what has been thought of and characterized as a job with a minimum of job security until after completion of the probationary part of the hiring process.
The Trump administration’s approach and the role of the Office of Personnel Management are also being tested in the courts. While the initial decisions will be from district courts, or decisions of the MSPB or the FLRA, the final outcome is likely to reside in decisions of the U.S. Supreme Court.
The road will be bumpy, stressful, antagonistic, legalistic, and hard fought. The survival of federal employee unions may be at stake based on some of their assertions in court regarding the potential impact on their income from federal employee dues payments.
The political future of the Trump administration may also be at stake. As outlined above, the personal future of some government officials is at stake. The authority of a president to exert control over the federal workforce is also in play and may be enhanced or reduced.
