Firing of whistleblower protection office head unlawful, judge rules
A federal judge on Saturday ruled that President Trump’s firing of the head of an office designed to protect government whistleblowers was unlawful.
U.S. District Judge Amy Berman Jackson ruled in favor of Hampton Dellinger, director of the Office of Special Counsel, who said he was fired from his post in a one-sentence email. An appointee of former President Biden, he argued that the firing violated his appointment to a five-year term in the office.
A temporary restraining order was scheduled to expire Wednesday but Jackson extended it to Saturday as she weighed the further relief.
"There is no dispute that the statute establishing the Office of Special Counsel provides that the Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office, and that the curt email from the White House informing the Special Counsel that he was terminated contained no reasons whatsoever,” Jackson wrote.
The Office of Special Counsel, which is different from Justice Department special counsels like Jack Smith, enables whistleblowers to report potential government wrongdoing and works to protect them from retaliation. It also responds to potential violations of the Hatch Act, the law that guards against electioneering by federal employees.
Joshua Matz, a lawyer for Dellinger, argued Wednesday that the Office of Special Counsel is not a “pure extension” of the executive branch. It plays a “significant role” in reporting to Congress, existing to ensure the legislative branch knows if executive agencies are interfering with its attempts to protect whistleblowers, he said.
“The independence that exists here is about ensuring that whistleblowers who are going to report retaliation or inappropriate political activity can do so without fear of retaliation,” Matz said, questioning why a president who swore to faithfully execute the law would want to eliminate a haven for whistleblowers.
Dellinger’s attorneys said that he is an "inferior officer,” which they argue means that Congress sets the terms of removal from the office — not the executive.
DOJ lawyer Madeline McMahon contrarily argued that Dellinger holds “core executive” powers and authority, including enforcement of four federal statutes and a “roving investigatory function.”
She also said that the government’s position is that the president, under his authority to supervise the executive branch, has a “limitless” ability to remove direct subordinates for “any reason at all.” To let Dellinger stay would undercut that power, she argued.
Jackson sharply pushed back on that assertion, contending that the president has “a lot of power” already to remove the official, if he’s done something wrong.
“He can remove him in situations where he's acting arbitrarily or negligently or corruptly, if he's done something wrong, something to give us concern – give the president concern,” the judge said. “All the hand wringing about the fact that somebody can't be out there that the president can't control is not true. He has removal power.
“What we're talking about is just a little piece of that, the narrow question about whether a president should be able to fire this particular person for no reason whatsoever,” she said.
McMahon said the judge does not have authority to grant injunctive relief, because any such order would “disable” Trump’s power to remove Dellinger and select someone else to fill that office.
Dellinger’s case already reached the Supreme Court, the first of several lawsuits challenging Trump’s firings of independent federal agency leaders with statutory removal protections.
The justices punted on the administration’s request to wipe the lower court’s temporary reinstatement of the official, holding in “abeyance” Trump’s emergency application until the lower court’s order expired Wednesday, effectively pushing off deciding whether the firing was legal.
When Jackson extended her temporary restraining order, she acknowledged the “unusual posture” of the case, given its early trip to the Supreme Court, and said she would rule “expeditiously” while still giving “full consideration” to all the arguments.
Democratic appointees to multimember commissions like the Merit Systems Protection Board, National Labor Relations Board and Federal Labor Relations Authority have also challenged their firings.
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