WASHINGTON (CN) — A D.C. Circuit panel ordered on Wednesday that Hampton Dellinger, the head of the Office of Special Counsel, can be removed from his post after lifting a temporary order that blocked President Donald Trump from firing him.
The three-judge panel issued a two-page order granting the Trump administration’s request to stay U.S. District Judge Amy Berman Jackson’s ruling on Saturday that Dellinger’s termination was illegal.
“This order gives effect to the removal of appellee from his position as Special Counsel of the U.S. Office of Special Counsel,” the panel said. “Appellants have satisfied the stringent requirements for a stay pending appeal.”
While oral arguments have yet to be scheduled, the case will be heard by U.S. Circuit Judges Karen Henderson, Patricia Millett and Justin Walker, a George H.W. Bush, Barack Obama and Trump appointee, respectively.
The panel laid out an expedited briefing schedule, with oral arguments to be scheduled after the government’s final brief on April 11. The panel said in its order that an opinion was forthcoming.
Dellinger’s termination, relayed in a one-sentence email on Feb. 7, was the first of Trump’s firing spree to reach the U.S. Supreme Court after Trump asked for emergency intervention to block Jackson’s first pause on the firing.
The appeal reached the high court after another D.C. Circuit panel — consisting of U.S. Circuit Judges Gregory Katsas, Michelle Childs and Florence Pan — dismissed the appeal for lack of jurisdiction over Jackson’s emergency relief.
The high court punted Trump’s appeal until Feb. 26, when Jackson extended her order through Saturday, which Trump immediately appealed again.
The Justice Department argued in its motion for an expedited stay that Jackson’s decision preventing Dellinger’s removal was an offense to the separation of powers and infringed on the president’s constitutional authority.
The government cited Trump-appointee Katsas’ dissent in the Feb. 15 dismissal, where he said Dellinger’s restatement “irreparably impinges on the ‘conclusive and preclusive’ power through which the president controls the executive branch.”
Katsas’ dissent drew such concrete executive power from the Supreme Court’s landmark 2024 decision Trump v. United States, which granted the president at least presumptive immunity from criminal prosecution on the basis that charges would chill the commander-in-chief from acting decisively.
In her Saturday ruling, Jackson said that Trump could legally fire Dellinger only for inefficiency, neglect of duty or malfeasance in office under the Whistleblower Protection Act of 1989.
She expressed concern that, by allowing Trump “unfettered authority” to fire Dellinger without reason, the watchdog’s independence would be destroyed, a key feature of the agency created explicitly to investigate claims of wrongdoing and whistleblower retaliation at federal agencies.
Dellinger used his short stint back in his role to investigate Trump’s mass firings of federal workers at several independent agencies, including more than 5,600 probationary employees at the U.S. Department of Agriculture.
Dellinger, whose role does not have enforcement power, petitioned the Merit Systems Protection Board regarding the USDA employees.
The normally three-person board — Raymond Limon announced his retirement on Friday — deemed the terminations illegal and placed a 45-day bar on their implementation.
Cathy Harris, chair of the employee appeals board, has similarly been targeted by Trump for termination. U.S. District Judge Rudolph Contreras ruled Tuesday that her removal was illegal and reinstated her.
The Justice Department also appealed the Obama appointee’s decision to the D.C. Circuit, but a panel has yet to be assigned.
Before the D.C. Circuit’s decision Wednesday evening, Dellinger indicated he would seek similar short-term protections for other probationary employees facing termination.
“I am calling on all federal agencies to voluntarily and immediately rescind any unlawful terminations of probationary employees,” Dellinger said in a statement earlier Wednesday.
Dellinger’s case, when it eventually reaches the Supreme Court in full, is expected to present an opportunity for the high court to either overturn or strengthen the landmark 1935 case Humphrey’s Executor v. United States, which has long limited the president’s ability to remove independent agency heads.
That decision would impact Trump’s dismissals of members from the National Labor Relations Board, the Federal Labor Relations Authority, the Merit Systems Protection Board and the U.S. Privacy and Civil Liberties Oversight Board.