Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—D.D.C.: Trump Administration enjoined from removing MSPB Chair while court considers preliminary injunction, (Feb 19, 2025)

By Kathleen Kapusta, J.D.

“Because the MSPB falls within the scope of Humphrey’s Executor, Congress has the power to specify that members of the MSPB may serve for a term of years, with the President empowered to remove those members only for inefficiency, neglect of duty, or malfeasance in office.”

Not only did the Chairman of the Merit Systems Protection Board, who had been terminated by President Trump in a one sentence email, demonstrate that she was likely to show her termination was unlawful, she also established that “this case represents a ‘genuinely extraordinary situation’ meriting relief for a discharged Government employee,” a federal court in the District of Columbia ruled. Granting the Chairman’s motion for a temporary restraining order, allowing her to continue to serve until it rules on a preliminary injunction, the court also found “substantial public interest in the protections from removal Congress has given to certain members of independent agencies” (Harris v. Bessent, No. 25-412 (RC) (D.D.C. Feb. 18, 2025)).

Created under the Civil Service Reform Act (CSRA), the MSPB was established as “an independent agency consisting of three members” and charged “with protecting the merit system principles and adjudicating conflicts between federal workers and their employing agencies.” Members are “appointed by the President, by and with the advice and consent of the Senate,” and “not more than 2 of [the members] may be adherents of the same political party.” Members may be removed only for inefficiency, neglect of duty, or malfeasance in office.

The Chairman was nominated by President Biden to be a member of the MSPB in June 2021 and renominated in January 2022. She was confirmed by the Senate in May and sworn in the following month for a term expiring in March 2028. She was later sworn in as Chairman in March 2024.

Termination email. In February 2025, the Chairman received an email stating in its entirety: “On behalf of President Donald J. Trump, I am writing to inform you that your position on the Merit Systems Protection Board is terminated, effective immediately. Thank you for your service[.]” The next day, she sued the Secretary of the Treasury, claiming that her firing was ultra vires, unconstitutional, and a violation of the Administrative Procedure Act. She also sought a TRO.

Likelihood of success. In support of her contention that she was likely to prevail on the merits of her claims, the Chairman pointed to the U.S. Supreme Court’s 1935 decision in Humphrey’s Executor v. United States and its progeny, which, she argued, confirm the constitutionality of the conditions placed on removal of MSPB members. In Humphrey’s Executor, the Supreme Court confirmed that the termination by President Franklin Roosevelt of Humphry, for differences of political opinion, two years after he had been appointed by President Hoover to the FTC for a seven-year term, was unlawful. Observing that the FTC “acts in part quasi legislatively and in part quasi judicially” rather than exercising traditional executive powers, the Court found it “plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named.”

Wiener. Two decades later, in Wiener v. United States, the Court, considering President Eisenhower’s removal of a member of the War Claims Commission, whom President Truman had appointed and the Senate had confirmed, reaffirmed that the President had “no such power” to “remove a member of an adjudicatory body like the War Claims Commission merely because he wanted his own appointees on such a Commission.”

Seila Law. More recently, the court here noted, the Supreme Court, in its 2020 Seila Law LLC v. Consumer Financial Protection Bureau decision, explained that Humprey’s Executor“permitted Congress to give for-cause removal protections to a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.”

Observing that the case here “appears to be on all fours with Humphrey’s Executor,” the court noted that the MSPB is “a multimember body of experts” that is “balanced along partisan lines,” its duties are quasi-judicial, and its members are appointed for fixed terms of office. It also regulates government activity rather than that of private parties, and its mission and purpose require independence. Indeed, said the court, “Direct political control over the MSPB would have limited effect on the President’s implementation of his policy agenda” and its independence is “structurally inseparable from the CSRA itself.”

“Because the MSPB falls within the scope of Humphrey’s Executor, Congress has the power to specify that members of the MSPB may serve for a term of years, with the President empowered to remove those members only for inefficiency, neglect of duty, or malfeasance in office,” the court wrote. Noting that the President did not indicate any of these reasons in his termination email to the Chairman, the court found she demonstrated she was likely to show her termination was unlawful.

Irreparable harm. As to irreparable harm, the court noted that the Chairman was appointed to head a federal agency and confirmed by the Senate and the conditions under which the President can end her tenure “are made plain by federal statute and supported by ninety years of Supreme Court precedent.” The court found instructive the Supreme Court’s decision in Berry v. Reagan, which found that members of the Civil Rights Commission who were terminated by President Reagan three years after their appointments established irreparable injury because denial of preliminary relief would have an “obviously disruptive effect” on “the Commission’s final activities.”

Dellinger. Citing further to Dellinger v. Bessent, the court noted that one judge in the circuit recently issued a TRO under similar circumstances. In that case, the President terminated the Special Counsel of the Office of Special Counsel, who was appointed to a five-year term, and who, like here, could be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. In Dellinger, the court also turned to Berry, among other decisions, in determining that the Special Counsel was appointed for a fixed term and had a statutory mission that his removal rendered him unable to fulfill. “[T]he loss of the ability to do what Congress specifically directed him to do cannot be remediated with anything other than equitable relief,” the Dellinger court concluded.

As in Berry and Dellinger, observed the court here, the Chairman was appointed to and confirmed as a member of an agency charged with acting with a degree of independence from the President. “By vindicating their rights to occupy those offices, these plaintiffs act as much in their own interests as those of their agencies.” Moreover, said the court, in Humphrey’s Executor and Wiener, the Supreme Court similarly viewed the plaintiffs before them as vindicating the independence of their agencies. Noting that the Special Counsel was appointed to lead the Office of Special Counsel, and the Chairman here was appointed as one of three members of the MSPB, the court explained that “Striking at the independence of these officials accrues harm to their offices, as well.”

Shattered independence. “With this in mind,” said the court, “the irreparable harm in this case becomes clear.” If the President can displace independent agency heads from their positions for the length of litigation, their independence would shatter. Further, the court reasoned, even if it were to order the Chairman’s reinstatement after resolving the merits of her claims, “the MSPB’s congressionally mandated independence would be permanently marred by the threat of renewed removal and delayed reinstatement while litigation proceeds.”

Assuming the defendants’ actions are unlawful, the court found the Chairman also suffers irreparable harm because she is prevented from chairing the Board after her confirmation to that position. While the defendants argued that, because she has been removed from office and seeks to return she can suffer no injury in her capacity as a member of the MSPB, the court explained that, assuming the President lacked the power to terminate her without cause, she rightfully remains a Senate-confirmed member of the MSPB. Nor would any later reinstatement restore the state of affairs that existed prior to her purported termination as she would no longer serve as a member of a truly independent agency.

Accordingly, the court found the Chairman demonstrated a likelihood she will experience irreparable harm that cannot be remedied by her reinstatement once the merits have been decided.

Balance of equities/public interest. Finally, the court found it in the public interest to issue the TRO given “that federal law limits the conditions under which [the Chairman’s] tenure may be terminated, Supreme Court precedent supports the constitutionality of those conditions, and Defendants do not argue that those conditions were met here.” Moreover, said the court, there is “substantial public interest in the protections from removal Congress has given to certain members of independent agencies,” and the government “cannot suffer harm from an injunction that merely ends an unlawful practice or reads a statute as required.”

Accordingly, the court granted the Chairman’s motion for a TRO, ordering that she continue to serve as MSPB Chairman until it rules on a preliminary injunction.

The case is No. 25-312 (RC).

Judge: Contreras, R.

Attorneys: Michael J. Kator (Kator, Parks, Weiser & Weight) for Cathy A. Harris. Madeline McMahon, U.S. Department of Justice, for Scott Bessent.

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