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OSC ‘amicus’ opinion on probationary firings was ‘unwelcome,’ attorneys say
Attorneys representing terminated probationary employees allege that the Office of Special Counsel overstepped its authority when it said last week that it believed agencies have broad discretion to fire employees in their probationary periods.
On Friday, the attorneys filed a motion to strike OSC’s amicus brief from the Merit System Protection Board’s docket. The brief, which OSC sent to MSPB last Wednesday, asserted that agencies have “very limited restrictions” in their ability to fire probationary federal employees.
Under federal regulations, OSC is authorized to weigh in with an opinion by way of an amicus brief when it comes to whistleblower retaliation cases, “or as otherwise authorized by law.” But because the case before the MSPB alleges a prohibited personnel practice for reasons outside of whistleblower retaliation, the attorneys argued that OSC shouldn’t be able to offer its perspective on the case at all.
“OSC’s decision to file an amicus brief in this case without an invitation from the [MSPB] is contrary to the applicable statute and all too consistent with the administration’s multifaceted noncompliance with Title 5 and its implementing regulation,” Friday’s motion states. “Just as the board should find that the agency termination actions at issue caused their employees to violate OPM’s regulations, so too should the board assign no weight or deference to OSC’s ultra vires amicus filing, and strike the same from the record.”
The case before the MSPB was filed on behalf of a group of probationary employees who were terminated from their jobs across several different agencies, including the departments of Commerce and Energy, as well as Health and Human Services. The appellants in the case argue that they were unlawfully terminated from their jobs earlier this year.
The Federal Practice Group, which is representing fired probationary workers in the case currently before the MSPB, recently filed a request for regulation review. The attorneys are asking MSPB to assess whether agencies were correctly applying federal regulations when they terminated the federal employees earlier this year.
Since OSC’s amicus brief was filed specifically following the attorneys’ request to MSPB, they argued that OSC acted outside its statutory authority. They wrote that MSPB should not give any weight to OSC’s opinion when determining the outcome of the employees’ case.
“It’s also extraordinary because the government hasn’t even filed a response yet to our request for regulation review. This isn’t a situation where we’re even at the stage where an amicus might be invited,” Debra D’Agostino, the attorney who filed the strike motion and a partner at Federal Practice Group, said in an interview. “To just jump in without any authority to do so, and to try to derail everybody, is unwelcome.”
In response to the strike motion, OSC spokesperson Corey Williams said OSC “has a right under [federal regulations] to participate in matters before the Merit Systems Protection Board.”
“We took steps to ensure that we followed the appropriate procedures for doing so,” Williams said by email.
OSC, the federal agency in charge of policing prohibited personnel practices, has received more than 2,000 complaints on the mass terminations of probationary employees that took place earlier this year at the direction of the Trump administration. The probationary employees alleged that the mass terminations, made on the basis of “performance,” were unlawful. But in April OSC informed the thousands of fired probationary workers who had filed complaints that it would not investigate their cases.
OSC’s amicus brief filed last week represents a complete reversal of the investigative agency’s opinion on the mass firings of probationary employees just a few months ago. In February, then-Special Counsel Hampton Dellinger said he believed the mass terminations of probationary federal employees were unlawful. President Donald Trump then fired Dellinger. Although he initially sued Trump over his termination, Dellinger ultimately resigned from his position and withdrew his lawsuit.
Charles Baldis, who is currently managing OSC on behalf of Acting Special Counsel and U.S. Trade Representative Jamieson Greer, has reversed course, saying he believes agencies do have the authority to terminate the workers — and that agencies are “not terminating enough” probationary employees.
The agencies involved in the pending MSPB case are expected to respond with their positions on the probationary firings by May 29.The post OSC ‘amicus’ opinion on probationary firings was ‘unwelcome,’ attorneys say first appeared on Federal News Network.
![Blocking my column because it was too opinionated was a shock. I’ve authored many pieces over my 17 years writing the Federal Diary (renamed the Federal Insider in 2016), that were at least if not more opinionated as the now dead one. In that piece, I argued that “one hallmark of President Donald Trump’s first three, turbulent months in office is his widespread, ominous attack on thought, belief and speech.”
The piece contained specific examples, including Secretary of State Marco Rubio’s alarming memo supporting deportation of Columbia University pro-Palestinian activist Mahmoud Khalil. Rubio said Khalil could be expelled for “expected beliefs…that are otherwise lawful.” What immigrants might believe in the future now can make them federal law enforcement targets.
Another far-reaching example I cited is Trump’s aggressive attack on speech promoting diversity, equity and inclusion (DEI). His executive order commanded federal agencies to “excise references to DEI and DEIA [“A” for accessibility] principles, under whatever name they may appear.” Also, Tufts University student Rumeysa Ozturk, of Turkey, was abducted off the street by masked officers because she co-wrote an op-ed critical of Israel. It was a terrifying sight, caught on video, which previously would have seemed more applicable to George Orwell’s dystopian and cautionary tale against totalitarianism and thought police in is novel “1984.” This is America in 2025.
Killing that column was a death blow to my life as a Washington Post columnist. But I wrote two more articles to see if I could cope with the restrictions. That’s when I learned just how severe the policy is. In my next piece, I was not allowed to describe a potential pay raise for federal employees as “well-deserved” because of Post policy.
As a columnist, I can’t live with that level of constraint. A column without commentary made me a columnist without a column. I also was troubled by significant inconsistencies in the implementation of the p…](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:svawqo4jxobyyuqmixplvcux/bafkreigga3daorc7wtonshgnmnm7dtfyjrvu2einlc4myhiynml6luvlz4)
