Biden Official Who Trump Fired and Was Reinstated by an Obama Judge Has Been Fired Again

The DC Circuit Court of Appeals has allowed President Trump to re-fire Special Counsel Hampton Dellinger

 

 pending the disposition of Dellinger's lawsuit for reinstatement. This is a very important decision as it overturns the order by District Court Judge Amy Berman Jackson

 forcing the Trump administration to reinstate Dellinger (DC Circuit Court Judge Orders OMB, Treasury to Reinstate Legally Protected Official Who Trump Fired – RedState).

The backstory is that Dellinger, according to statute, can only be removed from office “for inefficiency, neglect of duty, or malfeasance in office.” Trump fired Dellinger using a recent Supreme Court precedent as the rationale. Shortly after being reinstated, Dellinger began waging guerilla warfare against Trump's dismissal of probationary federal employees by pushing their cases to the Merit System Protection Board. The Trump administration appealed to the Supreme Court (see Trump Sends Scorching Appeal of DC Court Order Reinstating Biden Appointee to the Supreme Court – RedState). The Supreme Court sent the case to the DC Circuit for review without taking action; Supreme Court Punts on Trump Firing Legally Protected Official – RedState; and a three-judge panel ruled on that tonight.

The two-page ruling Wednesday from three judges on the D.C. Circuit Court of Appeals contained no detailed explanation. But it said lawyers for the Trump administration had met the legal standard to lift an injunction that U.S. District Judge Amy Berman Jackson issued on Saturday.

IANAL, so I'll turn to friend and former RedState colleague Bill Shipley for analysis.

The DC Circuit Court of Appeals has just vindicated CJ Roberts. 

The Court has just granted the Motion to Stay the Order of Judge Amy Berman Jackson that Hampton Dellinger remain as head of the Office of Special Counsel while he litigates the legality of his dismissal without cause in alleged violation of the statutory requirement that he can be removed only "for cause."   

Chair of the MSPB Cathy Harris was allowed to join the proceedings as amicus -- the same issue applies to her, with Judge Contreras having ordered that she remain in her position while litigating her dismissal. 

This is "regular order".  Judge Jackson issued a ruling on the merits Saturday night, granting summary judgment for Dellinger.  The DOJ filed a Notice of Appeal, and a Motion to Stay Judge Jackson's order that Dellinger remain as head of the Office of Special Counsel. 

The Appeals Court has now undone her Order while the appeal is pending.  That means the TRO and Prelim Injunction are vacated and the firing of Dellinger is now back in effect. 

I expect the same will happen next to Cathy Harris. 

Cathy Harris was the head of the Merit Systems Protection Board, enjoying the same statutory protections as Dellinger, and whom Trump fired anyway. She has also been ordered reinstated; see Judge Orders Biden Appointee Fired by Trump Reinstated to Office – RedState. The appeals court allowed her to file an amicus brief in this case. 

The Supreme Court held a motion to vacate Judge Jackson's TRO "in abeyance" while she was considering the merits.  She acknowledged such during the hearing when she said she understood the Supreme Court was watching over her shoulder.

 BUT, the Appeals Court has now done its job -- meaning the decision by SCOTUS to respect "regular order" was the correct one.   

That said -- the panel granting the stay has two GOP appointees -- Judge Henderson (Bush 41) and Judge Waker (Trump).    DOJ was fortunate in the draw in that regard.

No matter how the appeals court panel rules, this is headed back to the Supreme Court. I think Dellinger is toast because he is the sole director in the Office of Special Counsel and his case is a nearly perfect analog for Seila Law LLC v. Consumer Financial Protection Bureau, the 2020 Supreme Court ruling that permitted Trump to fire the head of the CFPB because he was a sole director who could not, according to statute, be fired.

The Harris case will be more interesting and significant. It will test the validity of the Humphrey's Excecutor precedent and the amount of control the president has over the administrative state; see Trump Declares War on the Administrative State – RedState.