Protesters rally outside of the Theodore Roosevelt Federal Building headquarters of the U.S. Office of Personnel Management on Feb. 5, 2025, in Washington, D.C. (Photo by Alex Wong/Getty Images)
WASHINGTON — A federal district judge extended a temporary restraining order against the Trump administration’s move to fire a top government watchdog lawyer, following a Wednesday hearing.
The hearing in U.S. District Court for the District of Columbia on a requested preliminary injunction to halt the firing of Special Counsel Hampton Dellinger followed an initial two-week temporary restraining order from Judge Amy Berman Jackson.
The restraining order would have expired Wednesday night, but Jackson extended it until Saturday. A decision remains on the preliminary injunction, a more long-lasting step.
Jackson, nominated by former President Barack Obama in 2011, has also temporarily blocked the Trump administration from mass firings and budget cuts at the Consumer Financial Protection Bureau.
The Trump administration’s attempt to remove Dellinger from his post came after thousands of federal employees were dismissed as special White House adviser and billionaire Elon Musk sought to curtail the federal workforce.
On Monday, Dellinger issued a statement that his office has determined that some of the firings of probationary federal workers were unlawful and that he would ask a government review board – the U.S. Merit Systems Protection Board – to pause firings for 45 days.
Department of Justice attorneys, on behalf of the Trump administration, argued the president has the authority to remove Dellinger.
Whistleblower protection
Dellinger is a lawyer from Durham, North Carolina, who previously headed the Office of Legal Policy at the U.S. Department of Justice.
His father, Walter Dellinger, was a constitutional legal scholar who regularly argued before the Supreme Court.
Hampton Dellinger was appointed by former President Joe Biden to serve as head of the Office of Special Counsel, which was created by Congress in 1978 specifically to protect government whistleblowers.
Under that law, the person in the position must be confirmed by the Senate and serve a five-year-term. The Senate, controlled by Democrats at the time, confirmed Dellinger last year in a 49-47 party-line vote.
The only way the president can remove the head of the Office of Special Counsel is for “inefficiency, neglect of duty or malfeasance in office.”
In court filings, Dellinger states that he was fired in a Feb. 7 email with no details given for the reason for his removal.
The Trump administration made an emergency plea to the U.S. Supreme Court last week, but the justices ruled, for now, the president cannot remove Dellinger.
Debate over special counsel law
Joshua Metz, Dellinger’s lawyer, argued the special counsel is an inferior officer, meaning that Congress has established for-cause termination protections for the role.
Metz cited a U.S. Supreme Court test for what qualifies as an inferior officer.
“Generally, what you’re focused on are whether someone supervises and controls the officer in question, whether they have certain limited duties, limited tenure, whether they’re limited in their jurisdiction,” he said. “The Office of Special Counsel is limited in its jurisdiction and … it only operates within the executive branch.”
Metz argued that there is a for-cause removal protection because “the special counsel deals with circumstances where you might anticipate conflicts of interest within the executive branch, or anxiety about the way in which the Office of Special Counsel protects whistleblowers.”
He also said Dellinger is in that role for a limited period of five years.
Jackson asked how part of the test would apply to Dellinger, because it doesn’t seem like he has a superior.
“The reason that we most fundamentally think he is properly characterized as an inferior officer is that he cannot make any final decision on the part of the executive branch,” Metz said. “That’s the key issue here.”
He said that Dellinger’s role is “essentially (an) investigative and advisory opinion.”
“No decision that he makes is final as to the executive branch,” Metz said.
Madeline McMahon, arguing on behalf of the DOJ, said Dellinger’s role has plenty of power and authority, such as enforcing rules.
Jackson pushed back, noting that while the special counsel can ask the U.S. Merit Systems Protection Board to take up cases, he can’t force the agency to comply.
“He’s like a prosecutor with his hands tied behind his back,” Jackson said.