Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—D.C. Cir.: Appeals court declines to disturb TRO protecting Special Counsel from removal, (Feb 18, 2025)

By Jason Albright, J.D.

“The relief requested by the government is a sharp departure from established procedures that balance and protect the interests of litigants…”

The D.C. Circuit, in an unpublished order issued Saturday, February 15, declined to stay a temporary restraining order that prevents the removal of Special Counsel Hampton Dellinger through February 26, when a federal district judge will hold a preliminary-injunction hearing concerning the asserted authority of the President to remove him without any finding of “inefficiency, neglect of duty, or malfeasance in office” as required by 5 U.S.C. § 1211(b). Observing that the relief requested by the government is “itself extraordinary” and that the district court stated its intention to rule on the preliminary injunction with “extreme expedition,” the appeals court found that it could not presume the “extraordinary harm” that the government asserted, specifically an alleged incursion on the President’s purported authority to remove executive-branch officials at will. The appeals court likewise denied the government’s alternative request for mandamus relief. Judge Katsas, who served as Deputy White House Counsel during President Trump’s first term, dissented (Dellinger v. Bessent, No. 25-5028 (D.C. Cir. Feb. 15, 2025)).

OSC. The Office of Special Counsel (OSC) is an independent federal agency that “safeguard[s] employees... who ‘blow the whistle’ on illegal or improper official conduct.” OSC investigates complaints of prohibited personnel practices by federal employers, assists in settlement or alternative dispute resolution, and can seek corrective action on behalf of an employee before the Merit Systems Protection Board. The office is led by the Special Counsel, who is nominated by the President and confirmed by the Senate. And once confirmed, the Special Counsel serves a five-year term.

Removal. By statutory mandate, “[t]he Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. §§ 1211(b).

Special Counsel Dellinger. On October 3, 2023, then-President Biden nominated Hampton Dellinger to be Special Counsel of OSC. The Senate confirmed Dellinger, and he took office on March 6, 2024. His five-year term expires in 2029.

“[T]erminated, effective immediately…” On Friday, February 7, however, at 7:22 p.m., Dellinger received an email from the Director of the Presidential Personnel Office that stated, “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. Thank you for your service[.]”

Civil action. The following Monday, Dellinger filed a civil action in federal district court against Trump, the Director of the Presidential Personnel Office, the Director of the Office of Management and Budget, the Secretary of the Treasury, the Acting Special Counsel of OSC, and the Chief Operating Officer of OSC. In relevant part, the complaint asserted that Dellinger’s removal violated 5 U.S.C. § 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. Dellinger also sought a TRO enjoining the defendants from removing him from his post pending further consideration of the merits.

TRO. 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 TRO mandates that, until the district court rules on Dellinger’s request for a preliminary injunction, “Dellinger shall continue to serve as Special Counsel” and “[d]efendants may not deny him access to the resources or materials of that office or recognize the authority of any other person as Special Counsel.”

The district court scheduled a preliminary-injunction hearing for February 26, and it directed the parties to inform the court whether it should “consolidate consideration of the request for a preliminary injunction with consideration of the merits” and whether further briefing was warranted.

Appeal. That night, the government noticed an appeal of the TRO and asked the district court to stay the TRO pending appeal. The district court denied the motion to stay, and on February 13, the government filed an emergency motion in the D.C. Circuit, asking the appeals court to stay the TRO pending appeal or, in the alternative, provide mandamus relief.

Issue before district court. “The crux of the case before the district court,” according to the D.C. Circuit, “is whether the President had authority to remove Dellinger from his post as Special Counsel without any finding of ‘inefficiency, neglect of duty, or malfeasance in office,’ as required by 5 U.S.C. § 1211(b).” The government argued that the statute is unconstitutional and can have no effect, while Dellinger asserted that the statute does not violate the Constitution and he is entitled to its protections. And “to determine the parties’ rights and obligations for now,” the appeals court observed, “the district court is following procedures prescribed by the Federal Rules of Civil Procedure regarding the issuance of TROs and preliminary injunctions” until that dispute is resolved.

“[I]rreparable consequences that warrant immedicte relief.” Whether the granting, denying, or dissolving of a TRO, in turn, is appealable depends on whether the disputed order should be treated as a preliminary injunction. In making that determination, said the D.C. Circuit, courts generally look to several factors. Particularly relevant to this case was “whether the order had irreparable consequences that warrant immediate relief.”

No appellate jurisdiction. The D.C. Circuit found that the TRO was not appealable. Observing that the relief requested by the government is “itself extraordinary” and that the district court stated its intention to rule on the preliminary injunction with “extreme expedition,” the appeals court found that it could not presume the “extraordinary harm” that the government asserted, specifically an alleged incursion on the President’s purported authority to remove executive-branch officials at will.

Not a preliminary injunction. Nor should the TRO be treated as an appealable preliminary injunction, according to the appeals court. The government argued that it should because “the district court has now considerably prolonged [extraordinary] harm by setting its TRO to last for 14 days, on top of the two-day duration of its ‘administrative stay.’”

The government, however, failed to explain why the expiration date of the TRO would convert the TRO into an injunction. Fed. R. Civ. P. 65(a), the appeals court noted, permits the district court to set the expiration date of a TRO and specifies that such an order may not “exceed 14 days” unless the court, “for good cause, extends it.” Fed. R. Civ. P. 65(b)(2). And the government did not argue that the TRO’s 14-day period was longer than permitted by the Rule. The government instead “seems to suggest that the harm of keeping a Special Counsel in place against the President’s wishes is so intolerable that the wrong must be corrected immediately,” observed the D.C. Circuit, but “Fourteen days is not a long time in the realm of litigation, and it is a standard period for a TRO to be in effect under Rule 65(b).” The government thus did not meet its burden to show why this factor weighed in favor of finding the TRO appealable, and it ultimately failed to “meet the ‘high threshold’ for demonstrating that the district court’s TRO should be treated as a preliminary injunction, subject to interlocutory appeal.”

Mandamus. Finally, the appeals court declined the government’s alternative request for a writ of mandamus, an extraordinary remedy “‘reserved for really extraordinary causes.’” Granting mandamus would, according to the D.C. Circuit, “undermine the established framework for litigating TROs and preliminary injunctions, short-circuit ongoing proceedings before the district court, and prejudice the orderly administration of justice.”

Dissent. In his dissent, Judge Katsas, who was appointed to the D.C. Circuit by President Trump in December 2017 following service as Trump’s Deputy White House Counsel, said he would stay the TRO immediately. The President, Katsas argued, “is immune from injunctions directing the performance of his official duties, and Article II of the Constitution grants him the power to remove agency heads.”

The case is No. 25-5028.

Judge: Per curiam.

Attorneys: Joshua Adam Matz (Hecker Fink) for Hampton Dellinger. Mark Reiling Freeman, U.S. Department of Justice, for Scott Bessent.

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