Major Win for Probationary Federal Workers

OSC Hampton Dellinger, after being reinstated by a judge following dismissal by Trump, has temporarily saved the jobs of six wrongfully-terminated probationary federal workers. Here's why it matters.

The Office of Special Counsel is a rather obscure independent federal investigative and prosecutorial agency. OSC's primary mission is to defend the merit system by protecting federal employees and applicants from prohibited personnel practices. In October, 2023, President Biden nominated Hampton Dellinger to serve as the Special Counsel - the head of the OSC - for a term of five years. Federal law states “the Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.”

Donald Trump fired Hampton Dellinger, without case, on February 7th, 2025. Dellinger sued Trump on February 10th, and on February 13th, Judge Amy Berman Jackson issued a temporary restraining order reinstating Hampton Dellinger as the Special Counsel. Trump appealed the temporary restraining order to the DC Circuit Court of Appeals, who denied his request in a 2-1 ruling. The Trump appointee - Judge Katsas - would have granted Trump’s request. Trump then appealed to the Supreme Court, who punted on the matter, keeping Hampton Dellinger in his position for the time being.

Judge Jackson’s temporary restraining order expires today, and she held a hearing today for argument over whether she should issue a more permanent preliminary injunction. Temporary restraining orders have to be renewed every 14 days and are usually unappealable. They stay in place until the Judge can hold a hearing and decide whether to issue the preliminary injunction - which is appealable. I have a feeling that if Judge Jackson issues a preliminary injunction, that this Supreme Court will probably rule that Trump has the power to fire Hampton Dellinger because he’s an agency head, and because this Supreme Court likes to think of presidents as kings. But we’ll see.

After the hearing today, Judge Amy Berman Jackson extended the temporary restraining order until Saturday ruling:

The Court is well aware that the case is in the very unusual posture of being the subject of an application before the Supreme Court before a final order has been issued and before the United States Court of Appeals for the District Columbia has had the opportunity to review that final order. It recognizes that the Supreme Court – with the understanding that the TRO expires at midnight tonight – is holding the application in abeyance until that time. So it is incumbent upon this Court to resolve this matter even more expeditiously than the Federal Rules of Civil Procedure would ordinarily permit; and the Court will do so.

Given the significance of the constitutional questions presented, though, it is also incumbent upon the Court to give full consideration to all of the arguments advanced during today’s hearing before it finalizes its opinion. It is also necessary to give close consideration to all of the pleadings submitted by the parties after the TRO issued, and to rule on questions raised after the defendants asked the Supreme Court to take the case.

In consideration of all of these circumstances, then, the Court finds that there is good cause to extend the temporary restraining order for an additional three days, through Saturday, March 1, so that the status quo will be preserved for the brief period of time it takes to complete the written opinion on the consolidated motion for preliminary injunction and cross motions for summary judgment.

MEANWHILE, we learned that on February 21st - just one week after being reinstated by Judge Amy Berman Jackson - Hampton Dellinger filed six requests to stay the termination of six federal employees from six different federal agencies. He made the request to the Merit Service Protection Board (MSPB) because under federal law, the OSC “shall” make the request and the MSPB “shall” grant it if it’s determined that an agency engaged in prohibited personnel practices against federal workers. Normally, Special Counsel doesn’t make public statements on these types of requests, but because one of the agencies blabbed about it, the Office of Special Counsel made a statement:

Last Friday, Special Counsel Hampton Dellinger filed initial requests to “stay," or pause, the apparently impermissible terminations of six probationary employees across various executive branch agencies. The requests, filed with the U.S. Merit Systems Protection Board (MSPB), seek a 45-day stay of the terminations because there are reasonable grounds to believe that agencies engaged in prohibited personnel practices (PPPs) under 5 U.S.C. § 2302(b)(12) by terminating the employees in violation of federal laws and regulations governing probationary terminations and reductions in force.

“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. 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."

In an interesting twist, Trump fired a member of the Merit Service Protection Board recently. Her name is Cathy Harris. Full disclosure: Cathy Harris was my lawyer in my wrongful termination case from Trump’s first term, but she had to withdraw as my attorney when President Biden nominated her to the MSPB. She sued Trump, and a judge reinstated her job via temporary restraining order, too. I thought about how ironic it would be if she was the MSPB member to get Hampton Dellinger’s stay request to reinstate these six probationary employees. Two wrongfully terminated federal workers reinstating the jobs of six wrongfully terminated federal workers.

She did not get the case, however. Instead, Raymond Limon was assigned this particular request from Hampton Dellinger. Limon was appointed as Vice Chair of MSPB in 2022 by President Biden. So far, Trump hasn’t tried to fire Limon.

Last night, Limon granted Hampton Dellinger’s request. Here are some excerpts:

I find that there are reasonable grounds to believe that each of the six agencies engaged in a prohibited personnel practice. Based on the foregoing, granting OSC’s stay request is appropriate. Accordingly, a 45-day stay of the [employees’] probationary termination is GRANTED. The stay shall be in effect from February 25, 2025, through and including April 10, 2025. It is further ORDERED as follows:

(1) During the pendency of this stay, the [employees] shall be placed in the position the[y] held prior to the probationary termination;

(2) The agency shall not effect any changes in the [employees’] duties or responsibilities that are inconsistent with the [employees’] salary or grade level, or impose on the [employee] any requirement which is not required of other employees of comparable position, salary, or grade level;

(3) Within 5 working days of this Order, the agency shall submit evidence to the Clerk of the Board showing that it has complied with this Order;

(4) Any request for an extension of this stay must be received by the Clerk of the Board and the agency, together with any further evidentiary support, on or before March 26, 2025.

At this point, you might be wondering how six people getting their jobs temporarily reinstated is a “major win.”

First, Dellinger said the following in his initial public statement about his requests to the MSPB:

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.

Second, in a statement regarding the MSPB’s approval of his requests last night, Dellinger said:

"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."

I truly hope Hampton Dellinger is able to stay in his job long enough to affect change for large portions of wrongfully terminated probationary federal employees.