Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Senate-confirmed head of whistleblower agency calls off fight over termination, citing erasure of the position’s Congressionally-provided independence, (Mar 7, 2025)

By Brandi O. Brown, J.D.

“I think the circuit judges erred badly because their willingness to sign off on my ouster – even if presented as possibly temporary – immediately erases the independence Congress provided for my position, a vital protection that has been accepted as lawful for nearly fifty years.”

Yesterday, after nearly a month of battling his ouster in the courts, Senate-confirmed Special Counsel Hampton Dellinger, removable “by the President only for inefficiency, neglect of duty, or malfeasance in office” but nonetheless provided no reason for his ouster in early February, announced that he would not appeal the appellate panel’s decision that allowed for his removal. His announcement came the day after the panel’s order gave “effect to the removal of [Dellinger] from his position as Special Counsel of the U.S. Office of Special Counsel.”

In a statement issued by Dellinger, he wrote, in part:

• “My fight to stay on the job was not for me, but rather for the ideal that OSC should be as Congress intended: an independent watchdog and a safe, trustworthy place for whistleblowers to report wrongdoing and be protected from retaliation. Now I will look to make a difference – as an attorney, a North Carolinian, and an American – in other ways.

• “I’m stopping the fight because, yesterday, circuit court judges reviewing the trial court decision in my favor granted the government’s request that I be removed from office while the case continues. This new ruling means that OSC will be run by someone totally beholden to the President for the months that would pass before I could get a final decision from the U.S. Supreme Court.

• “I think the circuit judges erred badly because their willingness to sign off on my ouster – even if presented as possibly temporary – immediately erases the independence Congress provided for my position, a vital protection that has been accepted as lawful for nearly fifty years. Until now. And given the circuit court’s adverse ruling, I think my odds of ultimately prevailing before the Supreme Court are long. Meanwhile, the harm to the agency and those who rely on it caused by a Special Counsel who is not independent could be immediate, grievous, and, I fear, uncorrectable.

• “I strongly disagree with the circuit court’s decision, but I accept and will abide by it. That’s what Americans do.”

In the letter filed with the court, counsel for former Special Counsel wrote that “Mr. Dellinger’s final and public decision means that there is presently no live appeal for this Court to address. See United States v. China Telecom (Americas) Corp., 55 F.4th 939, 943 (D.C. Cir. 2022).” The letter states that counsel is “still negotiating with the government regarding the proper next steps to bring this litigation to an end.”

The case is No. 25-5052.

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