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Left: Hampton Dellinger (Office of Special Counsel). Right: President-elect Donald Trump arrives to speak at a meeting of the House GOP conference, Wednesday, Nov. 13, 2024, in Washington. (AP Photo/Alex Brandon).
The U.S. Court of Appeals for the D.C. Circuit has given President Donald Trump the green light to finally fire Hampton Dellinger, a booted-then-reinstated ethics enforcer who led the Office of Special Counsel, following weeks of legal jousting and the threat of a Supreme Court battle.
A three-judge panel for the D.C. Circuit unanimously agreed on Wednesday to let Trump terminate Dellinger, who was appointed by Joe Biden in 2024 to enforce whistleblower laws, roughly a month after he tried axing the OSC head in a one-sentence email.
Dellinger fought the firing with a lawsuit filed in federal court, which led to a temporary restraining order (TRO) being issued by U.S. District Judge Amy Berman Jackson on Feb. 12 and extended by her until last Saturday, when Jackson ruled in favor of letting Dellinger stay on board at OSC for the rest of his five-year term, which was set to end in March 2029.
Jackson’s decision came after multiple failed attempts to get her TRO tossed last month, including an unsuccessful bid in the appeals court. Judges Karen Henderson, Justin Walker and Patricia Millett saw things differently, though, when it came time for them to rule on the merits of Dellinger’s firing.
“Appellants have satisfied the stringent requirements for a stay pending appeal,” the panel said Wednesday, noting how an opinion would “follow in due course” at a later date. “This order gives effect to the removal of appellee from his position as Special Counsel of the U.S. Office of Special Counsel.”
Dellinger responded to the ruling with a statement Thursday, saying he was waving the white flag.
“I’m ending my legal battle so my time as Special Counsel and head of the U.S. Office of Special Counsel (OSC) is now over,” Dellinger said. “My fight to stay on the job was not for me, but rather for the ideal that OSC should be as Congress intended: an independent watchdog and a safe, trustworthy place for whistleblowers to report wrongdoing and be protected from retaliation. Now I will look to make a difference — as an attorney, a North Carolinian, and an American — in other ways.”
When Jackson ruled on Dellinger’s termination last Saturday, she described it as illegal and unprecedented. Jackson ruled in favor of letting Dellinger keep his job after listening to arguments from both sides at multiple hearings as part of the TRO battle. Her ruling was going to set the stage for a critical Supreme Court showdown as the DOJ had fired off an application to the nation’s highest court last month.
Speaking in emergency motions to stay Jackson’s order and other filings, Trump’s DOJ insisted that Article II of the Constitution gives the president the power to fire Dellinger because it “precludes Congress from placing limits on the President’s authority to remove principal officers of the United States who serve as sole heads of an Executive Branch agency.” DOJ lawyers said they believed they were “likely to succeed on the merits” of its claims if the Dellinger case is heard by the Supreme Court, using a previous firing by President Biden to emphasize their point.
“The Supreme Court has made clear — twice, and recently — that Article II precludes Congress from placing limits on the President’s authority to remove principal officers of the United States who serve as sole heads of an Executive Branch agency,” the DOJ said. “On that basis, President Biden in 2021 fired the single head of the Social Security Administration without cause. In removing Plaintiff as the head of OSC, another Executive Branch agency with a single head, the President merely exercised the same authority that President Biden did in removing the Social Security Commissioner.”
According to the DOJ, an injunction preventing the president from firing an agency head is “virtually unheard of.” They condemned the move as an attempt to “control” how Trump performs his official duties as commander-in-chief, saying: “The relief entered by this Court ‘necessarily targets the president — the only official with the statutory and constitutional authority to appoint, remove, and supervise the Special Counsel.””
Another argument that DOJ lawyers made was that Dellinger was removed from office because he was “wielding executive power” and had rulemaking authority to punish the Trump administration and people in the executive branch. Jackson, instead, referred to it as “rule-reading authority” in prior assessments — agreeing with arguments from Dellinger’s lawyers who said he could only conduct probes and make suggestions.
“The Office of Special Counsel is not assigned responsibilities that include furthering the administration’s agenda,” Jackson said Saturday in her ruling. “It is the Special Counsel’s job to look into and shine light on a set of specific prohibited practices so that the other bodies, in the appropriate exercise of their constitutional authority, can take whatever action they deem to be appropriate. To do this as Congress intended that he should, he must remain entirely free of partisan or political influence, and that is why the statute survives scrutiny even under the most recent precedent.”
An example of Dellinger’s influence came up Wednesday as the U.S. Merit Systems Protection Board temporarily blocked the firings of approximately 5,900 probationary employees at the U.S. Department of Agriculture after Dellinger provided findings from an OSC investigation on the USDA removals that “reasonably” alleged and outlined personnel violations by the Trump administration. Dellinger filed a petition last Friday with the MSPB asking it to stay the firings and accusing Trump of kicking the workers to the curb “without consideration of their individual performance or fitness for federal employment.”
“Rather … it did not identify their positions as ‘mission-critical,’” Dellinger said. “USDA made no attempt to assess the individual performance or conduct of any of these probationary employees before deciding whether to terminate them.”
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