Monday check-in: Still no word from SCOTUS on USAID payments case

Also: A ruling that Trump illegally fired Hampton Dellinger as head of the Office of Special Counsel. And: Three Friday rulings — on firings, trans rights, and refugees.

After a long week last week, the weekend didn’t slow down much — but I had to take a breather. So, this afternoon, I wanted to take a moment to catch everyone up on the lay of the land.

First things first, the U.S. Supreme Court is yet to rule on the Trump administration’s request to vacate U.S. District Judge Amir Ali’s February 25 “deadline” order enforcing his February 13 temporary restraining order in the case over State Department and USAID funding. As you might recall, Chief Justice John Roberts issued a stay of Ali’s order on February 26 — hours before the 11:59 p.m. deadline for payments to have been issued.

The plaintiffs opposed the request on Friday, as ordered by Roberts in his stay order.

I was more critical of Roberts’s stay here than Steve Vladeck was in his assessment, but I would note that, the night of Roberts’s order, Vladeck wrote, “The key is what happens on Friday.” When we heard nothing Friday, Vladeck on Saturday morning acknowledged that the lack of a ruling Friday night “is more ominous than a quick denial—but not conclusive.“

Well, now it’s Monday afternoon, and we still have nothing. And the order from Ali, a Biden appointee, remains on hold by Roberts’s order.

Also, not for nothing, but I do find it notable that DOJ made the request to the Supreme Court on Wednesday night and Roberts ordered a response by noon Friday — less than 40 hours later — but DOJ didn’t file its reply until Monday morning (more than 60 hours later). In past administrations, I would have expected DOJ’s reply by close of business on Friday.

The other case that also has already made its way to the Supreme Court is the challenge by Hampton Dellinger to President Donald Trump’s attempt to fire him as the head of the whistleblower-protecting U.S. Office of Special Counsel. The law at issue states that the Special Counsel is nominated by the president, subject to Senate confirmation for a five-year term, and can only be removed by the president “for inefficiency, neglect of duty, or malfeasance in office.” In Trump’s firing of Dellinger, no such basis for his removal was provided.

After U.S. District Judge Amy Berman Jackson, an Obama appointee, granted a temporary restraining order keeping Dellinger in office, the Supreme Court had held the government’s request to vacate that TRO in abeyance, keeping it on the court’s docket while Jackson decided whether to grant a preliminary injunction in the case.

Well, on Saturday night, Jackson ruled, finding that the office’s removal protections are allowed under current Supreme Court precedent. She issued a declaratory judgment finding that Dellinger remains the special counsel, among other rulings:

As such, she also issued a permanent injunction as to certain officials, aside from the president, barring them from taking actions against Dellinger “unless and until” he is removed as laid out in the law:

Finally, she vacated the TRO that she previously issued in the case:

That should render the application that has been held in abeyance at the Supreme Court moot. DOJ appears to agree, as its action on Monday morning was to seek a stay of Jackson’s ruling from the U.S. Court of Appeals for the D.C. Circuit pending the administration’s appeal. The D.C. Circuit ordered a response to be filed by noon Wednesday and any reply from the government to be filed by noon Thursday.¹

Although the D.C. Circuit’s ruling on the stay request will not be a ruling on the merits, the likelihood of success on the merits is the primary factor courts consider, so this ruling is important — and the government will almost certainly return to the Supreme Court if the D.C. Circuit keeps Dellinger in office.

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In other cases

At the district court level, there were three other notable rulings — all from the West Coast — on Friday.

U.S. District Judge William Alsup, a Clinton appointee, issued an amended temporary restraining order, along with an opinion, blocking the Office of Personnel Management’s directive to several agencies to fire probationary employees. The TRO does not bring back fired employees on its terms, and is limited to certain agencies. The written order followed an in-court order on February 27.

TROs are not generally appealable, although that has not stopped this administration from trying (see above), but, in this case, there is no appeal notice filed yet.

Also on Friday night, U.S. District Judge Lauren King, a Biden appointee, issued a preliminary injunction blocking enforcement of three provisions of two of Trump’s anti-transgender executive orders. Two provisions in the January 20 order defining “sex” for the federal government to exclude trans people and a funding provision in the January 28 order seeking to restrict gender-affirming medical care for those under 19 are blocked in Washington, Colorado, Minnesota, and Oregon.

This is an appealable preliminary injunction, but, as of Monday afternoon, there is also no appeal notice filed yet in this case. (There also is a TRO still in place in the PFLAG case in Maryland blocking implementation of the funding provision of the February 28 executive order. That is a nationwide order.)

Finally, U.S. District Judge Jamal Whitehead, also a Biden appointee, issued a preliminary injunction blocking implementation of much of Trump’s executive order seeking to suspend refugee admissions.

This is a nationwide injunction, and the Justice Department filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit on Monday.

1. Although expected in light of her ruling and the fact that her decision is to keep Dellinger in office, I should note that Jackson did deny DOJ’s request for a stay pending appeal on Monday afternoon.