A federal appeals court Wednesday agreed to the Trump administration’s request to greenlight the president’s firing of U.S. special counsel Hampton Dellinger until the court resolves a legal challenge.
The order from the D.C. Circuit Court of Appeals temporarily lifts a judge’s ruling that found Dellinger’s termination unlawful and returned him to his post as the head of an office in charge of protecting government whistleblowers.
Wednesday’s order also expedites the Trump administration’s full appeal. The written briefing is set to conclude on April 11.
“The Clerk is directed to calendar this case for oral argument this term on the first appropriate date following the completion of briefing,” the order states.
The three-judge panel comprised Judge Karen Henderson, appointed to the D.C. Circuit by former President George H. W. Bush; Judge Patricia Millett, appointed by former President Obama; and Judge Justin Walker, appointed by Trump.
Their order was fairly brief but indicated the administration had met the traditional criteria for a stay, which includes showing that they are likely to succeed on the merits.
Dellinger could now file an emergency appeal to the Supreme Court in hopes of returning to his job once again. The Hill has reached out to Dellinger’s attorney for comment.
The battle began last month when Trump purported to fire Dellinger via a one-sentence email. Dellinger sued, and U.S. District Judge Amy Berman Jackson, an Obama appointee, quickly reinstated him. He has remained on the job for weeks, including after Jackson issued her final ruling Saturday evening.
Dellinger’s lawsuit is one of several challenges to Trump’s firings of independent agency leaders, for whom Congress has provided for-cause removal protections.
The Trump administration does not purport to have cause to fire Dellinger and the other leaders — who include the chairs of the National Labor Relations Board and the Merit Systems Protection Board — and instead argues the removal protections encroach on the president’s constitutional authority.
Legal observers believe that an expanded view of executive power could ultimately set the stage for the Supreme Court to overturn a 90-year-old precedent that has allowed Congress to restrict the president’s removal authority over such agencies.
Dellinger’s case had already reached the high court on its emergency docket when the Trump administration appealed Jackson’s first order temporarily reinstating Dellinger. The Supreme Court punted on the administration’s request to greenlight the firing but had not resolved the motion.
