Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Special Counsel Dellinger experiences setback as appeals panel grants emergency stay requested by Trump administration, (Mar 6, 2025)
Organizations Mentioned:Office of Special Counsel
By Brandi O. Brown, J.D.
Two of the three panel members are Republican appointees; one of those was appointed by President Trump himself.
In the ongoing legal battle between the head of the Office of Special Counsel (OSC) Hampton Dellinger and the Trump administration over Dellinger’s role as the leader of the “independent” federal investigative and prosecutorial agency—whose mission is to safeguard the merit system and protect federal employees and whistleblowers—the administration has scored a temporary victory as a three-member panel of the D.C. Circuit ruled in its favor yesterday in an emergency motion for a stay pending appeal, allowing for the removal of Dellinger. The panel that issued the decision is composed of two Republican appointees, including one appointed by President Trump himself, and one Democrat appointee.
Summary judgment. Just a few days earlier, the federal district court in D.C. had granted Dellinger’s motion for summary judgment on his claim that his removal without cause was ultra vires and in violation of statutory law. The administration appealed immediately and filed its emergency motion for a stay.
Stayed. In the panel’s order, they promise an opinion to “follow in due course,” but state: “Appellants have satisfied the stringent requirements for a stay pending appeal. See Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2024).”
The order states that the district court’s March 1, 2025, order is “stayed pending further order of the court, except to the extent that order vacates the Temporary Restraining Order entered by the district court on February 12, 2025.”
MSPB has the ball. In the meantime, Dellinger’s efforts while back in office are playing out before the MSPB and have already provided dividends. And on February 25, 2025, his office announced that the U.S. Merit Systems Protection Board had granted its initial requests to stay the terminations of several employees, who worked across various executive branch agencies. And yesterday the MSPB ruled in favor of thousands of USDA probationary employees whose termination had also been contested by OSC.
The case is No. 25-5052.
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