D.C. Circuit Issues Opinion Explaining Stay that Allowed for Special Counsel Dellinger's Removal

The panel did not believe the Office of Special Counsel could be distinguished from the Consumer Financial Protection Bureau or Federal Housing Finance Authority.

Former Special Counsel Hampton Dellinger may have dropped his lawsuit challenging his removal by President Trump, but that did not stop the U.S. Court of Appeals for the D.C. Circuit from issuing a belated opinion explaining why it granted the Trump Administration's emergency motion for a stay pending appeal in Dellinger v. Bessent.

The per curiam opinion on behalf of Judges Henderson, Millett, and Walker explains that the panel concluded that the Trump Administration was likely to prevail on the merits. This is because, as a single-headed agency, it is hard to distinguish the Office of Special Counsel from the Consumer Financial Protection Bureau and the Federal Housing Finance Administration, and thus hard to see how Dellinger could prevail under Seila Law v. CFPB and Collins v. Yellen. 

From the opinion:

"[T]he Constitution prohibits even 'modest restrictions' on the President's power to remove the head of an agency with a single top officer." Collins v. Yellen, 594 U.S. 220, 256 (2021) (quoting Seila Law LLC v. CFPB, 591 U.S.197, 228 (2020)); see also Trump v. United States, 603 U.S. 593, 621 (2024) ("[T]he President's power to remove 'executive officers of the United States whom he has appointed' may not be regulated by Congress or reviewed by the courts.") (quoting Myers v. United States, 272 U.S. 52,106, 176 (1926)). Granted, Seila Law noted the more "limited jurisdiction" of OSC as compared to the agency at issue there, Seila Law, 591 U.S. at 221, and Collins did "not comment on the constitutionality of any removal restriction that applies to [the Special Counsel]," 594 U.S. at 256n.21. However, the government has shown that the logic of those cases is substantially likely to extend to the Special Counsel.

That is so because the Court in Collins clarified that "[c]ourts are not well-suited to weigh the relative importance of the regulatory and enforcement authority of disparate agencies" and so it did "not think that the constitutionality of removal restrictions hinges on such an inquiry." Id. at253. This case illustrates the point. Compare Dellinger II, 2025 WL 559669, at *11 (Katsas, J.,dissenting) ("The Special Counsel has broad investigative and enforcement powers.") and Mot. 14 (describing OSC's powers as "significant") with Dellinger I, 2025 WL 665041, at *20 ("OSC [is]not . . . vested with significant executive power.") and Opp'n 9 (describing OSC's powers as "extremely limited"). Nevertheless, such parsing of authorities is precisely the inquiry that the district court engaged in below and that Dellinger asks us to undertake now. Dellinger I, 2025 WL665041, at *16–28; Opp'n 6–13. Accordingly, the government is likely to succeed in showing that arguments about the scope and functions of the Special Counsel as a sole agency head do not affect the President's removal power.

Both the district court and Dellinger highlight that Seila Law was particularly concerned about the "significant executive power" that the director there wielded. Dellinger I, 2025 WL 665041,at *19, 20 (quoting Seila Law, 591 U.S. at 220); Opp'n 8 (same). The district court reformulated the removal test as whether an agency can "fairly be likened to a typical administrative agency charged with implementing [congressional] directives in accordance with Presidential policy and priorities." Dellinger I, 2025 WL 665041, at *26. And Dellinger also seeks to distinguish Seila Law and Collins as instances of "principal officers leading single-headed agencies that exercise binding regulatory and enforcement authority affecting private actors." Opp'n 7.

But Collins emphasized that "the nature and breadth of an agency's authority is not dispositive in determining whether Congress may limit the President's power to remove its head." 594 U.S.at 251–52. It is for that very reason that three Justices only concurred in part in the holding, observing that "[a]ny 'agency led by a single Director,' no matter how much executive power it wields, now becomes subject to the requirement of at-will removal." Id. at 273 (Kagan, J.,concurring in part and concurring in the judgment). Whatever the merits of that expansion from Seila Law, it is binding on our court and applies no matter the "nature" or "breadth" of its executive authority.

In any event, the government has sufficiently demonstrated that Dellinger exercises at least enough authority to contradict the President's directives. As Dellinger acknowledges, OSC recently requested "a stay of personnel actions with the MSPB concerning a recent termination of probationary employees at the U.S. Department of Agriculture." Opp'n 13 n.1. In fact, that request involves thousands of employees, Appellant Rule 28(j) Letter 1, and follows Dellinger's earlier successful request for a stay involving six other employees, Mot. 9, 18. Moreover, the Special Counsel's earlier request claimed that the MSPB "must" grant a stay unless the request is "inherently unreasonable." Mot. 18. To be able to obtain the reinstatement of thousands of employees in a single agency, even if only temporarily, with such a vague standard of review seems to suggest the Special Counsel's powers are not as limited as he claims.

In a footnote in his opposition to the stay, Dellinger also argues that he is an inferior rather than principal officer, Appellee Br. 13 n.2, but not even the court below was convinced by that argument, Dellinger I, 2025 WL 665041, at *19 n.18. In evaluating whether an officer is principal or inferior, the Supreme Court has most recently "focused on whether the officer's work is 'directed and supervised' by a principal officer." Seila Law, 591 U.S. at 217 n.3. As the district court observed, only "the President has the authority to remove the Special Counsel" and "he is a Presidential appointee who must be confirmed by the Senate." Dellinger I, 2025 WL 665041, at *19 n.18. Thus, the government has shown that Dellinger is all but certain to be designated a principal officer.

In sum, the government has demonstrated a strong likelihood of success on the merits of its appeal and thus the first factor weighs in its favor.

Comments

[Lee Moore]

And so the question is - what is it that distinguishes the top official in an agency which has a single head, from an official who is one of the several heads of a multi-headed agency - a hydra agency ?

It seems to me that the distinction is that one of the heads of a hydra agency does not wield executive power. The executive power is wielded by all the heads collectively. Lopping off a single head does not bring the agency under the command of the President, because the other heads continue to operate.

The answer therefore is that the President does not have the power to lop off a single head, he only has the power to lop them all off together.

Somehow I doubt anyone but Trump will like this answer. But it seems logical to me.

[Krayt]

the distinction is that one of the heads of a hydra agency does not wield executive power. The executive power is wielded by all the heads collectively. Lopping off a single head does not bring the agency under the command of the President, because the other heads continue to operate.

Someone has to wield executive power. Is it the legislative power?

[Lee Moore]

Eh ?

[tylertusta]

To be able to obtain the reinstatement of thousands of employees in a single agency, even if only temporarily, with such a vague standard of review seems to suggest the Special Counsel's powers are not as limited as he claims.

Dellinger shot himself in the foot here.

[Commenter_XY]

But wait, we were confidently assured by so many VC Conspirators that this was an easy call for the DC Circuit to smack down Orange Man Bad.

What happened, lol?

[MaddogEngineer]

You know, we all know LOLOL

[tylertusta]

What happened was that Dellinger bit the hand that fed him, and he did it in such a way as to prevent even an Obama appointee from pretending that the sky wasn't blue.

[David Nieporent]

But wait, we were confidently assured by so many VC Conspirators that this was an easy call for the DC Circuit to smack down Orange Man Bad.

You were not assured that, confidently or otherwise, by any VC Conspirators. You've just made that up.

[MaddogEngineer]

He is a great example of the permanent governing class's conceit about the administrative state.

For his (individual) position to be constitutional, his authority can only extend over those below him, not above. So if some middle level manager wrongly terminates employees, he has the legal authority to rectify that, without asking another principle officer (or the president) to act.

That is not true when the order comes from above. If the president wants something to eliminate workers, the Special Counsel cannot oppose it.

Yet the liberals remain enamored with the idea of their ever more perfect administrative state, where a change of (party) administration will not interrupt the progress being made implementing their agenda. As if the federal government has independent offices, like elected state attorneys general, as a counterbalance when the "wrong" president is elected.

I think people haven't really thought through all the implications of the civil service, and exactly how it ended the patronage system. As long as the president cannot (because of legal restrictions) direct the hiring of political supporters, there is nothing wrong with him (and principle officers) using the (apparent) legal authority they have to determine the number of employees in each agency/department.

Just like with tariffs, if Congress wants to take back that power, it is free to do so at any time.

None of my above applies to multi-member regulatory agency/boards, which have quasi-legislative/judicial authority. A whole different set of questions. I think Trump probably lacks the authority to fire NLRB members, because of its legal authority given.

[tylertusta]

We're going to find out about multi-member panels. Trump has ongoing court battles with a member each in the NLRB and the MSPB.

[MollyGodiva]

The Constitution does not mention at all the ability for the president to fire any EB person he wants. SCOTUS made it up and now we act like it is in the text.

The proponents of the imperial presidency take a few words out of Article II and ignore the rest of the document. We have built an entire mythos about Presidential power that has no basis in the Constitution.

[tylertusta]

SCOTUS made it up and now we act like it is in the text.

Yes. They started this in 1803 with Marbury.

... do you think the Marbury was incorrectly decided?

[Malika the Maiz]

They started this in 1803 with Marbury

Cite?

[Mr. Bumble]

Opinions require cites?

[Stupid Government Tricks]

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

If that's not what you meant, then you were probably replying to MollyGodiva and should ask her.

[JoeFromtheBronx]

Yes. Judicial review, as Marbury adequate describes, is a reasonable application of the text.

Courts hear cases and interpret the law, of which the Constitution is the most supreme. Courts have the duty to favor it over a statute.

Federal judges acknowledged and practiced judicial review before Marbury. It doesn't refute Molly's point.

[Kazinski]

No Molly, the Supreme Court did not make it up, in Myers v US 1929, CJ Taft had a long extract from the annals of the first Congress debating the legislation establishing the first cabinet departments:

Here's just a little of it:

"1 Annals of Congress, 383.
On June 16, 1789, the House resolved itself into a Committee of the Whole on a bill proposed by Mr. Madison for establishing an executive department to be denominated the Department of Foreign Affairs, in which the first clause, after stating the title of the officer and describing his duties, had these words: "to be removable from office by the President of the United States." 1 Annals of Congress, 455. After a very full discussion, the question was put: shall the words "to be removable by the President " be struck out? It was determined in the negative yeas 20, nays 34. 1 Annals of Congress, 576.
On June 22, in the renewal of the discussion,
"Mr. Benson moved to amend the bill by altering the second clause so as to imply the power of removal to be in the President alone. The clause enacted that there should be a chief clerk, to be appointed by the Secretary of Foreign Affairs, and employed as he thought proper, and who, in case of vacancy, should have the charge and custody of all records, books, and papers appertaining to the department. The amendment proposed that the chief clerk, 'whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy,' should, during such vacancy, have the charge and custody of all records, books, and papers appertaining to the department."

The debate continued and they removed the bolded phrase because it appeared to be a grant of power by Congress, and it was an inherent power of the President, Madison then speaker of the House:

First. Mr. Madison insisted that Article II, by vesting the executive power in the President, was intended to grant to him the power of appointment and removal of executive officers except as thereafter expressly provided in that Article. He pointed out that one of the chief
Page 272 U. S. 116
purposes of the Convention was to separate the legislative from the executive functions. He said:
"If there is a principle in our Constitution, indeed in any free Constitution, more sacred than another, it is that which separates the Legislative, Executive and Judicial powers. If there is any point in which the separation of the Legislative and Executive powers ought to be maintained with great caution, it is that which relates to officers and offices."

It goes on pages and pages, and it provides the core of the reasoning of the Supreme Court in 1929.

https://supreme.justia.com/cases/federal/us/272/52/#tab-opinion-1931571

When the Supreme court almost 100 years ago bases its decision on a close examination of the records of the first Congress it can't be termed as a made up doctrine by a court that is playing politics, whatever they were 96 years ago.

[Kazinski]

I keep saying it was1929 but it was 1926 so 99 years ago.

[JoeFromtheBronx]

Holmes and Brandeis dissented in that case as did a less beloved justice. Kagan is Seila Law cites her own history as does other more scholarly works.

[MollyGodiva]

Uhhh no. Declining to put something into the Constitution is not evidence that it is part of the Constitution. The Constitution was ratified based on the text, not meeting notes.

[Kazinski]

But you claimed the Supreme Court made it up.

The Myers Court based its decision on the plainly expressed understanding of "The Father of the Constitution", as well as the plain text that says: "The Executive Power shall be vested in the President of the United States".

I don't think its a reach to suppose that firing the subsidiary executives is included in that executive power.

[MaddogEngineer]

I really wish the comments allowed posting images, because I'd just reply with the guy in the hot dog suit saying "we're all trying to find the guy who did this".

As if liberals haven't wanted an imperial presidency since Woodrow Wilson and FDR.

About the only good thing about the Trump era is that such people are finally finding out why it's a bad idea. Nobody expects the Spanish Inquisition, or the wrong thinking guy ever to have control of the administrative state. It's too important to be in the hands of anyone except experts obviously.

[Area Man]

People forget that Humphrey from Humphrey's Executor was fired by FDR because the FTC was hindering the New Deal. It's always been funny to me that modern progressives love that decision, while modern conservatives hate it.

[tylertusta]

As if liberals haven't wanted an imperial presidency since Woodrow Wilson and FDR.

The other day I heard a good summary of the passage of the Civil Service Act:

The spoils system was causing too much dysfunction in the federal bureaucracy. So, rather than allow the parties to put their cronies into government every 4-8 years, Congress passed a law that had the effect that no matter who wins the Presidency the bureaucracy will always remain Democratic.

[David Nieporent]

Congress passed a law that had the effect that no matter who wins the Presidency the bureaucracy will always remain Democratic.

The Pendleton Act was passed by a Republican Congress and signed by a Republican president.

[tylertusta]

A massive self-own, I tell you.

[JoeFromtheBronx]

Liberals supported various checks on the presidency including limits arising from congressional regulations.

One check that developed that later was deemed unconstitutional was the legislative veto. Many checks remain including the power of the purse, limits on removal, and so on.

Two Wilson appointees dissented in Myers along with Holmes. People knew that an imperial presidency was problematic already. Nixon alone showed this & people pushed back up to and including the Supreme Court.

Now, however, the same people so concerned about FDR (and Biden) allegedly having too much power are fine with Trump having it. The hot dog guy is wearing a MAGA hat.

[EllaWilson]

Hampton Dellinger is a deep plant and has been supporting President Trump along. He has done a great service for democracy and the constitution!

[rloquitur]

The court should not have issued the opinion, as the case was, by then, moot.

[Rossami]

While that may be a correct statement under mootness doctrine, it nicely illustrates a key failing of that doctrine. This case properly presented an important issue of enduring and repeatable importance, it was fully briefed by both sides and was ripe for decision. None of the usual arguments in favor of the mootness doctrine applied.

Strategically mooting a case to avoid an adverse precedent smacks more of legal gamesmanship than good statecraft and is a practice that society should actively discourage.

[rloquitur]

You make good points. However, in my view, it is more important for the courts to have an institutional sense of the limits of their power. Anyone can dust off the briefs and get a sense of what this case was about. Dellinger knew he was going to lose, and he gave up. That's not a bad outcome either.

[Rossami]

I agree that courts need that sense of their own limits - I just don't think that is necessarily a right limit.

[Area Man]

My understanding is that this was merely an opinion explaining the Court's order, which was released before the case was (voluntarily) dismissed. That is to say, if they had released the opinion with the order, then later dropping the case would not have undermined the propriety of issuing the opinion. Thus, I don't think it's improper to issue the opinion after the fact. (It may be possible to get Munsingwear vacatur, but that would just vacate the judgment, not delete the opinion as useful persuasive (non-binding) authority. Though, admittedly, I'm no expert on the effects of such a vacatur.)

[David Nieporent]

I think you're correct.

[MaddogEngineer]

But was it moot at the time the decision was reached? I remain unclear on the timeline.

I thought the Court had announced a decision in the administration's favor, without having released any supporting opinion. And that's when Dellinger relented. If they had, releasing the opinion later seems legit.

Not a fan of the strategic abandon ship litigation gamesmanship to avoid bad precedents. Even if Dellinger made such a request, until the courts recognize it it doesn't become effective, right?

[Kazinski]

If it makes you feel better it was just an opinion staying the TRO, not an opinion on the final merits, other than saying it was unlikely Filling we would prevail, at least as I understand it.