On February 26, 2025, Judge Amy Jackson of the U.S. District Court for the District of Columbia heard arguments in a preliminary injunction hearing between attorneys for Hampton Dellinger, Special Counsel of the U.S. Office of Special Counsel (OSC), and the Department of Justice (DOJ). The hearing came after President Trump fired Dellinger without cause on February 7, 2025, leading Dellinger to sue. He alleges that his removal violated the for-cause removal protection laws for Special Counsel. Judge Jackson previously issued a temporary restraining order (TRO) which was set to expire the day of the hearing. Following the hearing, the TRO was extended for three days to give Judge Jackson time to decide on the preliminary injunction.
During the hearing, it was readily acknowledged that there was already clear interest in appealing to the Circuit Court and likely the Supreme Court. The Government has already asked the Supreme Court to vacate the original TRO that was entered on February 12. The Supreme Court determined to hold this request in abeyance until the hearing on February 26. The hearing was also held on a rapid time frame, with Dellinger’s counsel quipping that he had hours to prepare for the argument rather than the normal days or weeks.
Joshua Matz, representing Dellinger, began by describing Dellinger’s position as head of the OSC, which oversees complaints from federal whistleblowers. He argued that, as an inferior officer, Selia Law, a 2020 Supreme Court case, did not prohibit the for-cause restrictions for OSC on President Trump’s removal authority under Article II. Moreover, Matz emphasized that Seila Law, which arguably grants the president full authority over appointing and removing people who wield “significant executive power,” did not create a “categorical rule” that prohibits for-cause removal protections for executive agencies.
A foundational aspect of the counsel’s argument was that the OSC did not wield significant executive power and, therefore, Seila Law could not justify Dellinger’s firing without cause. Since the OSC does not have enforcement powers and cannot make any “final decision on behalf of the executive branch” without higher permission, counsel argued that the OSC is exempt from baseless termination. Matz highlighted the “quasi-legislative” role of the OSC, which Judge Jackson later alluded to while questioning the DOJ. By reporting to Congress, checking executive branch behavior, and managing federal whistleblowers, counsel asserted that the OSC is an inherently independent agency, not merely an extension of the executive branch and direct presidential decisions. Firmly, Matz suggested that President Trump seeks to undermine this principle by attempting to remove Dellinger.
Jackson Erpenbach, another attorney representing Dellinger, argued that the proposed equitable relief would not direct the actions of the President. Rather, Erpenbach argued that the equitable relief would nullify the actions of those who executed the termination, Russell Vought, Scott Bessent, and Sergio Gor, as well as any subsequent individual who might fill Dellinger’s purported vacancy.
Despite pressing the plaintiff’s counsel about Dellinger’s status as an inferior officer, the special status of the OSC, and the necessary remedy, Judge Jackson seemed to scrutinize the DOJ’s arguments more closely.
The defense, led by DOJ attorney Madeline McMahon, contended that President Trump was exercising his constitutional functions over an agency head by firing Dellinger. Citing Seila Law, McMahon protested that Dellinger’s position was “fundamentally prosecutorial” and that for-cause removal protections insulated the OSC from presidential power. Hearing this, Judge Jackson sought a more detailed explanation, asking, “How is [the] OSC comparable [to] a powerful executive office?”
McMahon stressed that the OSC has investigative powers, could force statute enforcement, bring disciplinary actions, litigate via amicus, and exercise rule-making authority. Interrupting the defense, Judge Jackson stated, “[the OSC] does not have rule-making but rule-reading authority,” showcasing her uneasiness with the DOJ’s argument. She certified that the OSC “does not have the power to make things happen” on its own and that since Dellinger could not appeal or challenge certain rulings, he was akin to a “prosecutor with his hands tied behind his back.”
However, the defense stood firm. Asserting that the OSC wields significant executive authority and meets a standard in Seila Law, McMahon also underscored the president’s explicit control over people directly responsible to him with justification from Article II. Judge Jackson was not receptive, expressing that the OSC “seems directly responsible to a lot of people,” like Congress and the public, stating that that “[the OSC] is so unique.”
Addressing uniqueness, McMahon countered by claiming that every agency can be considered distinct. She mentioned that Collins—a case that arguably grants the president the power to remove single agency heads within the executive branch—has held that agency operations are irrelevant in this context. The key factor is whether an agency has a single head accountable to the president.
In conjunction with the OSC exercising significant executive authority and having a single agency head answerable to the president, the defense maintained a sturdy position that exemplifies the unitary executive theory, which asserts that the president has sole authority over all matters within the executive branch.
In the final moments of the discussion, whistleblowers took center stage. Judge Jackson noted that “protecting whistleblowers is popular on both sides of the aisle” and that the public has “lauded” the OSC for uncovering misconduct. She also praised the OSC’s proven track record of pursuing corruption within the party that appointed its leadership, showing their non-partisanship. Judge Jackson also noted specifically that the bipartisan “Whistleblower Caucus praised this OSC at Whistleblower Day.” National Whistleblower Day is celebrated every year on July 30 and this past year both Senator Chuck Grassley (R-IA) and Senator Ron Wyden (D-OR) spoke at the event praising the important work of whistleblowers.
In response to being asked about the potential harm of leaving the OSC vulnerable to political meddling, McMahon affirmed that, in fact, the “harm to the public would be the president losing control over an executive agency.” She also added that this “important public function must be set aside” given the context of the law and case precedent.
After questioning both sides about their attitude toward extending the TRO, it was clear that while the plaintiffs were comfortable, the defense strongly opposed it. McMahon cited that extended time for review would be an extension of an “unprecedented intrusion” into the president’s power granted under Article II.
Following the hearing, Judge Jackson issued an order to extend the TRO by three days until March 1 and expressed that it would be unfair for her to rule on a preliminary injunction before properly reviewing the expansive information submitted to her chambers, even on the day of the hearing.
Whistleblower advocates have widely condemned the firing of Dellinger, arguing that it will undermine the entire system of whistleblower protections for federal employees.
National Whistleblower Center Chairman of the Board Stephen M. Kohn previously described the action as “irresponsible and dangerous” and warned that it “undermines a critical government program that has saved taxpayers billions of dollars and is designed to encourage reporting of waste, fraud, and abuse of taxpayer dollars.”
National Whistleblower Center has launched an emergency campaign in response to the
wrongful termination of Special Counsel Dellinger. They are urging supporters to join them and to contact their Representatives and Senators immediately and express their concern on the issue.