EMERGENCY DOCKET

Trump renews request for justices to allow firing of OSC head

The Trump administration on Wednesday reiterated its request for the Supreme Court to lift an order by a federal judge in Washington, D.C., that instructed President Donald Trump to temporarily reinstate the head of an independent federal agency tasked with protecting whistleblowers from retaliation.

Last week the justices declined to freeze the order by U.S. District Judge Amy Berman Jackson, instead leaving the Trump administration’s request on hold until her order expired on Feb. 26. But Jackson on Wednesday extended that order until March 1. Acting Solicitor General Sarah Harris then came to the court, repeating her request for the justices to intervene.

A lawyer for Hampton Dellinger, the head of the Office of Special Counsel, urged the justices to keep the government’s request on hold until March 1. At that point, he contended, there will no longer be a live controversy over the plea to lift Jackson’s original order, and the losing side can appeal to the U.S. Court of Appeals for the District of Columbia Circuit.

The Office of Special Counsel was created to protect federal government employees from activities that are banned in the federal workforce, including retaliation. Under the law that established the agency, the head of the office can only be removed by the president for “inefficiency, neglect of duty, or malfeasance in office.”

Then-President Joe Biden appointed Dellinger to serve a five-year term as the head of the office in 2024. After he was fired in a Feb. 7 email that did not specify the reason for his dismissal, Dellinger went to court to challenge his firing.

On Feb. 12, Jackson issued a temporary restraining order that reinstated Dellinger for 14 days. When the D.C. Circuit ruled that it lacked the power to weigh in on Jackson’s order because temporary restraining orders are generally not appealable, Harris came to the Supreme Court. She argued that the justices could review the order because it “deeply intrudes into the core concerns of the executive branch” by infringing on the president’s ability to remove senior officials.

But in a brief order on Feb. 21, the justices instead opted to put the government’s request on hold – leaving Dellinger in place as the head of the Office of Special Counsel – until Jackson’s order ran out on Wednesday, Feb. 26.

After a hearing on Wednesday, Harris explained, Jackson extended the TRO until Saturday, March 1, to give her more time to consider the briefs filed by both sides and draft an opinion. “In the meantime,” Harris told the justices, “the harms to the Executive Branch from” Jackson’s order “have become even more concrete,” as the Office of Special Counsel has filed proceedings to challenge the Trump administration’s firings of several probationary employees. “In short,” she concluded, despite Trump’s efforts to remove him from office, Dellinger “is wielding executive power, over the elected Executive’s objection, to halt employment decisions made by other executive agencies.”

Joshua Matz, a lawyer for Dellinger, told the justices that Dellinger “has no objection to this Court holding the government’s application in abeyance for three more days.” When Jackson acts on March 1, he observed, her temporary restraining order “will immediately dissolve,” rendering the government’s request to lift it moot. The losing side can then appeal Jackson’s ruling, Matz noted, “presumably starting in the” D.C. Circuit.

This article was originally published at Howe on the Court.