Court Keeps OSC, MSPB Heads on Job for Now, as MSPB Pauses Some Probationary Terminations
Federal employees are scoring some small victories against the Trump Administration, as they fight to keep their jobs.
That includes Office of Special Counsel (OSC) head Hampton Dellinger and Merit Systems Protection Board (MSPB) Chair Cathy Harris, both of whom were fired by President Trump, but are still holding onto their positions as legal action continues.
In the case of Special Counsel Dellinger, U.S. District Judge Amy Berman Jackson issued a permanent injunction preventing Dellinger’s dismissal or the naming of a permanent replacement.
In her ruling, Judge Jackson notes that President Trump does not have the power to fire the head of OSC, which is in charge of investigating whistleblower cases and other wrongdoing in the federal government. Judge Jackson says that the OSC head can only be fired for “inefficiency, neglect of duty, or malfeasance in office.”
In addition, the judge says Congress “took pains” to insulate the role “to some degree” from the president when the position was created by the Civil Service Reform Act of 1978.
The Trump Administration is likely to take the case to the Supreme Court, setting up a clash over presidential powers. The high court previously declined to intervene until the litigation proceeded further.
The administration insists that the president has the power to fire the special counsel, calling the law prohibiting such a firing unconstitutional.
MSPB Leadership, Probationary Workers Reinstated
At the MSPB, President Trump tried to fire Chair Cathy Harris. However, Chair Harris is back on the job after U.S. District Judge Rudolph Contreras issued a temporary restraining order in the case, while a judge considers her lawsuit over wrongful termination.
OSC also announced that MSPB agreed to put the firings of six employees on probation on hold for 45 days, while OSC’s Dellinger investigates their claims for potentially prohibited personnel practices.
“I am very grateful the MSPB has agreed to postpone these six terminations,” said Special Counsel Dellinger. “These stays represent a small sample of all the probationary employees who have been fired recently so our work is far from done.”
The six employees are from different agencies. While the decision was technically limited in scope, it could set a precedent across government.
It’s far from the only case.
Federal workers filed more new cases at the MSPB in the second to last week of February than in the previous 12 weeks combined. Almost 5,000 cases have been filed since President Trump’s inauguration.
OSC, VA Conflict of Interest
Meanwhile, if the Trump Administration succeeds in firing Special Counsel Dellinger, the president said he would appoint Department of Veterans Affairs (VA) Secretary Doug Collins as head of OSC on an acting basis.
That prompted a new report from the Project on Government Oversight (POGO), which noted that if Secretary Collins takes charge of OSC, there is a potential conflict of interest, as VA represented a large percentage of OSC cases in recent years. The POGO report notes that some 300 VA cases are pending.
“The future of federal employee whistleblowing hangs in the balance,” said National Whistleblower Center Chairman Stephen Kohn. “If the Special Counsel is not independent, that office will become a trap and the confidentiality of whistleblowers will not be protected.”
OSC investigated numerous VA whistleblower cases over the years.
A case still pending accuses the VA of “gross mismanagement” with a whistleblower noting that one section of the agency is “improperly withholding” data from the VA’s Center for Minority Veterans.
OSC also played a role in exposing problems with a VA medical oversight office as well as VA accountability and other issues.
