Judge says Trump cannot fire head of independent watchdog agency
Lawyers for the Trump administration argued that President Donald Trump has the power to remove Hampton Dellinger without cause. (Photo by Anna Moneymaker/Getty Images)
A federal judge on Saturday said President Donald Trump cannot summarily fire the head of an independent watchdog agency, setting up a likely Supreme Court battle over Trump’s sweeping attempt to reshape the federal workforce and expand presidential power.
U.S. District Judge Amy Berman Jackson’s ruling blocks the removal of Hampton Dellinger as head of the Office of Special Counsel, which investigates whistleblower reports filed by government workers and protects federal employees from retaliation, political coercion and other practices that are barred in the federal workplace.
The Trump administration has indicated in court filings that it would swiftly appeal any such ruling to the Supreme Court, which on Feb. 21 declined to intervene until the litigation proceeded further.
Though its name is similar, the Office of Special Counsel is unrelated to the special counsels appointed by the Justice Department to handle cases in which the department faces a potential conflict of interest.
Dellinger, a Senate-confirmed appointee of President Joe Biden, sued the administration after he received a short email in February firing him from his role without cause. He alleged in court documents that his termination violated a law that says the president can remove the special counsel only for “inefficiency, neglect of duty, or malfeasance in office.”
Dellinger’s five-year term was set to end in 2029.
Lawyers for the Trump administration argued that Trump has the power to remove Dellinger without cause, saying a 1978 statute passed by Congress in the post-Watergate era that restricts the ability to fire the head of the Office of Special Counsel is unconstitutional.
Jackson disagreed, saying in her ruling that the statute “must stand.” Eliminating the restrictions on Dellinger’s removal, she wrote, “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.”
“It would be ironic, to say the least, and inimical to the ends furthered by the statute if the Special Counsel himself could be chilled in his work by fear of arbitrary or partisan removal,” the judge added.
Dellinger said in an emailed statement that he was grateful to see the court “confirm the importance and legality of the job protections Congress afforded my position.”
“My efforts to protect federal employees generally, and whistleblowers in particular, from unlawful treatment will continue,” he said.
A White House spokesperson did not immediately respond to a request for comment late Saturday.
Jackson had previously ordered Dellinger reinstated temporarily while she considered arguments from both sides. An appeals court rejected the Trump administration’s emergency appeal of that order, prompting the administration to ask the Supreme Court to intervene. The justices delayed ruling on the administration’s request so that Jackson could hold a hearing with the parties.
Trump’s attempt to fire Dellinger is part of a broader push by the president to remove government watchdogs who investigate wrongdoing and protect federal employees. Trump also has tried to fire the head of the Merit Systems Protection Board, an independent agency that hears appeals of terminations and other adverse actions against civil servants. A federal judge reinstated her temporarily. Dellinger’s office refers certain cases to the merit board, which issues its own decisions.
Trump has also tried to remove more than a dozen inspectors general, as well as members of the National Labor Relations Board and the Equal Employment Opportunity Commission. Many of the ousted officials are contesting their removals in court.
In addition to fighting his own ouster, Dellinger has argued that the administration’s mass firing of probationary federal employees is probably illegal. He asked the Merit Systems Protection board this week to halt the dismissal of six probationary employees while his office investigates their complaints. Dellinger said the firings appear “contrary to a reasonable reading of the law” and said he was considering “ways to seek relief for a broader group.”
The merit board granted his request to stay the terminations for 45 days.
The president has broad power under Article II of the Constitution to choose the leaders of federal agencies or fire them at will. But Congress carved out exceptions intended to preserve the independence and impartiality of certain independent agency leaders.
The Supreme Court has upheld for-cause removal rules for agencies with multiple leaders but recently ruled that such restrictions don’t apply to certain agencies with a single director. Dellinger’s case focuses on whether he is a true agency head who can be removed at will or an “inferior officer” who can be protected from firing without cause.
During a hearing Wednesday, Jackson challenged arguments by the administration’s lawyers that reversing the firing would encroach on the president’s constitutional authority to appoint people he trusts to executive branch positions.
“His actual job is to be a check and balance on the president,” she said of Dellinger.
Jackson questioned how the special counsel could fulfill his duty of protecting whistleblowers if the president could summarily fire him in the same way he could dismiss a member of his Cabinet. “How does that make any sense?” she asked.
Justice Department lawyer Madeline McMahon said barring Dellinger’s removal would cause Trump to “lose control over an executive branch agency” and would represent an “intrusion” into Trump’s authority under the Constitution.
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