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Left: President-elect Donald Trump on “Meet the Press” Sunday, Dec. 8, 2024 (NBC News/YouTube). Right: Hampton Dellinger (Office of Special Counsel).
The Trump administration has issued an urgent plea to the U.S. Supreme Court, asking it to quickly take up and start weighing the grounds for vacating a lower court’s order that allowed Joe Biden’s ethics enforcer Hampton Dellinger to keep his job at the Office of Special Counsel after he was granted an extension Wednesday by a federal judge in Washington, D.C.
Trump’s Justice Department says Dellinger is “wielding executive power” and has barred the president from firing federal employees that his administration claims are unfit to work for the government, according to a letter sent by the DOJ to the Supreme Court on Wednesday. Trump’s DOJ is requesting that — “at a minimum” — the country’s highest court continue to hold an application that was filed by DOJ lawyers earlier this month to hear the Dellinger case after attempts to terminate him were shot down by a federal appeals court and the U.S. District Court for the District of Columbia.
In response, Dellinger and his lawyers sent out a letter of their own on Thursday, claiming Trump’s legal team has no idea what it’s talking about and is misinterpreting what actually happened with the firings.
“The government misdescribes what occurred,” wrote Dellinger attorney Joshua Matz to the Supreme Court.
“It was the MSPB, not the Special Counsel, that ‘halt[ed]’ certain personnel actions and it is the MSPB (not the Special Counsel) that will render any further decisions and issue any binding orders within the Executive Branch’s internal administrative process concerning the propriety of those personnel actions,” Matz said. “As the Special Counsel is fully prepared to explain when the government properly raises this issue within the litigation, there is no merit to the government’s assertion that this administrative action supports its position. To the contrary, a more accurate understanding of that process confirms the Special Counsel’s position concerning his for-cause removal protection.”
Dellinger, who was appointed by Biden in February 2024 to enforce whistleblower laws, allegedly launched an OSC probe into the terminations of six federal workers by Trump just days after a temporary restraining order was granted by U.S. District Judge Amy Berman Jackson to reinstate him as special counsel after the president fired him on Feb. 10. Dellinger conducted the investigation and then filed a petition with the Merit Systems Protection Board last Friday to reverse the firings. He was given his first TRO lifeline on Feb. 12; his office reportedly announced the OSC probe on Feb. 14.
The six employees who were given the boot worked at six different agencies and they teamed up to file a class complaint with OSC, alleging that they were terminated as part of the Trump administration’s ongoing firing sweep, which they claim were “conducted with no regard for the performance or conduct of individual probationary employees,” referring to the action as “plainly unlawful.” The terminations were the result of a directive from the Office of Personnel and Management (OPM) to all federal agencies instructing them to “identify federal employees who are too early in their tenure to have civil service protections and conduct mass terminations,” according to a news release from Democracy Forward, which is representing the probationary employees in the matter.
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On Tuesday, MSPB officials granted Dellinger’s request to stay the terminations of the six employees for a period of 45 days while the special counsel’s office further investigates complaints they’ve made. The move came as Dellinger was given an extension by Jackson on her Feb. 12 TRO that allows him to remain in his post through Saturday, March 1.
“I am very grateful the MSPB has agreed to postpone these six terminations,” Dellinger said in a statement. “These stays represent a small sample of all the probationary employees who have been fired recently so our work is far from done. Agency leaders should know that OSC will continue to pursue allegations of unlawful personnel actions, which can include asking MSPB for relief for a broader group of fired probationary employees. I urge agency leaders to voluntarily and immediately rescind any and every unlawful termination of probationary employees.”
The Trump administration earlier this month attempted to oust Dellinger, who quickly challenged the termination. A federal judge ordered the administration to reinstate Dellinger and that order was upheld by a three-judge appellate court panel in a 2-1 decision. The Supreme Court last week declined to hear the administration’s case for firing Dellinger.
One of the main reasons for green-lighting the TRO extension on Wednesday, according to Jackson, was that she felt Dellinger’s lawyers successfully proved that he did not have “executive power” to carry out or make official decisions himself; he can only make suggestions and recommendations, per Dellinger’s lawyers. Jackson referred to it as “rule-reading authority” but not “rule-making authority.” Trump’s DOJ disagrees, citing the MSPB stay as an example in its letter to the Supreme Court, which lays out the timelines for Dellinger’s TRO extension and the MSPB decision this week.
“In short, a fired Special Counsel is wielding executive power, over the elected Executive’s objection, to halt employment decisions made by other executive agencies,” wrote Acting Solicitor General Sarah Harris in the DOJ letter. “The MSPB, the entity that respondent argues is responsible for supervising him, is deferring to his stay requests so long as the requests are rational. The MSPB, moreover, is being led by a Chairman who has herself been fired by the President, only to be reinstated by a district court. Those developments underscore the grounds for vacating the district court’s order.”
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According to Harris, the Trump administration is “respectfully” asking that the Supreme Court “continue to hold the application in abeyance, if the Court does not grant it now that the TRO has been extended.” Once a final decision is issued by the district court regarding the Dellinger case — “presumably on March 1” — Harris said it may become “necessary for the government to request further relief,” at which point the Supreme Court could dispose of the present application along with any subsequent application.
Dellinger’s legal team told the Supreme Court on Thursday that the government’s “attempt to raise these issues for the first time in this posture — and to object to a different TRO issued by a different judge in a different case — is a distraction.” Matz called out Trump’s DOJ for not being patient enough to see if it would object to its request to hold its application in abeyance, claiming the government lawyers fired off their letter Wednesday without even asking Dellinger’s team if it would agree.
“Had the government consulted with Special Counsel Dellinger before filing its letter (which it did not do), the government would have known that the Special Counsel does not object to its request to hold the application in abeyance for three additional days, which is the proper course of action,” Matz said.
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