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 topofficer.” 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’spower to remove ‘executive officers of the United States whom he has appointed’ may not beregulated 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 comparedto the agency at issue there, Seila Law, 591 U.S. at 221, and Collins did “not comment on theconstitutionality 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 toextend to the Special Counsel.
That is so because the Court in Collins clarified that “[c]ourts are not well-suited to weigh therelative importance of the regulatory and enforcement authority of disparate agencies” and so itdid “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 thedistrict 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 thatarguments about the scope and functions of the Special Counsel as a sole agency head do not affectthe President’s removal power.
Both the district court and Dellinger highlight that Seila Law was particularly concerned aboutthe “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 reformulatedthe removal test as whether an agency can “fairly be likened to a typical administrative agencycharged with implementing [congressional] directives in accordance with Presidential policy andpriorities.” Dellinger I, 2025 WL 665041, at *26. And Dellinger also seeks to distinguish SeilaLaw and Collins as instances of “principal officers leading single-headed agencies that exercisebinding 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 dispositivein 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 itwields, 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 fromSeila Law, it is binding on our court and applies no matter the “nature” or “breadth” of its executiveauthority.
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.
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