Trump’s attempts to fire Office of Special Counsel head Hampton Dellinger threatens a crucial guardrail in the civil service system.
The Office of Special Counsel (OSC) has determined that the removal of federal employees without undergoing proper procedures likely violated the law. The report comes after President Trump sought to remove the head of OSC, Hampton Dellinger. On Feb. 26, Judge Amy Jackson Berman of the U.S. District Court for the District of Columbia heard arguments about whether to issue a preliminary injunction enjoining Dellinger’s removal and expressed skepticism of the government’s argument that the head of OSC exercises significant executive power.
On Feb. 13, the Trump administration directed agency heads to fire as many 200,000 probationary federal employees. Newly hired and newly promoted employees are required to serve a one-year probationary period before they enjoy full protections under the civil service system. During this period, their ability to appeal to the Merit Systems Protection Board (MSPB)—the agency that adjudicates many claims of wrongful removal—are limited. Since Trump’s inauguration, an estimated 30,000 employees overall have been removed from their positions. As the administration moves forward with large-scale reductions-in-force (RIF), this number is expected to climb dramatically.
OSC, a stand-alone independent agency that is distinct from special counsels in the Department of Justice, plays an important role in protecting the integrity of the merit system. By law, OSC may investigate alleged prohibited personnel practices and seek corrective action from the MSPB for unlawfully removed, suspended, or demoted employees. Trump’s efforts to fire Dellinger threaten the rights of federal employees and OSC’s role in protecting them.
The Role of OSC
OSC was created under the Civil Service Reform Act of 1978. Today, OSC investigates claims of prohibited personnel practices, manages whistleblower complaints, and enforces the Hatch Act, which restricts political activity by federal employees. The agency has jurisdiction over “any allegation of a prohibited personnel practice” and must “investigate the allegation to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken.” Under the civil service laws, prohibited personnel practices include discrimination, political coercion, retaliation for whistleblowing, failure to comply with any statute or law regarding personnel management, and violations of the merit system principles. In the event that OSC concludes that an agency has engaged in a prohibited personnel action, it may submit its report to the agency and, ultimately, petition the MSPB for corrective action.
By statute, the head of OSC is appointed by the president with the advice and consent of the Senate for a term of 5 years. Like the heads of many other independent agencies, the president may remove the head of OSC “only for inefficiency, neglect of duty, or malfeasance in office.” The head of OSC exercises substantial control over how aggressively the agency investigates prohibited personnel practices. For example, former head of OSC Scott Bloch refused to investigate claims of discrimination based on sexual orientation. Alex Kozinski—head of OSC from 1981 to 1982—was accused him of refusing to file strong cases and ignoring whistleblowers, which caused the Senate to delay Kozinski’s confirmation to the Ninth Circuit. During the first Trump administration, OSC achieved a record number of favorable outcomes for employees subjected to retaliation for whistle blowing and other prohibited personnel practices.
Although most employees may directly appeal a removal, suspension, demotion, or RIF, employees whose complaints are brought by OSC enjoy some advantages before the MSPB. A key advantage is that OSC can request a stay of the personnel action on behalf of the employee. The stay can provide immediate relief to an employee who would otherwise be removed from their position. An employee cannot request a stay unless they allege retaliation for whistleblowing. OSC’s investigation and decision to file a complaint also lends credibility to the employee’s claims. Yet, the employee cedes control over the case to OSC. Accordingly, preserving employee rights requires a head of OSC willing to zealously defend the merit principles.
Probationary Employees and OSC Findings
The Trump administration’s mass removal of probationary employees raises at least two legal concerns.
First, many employees received notice that they were being removed from their positions for inadequate performance—despite personnel records showing strong performance. Many probationary employees received the following statement regarding their removal, “The Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest.” Although agencies face fewer restrictions in removing probationary employees, mere “public interest” is not the standard. Agencies may remove a probationary employee if they fail to “demonstrate fully his or her qualifications for continued employment,” and probationary employees removed for performance-based reasons have limited appeal rights to the MSPB. The conflict between agency statements for removal and official performance records raises concerns that the agencies have removed employees for pretextual or arbitrary reasons.
Second, many of these agencies have sought to remove the majority of federal employees within their agency. As I have suggested previously on Lawfare, the mass removal of probationary employees suggests that these agencies should have used RIF procedures, an arcane and vexing method that agencies use to release employees for reasons such as a lack of work, shortage of funds, or reorganization. The Office of Personnel Management’s regulations implementing the RIF procedures cover probationary employees.
On Feb. 24, OSC released a redacted petition, suggesting that it would conclude that agencies had engaged in prohibited personnel practices by failing to use the RIF procedures when removing six probationary employees.The petition alleges that six different agencies violated the law and the merit systems principles by failing to follow RIF procedures in removing probationary employees.
OSC noted that the language in the termination notices for the probationary employees “does not describe any specific issues with any of the [employees’] performance or conduct.” Many of the termination notices used the same boilerplate language discussed above to justify the employee’s removal. Other agencies admitted that they removed the probationary employee as a method of restructuring their workforce. In removing a probationary trial attorney, the Department of Housing and Urban Development stated that it was removing the employee “as part of a workforce restructuring of the Agency” (emphasis in the original). After its presentation of the evidence, OSC concludes that, “[b]ased on public statements, the Agencies’ decision to terminate large numbers of probationers was to accomplish reorganizations and cost savings; in other words, a RIF.” Yet, none of these agencies had followed the RIF procedures.
OSC concludes that the failure to follow the RIF procedures violated the rights of the employees. It notes that probationary employees are not excluded from RIF procedures and “agencies do not have discretion to bypass RIF procedures when they are reorganizing or reducing the size of components based on lack of work or budgetary concerns.” The agencies did not seek to eliminate poor performers. Instead, they responded to a “purported lack of work, shortage of funds, and reorganization” and acted “in support of the President’s broad efforts to restructure and streamline the federal government.”
Even if the agencies had fired the probationary employees on performance grounds, they failed to follow the proper procedures. When seeking to remove a probationary employee based on performance concerns, the agency must provide written notice explaining its “conclusions as to the inadequacies of this performance or conduct.” OSC states, “This requirement is not a simply bureaucratic technicality—compelling agencies to assess the specific fitness of each employee prior to terminating them ensures that outstanding employees are not arbitrarily lost and that terminations are truly in the best interests of the federal service and consistent with merit system principles.”
On Feb. 26, a Board member of the MSPB granted OSC’s request for a stay. The Board member found that “there are reasonable grounds to believe that each of the six agencies engaged in a prohibited personnel practice.” According to the Board member, if the OSC’s allegations are true, then the employees can show that the agencies’ actions violated a prohibited personnel practice by failing to comply with the RIF procedures when removing probationary employees. The Board member ordered that the agencies place these probationary employees in the position they held prior to the termination during the pendency of the stay.
This incident illustrates the important role that OSC plays in protecting the rights of federal employees. As the MSPB correctly notes, these probationary employees would have had a right to direct appeal because they alleged that their termination was part of an improper RIF. Yet, OSC lends credibility to their claims and has the ability to request immediate relief on behalf of these employees.
The Threat to OSC
OSC acts as an important guardrail in preventing the abuse of the federal workforce. Yet, Trump has sought to weaken the OSC by removing Dellinger.
Trump has invoked Article II of the Constitution, unitary executive theory, and recent Supreme Court precedent for the proposition that the president has the constitutional power to remove the head of OSC. Unitary executive theory is the constitutional theory that the Vesting Clause and Take Care Clause authorize the president to exert control over subordinates within the executive branch. The Vesting Clause states that the “executive Power shall be vested in a President of the United States of America.” From this, some have concluded that all executive power is vested in the president alone. The Take Clause states that the president “shall take Care that the Laws be faithfully executed.” According to proponents of unitary executive theory, faithful execution requires the president to have meaningful control over subordinates who execute the law because the president is democratically accountable to the people and his subordinates are not.
The Supreme Court has embraced unitary executive theory in a number of recent cases. In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court held that removal protections for the CFPB’s single director violated Article II. According to the Court, “The CFPB’s single-Director structure contravenes [the Founder’s] carefully calibrated system [of government] by vesting significant governmental power in the hands of a single individual accountable to no one.” The Court concluded that the president must have the power to remove the director because, the director “may unilaterally, without meaningful supervision, issue final regulations, oversee adjudications, set enforcement priorities, initiate prosecutions, and determine what penalties to impose on private parties.” Consequently, the “Director may dictate and enforce policy for a vital segment of the economy affecting millions of Americans” with “no colleagues to persuade, and no boss or electorate looking over her shoulder.” The Supreme Court extended this holding to the Federal Housing Finance Agency (FHFA) in Collins v. Yellen.
In some respects, the head of OSC is like the directors of the CFPB and the FHFA. The Special Counsel is a single agency head, removable by the president only “for cause.” OSC does set enforcement priorities and initiate prosecutions. Unlike CFPB and FHFA, however, OSC’s power is mostly internal to the executive branch. Indeed, in Seila Law, the Supreme Court distinguished OSC from the CFPB, reasoning that “the OSC exercises only limited jurisdiction to enforce certain rules governing Federal Government employers and employees.” OSC has the power to petition other agencies about internal management decisions within the executive branch, but relies on those other actors to issue final decisions. It does not meaningfully regulate the economy, entire industries, or enact policies typically associated with the president’s domestic policy agenda.
For now, Dellinger remains in office. On Feb. 12, Judge Jackson issued a temporary restraining order prohibiting Trump from removing Dellinger. The federal government filed a motion to vacate the restraining order with the U.S. Supreme Court. The justices, however, held the application to vacate the order in abeyance until Feb. 26. Justice Gorsuch and Justice Alito dissented, arguing that Dellinger “wields significant prosecutorial and investigative power as the sole head of a 129-person office.”
On Feb. 26, Judge Jackson held a hearing for a preliminary injunction. Echoing Seila Law, Dellinger argued that OSC has no ability to definitely state the views of the executive branch because OSC’s investigations are subject to internal checks-and-balances by other presidential appointees, such as the presidential appointees accused of violating the law and the MSPB. The government focused on the fact that OSC may investigate agency actions and file complaints in the MSPB like a prosecutor in a federal court.
Judge Jackson appeared skeptical that the level of executive power exercised by OSC rose to the level of “significant” executive power described by Seila Law. Judge Jackson suggested that OSC is a unique agency because it must report to both the president and the Congress about violations of law by other presidential appointees. According to Judge Jackson, it would make “no sense” that the president could remove the official charged with protecting whistleblowers for investigating and reporting illegal actions by the president’s appointees. At-will removal would “chill” the OSC’s willingness to report those illegal activities and whistleblowers’ willingness to come forward. According to Judge Jackson, the OSC exists to act as a check-and-balance on the powers of appointed officers within a presidential administration. Judge Jackson appeared likely to extend the temporary restraining order to allow for the filing of the final briefs and time to issue her decision, but did not make any rulings from the bench.
During the hearing, the government argued that the harm to the public interest is that the president—the most democratically accountable individual in the federal government—would lose significant control over a federal agency. The government roots its argument in unitary executive theory and the president’s accountability to the public. Yet this argument ignores the fact that OSC itself is a mechanism of holding the president and his administration accountable to the public. OSC serves the public by allowing whistleblowers to report illegal behavior by presidential appointees. The public needs independent reporting about the inner workings of government in order to hold the president democratically accountable.
Subjecting the head of OSC to at-will removal threatens the agency’s role in protecting the constitutional due process rights of civil servants. OSC exists to investigate and police violations of the merit principles. Moreover, it undermines the public’s ability to hold the president accountable. The integrity of OSC depends on its independence from political pressure by the president—especially when the cause for investigation is a central aspect of the president’s policy agenda.
– Nicholas Bednar is an associate professor of law at the University of Minnesota Law School. He writes in the areas of executive politics, administrative law, and immigration. He holds a PhD in political science from Vanderbilt University and a JD from the University of Minnesota Law School. Published courtesy of Lawfare.
