Cybersecurity Policy Report, Appeals Court Stays Ruling That Reinstated Privacy Board Members, (Jul 7, 2025)
A federal appeals court has granted the Trump administration’s request for a stay of a district court’s decision that two Democratic members of the Privacy and Civil Liberties Oversight Board (PCLOB) should be reinstated.
The U.S. Court of Appeals for the District of Columbia Circuit sided with the Trump administration in a per curiam order, agreeing to stay a ruling by Senior Judge Reggie Walton of the U.S. District Court for the District of Columbia Circuit in LeBlanc, et al. v. U.S. Privacy and Civil Liberties Oversight Board, et al., No. 25-cv-00542 (D.C. Cir. Feb. 24, 2025).
Judge Walton had ruled that Travis LeBlanc and Ed Felten were impermissibly removed from the PCLOB in January (CPR, May 30).
But the appeals court decided that Judge Walton’s order should be stayed while the Trump administration appeals the reinstatement. It said the administration was likely to prevail in the case because the statute that created the PCLOB offered no explicit protections for members from removal by the president.
“PCLOB's organic statute contains no language restricting the President's removal power. Nor does the statutory scheme support inferring such a restriction,” it said.
Messrs. LeBlanc and Felten asked the appeals court to reconsider its decision en banc and to issue an administrative stay in the meantime.
“Defying this Court’s unambiguous precedent, a special panel stayed a final judgment reinstating plaintiffs-appellees to their positions as members of the Privacy and Civil Liberties Oversight Board (the PCLOB) on the ground that Congress may protect members of multimember expert agencies from removal at will only if it uses specific language referencing for-cause removal,” they said in their rehearing request in Travis LeBlanc, et al., v. United States Privacy and Civil Liberties Oversight Board, et al., No. 25-5197 (D.C. Cir. May 29, 2025).
“That is so, under the special panel’s holding, even where Congress’s intent is otherwise clear. The special panel thus held that Congress’s decision to amend the PCLOB’s organic statute in 2007 to delete an at-will removal provision was irrelevant and ineffective,” they said.
“The special panel’s decision warrants en banc review. First, it conflicts with this Court’s decision in Severino, which held that Congress may clearly indicate its intent to restrict removals in ‘two ways’: (1) ‘in the plain text of a statute’; or (2) ‘through the statutory structure and function of an office,’” Messrs. LeBlanc and Felten argued.
“In adopting a bright-line rule that only express removal protections will do, the special panel reduced the first of these avenues to a magic-words requirement and read the second out of Circuit precedent altogether. That approach flouts not only Severino, but also numerous decisions finding or assuming implied removal protections for federal officers,” they added.
They also said an administrative stay of the appeals court’s ruling would be “appropriate to preserve the status quo while the full Court considers this petition” because Messrs. LeBlanc and Felten “have been back at work for over a month since the district court entered final judgment.”
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