The DC Circuit Court of Appeals has granted permission to President Trump to dismiss Special Counsel Hampton Dellinger while Dellinger’s lawsuit for reinstatement is still pending. This decision reverses the ruling made by District Court Judge Amy Berman Jackson, which had compelled the Trump administration to reinstate Dellinger.
According to the law, Dellinger can only be removed from his position for reasons such as “inefficiency, neglect of duty, or malfeasance in office.” Trump cited a recent Supreme Court ruling as justification for firing Dellinger. Upon his reinstatement, Dellinger began challenging Trump’s termination of probationary federal employees by advocating for their cases to be reviewed by the Merit System Protection Board. The Trump administration took the case to the Supreme Court, which subsequently referred the matter to the DC Circuit for evaluation. A three-judge panel from the DC Circuit issued a decision on the case.
On Wednesday, a brief two-page ruling was released by three judges from the D.C. Circuit Court of Appeals, offering no detailed explanation. However, the ruling stated that the Trump administration’s attorneys had satisfied the legal requirements to lift the injunction imposed by U.S. District Judge Amy Berman Jackson on Saturday.
2/ Fifth Circuit just entered stay pending appeal giving effect to Trump’s removal of Dellinger!!
Order here: https://t.co/JXsxMgMZi0
— Margot Cleveland (@ProfMJCleveland) March 5, 2025
IANAL, so I’ll turn to friend and former RedState colleague Bill Shipley for analysis.
The DC Circuit Court of Appeals has just vindicated CJ Roberts.
The Court has just granted the Motion to Stay the Order of Judge Amy Berman Jackson that Hampton Dellinger remain as head of the Office of Special Counsel while he litigates the legality of his dismissal without…
— Shipwreckedcrew (@shipwreckedcrew) March 5, 2025
The DC Circuit Court of Appeals has just vindicated CJ Roberts.
The Court has just granted the Motion to Stay the Order of Judge Amy Berman Jackson that Hampton Dellinger remain as head of the Office of Special Counsel while he litigates the legality of his dismissal without cause in alleged violation of the statutory requirement that he can be removed only “for cause.”
Chair of the MSPB Cathy Harris was allowed to join the proceedings as amicus — the same issue applies to her, with Judge Contreras having ordered that she remain in her position while litigating her dismissal.
This is “regular order”. Judge Jackson issued a ruling on the merits Saturday night, granting summary judgment for Dellinger. The DOJ filed a Notice of Appeal, and a Motion to Stay Judge Jackson’s order that Dellinger remain as head of the Office of Special Counsel.
The Appeals Court has now undone her Order while the appeal is pending. That means the TRO and Prelim Injunction are vacated and the firing of Dellinger is now back in effect.
I expect the same will happen next to Cathy Harris.
Cathy Harris was the head of the Merit Systems Protection Board, enjoying the same statutory protections as Dellinger, and whom Trump fired anyway. She has also been ordered reinstated; see . The appeals court allowed her to file an amicus brief in this case.
The Supreme Court held a motion to vacate Judge Jackson’s TRO “in abeyance” while she was considering the merits. She acknowledged such during the hearing when she said she understood the Supreme Court was watching over her shoulder.
BUT, the Appeals Court has now done its job — meaning the decision by SCOTUS to respect “regular order” was the correct one.
That said — the panel granting the stay has two GOP appointees — Judge Henderson (Bush 41) and Judge Waker (Trump). DOJ was fortunate in the draw in that regard.
No matter how the appeals court panel rules, this is headed back to the Supreme Court. I think Dellinger is toast because he is the sole director in the Office of Special Counsel and his case is a nearly perfect analog for Seila Law LLC v. Consumer Financial Protection Bureau, the 2020 Supreme Court ruling that permitted Trump to fire the head of the CFPB because he was a sole director who could not, according to statute, be fired.
The Harris case will be more interesting and significant. It will test the validity of the Humphrey’s Excecutor precedent and the amount of control the president has over the administrative state; see .
