CNN
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A federal appeals court on Saturday allowed the head of a government ethics watchdog agency, whom President Donald Trump fired last week, to stay on the job. It’s a decision that will likely tee up the fight over similar dismissals for the Supreme Court.
The appeals court decision let stand a restraining order that permits Hampton Dellinger to temporarily remain in his post as special counsel. Dellinger, who was serving a five-year term, was appointed by President Joe Biden.
The Office of Special Counsel — which is distinct from the special counsels appointed to oversee politically sensitive Justice Department investigations — handles allegations of whistleblower retaliation and is an independent agency created by Congress.
In a 2-1 decision, the US Circuit Court of Appeals for the DC Circuit said the temporary order in Dellinger’s favor was not appealable. Reviewing such an order, the court said, “would be inconsistent with governing legal standards and ill-advised.”
Granting a stay of a temporary restraining order, the court ruled, “would set a problematic precedent. If we were to accept the proposition that a party’s bare assertion of ‘extraordinary harm’ for fourteen days can render a TRO appealable, many litigants subject to TROs would be encouraged to appeal them and to seek a stay.”
Two Biden appointees, Circuit Judges J. Michelle Childs and Florence Pan, voted to dismiss the Trump administration’s request for a stay. US Circuit Judge Gregory Katsas, a Trump nominee, said he would have granted the government’s request.
“The extraordinary character of the order at issue here — which directs the president to recognize and work with an agency head whom he has already removed — warrants immediate appellate review,” Katsas wrote.
“I can and am continuing with my work as Special Counsel, and I am grateful for the opportunity to do so,” Dellinger said in a statement Sunday morning following the court’s decision.
The decision is likely to bring the first appeal, in a flurry of legal challenges surrounding Trump’s second term, to the Supreme Court. The Department of Justice had already indicated in court papers that it intended to appeal.
The case raises broader questions about Trump’s effort to consolidate power within the executive branch by summarily dismissing government employees who serve on independent boards, many of whom are protected from the whims of the White House with provisions in law that require a president to show cause before firing them.
Dellinger’s lawsuit is one of at least three brought by officials fired by Trump that test a president’s power to oust heads of independent agencies.
The lawsuits rely in part on a 1935 Supreme Court precedent, Humphrey’s Executor v. United States, that allowed Congress to include for-cause protections for members on independent federal agency boards. But several conservative justices have signaled an uneasiness with the decision in recent years, and the Department of Justice under Trump has said it believes the protections are unconstitutional.
CNN’s Katelyn Polantz and Tierney Sneed contributed to this report.
