Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—D.D.C.: Civil liberties and privacy oversight board members unlawfully removed by Trump, (May 22, 2025)

By Kathleen Kapusta, J.D.

“In our founders’ astute and perceptive wisdom, ‘[c]hecks and balances were established in order that this should be a government of laws and not men.’”

Granting summary judgment in favor of two Privacy and Civil Liberties Oversight Board (PCLOB) members who were removed from their positions without cause by President Trump, a federal district court in D.C. found that the PCLOB’s structure and function—as a multimember, nonpartisan, expert oversight board—is incompatible with at-will Presidential removal, and that Congress’s restriction of the President’s removal authority regarding PCLOB members comports with the separation of powers. In addition to declaring their terminations unlawful, and null and void, the court found warranted the issuance of a permanent injunction against all defendants, except the President, reinstating the members to their positions on the Board (LeBlanc v. U.S. Privacy and Civil Liberties Oversight Board, No. 25-542 (RBW) (D.D.C. May 21, 2025)).

In the aftermath of the 9/11 terrorist attacks, Congress enacted the Intelligence Reform and Terrorism Prevention Act, which established the PCLOB within the Executive Office of the President (EOP) to engage in an oversight function recommended by the 9/11 Commission. The PCLOB consisted of a chairman and vice chairman who were to be appointed by the President with the advice and consent of the Senate as well as three additional members appointed by the President without the Senate’s confirmation. Rather than delineating a term of service, Congress prescribed that all PCLOB members “shall each serve at the pleasure of the President.”

Reconstituted. Several years later, Congress enacted legislation—the 9/11 Commission Act—which removed the Board from the EOP and reconstituted it as an independent agency within the Executive Branch. The Act also directed that all members of the Board were to be appointed by the President with the advice and consent of the Senate, directed that no more than three members of the Board be of the same political party, removed the provision stating that members would serve at the pleasure of the President, and added a provision directing that each member would serve a six-year term.

Congress also expanded and clarified the PCLOB’s core functions, providing, among other things, that it would advise Congress and the Executive Branch on the consideration of privacy and civil liberties concerns in the proposal and implementation of legislation, regulations, and policies relating to counterterrorism, as well as on proposals to retain or enhance certain government powers. It also required PCLOB to submit semiannual reports to Congress and the President and to play a role in educating the public regarding its work. Congress further removed language in the prior version of the PCLOB’s organic statute directing that “[t]he Board shall perform its functions within the [E]xecutive [B]ranch and under the general supervision of the President.”

Terminations. In January 2025, the plaintiffs, two Democratic members of the PCLOB, received emails from the administration asking them to resign. When they refused, they received emails stating that their positions had been terminated. The emails did not identify any cause or offer any explanation for their terminations. The third Democratic PCLOB member was also terminated, leaving only one Board member, a Republican.

Challenging their terminations as unlawful, they sued the Board, its remaining member, the executive director, and President Trump, among others. They sought declaratory and injunctive relief. Both parties moved for summary judgment.

Unlawful? The plaintiffs argued they were entitled to summary judgment because the PCLOB’s organic statute prohibits the President from removing Board members without cause. The defendants countered that the statute does not impose any restrictions on the President’s authority to remove Board members. According to the plaintiffs, the removal of the PCLOB from the EOP, the deletion of statutory language stating that Board members served at the pleasure of the President, the deletion of language stating that the Board was to perform its work “under the general supervision of the President,” the addition of a requirement of partisan balance, and the addition of a fixed term-of-office provision amount to a clear indication of Congress’s intent to limit the President’s removal power, despite the lack of any express textual removal restriction in the statutory language.

Disagreeing, the court found that the statute’s plain text did not clearly indicate Congress’s intent to impose a removal restriction. The court found it especially noteworthy that when Congress revised the statute, it did not include an express protection against removal.

Structure and function. The plaintiffs also argued that Congress clearly indicated its intent to restrict removals through the statutory structure and function of the PCLOB. In support, they pointed to the Board’s composition, requirements for the appointment of members, and the structure of members’ terms, which they claimed reflected Congress’s design to insulate members from presidential control and removal. They also claimed the Board’ “functions make clear that independence from presidential influence is critical and that Congress thus could not have sought to allow removal at will.”

Citing the D.C. Circuit’s 2023 decision in Severino v. Biden, the court noted that Congress can make a removal restriction clear based on the “structure and function” of the agency. According to the Circuit, the court observed, “under Humphrey’s Executor’s and Wiener’s binding precedent, when Congress assigns to an agency quasi-judicial or quasi-legislative functions that are deemed to be operationally incompatible with at-will Presidential removal, that can be a relevant signal that Congress meant for members of that agency to be shielded from Presidential removal, even without an explicit textual statement to that effect.”

Here, the court found that the PCLOB’s structure was clearly “patterned on the classic” multimember expert board at issue in Humphrey’s Executor. Its members are appointed by the President and confirmed by the Senate; they are selected based on their expertise regarding civil liberties and privacy; and they are not, and cannot be, members of the Executive Branch. The PCLOB is also designed to be nonpartisan and the members serve staggered six-year terms.

The court also found the PCLOB’s function was squarely in line with those of the multimember expert boards recognized by Humphrey’s Executor and its progeny. While the PCLOB provides advice to the Executive Branch, many of its responsibilities are also to Congress. Indeed, said the court, the PCLOB is required to inform Congress of any recommendations made to the Executive Branch that were not adopted to ensure that Congress is aware of any areas for further oversight or legislation in the absence of Executive Branch action. Further, when performing its factfinding, investigatory, and monitoring functions, the Board is often required to criticize the policies of the Executive that are contrary to privacy and civil liberties.

Accordingly, the court found it clear that PCLOB’s function “is not only to provide information and advice that the President desires to receive, but is rather to act as an independent, objective check on the exercise of the government’s counterterrorism authorities.” Thus, said the court, the Board’s structure and function clearly indicates Congress’s intent to protect its members from removal, at least without cause.

Separation of powers. Turning to whether those restrictions violate the separation of powers, the court framed the issue as whether the PCLOB members “closely resemble[] the FTC Commissioners” as described by the Supreme Court in Humphrey’s Executor. Concluding that they do, the court found Congress could constitutionally protect them from removal.

First, the court found the PCLOB mirrors the 1935 FTC at issue in Humphrey’s Executor in that it is composed of five members, with no more than three from the same political party; the selection criteria emphasize the substantive expertise and qualifications for these members; and the Board is nonpartisan in nature. These features clearly indicate it was designed to be nonpartisan and to act impartially. Further, its duties, rather than being political, are the product of the trained judgment of a body of experts and its members’ staggered terms allow it to accumulate technical expertise. Nor does the PCLOB exercise substantial executive power.

While the defendants argued that the PCLOB is a freestanding executive agency that performs executive functions, the court found it has no authority to compel or otherwise bind the Executive Branch to do or cease doing anything. Although it may have access to certain information and interact with members of the Executive Branch, its “powers of investigation,” said the court, clearly enable its responsibilities not just to the Executive Branch, but also to make recommendations to Congress.

Accordingly, the court found Congress’s restriction of the removal authority comported with the separation of powers, the restriction was constitutional, and the removals, which were without cause, were unlawful.

Declaratory judgment. As to the appropriate remedy, the court agreed with the plaintiffs that they were entitled to a declaratory relief declaring their terminations unlawful and therefore null and void.

Injunctive relief. Addressing their request for injunctive relief reinstating them to their positions against all defendants except the President, the court found that based on D.C. Circuit precedent, it had the authority to provide them with the requested relief.

Turning to whether they were entitled to such relief, the court rejected their contention they suffered irreparable harm because they were not entitled to money damages in light of their part-time status as Board members and the fact that they are only paid for days in which they perform their duties. Finding their compensation modest and not the reason they serve as Board members, the court found the harm was not irreparable.

Regarding their argument they suffered irreparable harm by being deprived of their statutory right to function as members of the PCLOB, the court found their removals by the President constituted a “genuinely extraordinary situation” and implicate core separation of power issues. Further, said the court, their “removals give rise to irreparable harm by depriving them of their ‘statutory rights to function as [PCLOB members]’ and thereby impeding the ability of the PCLOB to function as envisioned by Congress.”

Regarding the balance of equities and public interest, the court noted that the PCLOB’s statutory obligations are significantly impeded by the loss of a quorum due to the plaintiffs’ challenged removals. The court also noted the general but “substantial public interest in the for-cause removal protections Congress has given to certain members of independent agencies” and specifically, the substantial public interest in these protections as they relate to the PCLOB and its statutory mandate. “There is a substantial public interest in the effective oversight of the government’s counterterrorism actions and authorities, which is furthered by independent, candid, and expert advice being provided to the President, as well as to Congress as it debates reauthorizing important—yet controversial—authorities that have significant potential impact on privacy and civil liberties.”

Accordingly, the court found plaintiffs were entitled to the issuance of a permanent injunction against all defendants except the President. Finally, said the court, if injunctive relief were found to be unavailable to the plaintiffs, mandamus would be appropriate here, especially because it provides essentially the same relief as their requested injunctive relief.

The case is No. 25-542 (RBW).

Judge: Walton, R.

Attorneys: Daniel Reuben Yablon (Arnold & Porter Kaye Scholer) for Travis LeBlanc and Edward Felten. Douglas C. Dreie, U.S. Attorney's Office, for U.S. Privacy and Civil Liberties Oversight Board.

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