Labor & Employment Law Daily Wrap Up, DISCHARGE—D.D.C.: Plaintiff, not lawful president of USADF, denied judgment that removal violated APA, (Jun 11, 2025)

By Ronald Miller, J.D.

At the outset, the court determined that it had jurisdiction over the plaintiff’s challenge to his purported removal.

A federal district court in the District of Columbia found that summary judgment was warranted against the APA claims of a plaintiff who alleged that he was improperly removed as the president of the United States African Development Foundation. Because President Trump had removed the board members of the foundation before March 3, 2025, they lacked the authority to appoint the plaintiff as president, the court found. Thus, the plaintiff never lawfully held the position, and the court was not at liberty to install him as president (Brehm v. Marocco, No. 25-660 (RJL) (D.D.C. Jun. 10, 2025)).

Elimination of agency. On February 19, 2025, President Trump signed Executive Order 14,217, entitled “Commencing Reduction of the Federal Bureaucracy.” It listed four agencies, including the United States African Development Foundation (USADF), that would “be eliminated to the maximum extent consistent with applicable law.”

USADF. USADF is a federal agency established by Congress to support and invest in African-owned and African-led enterprises. The statute vests the management of USADF in a board of directors. The board is comprised of seven members appointed by the President, by and with consent of the Senate. The board manages the agency in part through its appointment of a president.

USADF had five board members and a committee in lieu of a president when President Trump signed EO 14,217. On February 10, 2025, the president of USADF resigned. The board then created an interim “leadership committee” to perform the functions of the president. The plaintiff in this action was one of the board members.

A few days after Trump signed EO 14,217, he fired the five board members. The plaintiff was notified that he had been terminated effective immediately. However, the remaining board members did not receive notices of termination.

Acting chairperson. On February 28, 2025, a White House official notified USADF’s chief financial officer that Trump had appointed an acting chairperson for the board. The CFO responded that under the USADF statute a board nomination required Senate confirmation and declined to recognize the appointment of the acting chairman.

On March 3, 2025, four members of the board met without the acting chairman and appointed the plaintiff as president of the USADF. That same day, they notified Congress that they had received the February 28 email, that the President has appointed an acting chairman, and that the plaintiff was the new president of USADF.

On March 6, 2025, the acting chairman unilaterally removed the plaintiff as president of USADF and appointed himself as president. Since then, both the plaintiff and the acting chairman claim to be USADF’s president.

This case challenges Trump’s efforts to reduce the function of the USADF. The plaintiff filed suit alleging that his purported removal as president of USADF and Trump’s appointment of an acting chairperson were ultra vires in violation of statutory authority and violated the separation of powers. He also alleged that the President’s actions violated the Administrative Procedure Act (APA). The plaintiff sought preliminary and injunctive relief, and declaratory judgments, among other relief.

The plaintiff also moved for an administrative stay and a TRO. The court entered an administrative stay and ordered additional briefing. Thereafter, the court denied the TRO. The plaintiff then moved for summary judgment on all claims or, in the alternative, a preliminary injunction. The defendants filed a cross motion for summary judgment on all claims.

Standing. At the outset, the court determined that it had jurisdiction over the plaintiff’s challenge to his purported removal. Assuming the merits of his removal arguments, his termination was a cognizable injury directly traceable to the defendants, and his injury was redressable since the court may “enjoin ‘subordinate executive officials’ to reinstate a wrongfully terminated official ‘de facto.’” Accordingly, the plaintiff had standing to pursue his removal claims.

Merits. However, the court found that summary judgment was warranted for the defendants. The parties agreed that the President can effectuate removal of USADF’s board members by providing them notice. They disputed whether that occurred. The defendants argued that the four board members did not have the authority to appoint the plaintiff as president of USADF because Trump fired the board prior to the March 3 board meeting. On the other hand, the plaintiff argued that Trump had not affected the removals of those board members because they had not yet received notice.

The court disagreed with the plaintiff, finding that Trump had removed the board prior to the plaintiff’s appointment. Because the plaintiff was not lawfully appointed, removal claims failed.

Removal. The “President may remove anyone he appoints,” unless Congress “wishes to restrict the President’s removal power,” which it “must make clear in a statute.” Here, Congress has not placed restrictions on the President’s removal power of the board members. USADF’s organic statute is silent on a board member’s removal and does not “clearly express a congressional intent to trim the President’s removal power.” The statutory structure of the board also does not curtail the President’s removal power. While the board members have a defined term, that—“standing alone”—is not a restriction on the President’s removal power.

It was undisputed that Trump decided to remove the board members. The unambiguous language of the President Personnel Office’s emails informed the board members that their position as a member of the USADF was terminated, effective immediately.

However, that did not end the court’s analysis. Since the parties disputed whether Trump had actually removed the board members, the court had to determine whether their removals were in effect prior to the resolution to appoint the plaintiff. Here, the defendants showed that the board members’ removals were effective prior to his appointment on March 3. Even though the board members did not receive their termination emails, they were aware that, on February 28, the President Personnel Office emailed the CFO that, because the USADF was “Board-less,” the acting board chair had been appointed. As such, the CFO effectively notified the board members of their terminations.

Accordingly, the court found that summary judgment was warranted for the defendants on the plaintiff’s removal claims.

The case is No. 25-660 (RJL).

Judge: Leon, R.

Attorneys: Joel McElvain (Democracy Forward) for Ward Brehm. Abhishek Kambli, U.S Department of Justice, for Pete Marocco.

Companies: U.S. Department of Government Efficiency Service

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