The D.C. Circuit was busy last week with emergency motions. In Dellinger v. Bessent, the district court enjoined the removal of Special Counsel Hampton Dellinger. The D.C. Circuit (Henderson, Millett, and Walker, JJ.) stayed the injunction pending appeal. As the panel explained, the stay gave “effect to the removal of appellee from his position as Special Counsel of the U.S. Office of Special Counsel.” The panel promised an opinion “in due course.” But Dellinger has since announced his intention to drop the case and filed an opposed motion to dismiss the appeal as moot.

Dellinger could have presented an opportunity for the Supreme Court to reconsider Humphrey’s Executor v. United States, a 1935 decision upholding the constitutionality of for-cause removal protections for members of the FTC. Justice Thomas has already called for the Court to overrule Humphrey’s Executor. And the Acting Solicitor General recently announced the government’s intention to ask the Supreme Court to overrule it in cases involving other agencies.

The same special panel also ordered briefing on the defendants’ emergency motion for a stay pending appeal in Harris v. Bessent. Harris challenged her removal from the Merit Systems Protection Board, and the district court granted an injunction. The stay motion will be fully briefed by Wednesday, March 12. This case could ultimately present another opportunity for the Supreme Court to revisit Humphrey’s Executor. But even if the case reaches the Court, it might distinguish the functions of the MSPB from the “quasi-legislative” and “quasi-judicial” functions of the FTC in Humphrey’s Executor.

Finally, in regularly scheduled programming, the D.C. Circuit released one published opinion. In Hood River Distillers, Inc. v. NLRB, a divided panel found substantial evidence to support the NLRB’s finding that Hood River unlawfully changed terms of employment. Judge Pan wrote the majority opinion, joined by Judge Childs. Judge Walker dissented on the ground that the union had engaged in dilatory bargaining tactics, thereby permitting Hood River to change terms of employment. Judge Walker further disagreed with the majority that Hood River failed adequately to develop that argument, an objection the NLRB did not raise.