D.C. Appellate Court Sides With Trump in Dellinger Case

The 3-judge panel determined the president will win on the merits of the case and has choice words for Hampton Dellinger and Judge Amy Berman Jackson, who kept him in the post for almost a month.

A three-judge panel of the D.C. Circuit Court (appellate court) just issued its opinion related to the case of Hampton Dellinger, the longtime Democratic activist and Biden family friend who sought to keep his job as head of Office of Special Counsel (OSC) after President Trump fired him on February 7. (My coverage of the case is here, here, and here.)

On February 10, Dellinger filed a lawsuit to stay in office, a five-year term for which he was appointed by Joe Biden and confirmed by the Senate in March 2024, arguing his dismissal did not meet the statutory requirements to show a “cause” for his firing. The case was assigned to Obama appointee and known Trump-hater (aren’t they all in DC?) Amy Berman Jackson. She immediately ordered the reinstatement of Dellinger while the matter proceeded in her courtroom.

Trump’s Department of Justice argued that the president has the authority to fire a political appointee with executive branch authority--the Special Counsel handles federal workforce complaints including whistleblowers and the Hatch Act, a law weaponized during the first Trump administration--without demonstrating the appointee’s “inefficiency, neglect of duty, or malfeasance.” Further, the DOJ noted, the Supreme Court twice in the past five years determined the president can fire the “single head” of an executive branch office, which Dellinger represents, without providing a reason.

Jackson, however, was unpersuaded. (She also handled the Roger Stone case.) On March 1, she issued a judgement siding with Dellinger; Trump’s DOJ quickly filed an appeal. The D.C. appellate court on March 5 put a hold (stay) on Jackon’s order and removed Dellinger “from his position as Special Counsel of the U.S. Office of Special Counsel.”

The court said a full opinion was forthcoming.

That opinion, filed on Monday night, determined the president is likely to win his appeal of Jackson’s decision: “This case is about the presidential removal power,” two Republican judges and one Democratic judge wrote. “After being fired by President Donald Trump, the Special Counsel, Hampton Dellinger, sued to challenge that action. [Jackson] granted summary judgment to Dellinger and issued a permanent injunction and declaratory judgment in his favor. The government now appeals that decision, requesting a stay pending appeal. Because the government has shown a strong likelihood of success on the merits and its asserted injury outweighs Dellinger’s, we grant its motion. (Emphasis added.)

Further, the court cited Dellinger’s successful attempts (so far) to thwart the president’s efforts to cut the federal workforce. “[The] government has sufficiently demonstrated that Dellinger exercises at least enough authority to contradict the President’s directives.”

This pertains to Dellinger recent requests—granted by the three-member board of the Merit Systems Protection Board, all Biden appointees—to reinstate until April thousands of probationary federal employees fired by the president. “To be able to obtain the reinstatement of thousands of employees in a single agency, even if only temporarily, with such a vague standard of review seems to suggest the Special Counsel’s powers are not as limited as he claims,” the court wrote. (Trump’s DOJ also is appealing a separate order by D.C. Judge Rudy Contreras overturning the firing of Biden appointee Cathy Harris, chairwoman of the MSPB.)

Judges mocked Dellinger’s almost schizophrenic argument that he must remain in office to defend federal employees while also claiming his power is limited at best. “Never mind the tension between Dellinger’s assertions that OSC is critically important to the public interest but simultaneously lacks significant executive power.”

Dellinger, seeing the writing on the wall, just moved to drop his lawsuit. “Having been removed from office, Hampton Dellinger no longer wishes to pursue a judicial remedy to ensure that he remains as Special Counsel. Because Special Counsel Dellinger no longer contests his removal and is out of office, neither this Court nor the district court can afford the government (or Mr. Dellinger) any relief. The case is now moot and the appeal should be dismissed,” his lawyers, including Amy Jeffress, a top aide to former Attorney General Eric Holder and wife of D.C. District Court Judge Chris Cooper, wrote in a March 7 motion asking the appellate court to dismiss the case.

But it’s not that easy. Dellinger—and his Democratic lawfare handlers—can’t just wish away the lawsuit, especially considering the damage done to the president’s agenda. (It is unclear how many of the thousands of probationary employees will exceed that status by the time the MSPB stay ends, affording them civil service protections from dismissal.)

At issue is the much larger question related to presidential authority to remove a political appointee put in office by a predecessor. Dellinger’s attempt to erase his month-long crusade to keep his job appears, at least at this stage, unpersuasive to the D.C. appellate court. The case goes on.