Appeals Court Ends the Gamesmanship of Ousted Head of Special Counsel Office

H ampton Dellinger proved himself to be quite the operator in his court challenge to President Trump’s removal of him last month from his post as head of the Office of Special Counsel (OSC). On Monday, the D.C. Circuit ended his gamesmanship, ruling decisively against his reinstatement by the lower court.

As we’ve detailed (see here and here), Dellinger, a Biden appointee, got an Obama appointee, Judge Amy Berman Jackson of the federal district court in Washington, D.C., to promptly reinstate him, notwithstanding that there was no precedent supporting a judge’s use of an extraordinary temporary restraining order to reinstate an official who wields the president’s executive power and has been removed by the president.

Federal appeals courts declined to intervene (over a dissent by Justices Neil Gorsuch and Samuel Alito), rationalizing that Judge Jackson was going to have a hearing within two weeks. Jackson proceeded to drag her feet about making a decision. Dellinger used the time to make an application to the Biden-appointed vice-chairman of the Merit Systems Protection Board (MSPB) to reinstate a half-dozen probationary federal employees whom the president and DOGE had fired; that Biden appointee, MSPB vice-chairman Raymond Limon (who has since retired) not only agreed but opined that thousands of other fired probationary employees might also have to be reinstated.

Meantime, another Biden appointee fired by Trump, MSPB Chairwoman Cathy Harris, somehow — really can’t imagine how — managed to persuade still another Obama appointee, Judge Rudolph Contreras, that she, too, should be reinstated. She, of course, used that new lease on life to back the play by Dellinger and Limon by reinstating some 6,000 federal employees whom the president had removed. (I presume that the Trump Justice Department will also appealing Judge Contreras’s reinstatement of Harris, but I have seen no reporting on that.)

In the interim, on a Saturday (and almost a week behind schedule), Judge Jackson finally issued her ruling in support of Dellinger’s reinstatement. As I opined at the time, her weak rationale didn’t get stronger in the 67 pages Jackson took to flesh it out. The Trump Justice Department immediately appealed . . . and Harris promptly joined Dellinger’s side as an amicus.

Clearly unimpressed by Jackson’s reasoning, a three-judge panel of the D.C. Circuit (composed of Bush 41, Obama, and Trump appointees) quickly restored the status quo, undoing the reinstatement of Dellinger — i.e., he was once again removed from office, giving legal force to the president’s February 12 directive. The Circuit indicated that this would be the state of play while the merits appeal proceeded (i.e., Dellinger would remain removed from office unless and until the Circuit made the highly unlikely decisions not only that his firing was illegal but also that reinstatement was the appropriate remedy).

With the handwriting on the wall that he was going to lose the case, Dellinger then tried to drop the lawsuit he had already won in the district court — trying to stave off the creation of an important D.C. precedent for the proposition that the president has authority to fire the head of even a so-called independent agency (i.e., an bureaucracy that is not formally part of any of the three branches of the federal government) if that official exercises executive power — power that the Constitution vests solely in the president. For one thing, such a precedent could hurt Harris in the Trump administration’s appeal of her reinstatement (though, as we’ll see, it wouldn’t necessarily be fatal).

The Circuit, however, had had enough of Dellinger’s gamesmanship. On Monday, it issued an eight-page order and opinion explaining why it is upholding his firing by Trump. The panel made clear that it disagreed with Judge Jackson and that it was virtually certain to rule against Dellinger on the merits once the case was fully litigated.

To be sure, the Circuit’s opinion does not cinch victories for the president in his pending and future challenges to the administrative state.

The panel unanimously held that, regardless of ostensible statutory restrictions on the president’s removal power — here, limiting the grounds for firing the head of the Office of Special Counsel to “inefficiency, neglect of duty, or malfeasance in office” — the Constitution vests the chief executive with the authority to terminate at will the head of an agency that (a) wields executive power and (b) has a single top official. For this proposition, the Circuit relied on Supreme Court precedent stretching from Myers v. United States (1926) through Seila Law v. Consumer Financial Protection Board (2020) and up to Collins v. Yellin (2021).

Significantly, this does not broach the question of whether Humphrey’s Executor v. United States (1935) remains good law. There, the Supreme Court upheld both (a) congressional restrictions on the president’s removal of a member of a multi-headed board of an administrative agency (there, the Federal Trade Commission) and (b) the proposition that such agencies are independent of the executive because they are “quasi-legislative” and “quasi-judicial” in nature. Particularly given the later Supreme Court precedents holding that a single leader of an agency that undeniably wields executive power can be fired by the president at will, the Circuit did not have to grapple with Humphrey’s Executor — and, in any event, only the Supreme Court can reverse its own precedents (which the Trump Justice Department is hoping to persuade the Court to do in an appropriate case).

Consequently, while it is helpful for the Trump administration to get a favorable D.C. Circuit ruling on Dellinger, it won’t necessarily carry the day against, for example, Harris. She was (and at least for now, still is) the chairwoman of the MSPB’s multi-member board and, as the Circuit observes, the MSPB exercises “quasi-judicial” powers. Indeed, one fact that hurt Dellinger’s position but will help Harris’s is that, about a decade after establishing the OSC as part of the MSPB, Congress split the two agencies, thus largely cleaving executive functions (OSC) from quasi-judicial functions (MSPB).

In any event, it was good hygiene for the Circuit to prevent Dellinger, after he brought a significant lawsuit against the president and forged a dubious precedent in his favor, from then dropping the lawsuit and thus preventing the Circuit from addressing Judge Jackson’s ruling.

I imagine that the Trump administration will now try to argue that, since Dellinger should never have been reinstated in the first place, his actions in the MSPB to cause the reinstatement of other fired federal employees should be voided. I doubt that will succeed: Even granting that Dellinger should not have been able to make the application to the MSPB, the MSPB has already granted it (and MSPB Chairwoman Harris supplemented it).

If those 6,000 reinstatements are to be reversed, the administration will probably first have to succeed in convincing the D.C. Circuit — or the Supreme Court — to uphold his firing of Harris, a tougher case for the president than his firing of Dellinger.