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In what could amount to a death blow to the Office of Special Counsel, its head, Hampton Dellinger, was removed from his position late Wednesday night, when the D.C. Circuit Court of Appeals, in a one-paragraph order, vacated the lower court’s injunction that had restored Dellinger to the position after he’d been fired on Feb. 7.
Update, March 6, at 2:30 p.m.: On Thursday, Hampton Dellinger dropped his lawsuit to get his job back after his loss at the D.C. Circuit Court of Appeals, meaning the case won’t advance to the Supreme Court.
As head of the OSC, a position he’d held for almost exactly one year, Dellinger’s job was primarily to help enforce laws guaranteeing protections for whistleblowers and wrongfully terminated federal workers. With Elon Musk’s siege against the federal workers showing no signs of abating, Dellinger, son of the late, legendary OSC head Walter Dellinger, represented the workforce’s last line of defense within the federal government—which is likely why Dellinger himself had become a target of Musk’s and Donald Trump’s efforts to dismantle the civil service.
Dellinger was fired in a perfunctory email from Trump assistant Sergio Gor with no mention of why he was being removed four years before his term was to end, despite the fact that the statute establishing the position permits removal by the president only for “inefficiency, neglect of duty, or malfeasance in office.”
Dellinger managed to get a temporary restraining order on Feb. 12, which restored him to his position. After a Feb. 26 hearing, Judge Amy Berman Jackson extended the injunction and issued a thorough 67-page memorandum opinion which appeared to anticipate this dispute’s likely ultimate destination, the U.S. Supreme Court. The D.C. Circuit ruling puts that opinion on ice.
The Trump administration’s argument wasn’t that Dellinger committed a fireable offense, but that the statute authorizing the Office of Special Counsel is an encroachment by Congress on the executive branch, to the extent the statute restricts the president from removing Dellinger for any reason whatsoever. In 2019, the Supreme Court had struck down a similarly worded constraint in Seila Law v. CFPB as a separation of powers violation, specifically a clause prohibiting the president from removing the head of the Consumer Financial Protection Bureau except for inefficiency, neglect, or malfeasance.
Two years later, the high court followed up on Seila Law in Collins v. Yellen, striking down a provision that protected the head of the Federal Housing Finance Agency from at-will firing by the president, also on separation of powers grounds. Both cases signaled a shift by the court toward a more expansive view of executive power, and movement away from the key precedent in this area, Humphrey’s Executor v. United States, wherein the court upheld a statute limiting the president to only at-cause firing (the same “inefficiency, neglect, or malfeasance” language) of Federal Trade Commission officials.
Judge Jackson noted in her opinion temporarily protecting Dellinger that Seila Law and Collins both turned on inquiries into the powers and functions of the heads of the respective agencies—if the official in question performed tasks that were executive in nature, Congress cannot presumptively immunize that official from at-will firing, as a separation of powers matter. Jackson goes on to distinguish the OSC head from the CFPB (in Seila Law) and FHFA (in Collins) heads, a task made easier by the Supreme Court having already done so. In crafting Seila Law, Chief Justice John Roberts cited, albeit as dicta, the OSC as a model of restraint; the line that the CFPB unconstitutionally crossed:
The OSC exercises only limited jurisdiction to enforce certain rules governing Federal Government employers and employees. See 5 U.S.C. §1212. It does not bind private parties at all or wield regulatory authority comparable to the CFPB.
Jackson summarized the OSC’s inherent limitations in her opinion:
He has no power to enforce his own subpoenas or to overcome other agencies’ objections to his requests for records. If an inquiry reveals wrongdoing, he cannot bring a complaint or call for corrective action himself; he must petition a multi-headed quasi-judicial agency, or the appropriate administrative agency under Presidential control itself, to do so. They are free to turn him down.
In a perhaps telling dissent to the Supreme Court’s denial of Treasury Secretary Scott Bessent’s application to vacate Jackson’s order restoring Dellinger to his job, Justice Neil Gorsuch (joined by Justice Samuel Alito) characterized Dellinger, in sharp contrast to Jackson’s view, as “wield[ing] significant prosecutorial and investigative power as the sole head of a 129-person office.” So at least two justices appear poised to side with the three-judge D.C. Circuit panel and allow the president to fire Dellinger.
The crucial question of what Hampton Dellinger does at work is particularly relevant to this moment because in his capacity as OSC head, Dellinger has been effective in slowing down mass unlawful terminations, for example only on Wednesday winning the reinstatement of thousands of probationary workers at the U.S. Department of Agriculture.
The question of Dellinger’s role as head of the OSC has a deeper relevance because the OSC, despite having limited prosecutorial reach, will often be the last ordinary line of defense for workers being fired unjustly or whistleblowers calling out abuse. The OSC is explicitly authorized to help enforce the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment and Reemployment Rights Act, and it’s a busy shop, bringing more than 6,000 cases on behalf of workers and whistleblowers last year alone. If the OSC suddenly ceases to function as Congress intended, workers and whistleblowers aren’t entirely deprived of options, but they’d be on their own, perhaps with the help of outside counsel. For some actions, workers would have to first wait 120 days for the presumably dormant OSC to decline to respond.
If the Supreme Court ultimately allows the president to terminate Dellinger and whoever comes after him for purely political reasons, it’s difficult to imagine a partisan replacement standing up for federal workers given how this administration in particular is treating workers, not to mention its inclination to install agency heads for the sole purpose of killing those agencies. Jackson spent a sizeable portion of her opinion combing through the legislative record by which the OSC was established, and highlighted testimony from Republican Sens. Ted Stevens and Charles Mathias that perfectly foresaw the moment we now find ourselves in: “To be effective and to enjoy the confidence of the people, the Special Counsel must be insulated from overt and subtle influences of the president and his appointees.”
The dispute is now likely headed to the Supreme Court, which will either expand Seila Law and Collins to neuter the last of the single-director-led independent agencies. A defeat for Dellinger would be a landmark victory for the unitary executive theory. The court could still recognize the OSC as a unique exception to its recent independent agency jurisprudence, as it had in Seila Law, allowing the agency to fulfill Congress’ clear intent to provide an enforcement mechanism for statutes premised on the idea of a fair, efficient, and accountable federal government. Until the case makes its way there, however long that takes, Hampton Dellinger will have to wait and watch from the outside, fittingly alongside thousands of fired workers his office was sworn to represent.
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