Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Court orders reinstatement of Office of Special Counsel head, Trump Administration appeals, (Feb 11, 2025)

By Brandi O. Brown, J.D.

Dellinger filed suit yesterday alleging that his Friday evening attempted termination violated “clear statutory language” that requires for-cause removal.

Early on Monday, February 10, 2025, Hampton 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, filed suit against the Trump Administration alleging that its attempt to fire him a few days earlier violated the law.

Reinstatement for now. On Monday evening, after a hearing with “some argument from both sides,” in a minute order, D.C. District Court Judge Amy Berman Jackson ordered that “from the time of this order through midnight on February 13, 2025, plaintiff Hampton Dellinger shall continue to serve as the Special Counsel of the Office of Special Counsel, the position he occupied at 7:22 p.m. on Friday, February 7, 2025 when he received an email from the President, and the defendants may not deny him access to the resources or materials of that office or recognize the authority of any other person as Special Counsel. This period may only be extended by further order of the Court.”

The minute order also included this information relating to Judge Berman’s decision, perhaps foreshadowing how the court might rule ultimately:

• “Give[n] the Court's concerns about the potential irreparable harm occasioned by the challenged firing of the Special Counsel, a Presidential appointee confirmed by the Senate to serve a 5−year term who "may be removed by the President only for inefficiency, neglect of duty, or malfeasance," 5 U.S.C. § 1211(b), and given the significant statutory and constitutional issues involved, the Court will defer ruling on the motion until after it has received and considered the defendants' submission. In the interim, though, to preserve the status quo −− which the D.C. Circuit has described as "the regime in place" before the challenged action, Huisha−Huisha v. Mayorkas, 27 F.4th 718, 733−34 (D.C. Cir. 2022), or "the last uncontested status which preceded the pending controversy," id., quoting District 50, United Mine Workers of America v. International Union, United Mine Workers of America, 412 F.2d 165, 168 (D.C. Cir. 1969) −− the Court will issue a brief administrative stay. An administrative stay "buys the court time to deliberate": it "do[es] not typically reflect the court's consideration of the merits," but instead "reflects a first−blush judgment about the relative consequences" of the case. United States v. Texas, 144 S. Ct. 797, 798 (2024) (Barret, J., concurring). While administrative stays are more common in appellate courts, district courts have recognized their applicability in cases seeking emergency relief − including in this District. See National Council of Nonprofits v. Office of Management & Budget, No. 25−CV−239, 2025 WL 314433 (D.D.C. Jan. 28, 2025); Order, Texas v. Department of Homeland Security, No. 24−CV−306 (E.D. Tex. Aug. 26, 2024); Chef Time 1520 LLC v. Small Business Administration, No. 22−CV−3587 (D.D.C. Dec. 1, 2022). As these courts have recognized, the "[t]he authority for an administrative stay arises from the All Writs Act and a court's inherent authority to manage its docket." Order, Texas, No. 24−CV−306, at 2.”

Immediate appeal. The Trump Administration defendants appealed to the D.C. Circuit Court.

Motion to stay. As a cautionary measure, they also moved at the district court to stay the court’s administrative stay, arguing, “This order is an extraordinary—indeed, unprecedented—intrusion into the President’s authority.” They argued that the order “greatly intrudes on the President’s lawful authority” and that President Trump “merely exercised the same authority that President Biden did in removing the Social Security Commissioner and that the Supreme Court recognized as lawful in Seila Law and Collins.” They also argued that the balance of equities and public interest “overwhelmingly favor” a stay pending appeal, stating that the court’s order enjoining the President from installing anyone else into the OSC office or impeding Dellinger’s access to resources or materials, were an “unprecedented intrusion into the President’s authority to exercise ‘all of’ ‘the ‘executive Power’” of the United States[.]”

Lawsuit’s causes of action. In the lawsuit filed by Dellinger, he alleged that the Administration’s actions were ultra vires in violation of statutory authority governing the term and removal of Special Counsel. He also alleged violations of the Administrative Procedure Act and Separation of Powers, and seeks various forms of relief, including declaratory relief, a writ of mandamus, and equitable relief.

The district court case is No. 1:25-cv-00385-ABJ; the appeals docket is No. 25-5025.

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