Update: D.C. Circuit Court of Appeals stays order of Judge Berman Jackson who reinstated Hampton Dellinger as Special Counsel to Office of Special Counsel which oversees Merit System Protection Board to protect whistle blowers, etc.
The Circuit cited Nken v. Holder, 556 U.S. 428, 434 - an alien removal case in which the court restated traditional criteria for a stay of an injunction:
“(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”
Briefing is set to conclude mid April, with oral argument to be set at that time. So the flood of federal probationary workers fired on order of Elon Musk . - GWC
5 U.S.C.§ 1211(a), establishes the Office of Special Counsel, an independent agency of the United States with a century-old origin and a history of fulfilling its statutory function spanning twelve presidential administrations. It provides in relevant part:
Special Counsel shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. ... The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. The Special Counsel may not hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President.
The powers of the Special Counsel are quite limited under 5 U.S.C. 1212. The SC can issue subpoenaes and appear as amicus curiae but does not prosecute violators of the law. The complaints the Special Counsel authorizes are heard before the Merits Systems Protection Board.
But in Seila Law (2022) Chief Justice John Roberts sounded an alarm very much like the so-called unitary justice theory - an academic formulation that would grant monarchic power to the President. Roberts wrote:
Article II vests the entire executive power in the President alone,. but "the Presdient's executive power generally includes the power to supervise and, if necessary, to remove those who exercise presidential authority on his behalf".
This exoression of nearly sovereign power has been embraced by Donald Trump whos newly confirmed Treasury Secretary sent a Tweet to Hampton Dellinger, who was serving a five year Senate-confirmed tterm:
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[.]Scott Bessent, Secretary of the Treasury Ex. A to Compl. [Dkt. # 1-1] (“Ex. A”).
U.S. District Judge Amy BermanJackson began her careful sixty seven page opinion in Hampton Dellinger, Special Counsel, OSC v. Scottt Bessent, Sec'y of Treasury this way:
As of the close of the business day on February 7, 2025, plaintiff Hampton Dellinger was the Special Counsel of the Office of Special Counsel, having been appointed to a five-year term by the President of the United States and confirmed by the United States Senate. In that position, he served as the head of the small independent agency tasked with shielding federal employees from prohibited personnel practices, including retaliation for whistleblowing, in the workplace. At 7:22 p.m. that evening, he received the email message above from Sergio N. Gor, Assistant to the President, Director of Presidential Personnel Office, The White House, with no additional explanation or reasoning.
Judge Berman concludes:
The Office of Special Counsel is not assigned responsibilities that include furthering the administration’s agenda; it is the Special Counsel’s job to look into and shine light on a set of specific prohibited practices so that the other bodies, in the appropriate exercise of their constitutional authority, can take whatever action they deem to be appropriate. To do this as Congress intended that he should, he must remain entirely free of partisan or political influence, and that is why the statute survives scrutiny even under the most recent precedent. In sum, it would be antithetical to the very existence of this particular government agency and position to vindicate the President’s Article II power as it was described in Humphrey’s Executor: a constitutional license to bully officials in the executive branch into doing his will. For those reasons and the reasons stated below, plaintiff’s cross-motion for summary judgment [Dkt. # 23] will be GRANTED, and defendants’ motion for summary judgment [Dkt. # 22] will be DENIED.
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