In the first case to reach the Supreme Court from Donald Trump’s second term, a federal appeals court panel on Wednesday said the president could fire Office of Special Counsel head Hampton Dellinger for now, while litigation continued. But that temporary action will apparently turn into a more permanent one, because Dellinger said Thursday that he’s ending his legal fight, in a statement that seemingly alluded to questions surrounding the administration’s compliance with court orders.
“I strongly disagree with the circuit court’s decision, but I accept and will abide by it. That’s what Americans do,” Dellinger said.
His case could have returned to the justices eventually, but that possibility was not enough for the now-former head of the agency that protects whistleblowers. “This new ruling means that OSC will be run by someone totally beholden to the President for the months that would pass before I could get a final decision from the U.S. Supreme Court,” Dellinger said. He said his legal fight had been one “for the ideal that OSC should be as Congress intended: an independent watchdog and a safe, trustworthy place for whistleblowers to report wrongdoing and be protected from retaliation.”
His statement follows Wednesday’s action from the U.S. Court of Appeals for the D.C. Circuit, which is a step below the Supreme Court in the appeals process. A three-judge panel of the appellate court paused a trial judge’s ruling that kept Trump from immediately firing Dellinger from the independent agency. The panel of judges appointed by Trump and Presidents Barack Obama and George H.W. Bush noted that its order “gives effect to the removal of appellee [Dellinger] from his position as Special Counsel of the U.S. Office of Special Counsel.”
The panel had ordered expedited briefing over the coming weeks, with the final brief due April 11, followed by oral argument “on the first appropriate date following the completion of briefing.”
When the case was at the high court last month, it presented the justices’ first chance to act in a Trump case in his second term.
When the case was at the high court last month, it presented the justices’ first chance to act in a Trump case in his second term. But the court essentially chose to put off deciding the matter while the trial judge, Amy Berman Jackson, considered issuing a fuller ruling on Dellinger’s removal — which the Obama appointee subsequently did in Dellinger’s favor, leading the Trump administration to successfully seek a pause of her ruling from the D.C. Circuit while it appealed.
Dellinger’s lawyers opposed the emergency stay pending appeal that the panel granted on Wednesday, arguing that the public “has a substantial and nonpartisan interest in protecting federal whistleblowers from discrimination and retaliation” and that independence “has never been more important given the historic, rapid upheaval currently occurring within federal employment.”
And although it didn’t really issue a ruling in Dellinger’s case last month, the Supreme Court was still divided then, with Justices Sonia Sotomayor and Ketanji Brown Jackson noting they were prepared to rule against Trump, while Justices Neil Gorsuch and Samuel Alito said otherwise. That early division was magnified in Wednesday’s high court action, when the justices split 5-4 against Trump on his administration’s foreign aid funds freeze, with those two Democratic appointees in the majority and those two Republican appointees in dissent.
Now that Dellinger has ended his legal fight, his case will have served as a preview for the Supreme Court fights to come in the second Trump era. He apparently saw the writing on the wall even though the D.C. Circuit action was styled as a temporary one, stating that, “given the circuit court’s adverse ruling, I think my odds of ultimately prevailing before the Supreme Court are long.”
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