DC Appeals Court Stays District Court Injunction Reinstating Official Trump Fired (Update – Dellinger Gives Up)
This may signal that the DC Circuit Court of Appeals will take seriously the need to rein in runaway District Court rulings.
According to a Litigation Tracker, there are 96 “legal challenges to Trump administration actions.” Earlier today the Supreme Court, in a move that “stunned” Justices Alito, Thomas, Gorsuch, and Kavanaugh, SCOTUS Refused To Halt District Court Order That Gov’t Pay Two Billion To Foreign Aid Contractors.
In another case we have been following, the Supreme Court, over the dissent of Justices Gorsuch and Alito, Punted On Whether District Court Can Prevent Trump From Firing Official. The issue in that case was a District Court Temporary Restraining Order prohibiting the Trump administration from removing Hampton Dellinger from his position as Special Counsel for the Office of Special Counsel, [This has nothing to do with “Special Counsel” Jack Smith.]
The case reverted back to the District Court, where Judge Amy Berman Jackson issued an Permanent Injunction keeping Dellinger in his position. The Trump administration sought an emergency stay in the DC Circuit Court of Appeals:
The district court issued a permanent injunction countermanding the President’s removal of Hampton Dellinger as the head of the Office of Special Counsel (OSC), and reinstating Dellinger as sole head of an executive agency. The court assumed that Dellinger “hardly” exercises any executive power at all. Yet, since being reinstated, Dellinger has been prosecuting complaints on behalf of terminated federal 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.
Two prior appeals of orders countermanding Dellinger’s removal—first an “administrative stay,” then a “temporary restraining order”—were dismissed for lack of appellate jurisdiction. Now, this Court can indisputably reach the merits. Despite the district court’s characterization of its order as “extremely narrow” (Dkt. 32 at 4, 65), it gravely offends the separation of powers….
Plaintiff has identified no prior case in American history where a court has forced the President to retain the sole head of an agency after the President has determined that that person should not be entrusted with executive power. Indeed, it is well established that courts lack equitable power to “restrain an executive officer from making a … removal of a subordinate appointee.” White v. Berry, 171 U.S. 366, 377 (1898). This Court should stay the order and grant an immediate administrative stay
The DC Court of Appeals just issued a stay pending appeal, which means the District Court’s Order has no effect and Dellinger should be out:
Upon consideration of the emergency motion for a stay pending appeal and the opposition thereto; the Rule 28(j) letter and the response thereto; the consent motion to participate as amicus curiae filed by the Separation of Powers Clinic and the lodged amicus brief; the corrected amici brief lodged by the States, which is construed to contain a motion to participate as amici curiae; the motion to participate as amicus curiae filed by Cathy A. Harris and the lodged amicus brief; and the motion to participate as amici curiae filed by the Government Accountability Project, et al., and the lodged amici brief, it is
ORDERED that the motions for leave to participate as amicus curiae be granted. The Clerk is directed to file the lodged amicus briefs. It is
FURTHER ORDERED that the emergency motion for a stay pending appeal be granted, and that the district court’s March 1, 2025 order be stayed pending further order of the court, except to the extent that order vacates the Temporary Restraining Order entered by the district court on February 12, 2025. This order gives effect to the removal of appellee from his position as Special Counsel of the U.S. Office of Special Counsel. Appellants have satisfied the stringent requirements for a stay pending appeal. See Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2024). An opinion will follow in due course. It is
FURTHER ORDERED, on the court’s own motion, that this case be expedited.
This is a big win for the administration in two ways. First, the officer gone rogue – Dellinger – is removed. Second, this may signal that the DC Circuit Court of Appeals will take seriously the need to rein in runaway District Court rulings.
🚨
Major win for President Trump:
The DC Circuit stays Obama DC Judge Amy Berman Jackson’s order reinstating the Special Counsel against President Trump’s will.
In other words:
Hampton Dellinger, You’re Fired! pic.twitter.com/6onmY2OoSo
— 🇺🇸 Mike Davis 🇺🇸 (@mrddmia) March 5, 2025
Has Democrat lawfare peaked?
UPDATE 3-6-2025
BREAKING: Federal workforce watchdog drops challenge to Trump's decision to fire him. Hampton Dellinger says he faced 'long' odds at #SCOTUS after DC Circuit issued ruling last night letting the firing kick inhttps://t.co/nxurUuPk0l
— Josh Gerstein (@joshgerstein) March 6, 2025
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Comments
Wow. I wasn’t aware that the DC Circuit Court of Appeals actually applied applicable legal standards. What a ground-breaking concept!
Give it a few minutes. The resident oracle will arrive to pontificate about how the court was wrong.
There are some excellent judges on the DC circuit.
This panel was Henderson, Millett, and Walker. Henderson is fairly conservative and regularly sides with Trump, if that’s where the law leads her. She’s 80 years old and was appointed by Bush Sr.
Millett was appointed by 0bama, but as far as I can tell she’s not too radical. It’s possible that she voted for this, but I don’t know.
Walker was appointed by Trump. He’s a solid conservative, Federalist Society member, clerked for Brett Kavanaugh and for Anthony Kennedy.
Uh ok, but let’s not forget that the Federalist Society promoted Amy Comey Barrett. Association with them is not some sort of unimpeachable (no pun intended) reference.
Milhouse, thank you for supplying additional information on the case and the judges.
Why all the down votes, people?
Some people likely down vote by reflex. They see a certain name and are triggered to do so.
There was nothing in contentious in this Milhouse posting.
,
This is one hell of a bumpy ride.
I think its great ride. Seems we at last have a President who has READ the US Constitution and is committed to DOING what it says he is supposed to be doing.
I know we’ve not had a ride on this road for a long time now, but settle down. We’ll get used to the Republic being run “by the rules” for a change.
I suspect that the non-lunatic judges want to avoid the ultimate confrontation with the executive branch. I feel that they believe rightly that if they rule that the bureaucracy and district judges control the executive branch, that will provoke a decision from Trump to fight back.
If backed into a corner, I think Trump will say the constitution vests executive authority with the President and that power overrides your ruling.
Roberts and company absolutely want to avoid that scenario>
I’ve been impressed by how patiently President Trump has let things play out. If it was me, I’d have seriously considered sending some judges off to extended vacations in Gitmo!
I think he’d be within his rights as POTUS to ignore the courts when they plainly deviate from the mechanisms prescribed by the Constitution. Some would object, “Courts are the determiners of the law!” But the POTUS has taken an oath to support and defend the Constitution too. As an independent moral agent, he has an obligation to ignore orders he believes to be unlawful and offensive to the Constitution. No one can dictate to an oath taker that something must be done that the oath taker believes will cause him to break his oath. If a POTUS was required to ignore his oath upon receiving a command from SCOTUS, he’d have been sworn to such an obligation. But he is not so sworn.
“If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.”
–ANDREW JACKSON, Bank Veto speech, 1832-07-10
Awesome. Thank you.
I’ve been saying this for years. Usually in the context of the private soldier’s oath to the Constitution imposing upon him a personal obligation to refuse unlawful orders. People object, “But they’re not trained in the law. Shouldn’t the officers make that determination?” To which my reply is that everyone who takes the oath is an independent moral agent, responsible to make his own judgment base on his own sense of morality and what is right. (They are not making a legal judgment, so it requires no training in the law.) Officers are no better judges than private soldiers in this regard (and recently some very highly-ranked officers have exhibited very poor judgment, demonstrating that officers’ judgment can’t be trusted). If the government didn’t want private soldiers to judge for themselves which orders are lawful and which are not, soldiers would take an oath to obey superior officers, not an oath to support and defend the Constitution.
That’s a really excellent point. It didn’t occur to me.
Cool!
There is nothing in the Constitution that says “courts are the determiners of the law.” The Supreme Court is the only court created by the Constitution, to settle legal issues between the states. Also, the words “judicial oversight” appear nowhere in the Constitution. That is a power the courts have usurped.
Yes, there is. The constitution says “The judicial Power of the United States, shall be vested” in the supreme court and the other courts. The judicial power is the power to say what the law is. Only the judicial branch can do that; the other branches have no authority to interpret laws, and when they do so they are acting ultra vires and their actions are void. See City of Boerne, for instance.
It’s the only court created directly by the constitution itself; it is not the only court in which the constitution vests the judicial power.
That is only one of its functions. It is a lie to claim that it’s its only function, or even its primary function. “The judicial power shall extend to all cases“, both in law and in equity, that arise under the constitution, or federal law, or treaties. It extends to all cases involving diplomats. It extends to all cases of admiralty and maritime jurisdiction. It extends to any case in which the USA is a party. And that’s even before it gets to cases involving more than one state.
Nor do “congressional oversight”, or “separation of powers”, or “right to privacy”, or many other fundamental principles of the constitution that are not explicitly mentioned because they’re obvious and part of the common law background against which the constitution is written.
No, it is not. It is the power to say what the law is, which is exactly what they were designed for and were always expected to fill.
As well they should. Past courts have deliberately avoided cases that raise that specter. If memory serves, that’s what’s known as a political question.
One case at a time, as the lawfare continues. What a waste of resources. What would you expect from a party that stands for war and the un-American way. At some point the Supreme Court must clarify the jurisdiction of district judges.
Would be nice if Roberts stepped down.
If the federal government works the way Washington State works, merely holding an office is inadequate to the exercise of executive power. The office holder also needs a delegation of authority. Without it, the office holder lacks the authority to exercise any of the power that rightfully belongs to the governor.
Seeing that Article II vests the executive power of the federal government in the POTUS, it’s nearly a given that the POTUS must formally delegate his authority to others in the executive branch, authorizing them to exercise some portion of his authority in his stead.
What would happen if Trump pulled his delegation of authority from this official? Imagine a judge trying to order the chief executive (the sole person to wield all executive authority, per Art. II) to delegate some portion of his authority to Dellinger. I can’t imagine SCOTUS coming up with a plausible reason to allow a judge exercise this sort of authority over a POTUS.
I would imagine it would work the same as if the Executive were to withdraw the security clearance for (fill in officeholder name here). Once you reach the status of “Works in the White House” there are very few things you can do without a clearance other than sweep and mop, and even then only in the public spaces.
As it stands now, I’ll be utterly amazed if Trump can get anything done this term versus his first term. Not only does he not have a 2/3 majority in any chamber, he now has to fight the Supreme Court that is issuing ‘stunning’ rulings that are contrary to the Constitution.
Speed bumps and they’re to be expected.
It seems like the DC Circuit and SCOTUS went out of their way not to undermine district courts’ ability to issue unappealable TROs. Yet this ruling is saying but you have to make those rulings (including, I infer, TROs) based on good law. In this case it was not good law because it encroached on Article II powers in a way without precedent. So district court was wrong with regard to the element of a TRO that says ‘plaintiff is likely to succeed on the merits.
But, saying that, I don’t see how this damps down the urge of activist judges to gum up the works with wrongheaded TROs. There has been no consequence for Berman-Jackson if she doesn’t care about having a ruling swatted down by the DC Circuit. A person determined to resist will just keep resisting even though swatted down. They will see the 15 day TRO delay as a noble rear-guard delaying tactic that should be implemented every chance they get.
The US has one Executive. His name is not Hampton. Nor is it Amy.
Sue til it t
‘Sue til it turns blue’ is about the only card leftists have at this point. Hopefully, scotus can put a leash on these loose cannons so I can stop torturing metaphores.
It’s getting to time President Trump tells a judge to go pound sand as they have no power here.
Reinstate the guy and send him to his office in Some far off place,.
And make sure he shows up daily in it
a dollar a day and a health plan that only covers colonoscopies.
A nation run by —unfire-able bureaucrats… why did the founders not just write it directly into the constitution????? I mean later on we could have at least squeezed it in before the 14th amendment which gave us anchor babies.
No, the 14th did NOT give us anchor babies. Remember th second phrase that the anchor baby nutjobs always ignore..”and SUBJECT TO THE JURISDICTION THEREOf ” Mamacita sneaking over the border at three months along is NOT subject to the jurisdiction thereof, nor is the child she spawns here whilst breaking the laws regarding entry.
Plus the rest of.the quote ‘….and of the State wherein they reside’. Citizenship of a State involves performance of duties which non citizens cannot perform; Jury duty, Militia Service, Sheriff’s Posse.
Yes, she is, and nobody really believes she is not. If you really believed she was not subject to the jurisdiction then you would not be calling for her to be arrested, since you believe she is immune. Therefore you, and everyone who takes this position, is simply lying, just like those who claim with a straight face that all it takes to be a woman is to wake up one morning and decide to be one.
Disagreeing with you does not make someone a liar, and it’s pathetic and childish to use that tact.
Had the Supremes ruled that TROs *were* appealable, this would have opened up a can of worms that would not have been in Trump’s interest.
Wait and see
Judges should not have a lifetime appointment. People live much longer these days. They should be subject to a reappointment vote every 10 years with an enforced retirement ago of 80.