Washington — The Supreme Court on Friday declined to intervene for now in President Trump’s bid to fire the head of the federal agency that protects whistleblowers while litigation over the removal moves forward, keeping Hampton Dellinger in his role as leader of the Office of Special Counsel for several more days.
In an unsigned decision, the high court put off a decision on Mr. Trump’s request to lift a lower court order that reinstated Dellinger until Feb. 26, when that order is set to expire. Justices Sonia Sotomayor and Ketanji Brown Jackson said they would deny Mr. Trump’s bid for relief. Justices Neil Gorsuch and Samuel Alito dissented.
A key issue at this stage in the case is whether the temporary restraining order issued by U.S. District Judge Amy Berman Jackson, which briefly reinstated Dellinger, could be appealed by the Justice Department. Gorsuch, in a dissenting opinion joined by Alito, wrote that “there are powerful reasons to look behind the label, acknowledge that this TRO presently acts as a preliminary injunction, and review its lawfulness.” Preliminary injunctions can be appealed.
He said he would have tossed out the district court’s order and sent it back for a second look.
The president’s request for emergency relief from the high court marked his first since returning to the White House in late January. But the Supreme Court is soon likely to be fielding numerous requests for it to intervene in cases arising from actions taken by Mr. Trump in his first weeks in office, as dozens of lawsuits have been filed in courts across the country that seek to invalidate the president’s policies.
The dispute before the Supreme Court arose out of Mr. Trump’s decision to remove Dellinger as the head of the Office of Special Counsel, an independent agency that aims to protect federal employees from retaliation for whistleblowing. The agency also enforces the Hatch Act, which limits political activity by government workers.
Dellinger was appointed by former President Joe Biden and confirmed by the Senate in February 2024 to a five-year term. But the special counsel received an email from the head of the White House’s Presidential Personnel Office on Feb. 7 informing him that “your position as Special Counsel of the U.S. Office of Special Counsel is terminated, effective immediately. Thank you for your service.”
Dellinger swiftly challenged his firing in federal district court, alleging that it was unlawful because federal law restricts his removal by the president only for “inefficiency, neglect of duty, or malfeasance in office.”
Soon after, a federal district judge in Washington ordered Dellinger to be reinstated as special counsel for three days to preserve the status quo. Two days later, the judge, Jackson, granted a temporary restraining order that prevented the Trump administration from removing Dellinger from his position as special counsel while she considered whether to issue a preliminary injunction.
Jackson limited the order to 14 days — until Feb. 26 — and scheduled a hearing for that day to consider whether to issue a preliminary injunction.
The Justice Department appealed the district court’s temporary restraining order, but the U.S. Court of Appeals for the District of Columbia Circuit declined to intervene. In a divided 2-1 decision issued Saturday night, the D.C. Circuit said the order is not appealable.
“The relief requested by the government is a sharp departure from established procedures that balance and protect the interests of litigants, and ensure the orderly consideration of cases before the district court and this court,” the D.C. Circuit said in an unsigned decision over the dissent of Judge Gregory Katsas, appointed by Mr. Trump.
The court noted that Dellinger’s case involves “weighty constitutional issues,” and said it would be best to wait until the district court issues a ruling on the preliminary injunction, which can be appealed and will rest on a fuller record to review.
Mr. Trump then asked the Supreme Court to intervene, arguing that the case “involves an unprecedented assault on the separation of powers that warrants immediate relief.”
“Until now, as far as we are aware, no court in American history has wielded an injunction to force the president to retain an agency head whom the president believes should not be entrusted with executive power and to prevent the president from relying on his preferred replacement,” acting Solicitor General Sarah Harris wrote in a filing, in reference to the district court’s order.
She argued that the ruling harms the presidency by curtailing his ability to manage the executive branch in the first weeks of his administration and asked the high court to toss out the district court’s order. The acting solicitor general also said that prior Supreme Court decisions have made clear that under Article II of the Constitution, the president has the power to remove at-will the single head of an agency, like the special counsel.
But Dellinger’s lawyers argued that it is too soon for the Supreme Court to intervene and warned that if it were to grant the Trump administration’s request for relief, it would invite “a rocket docket straight to this court, even as high-stakes emergency litigation proliferates across the country.”
“At bottom, there is no merit to the government’s effort to declare a five-alarm fire based on a short-lived TRO that preserves the status quo ante as prescribed by a half-century-old statute,” they wrote in a filing opposing Mr. Trump’s request.
Dellinger’s firing came as part of the president’s efforts to overhaul the federal government and reduce its size and spending. Since returning to the presidency for a second term, Mr. Trump has removed the heads of the National Labor Relations Board and Merit Systems Protection Board, and fired more than a dozen agency watchdogs, all of which have sparked legal challenges.
Mr. Trump also offered the more than two million federal employees the option to resign their positions but retain full pay and benefits until Sept. 30 through a “deferred resignation” program, which roughly 75,000 workers accepted.
