Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Another day, another appeal in ongoing legal battle over Special Counsel’s summary termination, (Feb 14, 2025)

By Brandi O. Brown, J.D.

The new appeal came the day after the D.C. Circuit dismissed the first one.

One day after the D.C. Circuit, in case No. 25-5025, issued an order dismissing an emergency motion for stay filed by Scott Bessent, Secretary of the Treasury, in litigation filed by Hampton Dellinger, Special Counsel of the Office of Special Counsel, Bessent has returned to the appeals court with another emergency motion on the same matter. This time, rather than appealing based on a minute order, Bessent’s team is appealing based on a written decision by a district court granting the motion for a temporary restraining order.

The newest appeal stems from the Trump Administration’s announced termination of Dellinger, Special Counsel and head of the Office of Special Counsel, an independent federal agency with the mission of protecting federal employees from prohibited personnel practices, particularly reprisal for whistleblowing. He filed suit against the Trump Administration alleging that its attempt to fire him violated the law.

Judge says not appealable. When Bessent’s team moved the court below for a stay of the newly burnished restraining order, Judge Amy Berman Jackson again denied it, noting that the court was already acting “ahead of its own schedule” and explaining that while the court understood that the defense was “eager” to have the issue “heard and resolved by a higher court” there still “has to be a hearing” and the district court “has to issue an appealable order.” The hearing, Judge Jackson explained, is already scheduled and will occur on February 26, 2025. “And again, defendants have moved for a stay while they appeal what is also an order of limited duration that is not subject to appeal.”

Nearly a month. Nevertheless, the defendants have taken the matter back to the appeals court, arguing that “even if the district court were to rule from the bench on the day of the scheduled hearing, the temporary relief the court has entered—first styled as an “administrative stay,” now styled as a TRO—will have lasted for 16 days. And if the district court next extends the TRO to the 28-day maximum length permitted by Rule 65, to allow time for a ruling after the hearing, the court’s incursion on the President’s control over the Executive Branch could last for nearly a month.” They argue that the “temporary restraining order” is “plainly an appealable injunction.”

Unsurprisingly, Dellinger’s team argues that the appeals court lacks jurisdiction, alongside the substantive arguments they make.

The case is No. 25-5028.

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