Special Counsel Hampton Dellinger announced yesterday that his Office filed initial requests with the Merit Systems Protection Board to pause the Trump Administration's terminations of six probationary employees across Executive Branch agencies. (Dellinger himself is back in business after the Trump Administration purported to remove him, thanks to a temporary restraining order, and the Supreme Court's decision not to vacate that order. Dellinger's Office isn't the same as Jack Smith's office. The Office of Special Counsel enforces certain federal employment laws and, as here, brings claims of prohibited personnel practices.) One of those requests to stay is here.

Dellinger's requests could be impacted by another move by the Trump Administration, to remove the head of the MSPB, which is also now in litigation. (The issue in that case, like the issue in Dellinger's case of his own purported removal, involves the President's power to remove officers within the Executive Branch, or the "unitary executive theory.") If President Trump can remove members of the MSPB so as to deny it a quorum, it can't take any action.

If the Trump Administration responds to Dellinger's requests, it may invoke a strong version of the unitary executive theory. At its most modest, that theory says that the President has unilateral and plenary power to remove principal officers in the Executive Branch, and that Congress cannot restrict that power by statute. Stronger versions say that the President has even more power over Executive Branch actors and actions. Here, the Administration may argue that the President has unilateral and plenary authority to remove probationary employees, without regard to the statutory and regulatory processes and protections for removing those employees. (Executive employees are different than executive officers under the Constitution. Applying the unitary executive theory to employees would mark a significant expansion of the theory, at least under current law.) In issuing its summary termination notices (and in unilaterally taking so many other actions with Executive Branch actors, agencies, and actions), the Administration certainly seemed to be relying on a stronger or expanded version of the theory.

Dellinger argues that the Administration's moves to terminate probationary employees may violate federal law and regulations on merit-systems principles, reductions in force (RIFs), and employment protections for probationary employees. (He claims that the Administration is effectively using the RIF process to bypass the procedures required to remove probationary employees. That's because the termination e-mails suggested that termination was due to restructuring and managing staffing levels, not performance. In any event, he argues that the Administration is also violating procedures required to remove probationary employees for performance reasons.)

As to merit-system principles, Dellinger argues that the Administration's summary terminations violated the following statutory principles, under 5 U.S.C. Sec. 2301(b):

  • Selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills;
  • All employees should receive fair and equitable treatment with proper regard for their constitutional rights;
  • The Federal work force should be used efficiently and effectively;
  • Employees should be retained on the basis of the adequacy of their performance; and
  • Employees should be protected against arbitrary action.

As to RIFs, Dellinger argues that the Administration's summary terminations violated the RIF process outlined in federal law and regulations. (He notes that probationary employees are covered by RIF procedures.) In particular, he argued that the Administration failed to "provide for an orderly process of determining which employees are retained rather than separated and ensuring that those decisions are made according to merit-based factors," in violation of 5 U.S.C. Sec. 3502 and 5 C.F.R. Sec. 351.501-506; failed to "provide employees with 60 days of notice and to keep in a paid status during that time if possible," in violation of 5 C.F.R. Secs. 351.803 and 806; failed "to provide employees with information about their right to reemployment and career transition assistance," in violation of 5 C.F.R. Sec. 351.803; and failed to "provide employees subject to RIF with notice and the right to appeal their termination . . . to the Board," in violation of 5 C.F.R. Sec. 351.901.

As to performance-related terminations of probationary employees, Dellinger argues that the Administration's summary terminations failed to notify employees why they were being separated, including "at a minimum . . . the agency's conclusions as to the inadequacies of [their] performance or conduct," in violation of 5 C.F.R. Sec. 315.804(a).