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Left: President Donald Trump gives remarks during an event celebrating the 2024 Stanley Cup Champion the Florida Panthers in the East Room of the White House in Washington, DC on Monday, February 3, 2025 (Photo by Aaron Schwartz/Sipa USA)(Sipa via AP Images). Right: Hampton Dellinger (Office of Special Counsel).
A federal appeals court has rejected President Donald Trump‘s attempt to boot the Biden administration’s whistleblower advocate Hampton Dellinger from his post at the Office of Special Counsel, voting 2-1 to let him keep his job through a temporary restraining order (TRO) issued by a lower court judge. Trump’s Justice Department had asked the U.S. Court of Appeals for the D.C. Circuit to rule by noon Friday, saying it has “the opportunity to seek expeditious review” from the Supreme Court, should they be swatted down. The rejection came Saturday just before 11 p.m.
“The relief requested by the government is a sharp departure from established procedures that balance and protect the interests of litigants, and ensure the orderly consideration of cases before the district court and this court,” wrote judges Florence Pan and J. Michelle Childs in the late night ruling. “The government asks us to resolve disputed issues that plainly have not been finally adjudicated by the district court. The litigation of Dellinger’s motion for a preliminary injunction is ongoing … and that litigation raises issues that are overlapping, if not identical, to those that would be presented in an appeal of the TRO.”
Trump’s DOJ filed motions last week for an “immediate administrative stay” of the lower court’s TRO in both district and appeals court after it was granted by U.S. District Judge Amy Berman Jackson to allow Dellinger to keep his job while she weighs whether his firing by Trump on Feb. 7 was legal. The move came after Dellinger, who was appointed by Biden in February 2024 to enforce whistleblower laws, filed a lawsuit in the District of Columbia after being fired by the Trump administration “in a one-sentence email,” according to his federal complaint.
In its appeals motion, the DOJ said it was “unaware” of any other occasion in American history where a federal court has “purported to install a principal officer of the United States after the president has removed him — let alone to do so without finding that he was likely to prevail on the merits of his claim, as the district court did here.” The motion pointed to SCOTUS precedent as well as former President Joe Biden’s own 2021 firing of Andrew Saul, who was social security commissioner at the time, as reasons for slapping down the lifeline Jackson tossed to Dellinger last week.
In a 12-page dissent to the Saturday ruling, U.S. Circuit Judge Greg Katsas — a Trump appointee — said he believes the president “is immune from injunctions directing the performance of his official duties, and Article II of the Constitution grants him the power to remove agency heads.” Katsas argued that “the extraordinary character of the order at issue here” is the fact that it directs the president to “recognize and work” with an agency head whom he has already removed, which warrants “immediate” appellate review.
“The TRO unjustifiably intrudes into a core institutional prerogative of the President, while Dellinger’s modest individual injury could be remedied in an action for backpay,” the dissenting judge wrote. “An injunction preventing the President from firing an agency head —and thus controlling how he performs his official duties — is virtually unheard of. And in any event, Article II of the Constitution empowers the President to remove the head of an agency with a single top officer.”
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In their ruling, Pan and Childs said they felt that it was ultimately the lower court’s job to decide whether Dellinger was allowed to keep his job through the TRO issued by Jackson, a 2011 Barack Obama appointee, on account of TRO’s “ordinarily” not being an appealable order. “The government asks us to make an exception and hear its appeal because the TRO ‘works an extraordinary harm’ and is set to last for 14 days,” the judges note.
The government had requested that the appeals court “construe its stay motion as a petition for a writ of mandamus and grant the petition,” which the judges said would have the same effect of reversing the TRO. “The government filed its appeal and stay motion on the evening of February 12, 2025, and requested a ruling from this court within two days, by noon on February 14, 2025, so that the Acting Solicitor General ‘has the opportunity to seek expeditious review from the Supreme Court if this Court denies relief,”” the judges explained.
“Instead of entertaining an emergency appeal of a TRO, the normal course would be for us to wait for the district court to issue a ruling on the preliminary injunction, which would be immediately appealable,” the pair concluded. “Indeed, many of the issues raised in the stay motion will be addressed by the district court at the preliminary-injunction hearing on February 26, 2025. The district court has promised to issue its preliminary-injunction ruling with ‘extreme expedition.’”
In district court, Trump’s DOJ claimed last week that Dellinger had not established how he will suffer irreparable harm if Jackson’s TRO is stayed pending an appeal. “A stay is not necessary to prevent any cognizable harm to plaintiff,” the DOJ’s motion said.
In his complaint, Dellinger claims that by firing him from the Office of Special Counsel, the Trump administration “jeopardized” the functioning of an agency designed to stop exactly that. The DOJ, however, insists that OSC can function just fine without Dellinger in charge.
“To the extent Plaintiff asserts irreparable harm to the functioning of OSC itself, that assertion is misplaced,” the department’s district court motion said last week. “Both because OSC can continue to function with an Acting Special Counsel (who had already assumed Plaintiff’s role before the district court’s order) and because Plaintiff would lack standing to raise such a harm.”
Dellinger, 57, was appointed by Biden to serve a five-year term before he was fired by Trump. His termination and lawsuit came less than a week after an employee of the National Labor Relations Board, an independent federal agency that enforces labor laws and protects workers’ rights to organize, sued Trump after being axed in January in similar fashion.
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A group of federal watchdogs who got booted from their posts last month have also teamed up to sue the Trump administration — saying the firings violated “unambiguous federal statutes” — in a joint legal bid to get their jobs back.
The group of watchdogs suing the Trump administration includes former Department of Defense inspector general Robert Storch; former Department of Veterans Affairs IG Michael Missal; former Department of Health and Human Services IG Christi Grimm; former State Department IG Cardell Richardson; former Department of Education IG Sandra Bruce; former Department of Agriculture IG Phyllis Fong; former Labor Department IG Larry Turner; and Small Business Administration IG Michael Ware.
Last Monday, the White House reported that Cathy Harris — who is on the three-member Merit Systems Protection Board, which protects terminated federal workers from “partisan political and other prohibited personnel practices,” according to its government website — was being fired, along with its vice chair Ray Limon. Harris responded to her termination with a lawsuit as well, calling it “unlawful” and having “no basis in fact.”
