Carolina Journal
Staff Report
The US Supreme Court refused Friday to block a lower court’s decision protecting a federal agency head from President Donald Trump’s plan to fire him. The court decided to put off a ruling on the Trump administration’s appeal pending the trial court’s further action.
Hampton Dellinger, the official targeted for dismissal, worked as former North Carolina Gov. Mike Easley’s legal counsel from 2001 to 2003 and ran for lieutenant governor in the Tar Heel State in 2008.
Dellinger now leads the Office of Special Counsel, a federal agency whose “primary mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing,” according to the office’s website.
Trump fired Dellinger without a stated cause on Feb. 7, but Dellinger sued three days later. Dellinger argued that federal law restricted the president’s authority to remove him from office. Former President Joe Biden had appointed Dellinger last year to a five-year term as special counsel.
US District Judge Amy Berman Jackson, an Obama appointee, issued a temporary restraining order on Feb. 12 keeping Dellinger in his job until the judge could rule on a preliminary injunction. A hearing on the injunction is scheduled Feb. 26, the day the TRO expires.
A split federal Appeals Court panel in Washington, DC, refused to intervene in the case.
Appellate judges ruled on Feb. 15 that they had no authority to review a temporary restraining order.
Trump’s legal team took the dispute to the Supreme Court the following day.
Five days after the Trump appeal, the high court declined to act on the TRO. “In light of the foregoing, the application to vacate the order of the United States District Court for the District of Columbia presented to THE CHIEF JUSTICE and by him referred to the Court is held in abeyance until February 26, when the TRO is set to expire,” according to Friday’s order.
Chief Justice John Roberts and Justices Amy Coney Barrett, Elena Kagan, Brett Kavanaugh, and Clarence Thomas supported the decision.
Without comment, Justices Sonia Sotomayor and Ketanji Brown Jackson indicated they would have denied the Trump administration’s request to overturn the lower court’s order.
Justices Neil Gorsuch and Samuel Alito dissented from the majority’s decision to hold the decision on the Trump administration’s request “in abeyance.”
“Presumably, like the court of appeals, it harbors a concern that the TRO may not yet have ripened into an appealable order,” Gorsuch wrote. “Respectfully, I believe that it has and that each additional day where the order stands only serves to confirm the point.”
“[H]ere there are powerful reasons to look behind the label, acknowledge that this TRO presently acts as a preliminary injunction, and review its lawfulness,” Gorsuch added.
“[C]onsider what we know about the remedy the district court ordered,” he explained. “The court effectively commanded the President and other Executive Branch officials to recognize and work with someone whom the President sought to remove from office. Whether labeled a TRO or a preliminary injunction, that order provided an equitable remedy.”
“Under this Court’s precedents, however, a federal court may issue an equitable remedy only if, at the time of the Nation’s founding, it was a remedy ‘traditionally accorded by courts of equity.’ That limitation would seem to pose a problem here, for courts of equity at the time of the founding were apparently powerless to ‘restrain an executive officer from making a … removal of a subordinate appointee,’” Gorsuch wrote.
“[B]y the 1880s this Court considered it ‘well settled that a court of equity has no jurisdiction over the appointment and removal of public officers,’” he added.
“To be sure, throughout the Nation’s history, various presidentially appointed officials like Mr. Dellinger have contested their removal — and courts have heard and passed on their claims. But those officials have generally sought remedies like backpay, not injunctive relief like reinstatement,” Gorsuch explained.
Dellinger’s lawyers have argued that courts have traditionally decided between rival claimants seeking an elected office. “But it is unclear how Mr. Dellinger might defend the district court’s exercise of its equitable remedial authority by pointing to a distinct legal remedy he never sought, the district court never invoked, and the procedures for which he did not follow,” Gorsuch wrote.
The arguments “would seem to cut against recognizing a novel equitable power to return an agency head to his office,” Gorsuch added.
“The district court grappled with none of these complications before ordering Mr. Dellinger’s reinstatement,” he wrote. “And if there are answers to the questions its remedial order raises, they appear nowhere in that court’s decision.”
Comments