Appeals Court Effects Immediate Removal of Special Counsel
In a recent article, I wrote, “The circumstances involving probationary employees resemble a soap opera of personal and political drama. Last weekend, a court ruled the Special Counsel’s firing illegal.”
In that case, the district court judge found the removal of the Special Counsel at the Office of Special Counsel (OSC) was illegal. She concluded that President Trump did not go through the necessary steps required by law to fire the Special Counsel whom President Biden had appointed to a five-year term.
The Department of Justice immediately filed an appeal of that decision. The administration argues the president has it within executive authority to install a person he prefers to be the head of the Office of Special Counsel.
Late on March 5, the Court of Appeals for the District of Columbia Circuit issued a stay which read: “the district court’s March 1, 2025 order be stayed pending further order of the court, except to the extent that order vacates the Temporary Restraining Order entered by the district court on February 12, 2025…..Appellants have satisfied the stringent requirements for a stay pending appeal.”
In other words, this court sided with the Trump administration in allowing the immediate removal of Hampton Dellinger as the head of the Office of Special Counsel. The court lifted an earlier order blocking the removal of Hampton Dellinger while the court considers the issues for and against his removal.
On March 6, Dellinger issued a statement saying that he was resigning and would not pursue further legal action to try to retain his position with OSC.
The Court of Appeals also directed the time limits for the appellee’s brief to be filed by April 4, 2025, and the appellants’ reply brief by April 11, 2025. The Court also noted that Appellants should raise all issues and arguments in the opening brief. The court ordinarily will not consider issues and arguments raised for the first time in the reply brief.
MSPB Stays and Removal of Probationary Employees
The Merit Systems Protection Board (MSPB) also decided on a request from OSC that more than 5000 probationary employees removed by the Department of Agriculture should be reinstated.
The MSPB decision granted a “45-day stay of Mr. Doe’s termination and the probationary terminations of the aforementioned probationary employees are GRANTED. The stay shall be in effect from March 5, 2025, through and including April 18, 2025.”
When this occurred, Dellinger issued a celebratory press release which read:
I want to thank the MSPB for granting this important stay. Agencies are best positioned to determine the employees impacted by these mass terminations. That’s why I am calling on all federal agencies to voluntarily and immediately rescind any unlawful terminations of probationary employees.
The Office of Personnel Management recently clarified that ‘Agencies have ultimate decision-making authority over, and responsibility for, such personnel actions.’ My agency will continue to investigate and take appropriate action on prohibited personnel practices including improper terminations of probationary employees. Voluntarily rescinding these hasty and apparently unlawful personnel actions is the right thing to do and avoids the unnecessary wasting of taxpayer dollars.
While there have been a number of decisions coming out in a few days on the termination of probationary federal employees, there are no final decisions yet on how this case will unfold. It is likely that this will not be determined until the U.S. Supreme Court issues a decision at a future date.
