By Andrew Chung
(Reuters) – President Donald Trump’s administration has asked the U.S. Supreme Court to intervene in its bid to fire the head of an independent U.S. agency that protects government whistleblowers, bringing its first legal battle involving Trump’s actions to the nation’s highest judicial body since he took office in January.
The Justice Department asked the court to immediately lift a federal judge’s February 12 order that temporarily blocked Trump’s removal of Hampton Dellinger as the head of the Office of Special Counsel while litigation continues in the dispute, according to a copy of the filing reviewed by Reuters. The case has not yet been docketed by the court.
The case could offer a preview of how the Supreme Court will view Trump’s aggressive moves to remake the federal government, including by removing heads of independent agencies. The court has a 6-3 conservative majority and includes three members appointed by Trump during his first term in office.
The judge’s action blocking the termination is an “unprecedented assault on the separation of powers,” Acting Solicitor General Sarah Harris said in the filing.
“This court should not allow lower courts to seize executive power by dictating to the President how long he must continue employing an agency head against his will,” Harris wrote.
Appointed by former President Joe Biden, Dellinger’s five-year term was set to expire in 2029. He sued after receiving an email on February 7 informing him that Trump had fired him from the watchdog role, “effective immediately.”
Dellinger’s lawsuit said Trump exceeded his power in purporting to fire him, given that federal law permits removal only for “inefficiency, neglect of duty, or malfeasance in office.”
The Special Counsel’s “ability to protect the civil service and investigate alleged misconduct is needed now more than ever,” Dellinger’s lawsuit said. “Over the preceding three weeks, an unprecedented number of federal employees with civil service protections have been terminated without cause.”
U.S. District Judge Amy Berman Jackson in Washington, D.C. issued a temporary restraining order on February 12, restoring Dellinger to his position pending a further, preliminary order.
Jackson said Dellinger was likely to prevail in the suit given that the effort to fire him without identifying any cause “plainly contravenes” the Special Counsel’s job protections under federal law.
“This language expresses Congress’s clear intent to ensure the independence of the Special Counsel and insulate his work from being buffeted by the winds of political change,” Jackson wrote in the order.
The District of Columbia U.S. Circuit Court of Appeals threw out the administration’s appeal in a 2-1 decision on Saturday, saying it was premature, given that Jackson’s order was only temporary.
The Special Counsel Office allows whistleblowers to make disclosures about alleged misconduct within federal agencies and investigates complaints of retaliation. It also enforces a U.S. law known as the Hatch Act that limits political participation by federal employees.
The move to fire Dellinger was the latest by the Trump administration to expel officials who investigate wrongdoing within the federal government. Trump last month fired 17 inspectors general who serve as independent watchdogs within their agencies, without providing a reason.
(Reporting by Andrew Chung in New York; Additional reporting by Andrew Goudsward in Washington; Editing by Lincoln Feast.)
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