DC Circuit Allows Removal of Special Counsel Dellinger Pending Appeal

For now, President Trump has removed Hampton Dellinger as head of the Office of Special Counsel.

The U.S. Court of Appeals for the District of Columbia Circuit has granted the Trump Administration's emergency motion for a stay pending appeal in Dellinger v. Bessent, the case challenging President Trump's removal of Hampton Dellinger as the Special Counsel of the Office of Special Counsel. As the order notes:

This order gives effect to the removal of appellee from his position as Special Counsel of the U.S. Office of Special Counsel. Appellants have satisfied the stringent requirements for a stay pending appeal.

Earlier this month, a district court held that Dellinger's removal was unlawful, and the statutory provisions limiting removal were constitutional. I discussed that ruling here. This order suggests the D.C. Circuit may be skeptical of the lower court's conclusions (or perhaps just that the D.C. Circuit believes the justices will be).

The D.C. Circuit order was unanimous. The judges participating were Henderson, Millett, and Walker. The panel also ordered the case expedited, with briefing to conclude by April 11 and oral argument to be held "on the first appropriate date following the completion of briefing."

Comments

[MaddogEngineer]

Huh

[Lee Moore]

This is really the end point of Roberts Court jurisprudence. Once everything becomes a desperate battle to avoid making an actual decision (in case the crowd boos) - then the lower courts and litigants simply bombard SCOTUS with preliminary thises and thats, at short notice.

Instead of comfortably deciding nine cases a year, with at least six months to contemplate the briefings, they find themselves shovelling shit under fire 24/7. No wonder Amy's unhappy.

You broke it Johnny, you bought it.

[Dr. Ed 2]

It's not even that.

The Constitution would NEVER have been ratified if the states thought that the judiciary had this amount of power.

[Katall]

The constitution would never have been ratified if there states thought that the president would have the power that is now allowed let alone the power the current president claims he has.

[David Nieporent]

Yes, it would have. Also, what amount of power? The dispute in this case has nothing to do with the power of the judiciary; it has to do with the power of Congress. There is virtually no dispute that if the law restricting removal power is valid, that the judiciary has the power to enjoin his removal.

[rloquitur]

You must have missed the day in law school when they taught the limitations on judicial powers regarding equitable remedies.

[Dr. Ed 2]

The version I heard, as a historian, not lawyer, is that they almost didn't include equity powers in Article 3. They did not want judges with lifetime appointments becoming kings.

[Kazinski]

Sanity prevails.

[Commenter_XY]

OPM to Dellinger: You're fired....and we really mean it this time!

You are right, sanity has prevailed (for now).

[Dr. Ed 2]

Having to ask a court's permission to fire an appointed employee is a return to the tenure of office act.

[Noscitur a sociis]

The statute doesn’t require the president to have court permission, but Trump chose not to follow the statute.

[Don Nico]

Indeed, he could have, should have given Dellinger's 30 day notice to Congress.

[David Nieporent]

You're confusing this with the Inspector Generals case. This one doesn't require 30 days notice — it just says that the Special Counsel can only be fired for cause. ("inefficiency, neglect of duty or malfeasance")

[Kazinski]

I wouldn't say its common for a President to intentionally violate a law he thinks is unconstitutional, but its often the only way to get it to the courts so they can rule on it.

After all that's how Myers v US, and Humphrey's Executor, and Morrison got to SCOTUS.

And a somewhat similar situation was resolved in Noel Canning, where President Obama had quite different interpretations of the constitution regarding when the Senate was in recess, Obama ignored the Senate's own judgement of when it was in recess, and used his own interpretation to make recess appointments. The court created its own standard for recesses, then threw out the 4 Obama appointments.

I don't think the President has a duty to follow a law he thinks is unconstitutional, his duty is actually to put the issue before the courts in an appropriate case, and there maybe no opportunity to do so without violating it and creating a controversy needing judicial resolution.

I should also think its Dilleinger's duty, if he thinks he has a case, to continue it and resolve the case for the public good. The next case maybe much more high stakes, its better to get it out of the way now.

[Mr. Bumble]

"...and there maybe no opportunity to do so without violating it and creating a controversy needing judicial resolution."
Isn't that how it is usually done?

[Michael Ejercito]

What is the nature of the power exerciaed by the Special Counsel.

[Noscitur a sociis]

The Special Counsel is responsible for investigating potential violations of the Hatch Act and whsitleblower protections. It generally cannot impose discipline for violations directly, however.

[tylertusta]

The Special Counsel is better described as an investigator and a prosecutor who raises issues to the Merit Systems Protection Board.

It is the MSPB that judges cases.

[Riva]

The left never knows when to stop. They always go too far. There are presently 96 legal challenges against the Trump administration. The insanity of the lower courts will eventually be restrained. They’ve simply overreached. Ultimately this will inure to the benefit of the Trump administration. The left has proven they have nothing except meritless legal harassment. Once that’s done they got nothing.

[tylertusta]

This order suggests the D.C. Circuit may be skeptical of the lower court's conclusions (or perhaps just that the D.C. Circuit believes the justices will be).

I think it's the latter. Yesterday's denial of the stay in the USAID case telegraphed that there's a minimum of four Justices who would put an end to the nonsense.

Although, perhaps even the DCCA now tires of the gamesmanship by District Court judges designed to frustrate the government's ability to appeal.

[David Nieporent]

Dellinger has now dropped his legal challenge to his firing, saying that with no interim relief in place, Trump has effectively won and will get his rubberstamp replacement, so dragging out the suit serves no purpose.

[Lee Moore]

I was wondering why Millet failed to dissent. Presumably the line has changed - for God’s sake let’s make sure we don’t get an adverse SCOTUS precedent !

Still how many of these dismissals will be heard outside the DC Circuit’s jurisdiction ?

I suppose even if they’re all DC cases it’s easier to change the precedent in DC if the wind changes at SCOTUS, than to change a SCOTUS precedent.

[Lee Moore]

But tactically I still think this is an error. If they’re tactically caving in dismissals before they get to SCOTUS because they’re worried that SCOTUS will steelman Seila Law that reduces the number of cases that Roberts gets to allocate to the Trump team. So to even up the score that means he’ll start allocating other cases to Trump, which would otherwise have been put on the Trump pile.

[Lee Moore]

That should read “on the anti Trump pile.”

[Sarcastr0]

Presumably!

[Lee Moore]

You need to shape up, Presumption Monitor, or the teacher will appoint someone more diligent. You totally missed Adler presuming like it was going out of fashion :

"This order suggests the D.C. Circuit may be skeptical of the lower court's conclusions (or perhaps just that the D.C. Circuit believes the justices will be)."