Judge: The statute establishing the Office of Special Counsel provides for removal by the President only for inefficiency, neglect of duty, or malfeasance in office, while the firing email gave no reason whatsoever. Image: Mark Van Scyoc/Shutterstock.com
By: FEDweek StaffA federal district court has ordered that Office of Special Counsel head Hampton Dellinger remain in office, ruling that his firing by the White House violated a law protecting the Special Counsel from what the judge called “arbitrary or partisan removal.”
The decision by U.S. District Judge Amy Berman Jackson in the District of Columbia keeps alive a key case that Dellinger has filed before the MSPB against the widespread firings of probationary employees. That case, involving one employee each from six agencies, amounts to a test case for similar arguments by potentially many thousands of probationary employees who have been fired in recent weeks.
The MSPB has temporarily blocked the firings of those six employees and has ordered them reinstated pending a fuller investigation by the OSC of whether to bring formal charges that the firings—carried out through boilerplate emails—violated RIF regulations and a requirement that even probationary employees be given specific notice of performance deficiencies.
Should the firing of Dellinger ultimately be upheld, the Trump administration doubtlessly would drop that case. In ordering Dellinger fired, the White House had designated VA secretary Doug Collins as the acting head of the OSC.
Separately, a federal district judge in California has ordered a temporary pause in further layoffs of probationary employees in at least six agencies on similar grounds. A fuller explanation is still to come of the implications, including whether that pause will be extended to all other agencies and whether those already fired should be reinstated.
In Dellinger’s case, the judge wrote that “There is no dispute that the statute establishing the Office of Special Counsel provides that the Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office, and that the curt email from the White House informing the Special Counsel that he was terminated contained no reasons whatsoever.”
She rejected the Justice Department’s argument that the clause is an unconstitutional limit on a President’s authority to manage the federal workforce, saying a President “may remove the Special Counsel for reasons related to his performance, but he cannot do it on a whim or out of personal animus.”
“The Court finds that the statute is not unconstitutional. And it finds that the elimination of the restrictions on plaintiff’s removal would be fatal to the defining and essential feature of the Office of Special Counsel as it was conceived by Congress and signed into law by the President: its independence,” she wrote.
The Trump administration likely will appeal to the federal appeals court in the District of Columbia, and the loser there likely will appeal on to the U.S. Supreme Court. The high court earlier had sidestepped the Justice Department’s appeal of an earlier temporary order from the judge on grounds that a final decision was upcoming from the lower court.
Apart from the case brought by Dellinger to the MSPB, several thousand employees have filed individual complaints there, and several law firms are preparing class action-type cases.
In a development that could further complicate matters, the MSPB board is now down to two members, following the expiration of the term of Democratic member Raymond Limon, who issued the stay order. The White House earlier ordered the firing of the other Democratic member, Cathy Harris, and a federal judge has temporarily blocked her firing, as well.
A further hearing in her case is set for this week. Should her removal be upheld, the other member, Republican Henry Kerner, could not issue decisions on appeals of rulings from the board’s hearing officers, pending the confirmation of at least one more member.
The MSPB had lacked a quorum throughout the first Trump administration. During that time a backlog of cases built up there—which the MSPB recently said it has virtually cleared out—while many other employees challenged hearing officer decisions against them directly into federal court.
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