Member Newsletter
There was a very important development today, still only little-noted in the national press. Government Executive magazine has a good piece on it. The news turns on a decision by the Office of Special Counsel, the head of which, Hampton Dellinger, Trump had only recently tried to fire before being blocked from doing so by a federal judge. The decision specifically deals with six federal employees, each from a different agency, who were recently fired as probationary employees as part of the DOGE purge. Technically, the decision only applies to those six employees. But in a way that is analogous, though not identical, to the way a court ruling works, the findings would likely apply to many other recent DOGE-terminated employees across the federal government.
I’ve mentioned a few times that DOGE seemed to have little understanding of the difference between different kinds of probationary employees. Those recently hired by the federal government have few civil service protections. Those who are probationary because they recently took a new job in government but have continuous government service do have those protections. An expert in civil service law tells me that the issue in this case is likely not that one, or not mostly that one, but rather that the administration is dressing up layoffs (for which employees are entitled to certain benefits, i.e., RIFs) as simple terminations and falsely claiming that terminations were made on the basis of poor performance when actual personnel files show nothing of the sort.
The just-updated version of the Government Executive piece reports that the OSC has now released the following statement: “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.” In other words, the list of directly affected employees is likely to grow.
Everything tied to this finding is part of a complex ecosystem of different government agencies that can appeal or resist the OSC’s decision. I will try to provide more of those details soon. You can find some of them in the Government Executive piece. But keep that in mind — that this is not necessarily the final word on the matter. But it’s an important one.
For now, another executive branch lawyer tells me that under civil service law this finding that the terminations were unlawful can create serious jeopardy for the government employees who executed (i.e., signed) the terminations, including fines, debarment from government employment and other serious civil sanctions. So those people may already have a problem. And if DOGE decides to ignore these findings, DOGE operatives may have a much harder time getting those federal HR officials to keep executing these terminations in the face of this finding.
More to come.