Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—D.D.C.: IAF president, removed by Trump, entitled to preliminary injunction reinstating her to her position, (Apr 7, 2025)

By Kathleen Kapusta, J.D.

“While pursuing government efficiency is a valid goal, it must be carried out lawfully. Defendants have not done so here.”

Finding that neither President Trump nor or a “supposed” Inter-American Foundation (IAF) Board member had the authority to fire the IAF president and CEO, and that she has shown she will face irreparable harm without judicial intervention, including the very survival of the IAF, a federal court in the District of Columbia granted her motion for a preliminary injunction directing that she be reinstated to her position and voiding all decisions made by the board member on IAF’s behalf. In so ruling, the court also noted that “the equities and public interest in ensuring that Defendants abide by constitutional guardrails when appointing and removing federal officials is significant, and Defendants cannot persuasively argue otherwise” (Aviel v. Gor, No. 25-778 (LLA) (D.D.C. Apr. 4, 2025)).

The IAF, observed the court, is “a half-century-old independent agency created by Congress to support the United States’ strategic interests in La[t]in America and the Caribbean.” Pursuant to the Inter-American Foundation Act, IAF is required to have a bipartisan Board of Directors comprised of “nine members appointed by the President, by and with the advice and consent of the Senate,” of which no more than five members may belong to a single political party. Board members serve six-year terms and upon expiration of their term, they continue to serve until a successor is appointed and has been qualified.

Appointment. The Board is empowered to appoint the president of the IAF, who also serves as the IAF’s CEO. In March 2022, it appointed Sara Aviel, the plaintiff, to that position.

Executive Orders. Pursuant to Executive Order 14,158, Establishing and Implementing the President’s Department of Government Efficiency, signed on January 20, 2025, the President created the “United States DOGE Service (USDS) within the Executive Office of the President.” It also created the role of the United States DOGE Service Administrator and put the Administrator in charge of “the U.S. DOGE Service Temporary Organization.”

On February 19, the President issued Executive Order 14,217, Commencing the Reduction of the Federal Bureaucracy, which has a stated purpose of “reduc[ing] the size of the Federal Government” and identifies several federal entities, including the IAF, that “shall be eliminated to the maximum extent consistent with applicable law.”

DOGE. Two days after the EO’s signing, DOGE representatives and a lawyer with the Executive Office told Aviel and other IAF officials that DOGE intended to layoff most, if not all, of IAF’s employees and terminate all but a handful of its grants and contracts. Aviel was also instructed to immediately contact the IAF Board to see if they would agree to DOGE’s plan. She was told that if the Board was not aligned with this plan, it would be replaced.

Terminated. On February 26, Aviel was informed in an email that she had been terminated from her position. Two days later, IAF’s COO was told that President Trump had appointed an acting IAF Board Chair and that “there were no other remaining members of the Board of the IAF.” Around that same time, the acting IAF Board Chair voted to appoint himself as the IAF’s acting president and CEO. He then sent a directive to the U.S. Treasury’s Administrative Resource Center commanding that it terminate IAF’s contracts. All but a handful of “critical” contracts were terminated. Not long after, the acting president named himself as Board Chair, President, and CEO of the IAF. He and DOGE then notified “most IAF staff that they would be placed on administrative leave.”

Aviel subsequently filed suit and moved for a temporary restraining order and a preliminary injunction.

Likelihood of success on the merits. Finding that Aviel demonstrated an overwhelming likelihood of success on the merits of her lawsuit, the court explained that under the Appointments Clause, the President can, with the advice and consent of the U.S. Senate, appoint what are known as “principal officers” while Congress dictates the mechanisms for appointing “inferior” officers. “Generally speaking,” said the court, “an officer whose work is ‘directed and supervised’ by a principal officer is an inferior officer.”

The parties agreed that each Senate-confirmed IAF Board member is a principal officer of the IAF, and the President has the authority to fire any or all IAF Board members. They also agreed that Aviel is an inferior officer under the Appointments Clause. They disputed, however, whether the President had the authority to terminate Aviel. The court, however, pointed out that Congress chose to give the IAF Board appointment power over the IAF president. “Congress’s enactment of the IAF’s organic statute and other relevant legal authorities,” said the court, “make clear that the Board holds hiring and firing power over the IAF’s president and CEO.” Accordingly, the court found that to the extent the President purported to terminate Aviel from that role, it violated the Appointments Clause.

Appointment of acting IAF Board member. The court also “vehemently” disagreed with the defendants’ argument that even if the President did not have the authority to fire Aviel, the acting IAF Board member had the power to remove her after the President appointed him as an acting IAF Board member. But the “President’s ability to appoint principal officers simultaneously flows from and is limited by the text of the Appointments Clause,” the court stated, and principal officers nominated by the President must be confirmed by the Senate.

FVRA. The court pointed out that under the Federal Vacancies Reform Act (FVRA), if a vacancy for a principal officer arises, the President may direct a person “to perform the functions and duties of the vacant office temporarily [and] in an acting capacity, subject to the time limitations” set forth in the statute. It does not apply, however, to “any [principal officer] who is appointed by the President... to any board, commission, or similar entity that” “is composed of multiple members” and “governs an independent establishment or Government corporation.” And here, said the court, both parties agreed that the IAF was such an entity.

For their part, the defendants argued that because the FVRA was not applicable, the IAF fell entirely out of its scope and thus the statute’s limitations could not constrain the President from appointing acting members of IAF’s Board. Disagreeing, the court explained that pursuant to the FVRA’s provisions, “even if the President purports to appoint an officer to a Board-like entity in an acting capacity—something he cannot do under the FVRA in the first place—any actions by that officer are null and void.”

Inherent power. Nor was the court persuaded by the defendants’ argument that if the President cannot appoint acting members under the FVRA, he has “inherent” power to do so under Article II. “Not only does this ignore the FVRA’s clear statement that the FRVA is the ‘exclusive means for temporarily [appointing] an acting [principal] official,’” the court wrote, “it asserts a broad, heretofore unrecognized expansion of Executive power that would eviscerate key parts of the Constitution.” While the court acknowledged “the importance of permitting the President to hire who he wishes,” it noted that “does not give him a license to barrel over ‘[constitutional] safeguard[s]’ in the process.”

Take Care Clause. The defendants next argued that in order to faithfully execute the laws, the President must be able to ensure the continued functioning of government agencies like the IAF. But the President, observed the court, did not have to terminate the bipartisan members whom the Senate had previously confirmed to the IAF’s Board. “Having exercised his authority to do so—authority that no one challenges—the fact that there is no Board member to relieve Ms. Aviel of her duties is a problem of the President’s own making.” As a result, the court found that Aviel could carry on as the IAF’s president and CEO until a Presidentially nominated and Senate-confirmed IAF Board decides otherwise.

Irreparable harm. As to irreparable harm, Aviel argued that being removed as president of the IAF inflicts an irreparable injury because it “entails the professional loss of a once-in-a-lifetime job, the economic losses attendant to any termination, the reputational harm associated with the loss of a prominent government position, and the stripping of the ability to direct the function and direction of the IAF.” She also argued that the “loss of the statutorily-prescribed right to continue serving as President of the IAF is an irreparable harm in its own right.”

After pointing out that the mere loss of employment is normally not enough to show irreparable harm and that the harm that comes from the loss of a “statutory right to function” is less clear and that precise question is currently pending before the D.C. Circuit, the court noted that Aviel also identified an additional layer of harm on top of her basic “right to function” as the IAF’s president. Specifically, she argues that the very survival of her organization is at stake. “Reinstatement,” said the court, “matters little if the officer of a government organization returns to a pile of rubble.”

Here, the court pointed out that the current, ostensible leadership of the IAF intended to fire every employee except one by the end of the day on April 4, 2025, and that all of its grants, except one agreement for $66,000, have been canceled. “This unique, irremediable harm distinguishes this case from those where the plaintiff only pleads the loss of her own right to function in a role,” the court stated. Because “Ms. Aviel can likely establish that she is the lawful president of the organization,” it continued, “her right to serve in that role is inextricably intertwined with the organization’s survival.” If IAF is, during the pendency of the litigation, “reduced to ash,” no amount of relief would resurrect her right to function.

Balance of equities and public interest. Finally, the court found the equities and the public interest weigh heavily in favor of “having governmental agencies abide by the federal laws that govern their existence and operations.” And while pursuing government efficiency is a valid goal, “it must be carried out lawfully. Defendants have not done so here.” Accordingly, the court granted Aviel’s motion for a preliminary injunction.

The case is No. 25-778 (LLA).

Judge: Alikhan, L.

Attorneys: Aaron Simcha Jon Zelinsky (Zuckerman Spaeder) for Sara Aviel. John Bardo, U.S. Department of Justice, for Sergio Gor.

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