Appellee

v. Scott Bessent, in his official capacity as Secretary of the Treasury, et al.,

Appellants

BEFORE: Henderson, Millett, and Walker, Circuit Judges

ORDER AND OPINION

Upon consideration of the March 5, 2025 order granting the emergency motion for a stay pending appeal, which indicated that an opinion would follow in due course, the opinion thereto is attached.

Per Curiam

FOR THE COURT: Clifton B. Cislak, Clerk

BY: /s/ Daniel J. Reidy Deputy Clerk PER CURIAM: This case is about the presidential removal power. After being fired by President Donald Trump, the Special Counsel, Hampton Dellinger, sued to challenge that action. The court below granted summary judgment to Dellinger and issued a permanent injunction and declaratory judgment in his favor. The government now appeals that decision, requesting a stay pending appeal. Because the government has shown a strong likelihood of success on the merits and its asserted injury outweighs Dellinger’s, we grant its motion.

I.

The Congress created the Office of the Special Counsel (OSC) in the Civil Service Reform Act of 1978. Pub. L. No. 95-454, § 202, 92 Stat. 1111, 1121 (1978). OSC is led by a single individual—the Special Counsel—who is appointed by the President with Senate advice and consent for a five-year term. 5 U.S.C. § 1211. By statute, the Special Counsel may be removed “only for inefficiency, neglect of duty, or malfeasance in office.” Id.

OSC’s mission is to “protect employees, former employees, and applicants for employment from prohibited personnel practices.” 5 U.S.C. § 1212(a)(1); see also Dellinger v. Bessent, --- F.Supp.3d ---, 2025 WL 665041, at *4–10 (D.D.C. Mar. 1, 2025) (Dellinger I) (detailing OSC’s legislative history). To achieve that mission, OSC has “investigative and enforcement powers.” Dellinger v. Bessent, 2025 WL 559669, at *11 (D.C. Cir. Feb. 15, 2025) (Dellinger II) (Katsas, J., dissenting). These powers include the authority to “receive and investigate allegations of prohibited personnel practices”; to “investigate alleged violations” of certain other laws; to require other agencies to conduct investigations, provide records and submit reports; and to seek stays of personnel actions and file complaints before the Merit Systems Protection Board (MSPB). See id. (quoting 5 U.S.C. §§ 1212–1216); Dellinger I, 2025 WL 665041, at *10–12 (describing OSC’s authorities). 2

When it was established, OSC was part of the MSPB, which is a “‘quasi-judicial body[] empowered to determine when abuses or violations of law have occurred’ and to ‘order corrective action.’” Dellinger I, 2025 WL 665041, at *6 (quoting S. Rep. No. 95-969, at 2 (1978)). Just over ten years later, OSC was carved out of the MSPB to become an independent agency. See id. at *8 (citing Whistleblower Protection Act of 1989, Pub. L. 101-12, 103 Stat. 16 (1989)). From the beginning, the Special Counsel had for-cause removal protections. Civil Service Reform Act, 92 Stat at 1122. The Office of Legal Counsel (OLC) contemporaneously objected to those protections, opining that the Congress could not limit the President’s power to remove the Special Counsel because his functions were “executive in character” and his “role in investigating and prosecuting prohibited practices” was analogous to “that of a U.S. attorney.” Id. at *7 (quoting Mem. Op. for the Gen. Couns., Civ. Serv. Comm’n, 2 Op. O.L.C. 120, 120 (1978)); see also Dellinger II, 2025 WL 559669, at *11 (collect