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office of special counsel
Internal Watchdog Ruling Indicates DOGE Mass Public Worker Firings 'Unlawful'
"Trump's only plan here seems to be to inflict chaos and suffering on the American people and the federal workers who serve them," said one critic.
Feb 24, 2025
The U.S. Office of Special Counsel—the independent agency that protects government whistleblowers—has deemed "at least some" of the Trump administration's mass firing of civil servants in their probationary periods to be illegal and recommended halting their termination, according to reporting Monday.
Government Executive senior correspondent Eric Katz reported that the Office of Special Counsel (OSC), which investigates unlawful actions against federal employees and prosecutes misconduct, issued a decision on the firings of six such workers at different agencies. The terminations are part of a mass purge of federal workers by Elon Musk's Department of Government Efficiency's (DOGE).
"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," the agency said.
1/2 An important victory for federal probationary workers. This one not in the courts. Office of Special Counsel: "The probationary terminations at issue in this matter appear to have been effectuated in a manner inconsistent with federal personnel laws."
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— Ryan Goodman ( @rgoodlaw.bsky.social) February 24, 2025 at 11:21 AM
The request to block the workers' termination and reinstate them came in a class-wide complaint filed by the advocacy group Democracy Forward and Alden Law Group on behalf of the civil servants, who according to the filing were fired "with no regard for the performance or conduct," but rather due to their probationary status.
"While the decision was technically limited in scope, it could have immediate impact on all terminated staff at those six agencies and could set a wide-ranging precedent across government," Katz wrote. "It has not been made public and was provided to Government Executive by a source within the government. OSC, which did not provide the document to Government Executive, verified its authenticity."
U.S. Special Counsel Hamilton Dellinger—whose recent termination by Trump was temporarily blocked last week by the Supreme Court—said in a statement Monday that "firing probationary employees without individualized cause appears contrary to a reasonable reading of the law, particularly the provisions establishing rules for reductions in force."
Democracy Forward president and CEO Skye Perryman said Monday that "today's news from the Office of Special Counsel confirms what we have long known: The mass termination of federal workers is unlawful, and Trump's only plan here seems to be to inflict chaos and suffering on the American people and the federal workers who serve them, as opposed to using our government to better the lives of working Americans, families, and communities across the country."
Some observers have said the specter of termination is a deliberate tactic to instill fear in federal civil servants, upon whom Office of Management and Budget Director Russell Vought said he wishes to inflict "trauma."
The fate of the six federal workers will be decided by the Merit Systems Protection Board (MSPB), an independent quasi-judicial federal agency tasked with reviewing the Office of Personnel Management (OPM), control of which was reportedly seized by DOGE last month.
U.S. District Judge Rudolph Contreras last week invalidated Trump's likely unlawful bid to fire Democratic MSPB Chairwoman Cathy Harris.
Responding to Monday's OSC decision, Alden Law Group partner Michelle Bercovici said that "the administration's mass termination of employees in their first or second year on the job is an unprecedented and grossly unfair circumvention of the merit principles upon which our civil service is based."
"These hardworking employees should have the opportunity to let their work speak for itself," Bercovici added.
Rob Shriver, managing director of Democracy Forward's Civil Service Strong program and a former acting OPM director, said Monday: "It's common sense that if you want to remove someone for poor performance, you actually have to look at that person's performance in the job. And if they looked, they'd see the value that these workers bring."
"The mass terminations of probationary employees are flatly illegal and we urge the MSPB to move swiftly to implement this recommendation," Shriver added.
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A Right-Wing Supreme Court Won't Save Us From This Right-Wing President
Today especially, remember that we celebrate President's Day—not Dictator's Day—for a reason.
Feb 17, 2025
It is well to remind ourselves that today is President’s Day, not Dictator’s Day.
Of all the things the framers of the Constitution worried about, their biggest worry was that a president would become as powerful as a king. Which is why they created Congress and the judiciary — to check and constrain him.
Fast forward to the first Gilded Age of the late nineteenth century, when inequalities of income and wealth had become extreme that the so-called “Robber Barons” of the era (think Elon Musk, Jeff Bezos, and Mark Zuckerberg) controlled the economy, and corruption was rampant. (I say “first” Gilded Age because we are now clearly in the second.)
Reformers of that era created an income tax to try to limit the Robber Barons’ incomes, limits on corporate campaign expenditures to limit their political reach, and independent regulatory agencies to limit their power. The Federal Trade Commission, for example, was established as an independent agency in 1914, to take on corporate monopolies and fraud.
Fast forward again to today. There are by now 19 independent regulatory agencies, including the Securities and Exchange Commission, the Federal Reserve, the Commodity Futures Trading Commission, the National Labor Relations Board, the Federal Deposit Insurance Corporation, the Consumer Financial Protection Bureau, and the Office of Special Counsel.
These independent agencies, staffed with experts, have become a major countervailing power to the political clout of large corporations.
But I fear that the Supreme Court is about to end their independence.
On Sunday, White House lawyers asked the justices to allow Trump to fire the head of an independent watchdog agency. It’s the first case to reach the Supreme Court arising from the blizzard of actions taken by Trump in the early weeks of the new administration.
The White House’s emergency application asks the Supreme Court to vacate a federal trial judge’s order temporarily reinstating Hampton Dellinger, head of the Office of Special Counsel.
The Office of Special Counsel — a little-known but important independent agency — enforces federal whistleblower laws, which protect whistleblowers from political retribution, and the Hatch Act, which prohibits federal employees from engaging in most political activity.
In the 1978 law that established the Office of Special Counsel, Congress gave the Counsel a five-year term and provided that he or she could be removed only for “inefficiency, neglect of duty, or malfeasance in office.”
But Trump’s one-sentence email to Dellinger on Feb. 7 gave no reasons for firing him, effective immediately.
Dellinger sued. He called his removal illegal and argued that nothing about his performance could possibly meet the standard Congress laid out for dismissing a special counsel:
“Since my arrival at OSC last year, I could not be more proud of all we have accomplished. The agency’s work has earned praise from advocates for whistleblowers, veterans, and others. The effort to remove me has no factual nor legal basis — none — which means it is illegal.”
Since February 7, Dellinger has continued to police the government against Hatch Act and whistle-blower violations — even when they have involved federal workers who allegedly discriminated against Trump. (In a complaint filed last Tuesday, Dellinger alleged that, during a hurricane response in October, an aid supervisor for the Federal Emergency Management Agency illegally instructed FEMA workers not to visit homes with Trump signs.)
Last Monday night, Judge Amy Berman Jackson of the Federal District Court in Washington issued a temporary restraining order blocking Trump from firing Dellinger.
Judge Jackson wrote that the 1978 law “expresses Congress’s clear intent to ensure the independence of the special counsel and insulate his work from being buffeted by the winds of political change,” adding that the government’s “only response to this inarguable reading of the text is that the statute is unconstitutional.”
On Saturday, a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit rejected Trump’s emergency motion for a stay of Judge Jackson’s ruling. The unsigned majority opinion said the government’s motion was premature.
“The question here is not whether the president is entitled to prompt review of his important constitutional arguments. Of course he is. The issue before us is whether his mere claim of extraordinary harm justifies this court’s immediate review, which would essentially remove the legal issues from the district court’s ambit before its proceedings have concluded.”
In its Sunday filing before the Supreme Court, the White House said the Supreme Court “should not allow lower courts to seize executive power by dictating to the president how long he must continue employing an agency head against his will.” Translated: Congress can not limit the president’s power to fire heads of independent agencies.
Make no mistake. This is a fundamental challenge to the basic idea — part of the fabric of our government for well over a century — that Congress has the power to create independent agencies.
Trump’s emergency application took direct aim at a precedent from 1935 in which the Supreme Court unanimously ruled that Congress can shield independent agencies from politics.
That case, Humphrey’s Executor v. United States, concerned a federal law that protected commissioners of the Federal Trade Commission, saying they could be removed only for “inefficiency, neglect of duty or malfeasance in office” — the same language that Congress used decades later to protect the Special Counsel.
Franklin D. Roosevelt nonetheless fired a commissioner, William Humphrey, arguing only that Humphrey’s actions were not aligned with the administration’s policy goals. The Supreme Court held that the firing was unlawful and the law establishing the independence of the Federal Trade Commission was constitutional.
Fast forward again. The Roberts Supreme Court doesn’t like independent regulatory agencies. Most of the current justices subscribe to what’s called the “unitary executive” theory, a bonkers notion that the framers intended for a president to have total control over every aspect of the executive branch.
In 2020, the Roberts Supreme Court laid the groundwork for reversing Humphrey’s Executor in a case involving the Consumer Financial Protection Bureau. The law that created the Bureau — again, using language identical to that at issue in Humphrey’s Executor and in Dellinger’s case — said the president could remove its director only for “inefficiency, neglect of duty or malfeasance in office.”
In a 5-to-4 decision, the Supreme Court struck down that provision, ruling that it violated the separation of powers and that the president could remove the bureau’s director for any reason. Roberts, writing for the majority, said the presidency requires an “energetic executive.” He continued:
“In our constitutional system, the executive power belongs to the president, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead.”
Two justices — Clarence Thomas and Neil M. Gorsuch — would have pulled the plug on independent agencies then and there. Thomas wrote:
“The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, the liberty of the American people. With today’s decision, the court has repudiated almost every aspect of Humphrey’s Executor. In a future case, I would repudiate what is left of this erroneous precedent.”
Justice Elena Kagan, writing for what was then the court’s four liberals, dissented, saying the Constitution did not address the scope of the president’s power to fire subordinates. Congress should therefore be free, she said, to grant agencies “a measure of independence from political pressure.”
That 2020 decision by the majority of the Supreme Court anticipated the Supreme Court’s decision last July that granted Trump, then a private citizen, immunity from prosecution for any “official” conduct during his first term.
So what now? I’m afraid the Trump White House and the Supreme Court have teed up the Dellinger case to mark the end of Humphries Executor — and therefore the practical end of independent agencies. They may carve out the Federal Reserve on some pretext, but they are bent on centralizing presidential power.
I wish I could be more hopeful, but I honestly don’t see any other decision emerging from this high court.
Celebrate President’s Day today, not Dictator’s Day. And don’t, whatever you do, give up hope. This is all part of democracy’s stress test. I guarantee that eventually democracy will come out stronger for it.
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New Lawsuit Reveals Trump Quietly Fired Head of Office That Protects Whistleblowers
"This illegal firing undermines the office that investigates whistleblower disclosures of wrongdoing and enforces the law meant to keep partisan politics out of the federal workforce," wrote one watchdog group.
Feb 10, 2025
Special Counsel Hampton Dellinger, the head of an independent federal agency that protects whistleblowers, filed a lawsuit in federal court Monday alleging that U.S. President Donald Trump's "purported" dismissal of him via email on Friday is unlawful and ignores for cause removal protections that Dellinger is entitled to.
Dellinger is one of a number of officials at independent federal agencies that Trump has moved to fire in recent weeks.
According to the complaint, Dellinger received an email from Sergio Gor, director of the White House Presidential Personnel Office, on February 7, which read: "On behalf of President Donald J. Trump, I am writing to inform you that your position as special counsel of the U.S. Office of Special Counsel is terminated, effective immediately. Thank you for your service[.]"
The complaint lists six defendants, including Gor, Trump, acting Special Counsel of the Office of Special Counsel (OSC) Karen Gorman ("upon the purported removal" of Dellinger, according to the complaint), Treasury Secretary Scott Bessent, Chief Operating Officer of the OSC Karl Kanmann, and Director of the Office of Management and Budget Russell Vought.
Dellinger is requesting that the court declare his firing unlawful and affirm that he is the head of the OSC.
The filing also asks the court to order that "Bessent, Gor, Kammann, and Vought may not place an acting special counsel in plaintiff Hampton Dellinger's position, or otherwise recognize any other person as special counsel or as the agency head of the Office of Special Counsel."
The watchdog group Project on Government Oversight called the move against Dellinger "illegal" and wrote on X on Monday that it "undermines the office that investigates whistleblower disclosures of wrongdoing and enforces the law meant to keep partisan politics out of the federal workforce."
The OSC is both an investigative and prosecutorial agency whose main mission is to protect federal employees from "prohibited personnel practices"—in particular reprisals for whistleblowing. The office is different from the "special counsels" that the U.S. Department of Justice may appoint to prosecute cases in instances where they deem there may be a conflict of interest.
Dellinger was nominated to be the special counsel of the OSC by then-President Joe Biden in 2023 and was confirmed by the Senate to a five-year term that was set to expire in 2029.
The complaint cites federal statute, which mandates that "the special counsel may be removed by the president only for inefficiency, neglect of duty, or malfeasance in office." Dellinger's legal counsel argues that the email from Gor does not accuse Dellinger of "any inefficiency, neglect of duty, or malfeasance... nor could it."
In late January, Trump fired National Labor Relations Board Member Gwynne Wilcox, who has since sued over her dismissal, as well as two Democratic members of the Equal Employment Opportunity Commission. Federal Election Commission Commissioner and Chair Ellen Weintraub also said that Trump tried to remove her improperly.
The Trump administration also purged over a dozen inspectors generals who perform oversight duties at various federal agencies.
The filing also argues that the removal of these sorts of civil servants makes the work of the OSC all the more important.
"Congress authorized the OSC with a crucial investigative and oversight role to protect the integrity of the civil service in circumstances such as these," wrote Dellinger's lawyers.
"The recent spate of terminations of protected civil service employees under the new presidential administration has created controversies, both about the lawfulness of these actions and about potential retaliation against whistleblowers," they added.
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