Labor & Employment Law Daily Wrap Up, DISCHARGE—D.D.C.: OSC Special Counsel’s termination was unlawful, (Mar 3, 2025)

By Kathleen Kapusta, J.D.

“It would be ironic, to say the least, and inimical to the ends furthered by the statute if the Special Counsel himself could be chilled in his work by fear of arbitrary or partisan removal.”

Granting summary judgment in favor of Hampton Dellinger, the Special Counsel of the Office of Special Counsel (OSC), on his claim that his purported removal from his position without cause was ultra vires and in violation of the governing statute, a federal court in the District of Columbia explained that legislative “history, and the specific role the Office of Special Counsel was designed to play, underlie and justify the presence of the removal restrictions in the statute.” Finding further that the Special Counsel demonstrated that he would suffer irreparable harm in the absence of injunctive relief and that he lacks an adequate remedy at law, the court enjoined the subordinate executive branch officials named as defendants, ordering them to recognize Dellinger’s authority as Special Counsel unless and until he is removed in accordance with the statute’s for-cause provisions (Dellinger v. Bessent, No. 25-0385 (ABJ) (D.D.C. Mar. 1, 2025)).

Hampton Dellinger was nominated by President Biden in October 2023 to the position of Special Counsel for Office of Special Counsel, an independent federal agency that “safeguard[s] employees... who ‘blow the whistle’ on illegal or improper official conduct.” He was confirmed by the Senate in February 2024, and sworn into office in March 2024 for a five-year term that will expire in 2029.

Purported termination. Even though 5 U.S.C. § 1211(b) provides that “[t]he Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office,” Dellinger received an email on February 7, 2025, at 7:22 in the evening, from the “Assistant to the President, Director of Presidential Office” stating: “On behalf of President Donald J. Trump, I am writing to inform you that your position as Special Counsel of the US Office of Special Counsel is terminated, effective immediately.”

The following Monday, he sued Trump and several members of the Trump administration asserting that his removal violated section 1211(b) because the removal was not “for inefficiency, neglect of duty, or malfeasance in office.” He sought an order declaring that his removal was unlawful and that he remains Special Counsel and must be fully treated as such. He also sought a TRO enjoining the defendants from removing him from his post pending further consideration of the merits and he later sought a preliminary injunction.

After initially issuing an administrative stay to preserve the status quo that existed before the White House sought to remove him, the district court granted Dellinger’s motion for a TRO on February 12. The defendants appealed to the D.C. Circuit, which dismissed for lack of jurisdiction.

The court then deemed Dellinger’s motion for a TRO to be a motion for a preliminary injunction and consolidated consideration of that motion with consideration of the merits. The defendants moved for summary judgment and Dellinger filed a cross-motion for summary judgment on his claim his removal was ultra vires in violation of 5 U.S.C. § 1211(b).

Removal. Granting Dellinger’s motion, the court noted that the email terminating him did not identify a reason and did not assert that he was being removed for “inefficiency, neglect of duty, or malfeasance in office,” and thus his purported termination contravened section 1211(b) and was an ultra vires action. While the defendants argued that the plain text of the statute is unconstitutional, “no court has reached that conclusion,” said the court here, noting that “the Supreme Court made it a point to carve the OSC out of its pronouncements concerning the President’s Article II prerogative to have unrestricted control over who should assist him in discharging his responsibilities.”

Seila Law. In reaching its conclusion, the court cited to the U.S. Supreme Court’s 2020 decision in Seila Law LLC v. CFPB, a case involving the legitimacy of the structure of the Consumer Finance Protection Bureau (CFPB). In that case, the Court noted that “as a general matter,” the Constitution gives the President “the authority to remove those who assist him in carrying out his duties.” However, the court here observed, the Supreme Court did not announce a blanket rule that governs “whatever the agency.” Rather, it observed, “the Court went into great detail about the individual agencies at issue, and the reasoning underlying those decisions does not apply to the case at hand.”

Indeed, the court noted, Seila Law “characterized the two limited exceptions that had been recognized to date – ‘one for multimember expert agencies that do not wield substantial executive power, and one for inferior officers with limited duties and no policymaking or administrative authority” – as ‘what up to now have been the outermost constitutional limits of permissible congressional restrictions on the President’s removal powers.’” The Court then explained why neither exception applied to the CFPB, which was an “independent agency led by a single Director and vested with significant executive power.”

OSC distinguished. Further, in Seila Law, the Court distinguished the OSC from the CFPB, noting that the OSC “exercised only limited jurisdiction to enforce certain rules governing Federal Government employers and employees” and “does not bind private parties at all or wield regulatory authority.” After reviewing the statutory scheme of the OSC, the court here found it “confirms that the OSC does not belong in the category of ‘an independent agency led by a single Director and vested with significant executive power.’”

Indeed, said the court, the Special Counsel “cannot bring a case in court on behalf of the United States, impose a disciplinary sanction on behalf of the United States, demand payment on behalf of the United States, promulgate a regulation on behalf of the United States, or issue a decision on behalf of the United States.” While he can perform some executive functions, such as conducting investigations, he has no power to enforce his own subpoenas or to overcome other agencies’ objections to his requests for records. And rather than being able to bring a complaint or call for corrective action himself, he must petition “a multi-headed quasi-judicial agency, or the appropriate administrative agency under Presidential control itself, to do so,” and they “are free to turn him down.”

Investigates and prosecutes. As to the defendants’ assertion that the Special Counsel “investigates and prosecutes,” this effort “to conjure up the image of a United States Attorney striding into court with the power to hold people accountable for their crimes is not an apt comparison,” said the court, finding that the Special Counsel has a much more restricted role.

Moreover, the Special Counsel, the court reasoned, “is supposed to withstand the winds of political change and help ensure that no government servant of either party becomes the subject of prohibited employment practices or faces reprisals for calling out wrongdoing – by holdovers from a previous administration or by officials of the new one.” The court also found it important that the Special Counsel “has a significant obligation that distinguishes him from the heads of the other agencies discussed: the responsibility to report his activities and findings not just to the President, but to Congress.”

Statute’s history and purpose. After next reviewing the history, nature, and purpose of the statute, the court noted that “it bears repeating that the terms of [the Special Counsel’s] charter – the fact that he is authorized to investigate only certain forms of government wrongdoing, the lack of true prosecutorial authority, the remedies limited to making recommendations and complaints to other independent agencies with no right challenge their decisions, the absence of regulatory authority – were crafted by the executive and the legislature working together.” Further, his independence ensures that he can fulfill his statutory duty to protect whistleblowers within the federal government and qualifies him to watch over a structure that is supposed to bar executive officials from taking federal jobs from qualified individuals and handing them out to political allies.

Declaratory judgment. Accordingly, the court found the statute constitutional. It also granted Dellinger’s request to grant equitable remedies in furtherance of its judgment.

While the defendants argued that the court does not have power to issue a declaratory judgment directed toward the President, it pointed out that Dellinger asked it to direct the other defendants, executive branch officials, to refrain from interfering with his status and activities as the Special Counsel, an order the court found it had power to issue.

Rejecting the defendants’ contention Dellinger was not entitled to injunctive relief, the court found it proper to order the defendants to recognize his authority as Special Counsel unless and until he is removed in accordance with section 1211(b).

Injunctive relief. Dellinger, the court next observed, made a sufficient showing of irreparable harm that cannot be remedied through a damages award. Unless he is removed for one of the statutory reasons, he must fulfill his duty to “protect employees, former employees, and applicants for employment from prohibited personnel practices.” His purported removal without cause, said the court, “renders him unable to fulfill that duty, a loss that can never be restored, and therefore it gives rise to irreparable harm.”

Further, said the court, “the instant decision is extremely narrow and sui generis, and it does not result in the diminution of the President’s powers; this is the only single-headed agency left for the courts to consider, and it is unlike any of them.” Entering judgment in favor of Dellinger, and awarding declaratory and injunctive relief, the court explained that the “benefits of a duly appointed Special Counsel, operating free of partisan pressure far outweigh any harms identified by the defendants.”

The case is No. 25-0385 (ABJ).

Judge: Jackson, A.

Attorneys: Amy Jeffress (Hecker Fink) for Hampton Dellinger. Madeline McMahon, U.S. Department of Justice, for Scott Bessent.

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