Federal watchdog removed by Trump drops his case, citing long odds of winning at Supreme Court
Special counsel Hampton Dellinger says he is dropping his lawsuit to try to keep his job after President Donald Trump fired him. His decision comes a day after the federal appeals court in Washington temporarily removed him from the position and ends what was poised to be a major test of Trump’s power to fire officials with some independence in the federal government.
Dellinger’s case had the potential of rewriting the law around Congressionally approved protections for the federal civil service. But it is no longer going to move forward in the court system, removing the possibility of the Supreme Court to revisit Dellinger’s job’s independence from the president’s wishes.
The case had been the first to land before the Supreme Court with emergency proceedings challenging Trump’s executive power and, at the moment, was winding its way back through lower courts.
Dellinger said he was dropping his case on Thursday after the federal Circuit Court in Washington, DC sided with Trump’s Justice Department to keep him out of the special counsel role for now.
“This new ruling means that [the Office of Special Counsel] will be run by someone totally beholden to the President for the months that would pass before I could get a final decision from the US Supreme Court,” Dellinger said in a statement on Thursday. “I think the circuit judges erred badly because their willingness to sign off on my ouster – even if presented as possibly temporary – immediately erases the independence Congress provided for my position, a vital protection that has been accepted as lawful for nearly fifty years.”
He added that he thought the Supreme Court might ultimately side against him and with Trump: “Given the circuit court’s adverse ruling, I think my odds of ultimately prevailing before the Supreme Court are long. Meanwhile, the harm to the agency and those who rely on it caused by a Special Counsel who is not independent could be immediate, grievous, and, I fear, uncorrectable.”
Dellinger was appointed to the job a year ago and was to continue in the role for five years before Trump removed him.
The special counsel — who investigates worker complaints from across the federal civil service and is different from the more high-profile Justice Department special counsels — has been arguing in recent weeks to reinstate probationary workers at many agencies that the Trump administration has fired en masse.
Those petitioners so far have been successful, bringing nearly 6,000 Agriculture Department workers back to their jobs this week, and Dellinger had been continuing work on federal firing cases for others large groups that have been laid off from agencies under the Trump administration. A workers’ board, called the Merit Systems Protection Board, was still hearing the cases before making final decisions.
“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,” Dellinger said in a statement on Thursday. “Now I will look to make a difference – as an attorney, a North Carolinian, and an American – in other ways.”
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Ousted watchdog agency head ends legal fight after D.C. panel temporarily approves his firing
Ousted watchdog agency head ends legal fight after D.C. panel temporarily approves his firing
By Jordan Rubin
In the first case to reach the Supreme Court from Donald Trump’s second term, a federal appeals court panel on Wednesday said the president could fire Office of Special Counsel head Hampton Dellinger for now, while litigation continued. But that temporary action will apparently turn into a more permanent one, because Dellinger said Thursday that he’s ending his legal fight, in a statement that seemingly alluded to questions surrounding the administration’s compliance with court orders.
“I strongly disagree with the circuit court’s decision, but I accept and will abide by it. That’s what Americans do,” Dellinger said.
His case could have returned to the justices eventually, but that possibility was not enough for the now-former head of the agency that protects whistleblowers. “This new ruling means that OSC will be run by someone totally beholden to the President for the months that would pass before I could get a final decision from the U.S. Supreme Court,” Dellinger said. He said his legal fight had been one “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.”
His statement follows Wednesday’s action from the U.S. Court of Appeals for the D.C. Circuit, which is a step below the Supreme Court in the appeals process. A three-judge panel of the appellate court paused a trial judge’s ruling that kept Trump from immediately firing Dellinger from the independent agency. The panel of judges appointed by Trump and Presidents Barack Obama and George H.W. Bush noted that its order “gives effect to the removal of appellee [Dellinger] from his position as Special Counsel of the U.S. Office of Special Counsel.”
The panel had ordered expedited briefing over the coming weeks, with the final brief due April 11, followed by oral argument “on the first appropriate date following the completion of briefing.”
When the case was at the high court last month, it presented the justices’ first chance to act in a Trump case in his second term.
When the case was at the high court last month, it presented the justices’ first chance to act in a Trump case in his second term. But the court essentially chose to put off deciding the matter while the trial judge, Amy Berman Jackson, considered issuing a fuller ruling on Dellinger’s removal — which the Obama appointee subsequently did in Dellinger’s favor, leading the Trump administration to successfully seek a pause of her ruling from the D.C. Circuit while it appealed.
Dellinger’s lawyers opposed the emergency stay pending appeal that the panel granted on Wednesday, arguing that the public “has a substantial and nonpartisan interest in protecting federal whistleblowers from discrimination and retaliation” and that independence “has never been more important given the historic, rapid upheaval currently occurring within federal employment.”
And although it didn’t really issue a ruling in Dellinger’s case last month, the Supreme Court was still divided then, with Justices Sonia Sotomayor and Ketanji Brown Jackson noting they were prepared to rule against Trump, while Justices Neil Gorsuch and Samuel Alito said otherwise. That early division was magnified in Wednesday’s high court action, when the justices split 5-4 against Trump on his administration’s foreign aid funds freeze, with those two Democratic appointees in the majority and those two Republican appointees in dissent.
Now that Dellinger has ended his legal fight, his case will have served as a preview for the Supreme Court fights to come in the second Trump era. He apparently saw the writing on the wall even though the D.C. Circuit action was styled as a temporary one, stating that, “given the circuit court’s adverse ruling, I think my odds of ultimately prevailing before the Supreme Court are long.”
Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MSNBC, he was a legal reporter for Bloomberg Law.
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Head of watchdog agency throws in towel after contesting Trump firing
Gold Star mom Paula Knauss Selph reacts to the arrest of the ISIS member responsible for the Abbey Gate attack that killed 13 U.S. servicemembers in Afghanistan.
Hampton Dellinger, the former head of the Office of Special Counsel who was fired by President Donald Trump on Feb. 7, announced on Thursday that he will not contest his firing further.
Dellinger, appointed to the role by former President Joe Biden, sued the Trump administration in Washington, D.C., federal court after his firing, but a federal appeals court had cleared the way for the firing to proceed on Wednesday.
“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,” Dellinger said.
D.C. District Judge Amy Berman Jackson had argued in a filing last month that Dellinger’s firing was “unlawful.”
SUPREME COURT PAUSES TRUMP ADMINISTRATION’S EFFORT TO FIRE HEAD OF WHISTLEBLOWER PROTECTION AGENCY
President Donald Trump and Hampton Dellinger. Trump is trying to dismiss Dellinger, the head of the Office of Special Counsel. (AP / Reuters)
The U.S. Court of Appeals for the District of Columbia sided with the Trump administration in a Wednesday ruling, however.
FEDERAL JUDGE HINTS SHE WILL CONTINUE BLOCKING TRUMP FROM FIRING HEAD OF WHISTLEBLOWER PROTECTION AGENCY
Jackson claimed that the court “finds that the elimination of the restrictions on plaintiff’s removal would be fatal to the defining and essential feature of the Office of Special Counsel as it was conceived by Congress and signed into law by the President: its independence. The Court concludes that they must stand.”
Special Counsel of the U.S. Office of Special Counsel Hampton Dellinger poses for a portrait in an undated handout image. (U.S. Office of Special Counsel/Handout via REUTERS )
Dellinger has maintained the argument that, by law, he can only be dismissed from his position for job performance problems, which were not cited in an email dismissing him from his post.
Journalists work outside of the U.S. Supreme Court Building in Washington, D.C. (Anna Moneymaker/Getty Images)
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Earlier in February, liberal Supreme Court justices Sonia Sotomayor and Ketanji Brown Jackson voted to outright deny the administration’s request to approve the firing.
Conservative justices Neil Gorsuch and Samuel Alito dissented, saying the lower court overstepped. They also cast doubt on whether courts have the authority to restore to office someone the president has fired. While acknowledging that some officials appointed by the president have contested their removal, Gorsuch wrote in his opinion that “those officials have generally sought remedies like backpay, not injunctive relief like reinstatement.”
Anders Hagstrom is a reporter with Fox News Digital covering national politics and major breaking news events. Send tips to Anders.Hagstrom@Fox.com, or on Twitter: @Hagstrom_Anders.
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