Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Law allows President to fire privacy board members without cause, appeals court told, (Aug 19, 2025)

By Tom Leithauser

In January, President Trump fired the three Democrats on the PCLOB board; two of them successfully challenged their termination in U.S. District Court.

President Trump didn’t need to provide a reason for firing two members of the Privacy and Civil Liberties Oversight Board (PCLOB) because the statute that created PCLOB doesn’t give board members any protection from removal, according to the Department of Justice.

“The PCLOB’s organic statute authorizes the President to appoint a full-time Chair and four additional Board members for six-year terms, subject to Senate confirmation,” DoJ told the U.S. Court of Appeals for the District of Columbia Circuit.

“The statute makes no mention of removal. It is black-letter law that absent a ‘specific provision to the contrary, the power of removal from office is incidental to the power of appointment,’” DoJ said, citing case law.

“Accordingly, the President may remove PCLOB members at will,” it said in its opening brief 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).

In January, President Trump fired the three Democrats on the PCLOB board, Travis LeBlanc, Ed Felten, and Sharon Bradford Franklin. Messrs. LeBlanc and Felten successfully challenged their termination in U.S. District Court for the District of Columbia Circuit.

Senior Judge Reggie Walton decided that the PCLOB, as a multi-member board with membership allocated between Republican and Democratic appointees, is akin to the Federal Trade Commission and that the Supreme Court’s 1935 ruling in Humphrey’s Executor v. United States insulates PCLOB members from being dismissed for political reasons (CPR, May 21).

But Judge Walton erred “several times over” by ordering the reinstatement Messrs. LeBlanc and Felten, DoJ argued. “The district court... found that PCLOB members have removal protections that appear nowhere in the statutory text,” it said.

“As an initial matter, the Supreme Court recently reiterated that ‘to take away the power of at-will removal from an appointing officer, Congress must use very clear and explicit language,’” DoJ told the court.

“It is also particularly implausible that when Congress reconstituted the PCLOB in 2007 and significantly rewrote the statute, it would have established a removal restriction through inferences rather than through statutory text,” it added.

The appeals court has already decided that the government is likely to prevail in the case when it removed an injunction imposed by Judge Walton to protect Messrs. LeBlanc and Felten from any adverse actions by PCLOB’s remaining member or its staff (CPR, July 7).

Messrs. LeBlanc and Felten are due to file their opening briefs in the case on Sept. 5.

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