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Constitutional Law

DC Circuit allows federal watchdog’s removal pending expedited appeal; US argued he had gone ‘rogue’

By Debra Cassens Weiss

March 6, 2025, 11:15 am CST

Updated: The U.S. Court of Appeals for the District of Columbia Circuit on Wednesday allowed the Trump administration to remove the leader of the Office of Special Counsel when it granted an emergency government request to stay a federal judge’s order pending appeal.

The appeals court stayed a March 1 preliminary injunction by U.S. District Judge Amy Berman Jackson of the District of Columbia that prevented the removal of Hampton Dellinger from the Office of Special Counsel. The appeals court ordered expedited briefing and arguments in the appeal.

Politico, the Associated Press, the Washington Post, USA Today, CNN and MSNBC have coverage.

In its emergency request, the government had argued that Dellinger was advocating for fired employees and seeking stays of their terminations.

“The court should immediately stay the district court’s order and put an end to Dellinger’s rogue use of executive authority over the president’s objection,” the government brief said.

Dellinger’s office is an independent agency responsible for safeguarding whistleblowers and enforcing ethics laws, explains Erwin Chemerinsky, the dean of the University of California at Berkeley School of Law and an ABA Journal contributor, in a Feb. 26 article for the Journal. The special counsel is not the same type of special counsel who is appointed by the U.S. attorney general to handle special investigations.

According to Chemerinsky, the Dellinger case “involves an issue of enormous significance: May a president fire anyone who works in the executive branch of government even when there is a statute limiting firing?”

A federal law provides that the special counsel “may be removed by the president only for inefficiency, neglect of duty or malfeasance in office.” The administration contends that the law is unconstitutional because it interferes with a president’s ability to exercise executive powers under Article II.

Jackson upheld the law when she granted the preliminary injunction.

The case made a previous trip to the U.S. Supreme Court after Jackson granted a Feb. 12 temporary restraining order preventing Dellinger’s removal. The high court did not intervene at that point.

Dellinger announced Thursday that he is dropping his legal battle to stay in the job, the National Law Journal reports.

The case is Dellinger v. Bessent.

Updated March 6 at 3:30 p.m. to report that Hampton Dellinger is dropping the case.

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The Trump administration is asking a federal appeals court to remove the lower court judge overseeing a case involving President Donald Trump’s use of an 18th century wartime authority to fast-track deportations of unlawful immigrants. The request from the Justice Department came after the administration was accused of willfully flouting the court’s Saturday order enjoining the government from removing more than 100 individuals from the country.

In a two-page filing with the U.S. Court of Appeals for the District of Columbia Circuit, the Justice Department accused Chief U.S. District Judge James E. Boasberg of acting outside the scope of his authority by ordering the Trump administration to bring back the detainees who were en route to Hondurous and El Salvador during Saturday’s hearing.

The administration did not comply with Boasberg’s oral order issued during the hearing instructing the Justice Department to return the immigrants to the United States. That order was not included in the written order he issued shortly after the hearing ended Saturday evening.

The Trump administration asserted that it fully complied with the court’s order and implored the appeals court to remove Boasberg for making the Justice Department defend its actions in an “open, public hearing.”

That development escalates the stakes of the district court’s inappropriate exercise of jurisdiction and the risks that the district court may force the government to disclose sensitive national security and operational security concerns or face significant penalties from the court. The Government cannot — and will not — be forced to answer sensitive questions of national security and foreign relations in a rushed posture without orderly briefing and a showing that these questions are somehow material to a live issue. Answering them, especially on the proposed timetable, is flagrantly improper and presents grave risks to the conduct of the Government in areas wholly unsuited to micromanagement supervision by a district court judge.

The controversy stems from a Saturday morning lawsuit filed by the ACLU on behalf of several pseudonymous Venezuelan men seeking to bar President Donald Trump from going through with his stated plan to deport the men using the obscure measure. In quick fashion, Boasberg granted the plaintiffs’ request, barring the government from invoking the AEA to remove individuals for 14 days and holding a Saturday evening hearing on the matter.

During the hearing, Justice Department attorneys told the court that two planes had already departed carrying individuals to Honduras and El Salvador. Boasberg at about 6:45 p.m. on Saturday issued an oral order that “unambiguously directed the government to turn around any planes carrying individuals being removed pursuant to the AEA Proclamation,” plaintiffs wrote in Monday’s filing.

From the transcript, Boasberg stated:

[T]hat you shall inform your clients of this immediately, and that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States, but those people need to be returned to the United States. However that’s accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately

An employee of the National Labor Relations Board who was fired by President Donald Trump is firing back in court with a federal lawsuit, calling her removal “unprecedented and illegal.”

Gwynne A. Wilcox called her Jan. 27 firing by late-night email a blatant violation of the National Labor Relations Act, which allows the president to remove board members only in cases of “neglect of duty or malfeasance in office, but for no other cause,” and only after “notice and hearing,” according to the complaint.

“The President’s unprecedented removal of Ms. Wilcox defies 90 years of Supreme Court precedent that has ensured the independence of critical government agencies,” Deepak Gupta, an attorney for Wilcox, said in a statement. “Federal law is clear: The members of the National Labor Relations Board may only be removed for neglect of duty or misconduct, and only after a notice and a hearing. The President has violated the law.”

Here at TCLT (partnering with Trinidad Rancheria and State Parks), we are planning a massive Ivy Pull/Stewardship Day.

We are hoping to solicit help from volunteers/community members to engage in invasive plant removal at three locations:
Trinidad Coastal Land Trust property (Site: TBD)
Trinidad Rancheria
Sue Meg State Park

Afterwards, we are hoping to throw a “party” at Trinidad Town Hall with a silent auction, live music and some food. There will also be interpretive tables.

Event Date and Time

Saturday, September 14, 2024

8:00am to 3:00pm

Location

Latitude: 41.0620
Longitude: -124.1412