Appeals Court Lets Trump Remove Federal Watchdog

President Donald Trump’s removal of Hampton Dellinger had been blocked by a lower court.

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

President Donald Trump can remove the head of a federal agency that investigates complaints lodged by federal employees, an appeals court ruled on March 5.

A U.S. Court of Appeals for the District of Columbia Circuit panel vacated an order from a federal judge that had prevented Trump from firing Hampton Dellinger, the head of the Office of Special Counsel (OSC).

The judges said in a per curiam order that the government “have satisfied the stringent requirements for a stay pending appeal.”

They added, “An opinion will follow in due course.”

U.S. Circuit Judges Karen LeCraft Henderson, Patricia A. Millett, and Justin R. Walker were assigned the appeal.

The order means Dellinger’s termination will be in effect as the case proceeds.

The White House and an attorney representing Dellinger did not respond to requests for comment.

OSC is a federal agency that investigates and prosecutes complaints from federal workers, including whistleblowers.

A White House official on Feb. 7 notified Dellinger that he was being fired. The official said he was writing on behalf of President Donald Trump.

Dellinger sued, alleging that the termination was illegal because the termination notice did not include any cause.

Federal law stipulates that the head of OSC can only be fired for “inefficiency, neglect of duty, or malfeasance in office,” the lawsuit noted.

Dellinger was reinstated by a federal judge on Feb. 10, the same day the suit was filed, and has been kept in position since.

U.S. District Judge Amy Berman Jackson, the judge, said in a March 1 summary judgment in favor of Dellinger that the law protecting the head of OSC from removal without cause is constitutional.

“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,” she said.

In its emergency motion for a stay pending appeal to the District of Columbia Circuit, government lawyers pointed to how the U.S. Supreme Court has in recent years struck down similar protections for the heads of other executive agencies, including the Consumer Financial Protection Bureau.

Through power granted by the U.S. Constitution’s Article II, which courts have found generally includes the ability to remove executive officials at will, the president’s termination of Dellinger was lawful and should not have been blocked, the lawyers added.

They also said that the reinstatement has had a significant impact on Trump’s agenda because Dellinger has in recent weeks asked the U.S. Merit Systems Protection Board to block the terminations of some workers his administration has fired. The board earlier on Wednesday blocked nearly 6,000 terminations.

Attorneys for Dellinger countered in a filing to the appeals court that OSC’s protection from removal without cause is constitutional, noting that justices specified in the ruling that covered the Consumer Financial Protection Bureau head that the OSC was different in part because it has “only limited jurisdiction.”

The OSC’s independence “does not tread on any Article II prerogative, or otherwise unconstitutionally divert substantive presidential authorities, because the Special Counsel can at most ’shine ... a light on wrongdoing,‘ at which point ’it is up to the administration to choose to do something about it,'” they said, quoting from past rulings.

One issue raised by the government was how the OSC said in petitions to stay the terminations of workers that the board must grant his request unless it found his petitions “inherently unreasonable.” In granting the stays, board members said that they were required to show deference to the special counsel.

“While OSC’s request for an initial stay pending consideration of its filing receives deference ... that deference does not apply later in the proceeding,” attorneys for Dellinger wrote. It is up to the board alone to make decisions based on the petitions, they said.