A federal appeals court has recently rejected a request by President Donald Trump’s Justice Department to block a lower court’s order that would allow Hampton Dellinger, the Biden administration’s whistleblower advocate, to remain in his position at the Office of Special Counsel (OSC). The court’s ruling, issued late on a Saturday evening, was a significant blow to the Trump administration’s efforts to oust Dellinger, who was appointed by President Biden in February 2024 to enforce whistleblower protections.
The ruling, passed by a 2-1 majority, supports the temporary restraining order (TRO) issued by U.S. District Judge Amy Berman Jackson, which allows Dellinger to keep his job while the case is litigated. The DOJ had sought to expedite the appeals process, hoping for a quick decision from the D.C. Circuit Court, so that they could appeal to the U.S. Supreme Court if necessary. However, the appeals court found the DOJ’s request to be a “sharp departure” from the usual legal procedures, emphasizing that the district court must first resolve the dispute before higher courts should intervene.
The disagreement stems from Dellinger’s termination by the Trump administration in early February, which was carried out through a brief, one-sentence email. In response, Dellinger filed a lawsuit in Washington, D.C., arguing that his firing violated federal laws designed to protect government whistleblowers and prevent retaliation. Judge Jackson’s TRO effectively allows him to remain in office pending a determination of whether his firing was legally justified.
The DOJ’s appeal argued that no precedent existed for a federal court to order the reinstatement of a removed federal official without a final ruling on the merits of the case. The department referenced the U.S. Supreme Court’s rulings on executive powers, particularly highlighting a similar situation in 2021 when President Joe Biden fired Andrew Saul, the Social Security Commissioner, and claimed that the judicial intervention in Dellinger’s case was without legal foundation.
However, the appeals court judges disagreed with this assessment, stating that the district court should be the one to evaluate whether Dellinger should be allowed to remain in his post. They emphasized that TROs are typically not subject to appeals, as they are considered temporary and non-final orders, and that the lower court’s decision to issue the TRO should be respected while litigation proceeds. The judges also noted that many of the issues raised in the DOJ’s emergency appeal would likely be addressed in the upcoming preliminary injunction hearing scheduled for late February.
In his dissent, Judge Greg Katsas, a Trump appointee, argued that the president’s authority to remove officials from office should not be undermined by judicial orders. He maintained that the order preventing the removal of Dellinger infringed upon the president’s constitutional powers under Article II, which grants the president the authority to manage the executive branch. Katsas believed that the case warranted immediate appellate review due to the exceptional nature of the order, which effectively forces the president to cooperate with a removed official.
The legal conflict surrounding Dellinger’s firing is part of a broader pattern of recent legal challenges involving the Trump administration’s actions regarding federal employees. Similar lawsuits have been filed by individuals claiming unlawful termination, including a National Labor Relations Board employee and a group of federal watchdogs, all of whom argue that their firings violated statutory protections.
The case also comes at a time when the Trump administration has been facing heightened scrutiny over its treatment of federal employees, with multiple lawsuits challenging the legality of recent terminations. These challenges reflect broader concerns over the balance of power between the executive branch and independent federal agencies, especially regarding the rights of individuals appointed to oversee government transparency and accountability.
In the meantime, Dellinger’s position remains secure for now, and the legal battle over his firing will continue in the coming weeks, with a more comprehensive hearing scheduled for February 26, 2025.
