A federal district court this week ordered the Trump Administration to reinstate Special Counsel Hampton Dellinger until the court has a chance to rule on Dellinger's motion for a preliminary injunction. The court scheduled a hearing on Dellinger's motion for February 26.
The case is significant because it tests the bounds of two recent rulings by the Supreme Court that struck tenure protections for other officers within the Executive Branch. This case tests whether those rulings, described and linked below, extend to a very different office, the Special Counsel. (We separately covered the Administration's decision not to defend the constitutionality of independent administrative agencies, and the related "unitary executive theory," here.)
The case arose when the Trump Administration informed Hampton Dellinger last Friday that it was removing him from his position as Special Counsel. (Dellinger's office is different than Jack Smith's office. Dellinger heads the Office of Special Counsel, an independent agency that protects federal employees from prohibited personnel practices. OSC also enforces the Hatch Act.) By statute, the Special Counsel is "appointed by the President, by and with the advice and consent of the Senate" to serve "for a term of five years." 5 U.S.C. Sec. 1211. "The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office." Id. Yet the Trump Administration sent Dellinger an e-mail that simply said that his position as Special Counsel "is terminated, effective immediately."
Dellinger sued on Monday, and the court issued an administrative stay of the Administration's action. Then on Wednesday the court issued a temporary restraining order, ordering the Administration to reinstate Dellinger until the court determines whether to issue a preliminary injunction. (The Administration sought to appeal the administrative stay and the temporary restraining order, but the D.C. Circuit rejected those moves, concluding that it lacked jurisdiction. (In general, a defendant cannot immediately appeal an administrative stay or temporary restraining order, but they can appeal a preliminary injunction.) A separate Administration effort to appeal appears to be pending.)
All this means that the Administration must reinstate Dellinger pending the court's ruling on his preliminary injunction motion, unless the D.C. Circuit intervenes in the Administration's separate appeal.
In granting the temporary restraining order, the court ruled that Dellinger was likely to succeed on the merits of his claim–that he was removed in violation of his tenure protection in the OSC statute. The court also rebuffed the Administration's claim that the tenure protection impermissibly encroached on the President's Article II authority and was therefore unconstitutional.
The court held that the Special Counsel was different than the head of the Consumer Financial Protection Bureau (whose tenure protections the Court struck in Seila Law LLC v. Consumer Financial Protection Bureau (2020)), the director of the Federal Housing Finance Agency (whose tenure protections the Court struck in Collins v. Yellen (2021)), and even the Commissioner of the Social Security Administration (whose tenure protections the Office of Legal Counsel determined were "constitutionally unenforceable"). The court wrote,
The OSC is not an agency endowed with the power to articulate, implement, or enforce policy that affects a broad swath of the American public or its economy. It does not have broad rulemaking authority or wield substantial enforcement authority over private actors; it has no authority over private actors. It is an agency with limited jurisdiction: its job is to investigate government employees' allegations of specifically identified prohibited personnel practices, and where appropriate, to seek corrective or disciplinary action. The agency's statutory functions require it to report directly to Congress about what it has found and whether any executive agency has stood in its way. While the federal workforce includes a large number of people, the Special Counsel is only called upon to interact with a small subset of them on an individual basis, and only in connection with one aspect of their personal employment situations; he does not guide or direct them in any way in connection with the policies they will promulgate or implement in the course of that employment.