Head of Whistleblower Agency Urges Supreme Court to Reverse Firing by Trump Administration

The U.S. Supreme Court in Washington on Feb. 10, 2025. Madalina Vasiliu/The Epoch Times

The head of a whistleblower-protection agency whom the Trump administration wants to fire urged the U.S. Supreme Court on Feb. 18 to leave in place a lower court order blocking the firing.

The closely watched emergency government application, Bessent v. Dellinger, is the first appeal by the second Trump administration to the nation’s highest court. Applicant Scott Bessent is participating in the litigation in his official capacity as U.S. Treasury secretary.

The respondent, Hampton Dellinger, said an emailed notice he received on Feb. 7 informed him he was being fired and did not explain why.

Dellinger argues that according to the law, he may be terminated only for certain reasons during his appointment.

Nominated by President Joe Biden, Dellinger was confirmed 49–47 for a five-year term as head of the Office of Special Counsel by the U.S. Senate on Feb. 27, 2024.

Dellinger’s office describes itself as “an independent federal investigative and prosecutorial agency” whose “primary mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices (PPPs), especially reprisal for whistleblowing.” The office was created under the federal Civil Service Reform Act of 1978.

Dellinger sued on Feb. 10 in the U.S. District Court for the District of Columbia. He argued he “has a clear entitlement to remain in his office” for his full five-year term and that the president may remove him only for “inefficiency, neglect, or malfeasance in office.”

On Feb. 12, Washington-based U.S. District Judge Amy Berman Jackson issued a temporary restraining order allowing Dellinger to remain in his position and forbidding the government from denying him “access to the resources or materials of that office” and from recognizing “the authority of any other person as Special Counsel.”

The government failed to justify “the President’s hasty, unexplained action, or ... the immediate ejection of the Senate-confirmed Special Counsel while the legal issue is subject to calm and thorough deliberation,” she wrote.

On Feb. 13, the government appealed that order to the U.S. Court of Appeals for the District of Columbia Circuit. On Feb. 15, the circuit court denied the appeal in a 2–1 opinion.

The D.C. Circuit’s majority opinion states that even though a temporary restraining order “ordinarily is not an appealable order,” the government requested a hearing on it because it said the order “works an extraordinary harm.”

“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,” the opinion reads.

Circuit Judge Gregory Katsas dissented. He wrote that 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.”

The U.S. Department of Justice (DOJ) filed its application with the Supreme Court on Feb. 16 to vacate Jackson’s order, but the document was not docketed, or officially accepted for filing, until early on Feb. 18, which was the next business day.

The government said it has a “very high” likelihood of succeeding on the merits. The Constitution “empowers the President to remove, at will, the single head of an agency, such as the Special Counsel,” the filing reads.

Federal district courts do not have the authority “to reinstate principal officers,” according to the application.

The lower court has “erred in ways that threaten the separation of powers” of the U.S. government, the document said.

Chief Justice John Roberts directed Dellinger to file a response with the Supreme Court by Feb. 19, but he filed his reply hours after Roberts’s order.

Dellinger argues in the document that “the government has failed to carry its heavy burden of demonstrating that this short-lived [temporary restraining order] is immediately appealable.”

He says the circuit court’s ruling was correct because with “limited exceptions, appellate courts may review only final judgments of district courts.”

The government’s argument that the temporary restraining order should be deemed appealable because it allegedly interferes with the president’s constitutional authority is not a principle the Supreme Court recognizes, the brief says.

The Supreme Court should reject the government’s application because accepting it “would open the floodgates to many more fire-drill [temporary restraining order] appeals.”

The Epoch Times reached out for comment to Dellinger’s attorney, Joshua Matz at Hecker Fink in Washington, and the DOJ, which represents Bessent. No replies were received by publication time.