NC’s Dellinger drops his legal fight after court rules Trump can fire him

North Carolina’s Hampton Dellinger is dropping his legal fight to keep his job leading the federal Office of Special Counsel. Dellinger made that announcement Thursday, one day after a federal Appeals Court ruled that President Donald Trump could fire Dellinger.

He worked as former North Carolina Gov. Mike Easley’s legal counsel from 2001 to 2003 and ran as a Democratic candidate for lieutenant governor in the Tar Heel State in 2008.

The US Supreme Court had given Dellinger a temporary victory on Feb. 21. With two dissenting votes, the high court had agreed to hold off on a decision about whether the president could remove Dellinger from office after one year of a five-year appointment.

The US Court of Appeals for the DC Circuit issued a ruling Wednesday allowing Trump to dismiss Dellinger immediately as the legal fight continued. The three-judge panel featured judges appointed by Trump and former Presidents Barack Obama and George HW Bush.

Had Dellinger continued to pursue his legal case, arguments at the DC Circuit would have extended at least through April 11. After a final decision from the Appeals Court, the case could have returned to the nation’s highest court.

“I’m ending my legal battle so my time as Special Counsel and head of the U.S. Office of Special Counsel (OSC) is now over,” Dellinger said in a prepared statement. “My fight to stay on the job was not for me, but rather for the ideal that OSC should be as Congress intended: an independent watchdog and a safe, trustworthy place for whistleblowers to report wrongdoing and be protected from retaliation. Now I will look to make a difference — as an attorney, a North Carolinian, and an American — in other ways.”

The DC Circuit’s ruling “means that OSC will be run by someone totally beholden to the President for the months that would pass before I could get a final decision from the U.S. Supreme Court,” Dellinger said.

“I think the circuit judges erred badly because their willingness to sign off on my ouster — even if presented as possibly temporary — immediately erases the independence Congress provided for my position, a vital protection that has been accepted as lawful for nearly fifty years. Until now,” Dellinger added. “And given the circuit court’s adverse ruling, I think my odds of ultimately prevailing before the Supreme Court are long.”

“Meanwhile, the harm to the agency and those who rely on it caused by a Special Counsel who is not independent could be immediate, grievous, and, I fear, uncorrectable. I strongly disagree with the circuit court’s decision, but I accept and will abide by it. That’s what Americans do,” he said.

The Office of Special Counsel’s “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.  

Nine days later, after an initial trip to the DC Circuit, the US Supreme Court put off a decision on Trump’s request to intervene in the case. 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.”

Gorsuch assessed the impact of the trial judge’s order. “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,” he wrote.

“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.”

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