Aviel v. Gor

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SARA AVIEL,

Plaintiff,

v. Civil Action No. 25 - 778 (LLA)

SERGIO GOR, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Sara Aviel was purportedly fired from her position as the president and Chief

Executive Officer (“CEO”) of the Inter-American Foundation (“IAF”) by either President of the

United States Donald J. Trump or supposed IAF Board member Pete Marocco. ECF No. 1 ¶¶ 1,

6, 69.1 She brings this suit seeking declaratory and injunctive relief against President Trump,

Mr. Marocco, and other government officials and entities (collectively, “Defendants”), see generally

id., and she seeks a temporary restraining order or a preliminary injunction directing that she be

reinstated to her position and that any actions by Mr. Marocco on the IAF’s behalf be deemed void

ab initio, ECF No. 5, at 1-2. For the reasons explained below, the court will grant Ms. Aviel’s

motion for a preliminary injunction, reinstate Ms. Aviel as the lawful president and CEO of the

IAF, and void all decisions Mr. Marocco has made on the IAF’s behalf because he lacked the

authority to make them.

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Throughout this opinion, the court will use lowercase to refer to Ms. Aviel’s contested position

at the IAF and uppercase to refer to the President of the United States.

I. FACTUAL BACKGROUND

A. The Inter-American Foundation

The Inter-American Foundation 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.”

ECF No. 1 ¶ 1. In particular, the IAF helps the U.S. government “direct[] its foreign development

aid to the most vulnerable and underserved people,” and it has “funded $945 million in small grants

to nearly 6,000 local organizations across nearly every Latin American and Caribbean country,”

to address issues including child abuse, sex trafficking, hunger, and poverty. Id. ¶¶ 2-3.

Through the Inter-American Foundation Act, 22 U.S.C. § 290f, passed in 1969, Congress

created the IAF and directed that it “shall have perpetual succession unless sooner dissolved by an

Act of Congress,” id. § 290f(e)(1). The Act requires that the IAF 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.

Id. § 290f(g). Members of the Board serve six-year terms and, “upon the expiration of [a

member’s] term of office[, the] member shall continue to serve until his successor is appointed

and shall have qualified.” Id. This structure “both serves and represents independence and

insulation from partisan politics.” ECF No. 1 ¶ 4.

Congress has further “vested in the IAF Board of directors . . . the authority to exercise ‘all

the powers of the Foundation.’” Id. ¶ 4 (quoting 22 U.S.C. § 290f(i)). Accordingly, the Board—

and only the Board—is empowered to appoint the president of the IAF, who also serves as the

IAF’s CEO. 22 U.S.C. § 290f(l)(1). In March 2022, the IAF Board appointed Ms. Aviel to be its

president and CEO. ECF No. 1 ¶ 15.

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B. Executive Order Nos. 14,158 and 14,217

On January 20, 2025, President Trump signed Executive Order 14,158 (“Establishing and

Implementing the President’s ‘Department of Government Efficiency’”). Exec. Order No. 14,158,

90 Fed. Reg. 8441 (Jan. 20, 2025). That order reorganized the United States Digital Service,

renamed it the “United States DOGE Service (USDS),” and “established [it] in the Executive

Office of the President.” Id. § 3. 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,” which the executive order also established. Id. The U.S. DOGE Service

Temporary Organization works to “advanc[e] the President’s 18-month DOGE agenda” of

“modernizing Federal technology and software to maximize governmental efficiency and

productivity.” Id. §§ 1, 3.

On February 19, 2025, President Trump 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 . . . [by] reduc[ing] . . . the elements of the Federal bureaucracy that the

President has determined are unnecessary.” Exec. Order No. 14,217 § 1, 90 Fed. Reg. 10577

(Feb. 19, 2025). The order identifies several federal entities, including the IAF, that “shall be

eliminated to the maximum extent consistent with applicable law” and “shall reduce the

performance of their statutory functions and associated personnel to the minimum presence and

function required by law.” Id. § 2. The executive order also requires “the head of each unnecessary

governmental entity listed in [the executive order to] . . . submit a report to the Director of the

Office of Management and Budget (OMB Director) confirming compliance with th[e] order and

stating whether the governmental entity, or any components or functions thereof, are statutorily

required and to what extent.” Id. Executive Order 14,217 further directs that when reviewing

grant requests made by the entities listed in the executive order, “the OMB Director or the head of

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any executive department or agency charged with reviewing grant requests . . . shall, to the extent

consistent with applicable law and except insofar as necessary to effectuate an expected termination,

reject funding requests for such governmental entities to the extent they are inconsistent with this

order.” Id.

C. Purported Termination of Ms. Aviel and other IAF employees

On February 19—the same day that President Trump issued Executive Order 14,217—

DOGE representatives requested to meet with Ms. Aviel and other IAF officials. ECF No. 1 ¶ 55.

To prepare for the meeting, Ms. Aviel and others “assembl[ed] discussion points showing how the

IAF had functioned in service of efficiency[] and how the agency was in alignment with the

administration’s aims stated in the Executive Orders.” Id. “Ms. Aviel sought to align the agency

with the President’s stated policy instructions permissible by law.” Id.

On February 20, two DOGE representatives—Nate Cavanaugh and Ethan Shaotran—met

with Ms. Aviel and the other IAF officials. Id. ¶ 56. The DOGE representatives “represented to

the IAF that they had been detailed to the General Services Administration (GSA) . . . [and]

informed the IAF that their goal was to support [the] IAF[’s] compliance with the President’s

Executive Order.” Id. IAF employees, including Ms. Aviel, “share[d] information on the IAF’s

compliance with the President’s Executive Orders and sought to highlight the agency’s efforts to

align with the administration’s priorities.” Id. ¶ 57. During the meeting, the DOGE representatives

“indicated that their purpose was to focus on obtaining access to the IAF’s systems”; to this end,

after the meeting, the DOGE representatives emailed the IAF representatives “a memorandum of

understanding with the GSA that provided for [Mr.] Cavanaugh to be detailed from the GSA to

the IAF.” Id. ¶ 58.

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On February 21, Ms. Aviel and other IAF representatives again met with Mr. Cavanaugh

and Mr. Shaotran, as well as Jacob Altik, a lawyer from the Executive Office of the President. Id.

¶ 59. Mr. Altik explained that, in his view, “the minimum statutory requirements for the IAF

entailed the existence of a Board and a President, a presence in the District of Columbia, and a

minimum level of grants and contracts.” Id. Accordingly, “DOGE intended to effectuate the

reduction-in-force [(“RIF”)] of most, if not all[,] of the IAF’s employees, and the termination of

all but a handful of the IAF’s grants and contracts.” Id. Ms. Aviel was instructed to immediately

contact the IAF Board to see if they would agree to DOGE’s plan. Id. ¶ 60. It was “suggested that

if the Board was not so aligned, DOGE intended to terminate the Board and install individuals

who were aligned with President Trump’s vision.” Id. When Ms. Aviel explained that such a

significant matter would require a formal Board meeting, and that arranging such a meeting on

short notice would be difficult because “the Board was subject to certain legal requirements before

convening,” the DOGE representatives explained that a Board meeting was not necessary because

“they just needed a quick ‘yes-or-no’ answer from the Board on alignment.” Id. ¶ 61.

After this meeting with the DOGE representatives, Ms. Aviel was informed by

“Congressional stakeholders from both parties, and from both the Senate and House, that the IAF

was legally restricted under the terms of Section 7063 of Division F of the Further Consolidated

Appropriations Act of 2024, Pub. L. No. 118-47[, 138 Stat. 460, 843] (2024) from initiating any

reduction in the IAF’s functions without first providing notice to Congressional appropriations

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committees.” Id. ¶ 62.2 Ms. Aviel was also notified that if she took “actions to reduce staff, it

would be in contravention of the appropriations enacted into law.” Id. (internal quotation marks

omitted). From February 21 through February 24, Ms. Aviel “spoke with each member of the IAF

Board multiple times to analyze all options and identify the best and most lawful path forward,”

and she “heard from multiple congressional stakeholders and legal experts that they believed the

DOGE plan was unlawful and contrary to congressional intent.” Id. ¶ 63.

On February 24, Mr. Altik contacted one IAF Board member and notified him that his

fellow Board members had been terminated. Id. ¶ 64. That same day, during a phone call with

Ms. Aviel, Mr. Cavanaugh and Mr. Altik stated that “with one exception, all members of the Board

had been terminated.” Id. ¶ 65. The DOGE representatives then “asked Ms. Aviel to confirm that

she would implement DOGE’s agenda in the absence of a Board,” and they “threatened that the

President would terminate her if she declined to do so.” Id. Ms. Aviel declined to respond to

DOGE’s requests without “more specificity as to those requests in writing and the opportunity to

determine whether they were legal.” Id. The DOGE representatives then asked Ms. Aviel to sign

a memorandum of understanding “agreeing that a DOGE representative would be detailed to the

agency and would be permitted access to the agency’s systems.” Id. Because she believed that

the full Board remained intact, and that she therefore did not have the authority to unilaterally sign

the memorandum, Ms. Aviel declined to sign. Id. After the call, Ms. Aviel confirmed that the

IAF Board members had not received termination letters. Id. ¶ 66.

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This legislation appropriated $47 million to the IAF through September 30, 2025, “[f]or necessary

expenses to carry out the functions of the Inter-American Foundation.” Further Consolidated

Appropriations Act of 2024, Div. F, 138 Stat. at 746. Congress also specified that the IAF may

not use appropriated funds to “expand, eliminate, consolidate, or downsize” the agency without

“prior consultation . . . with the appropriate congressional committees” and “a detailed

justification for any proposed action.” Id. at 843-44.

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On February 25, DOGE representatives directed the Senior Procurement Executive

(“SPE”) at the Department of the Treasury “to close all IAF contracts by the close of business on

February 27, 2025.” Id. ¶ 67. SPE “relayed this request to the U.S. Treasury’s Administrative

Resource Center [(‘ARC’)]—which . . . manages the IAF’s procurement and finance functions—

asking the ARC to cancel all IAF contracts,” including ones for “contracted field staff, who serve

as the agency’s local liaisons and monitoring and evaluation specialists abroad.” Id.

On February 26, Ms. Aviel received an email from Trent Morse, an employee at the

Presidential Personnel Office, “informing her that President Trump had . . . terminate[d] her from

her position as [p]resident and CEO of the IAF, effective immediately.” Id. ¶ 69. On February 28,

Mr. Morse informed the IAF’s Chief Operating Officer that President Trump had “appoint[ed]

Pete Marocco as the acting Chair of the Board of the IAF.” Id. ¶ 70. Mr. Morse “represented that

there were no other remaining members of the Board of the IAF,” even though “the IAF organic

statute provides that ‘upon the expiration of his term of office a member shall continue to serve

until his successor is appointed and shall have qualified.’” Id. (quoting 22 U.S.C. § 290f(g)).

Mr. Morse also explained that, while President Trump did not have “statutory authority under the

Federal Vacancies Reform Act or the Inter-American Foundation Act to appoint acting board

members . . . [he] had inherent authority under Article II [of the United States Constitution] to do

so.” Id.

Also on February 28, Mr. Marocco “visited the IAF office, seeking an ‘emergency board

meeting’ . . . [and] determined that because no one was there to let him, he was permitted to hold

the meeting outside the IAF office.” Id. ¶ 71. While Mr. Cavanaugh and Mr. Shaotran were

present at this meeting, Mr. Marocco “was the only purported Board member in attendance.” Id.

Mr. Marocco closed the meeting to the public and then voted to appoint himself as the IAF’s acting

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president and CEO. Id. Later that day, Mr. Marocco sent a directive to the ARC, commanding

that it terminate the IAF’s contracts. Id. ¶ 72. The ARC thereafter informed an IAF representative

that it would be taking immediate steps to comply with the order, “as authorized by the IAF’s

newly-appointed President Peter Marocco.” Id. (internal quotation marks omitted). Although the

IAF representative “proposed revisions to the termination list in an effort to preserve certain

contracts,” the ARC terminated nearly all of the IAF’s contracts that evening, “with the exception

of a handful that were flagged as critical operations, such as HR and IT.” Id. ¶ 73.

On March 2, IAF Board members informed Ms. Aviel that they planned to “serve in their

positions until new Board members were duly appointed and confirmed by the Senate, consistent

with statutory law”; explained that they believed that Ms. Aviel remained the IAF’s president and

CEO; and “directed Ms. Aviel to oversee the continuation of the IAF’s regular operations,

including monitoring and oversight of the agency’s grantees.” Id. ¶ 74.

The next day, Mr. Marocco “circulated a Board Resolution, naming himself as Board

Chair, President, and CEO of the IAF.” Id. ¶ 75. That same day, the IAF’s Chief Operating Officer

emailed all IAF staff members explaining that Ms. Aviel had been terminated on February 28, and

that “Pete Marocco has been appointed as Acting Chairman, President and CEO of Inter-American

Foundation to implement the President’s Executive Order signed on February 19, 2025.” Id. ¶ 76.

Shortly thereafter, Mr. Marocco and DOGE notified “most IAF staff that they would be placed on

administrative leave.” Id. ¶ 77. IAF employees were then “shut out of the IT systems” and the

IAF’s website was “taken down.” Id. Although the IAF office still remains open, “there are only

three employees remaining who have not been placed on administrative leave and who have access

to the building.” Id. Staff members have since received RIF notices informing them that their

official separation date will be today, April 4, 2025. Id. ¶ 81.

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Within the span of seventy-two hours, Mr. Marocco and DOGE had terminated “virtually

all existing IAF grants.”3 Id. ¶ 78. Beginning on March 4, grantees were ordered to “‘send

remaining unspent funds to the IAF’ within fifteen days (that is, [by] March 19) and to submit their

‘final programmatic and financial report no later than April 2, 2025.’” Id. ¶ 79. As a result of the

termination of their grants, the IAF’s grant recipients “will face legal and financial challenges

based on the pause and cancellation of agreements signed with the IAF.” Id. And “[i]n direct

response to DOGE’s actions,” the IAF’s philanthropic partners have also requested “that their

donations be returned.” Id. ¶ 80.

II. PROCEDURAL HISTORY

Ms. Aviel filed this action on March 17, 2025. ECF No. 1. The same day, she moved for

a temporary restraining order and a preliminary injunction. ECF No. 5. On March 19, the parties

appeared before the court for a status conference. See Mar. 19, 2025 Minute Entry. To give the

parties time to fully brief Ms. Aviel’s motion, Defendants agreed to (1) suspend the deadline by

which the IAF’s grantees would be required to return grant funds until the resolution of Ms. Aviel’s

motion, and (2) hold any already returned funds at the IAF. See Tr. of Status Conf., at 29:22-31:7

(D.D.C. Mar. 19, 2025). The court then set a briefing schedule and scheduled a motions hearing

for April 2. See Mar. 19, 2025 Minute Order. On March 27, the court consolidated the motions

hearing in this case with the one in Cristosal Human Rights v. Marocco, No. 25-CV-857—a suit

brought by several of the IAF’s grantees. See Mar. 27, 2025 Minute Order. On April 2, the court

3

A single grant with $66,000 remaining—which will soon expire—is the only grant that has not

yet been terminated. ECF No. 1 ¶ 78. The IAF “also continues to own a single equity investment

in a microfinance institution.” Id.

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heard oral argument on the pending motions in both cases. See Apr. 2, 2025 Minute Entry.

Ms. Aviel’s motion is now fully briefed, ECF Nos. 5, 19, 20, and is ripe for resolution.

III. LEGAL STANDARDS

To obtain a preliminary injunction, “the moving party must show (1) a substantial likelihood

of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted,

(3) that an injunction would not substantially injure other interested parties, and (4) that the public

interest would be furthered by the injunction.” Chaplaincy of Full Gospel Churches v. England,

454 F.3d 290, 297 (D.C. Cir. 2006). These four considerations are factors, not elements. “A

district court must ‘balance the strengths of the requesting party’s arguments in each of the four

required areas.’” Id. (quoting CityFed Fin. Corp. v. Off. of Thrift Supervision, 58 F.3d 738, 747

(D.C. Cir. 1995)). When a government entity is a party to the case, the third and fourth factors

merge. Pursuing Am.’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 511 (D.C. Cir. 2016).

Before the Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc.,

555 U.S. 7 (2008), courts in this Circuit tended to employ a “sliding scale” method in which “a

strong showing on one factor could make up for a weaker showing on another.” Sherley v.

Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). While the D.C. Circuit has considered abandoning

the sliding-scale method for one that treats the substantial likelihood prong as “an independent,

free-standing requirement,” id. at 393, it has yet to decide the issue one way or the other, see

Changji Esquel Textile Co. v. Raimondo, 40 F.4th 716, 726 (D.C. Cir. 2022). At the very least,

however, the plaintiff must present a “serious legal question on the merits.” Raimondo, 40 F.4th

at 726 (quoting Sherley, 644 F.3d at 398). Given the ambiguity with respect to the sliding-scale

approach, the court will consider all factors and delve into their relative weight only if it would

affect the outcome. See Costa v. Bazron, 456 F. Supp. 3d 126, 133 (D.D.C. 2020).

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IV. DISCUSSION

While the parties primarily dispute the first two factors of the preliminary-injunction test,

the court determines that each factor weighs in favor of granting a preliminary injunction. In

addition to demonstrating an overwhelming likelihood of success on the merits, Ms. Aviel shows

that she will suffer irreparable harm absent an injunction and that the merged factors of the balance

of the equities and the public interest favor preliminary relief.

A. Likelihood of Success on the Merits

Under the Appointments Clause of the United States Constitution:

[The President] shall nominate, and by and with the Advice and

Consent of the Senate, shall appoint Ambassadors, other public

Ministers and Consuls, Judges of the supreme Court, and all other

Officers of the United States, whose Appointments are not herein

otherwise provided for, and which shall be established by Law: but

the Congress may by Law vest the Appointment of such inferior

Officers, as they think proper, in the President alone, in the Courts

of Law, or in the Heads of Departments.

U.S. Const., art. II, § 2. Put simply, this means that the President of the United States can

appoint—with the advice and consent of the U.S. Senate—what are known as “principal officers,”

whereas Congress dictates the mechanisms for appointing “inferior [o]fficers.” United States v.

Arthrex, Inc., 594 U.S. 1, 12-13 (2021). Whether a particular officer is a “principal officer” or an

“inferior officer” “depends on whether [s]he has a superior.” Edmond v. United States, 520 U.S.

651, 662 (1997). Generally speaking, an officer whose work is “directed and supervised” by a

principal officer is an inferior officer. Id. at 663.

With these principles in mind, three key issues are not disputed in this case. First, the

parties agree that each Senate-confirmed IAF Board member is a principal officer of the IAF

because it “direct[s] the exercise of all the powers of the [IAF].” ECF No. 5-1, at 17 (quoting 22

U.S.C. § 290f(i)); see ECF No. 19, at 6-7. Second, the parties concur that the President of the

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United States has the authority to fire any IAF Board member—or, indeed, all of them. See Tr. of

Prelim. Inj. Hr’g, at 18:3-6 (D.D.C. Apr. 2, 2025) (Counsel for Ms. Aviel: “We are not arguing

that the [P]resident lacks authority to remove members of the board. We grant that the case law

allows that and that the board members can be removed.”); ECF No. 19, at 6. Third, the parties

do not dispute that Ms. Aviel is an inferior officer under the Appointments Clause. See ECF

No. 5-1, at 17 (arguing that Ms. Aviel is “[a]t all times” “‘subject to supervision and oversight’ by

the principal officer of the organization, the Board” (quoting Fleming v. U.S. Dep’t of Agric., 987

F.3d 1093, 1103 (D.C. Cir. 2021))); see generally ECF No. 19 (failing to contest whether

Ms. Aviel is an inferior officer).

What is disputed in this case is (1) whether the President had the power to terminate

Ms. Aviel, an inferior officer; and (2) whether the President had the power to appoint Mr. Marocco

as an acting “principal officer,” in which case, he could have terminated Ms. Aviel and taken the

above-discussed actions on behalf of the IAF. At this stage of the case, Ms. Aviel has convincingly

shown that the answer to both questions is “no.”

1. Whether the President had the authority to terminate Ms. Aviel

In enacting the IAF’s organic statute, Congress directed that the organization’s president

“shall be appointed by the Board of Directors on such terms as the Board may determine.” 22

U.S.C. § 290f(l)(1). Consistent with the statute, the IAF’s Board has enacted bylaws conferring

“general supervision” and “day-to-day business” responsibilities to its president. ECF No. 5-5,

at 4. At all times, however, the president remains “responsible to and under the general direction

of the Board.” Id. Because “removal [power] is incident[al] to the power of appointment,” the

Board retains the authority to hire and fire the IAF’s president. Free Enter. Fund v. Pub. Co. Acct.

Oversight Bd., 561 U.S. 477, 509 (2010).

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Congress deliberately chose to give the Board appointment power over the IAF’s president.

22 U.S.C. § 290f(l)(1). When Congress enacts such a scheme, “it is ordinarily the department

head”—here, the IAF’s Board—“rather than the President, who enjoys the power of removal.”

Free Enter. Fund, 561 U.S. at 493. And “[a]bsent relevant legislation” stating otherwise, “the

power to remove is held . . . only by the appointing authority.” Nat’l Treasury Emps. Union v.

Reagan, 663 F.2d 239, 247 (D.C. Cir. 1981); see id. (“[F]or example, an appointment authorized

to be made by the Secretary of Defense and, in fact, made by the Secretary of Defense, cannot be

revoked by the President.”).

Defendants offer no response to this argument, nor could they.4 Congress’s enactment of

the IAF’s organic statute and other relevant legal authorities make clear that the Board holds hiring

and firing power over the IAF’s president and CEO. Therefore, to the extent President Trump

purported to terminate Ms. Aviel from her role on February 26, that termination violated the

Appointments Clause.

2. Whether the President could appoint Mr. Marocco as an acting IAF board member

According to Defendants, even if the President did not have the authority to fire Ms. Aviel,

Mr. Marocco had the power to remove her as president and CEO of the IAF after President Trump

appointed him as an acting IAF Board member. On this point, the court vehemently disagrees.

The President’s ability to appoint principal officers simultaneously flows from and is

limited by the text of the Appointments Clause. While the clause plays a key role in enabling the

4

In Brehm v. Marocco, No. 25-CV-660—a similar case involving the removal of the president of

the U.S. African Development Foundation—the government also did not contest this point. See

Tr. of TRO Hr’g, at 9:5-9, Brehm, No. 25-CV-660 (D.D.C. Mar. 11, 2025) (“[It]’s clear in our

papers, and I think not even disputed in the Defendants’ papers, that the law is that an inferior

officer is removable by the authority that appointed him, but nobody else—unless Congress alters

that default rule.”).

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President to “take Care that the Laws be faithfully executed,” U.S. Const., art. II, § 3, the Framers

also recognized its potential perils. As the Supreme Court has acknowledged, “the power of

appointment to offices was deemed the most insidious and powerful weapon of eighteenth century

despotism.” Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 883 (1991) (internal quotation

marks and quoted source omitted). For that reason, principal officers nominated by the President

must be confirmed by the Senate. This limitation is a “critical ‘structural safeguard[] of the

constitutional scheme.” Nat’l Lab. Rels. Bd. v. SW Gen., Inc., 580 U.S. 288, 293 (2017) (alteration

in original) (quoting Edmond, 520 U.S. at 659). It protects against unchecked power in a single

individual by “dividing” it “between the Executive and Legislative Branches.” Freytag, 501 U.S.

at 884; see SW Gen., Inc., 580 U.S. at 317 (Thomas, J., concurring) (“[T]he Framers . . . recognized

the serious risk for abuse and corruption posed by permitting one person to fill every office in the

Government . . . [and] knew that liberty could be preserved only by ensuring that the powers of

Government would never be consolidated in one body.” (citing The Federalist No. 76, at 513 (J.

Cooke ed. 1961); 3 J. Story, Commentaries on the Constitution of the United States § 1524, at 376

(1833); The Federalist No. 51, at 348)).

In special circumstances, however, “Congress has given the President limited authority to

appoint acting officials to temporarily perform the functions of a vacant [principal] office without

first obtaining Senate approval.” SW Gen., Inc., 580 U.S. at 294 (emphasis added). This authority—

primarily vested by Congress in the Federal Vacancies Reform Act of 1998 (“FVRA”), 5 U.S.C.

§ 3345 et seq.—enables government agencies to continue functioning while a permanent officer

awaits confirmation. SW Gen., Inc., 580 U.S. at 293-94. The FVRA is ordinarily “the exclusive

means for temporarily authorizing an acting official to perform the functions and duties of any

office of an Executive agency” for which Senate confirmation is required. 5 U.S.C § 3347(a). The

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only exceptions are if another “statutory provision expressly” authorizes the President or another

official to make such an appointment, id. § 3347(a)(1) & (2), or if the President validly makes a

recess appointment under Article II, U.S. Const., art. II, § 2—neither of which is applicable here.

Under the 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. 5 U.S.C. § 3345. If no acting

officer has been appointed pursuant to the FVRA or another express statutory provision, “the office

shall remain vacant.” Id. § 3348(b)(1). Furthermore, any action taken by a person who was not

properly appointed pursuant to the FVRA “shall have no force or effect.” Id. § 3348(d)(1).

The FVRA does not, however, apply 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.” Id. § 3349c(1). Both

parties agree that the IAF Board is such an entity. ECF No. 5-1, at 20; ECF No. 19, at 7. Therefore,

the FVRA does not give the President power to appoint acting members of the IAF Board, and any

actions by so-called “acting” members of that Board are necessarily void. See id. § 3348(d)(1).

Defendants attempt to circumvent the FVRA’s limitations in two ways, but neither is

persuasive. First, they claim that the FVRA’s non-applicability to the IAF (through Section 3349c)

means that the IAF falls entirely out of the statute’s scope. ECF No. 19, at 7-8. In their view, the

FVRA’s limitations thus cannot constrain the President from appointing acting members of the

IAF’s Board. But reaching this conclusion requires a serious distortion—or a complete disregard—

of the FVRA’s text. To be sure, Section 3349c excludes Board-like entities from the FVRA’s

temporary-appointment power. See 5 U.S.C. § 3349c (“Sections 3345 through 3349b shall not

apply to [Board-like entities].”). But Section 3348(d)(1), which invalidates actions by improperly

15

appointed officers, expressly encompasses “vacant office[s] to which . . . [Section] 3349c appl[ies].”

5 U.S.C. § 3348(d)(1). Accordingly, 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.

Defendants next try to claim that the FVRA’s exclusion of Board-like entities means that

there no limitations on the President’s authority to fill their vacancies. If the President cannot

appoint acting members under the FVRA, they say, then surely he has “inherent” power to do so

under Article II. ECF No. 19, at 9 (“Because Congress has not provided for procedures that the

President must undertake to fill vacancies on the Foundation Board, and because the President

must ‘take care that the laws be faithfully executed’ . . . and cannot wait for the Senate to confirm

all nominees, the President must be able to [appoint acting principal officers].”). Not only does

this ignore the FVRA’s clear statement that the FRVA is the “exclusive means for temporarily

[appointing] an acting [principal] official,” 5 U.S.C. § 3347(a), it asserts a broad, heretofore

unrecognized expansion of Executive power that would eviscerate key parts of the Constitution.

The court has no choice but to reject it.

This argument, reduced to no more than a paragraph in Defendants’ opposition brief, cites

no binding legal authority. The best Defendants can conjure is a suspiciously timed opinion from

the Department of Justice’s Office of Legal Counsel (“OLC”) issued three weeks after Ms. Aviel

was purportedly fired. See ECF No. 19, at 9 (citing Temp. Presidential Designation of Acting Bd.

Members of the Inter-Am. Found. & the U.S. Afr. Dev. Found., 49 Op. O.L.C. ___, 4 (Mar. 14,

2025), https://perma.cc/DC2T-4LS7). Because the opinion directly addressed legal questions that

arose in an analogous suit, it contravened OLC’s general “prudential” principle that it “avoids

opining on questions likely to arise in pending or imminent litigation involving the United States

16

as a party.” Mem. for Att’ys of the Off. (July 16, 2010), https://perma.cc/72U6-49JC. But curious

motives aside, the memorandum is neither legally binding nor logically persuasive. It asserts that

“the President’s authority to [designate acting officials] is consistent with the Framers’ demand for

‘unity in the Federal Executive’ to guarantee ‘both vigor and accountability.’” Temp. Presidential

Designation of Acting Bd. Members, at 4 (quoting Printz v. United States, 521 U.S. 898, 922

(1997)). This pronouncement directly contradicts the Supreme Court’s repeated recognition of the

Framers’ fears over unfettered appointment powers. See, e.g., SW Gen., Inc., 580 U.S. at 293-94;

Edmond, 520 U.S. at 659; Freytag, 501 U.S. at 883-84. And while this court acknowledges the

importance of permitting the President to hire who he wishes, that does not give him a license to

barrel over “[constitutional] safeguard[s]” in the process. SW Gen., Inc., 580 U.S. at 293 (quoting

Edmond, 520 U.S. at 659).

Defendants also retreat to the text of the Take Care Clause, but that does not save them

either. They argue that, in order to faithfully execute the laws, the President must be able to ensure

the continued functioning of government agencies like the IAF. ECF No. 19, at 7 (“[N]othing

required the President to leave the [IAF] leaderless and unable to ‘direct the exercise of all the

powers of the Foundation’ as the Senate considers his nominees . . . to fill vacancies on the Board.”

(quoting 22 U.S.C. § 290f(i)). But the President 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. Accordingly, Ms. Aviel may

carry on as the IAF’s president and CEO until a Presidentially nominated and Senate-confirmed

IAF Board decides otherwise. See SW Gen., Inc., 580 U.S. at 317 (Thomas, J., concurring) (“We

cannot cast aside the separation of powers and the Appointments Clause’s important check on

17

executive power for the sake of administrative convenience or efficiency.”).5 This court simply

“[will not] accept an interpretation of the Constitution completely divorced from its original

meaning in order to resolve exigencies created by—and equally remediable by—the executive . . .

branch[].” Noel Canning v. Nat’l Lab. Rels. Bd., 705 F.3d 490, 511 (D.C. Cir. 2013).

The logical extension of Defendants’ inherent-power argument is frightening. If the

President holds unbridled authority to fill any principal vacancy with an acting official (even when

Congress has not authorized him to do so), and if the FVRA’s time limitations do not apply to

boards like the IAF’s (which Defendants claim, see ECF No. 19, at 7-8), then the President could

appoint an “acting” board member indefinitely without ever needing to seek the advice and consent

of the Senate. That reading eviscerates the Appointments Clause. When the court pressed

Defendants’ counsel for a limiting principle at oral argument, Defendants had no response—

convincing or otherwise. The best they could offer was that the government had no intention of

installing an acting principal indefinitely. But Defendants could not deny that such an outcome

would be permissible under their reading of the Constitution.

Defendants’ reading also makes no sense in the context of the rest of the Constitution. If

the President has the power to appoint acting principal officers at all times, there would be no need

for the Recess Appointments Clause. That clause permits the President “to fill up all Vacancies

that may happen during the Recess of the Senate” until the end of the next Senate session. Noel

Canning, 705 F.3d at 499. But if the President has “inherent” authority to appoint acting officers

under the Take Care Clause, then the Recess Appointments Clause is unnecessary. It would violate

every bedrock principle of judicial review to assume that any part of the Constitution is surplusage.

5

Indeed, the precise problem Defendants now complain about is precisely why Congress requires

Senate-confirmed Board members, “upon the expiration of [their] term of office[, to] continue to

serve until [their] successors [are] appointed.” 22 U.S.C. § 290f(g).

18

See Marbury v. Madison, 5 U.S. 137, 174 (1803) (“It cannot be presumed that any clause in the

constitution is intended to be without effect[.]”).

The consequences of the above analysis for this case are clear. The President did not have

the authority to appoint Mr. Marocco as an acting member of the IAF’s Board, meaning that

Mr. Marocco’s actions in that role were without legal effect. Because accepting Defendants’

arguments would leave parts of the Constitution in tatters, Ms. Aviel has shown a substantial

likelihood of success on the merits.

B. Irreparable Harm

Irreparable harm is “a high standard.” England, 454 F.3d at 297. To satisfy it, a plaintiff

must show that the alleged injury is “both certain and great,” “actual and not theoretical,” and “of

such imminence that there is a ‘clear and present’ need for equitable relief.” Id. (quoting Wis. Gas

Co. v. Fed. Energy Regul. Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). It must also

“be beyond remediation,” meaning that “[t]he possibility [of] adequate compensatory or other

corrective relief . . . at a later date . . . weighs heavily against a claim of irreparable harm.” Id.

at 297-98 (quoting Wis. Gas Co., 758 F.2d at 674). Ms. Aviel has met her burden here.

This litigation has the luxury of unfolding simultaneously alongside numerous cases

challenging similar officer removals. See, e.g., Dellinger v. Bessent, No. 25-CV-385, 2025 WL

471022 (D.D.C. Feb. 12, 2025); Harris v. Bessent, No. 25-CV-412, 2025 WL 521027 (D.D.C.

Feb. 18, 2025), appeal filed, No. 25-5055 (D.C. Cir.); Order, Brehm v. Marocco, No. 25-CV-660

(D.D.C. Mar. 11, 2025). Unsurprisingly, the parties disagree on what each of these cases means

for Ms. Aviel.

Ms. Aviel asserts 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

19

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.” ECF

No. 5-1, at 23. She also asserts that the “loss of the statutorily-prescribed right to continue serving

as President of the IAF is an irreparable harm in its own right.” Id.

The mere loss of employment is normally not enough to show irreparable harm because

the plaintiff can be made whole through the issuance of backpay and reinstatement. See Sampson

v. Murray, 415 U.S. 61, 91-92 (1974) (rejecting a claim of irreparable injury predicated on an

employee’s “loss of income”). The harm that comes from the loss of a “statutory right to function,”

on the other hand, is less clear. This precise question is currently pending before the D.C. Circuit.

See Notice of Appeal, Harris v. Bessent, No. 25-5055 (D.C. Cir. Mar. 4, 2025); Notice of Appeal,

Wilcox v. Trump, No. 25-5057 (D.C. Cir. Mar 7, 2025). While some judges of this court have

found such harm to be sufficient for irreparable injury, see Harris, 2025 WL 521027, at *8-9, the

D.C. Circuit has cast doubt on those holdings in a non-precedential order, see Dellinger v. Bessent,

No. 25-5052, at 7 (D.C. Cir. Mar. 10, 2025) (opining that “being ‘deprived of the statutory right

to function in office’” is not necessarily an irreparable injury).

But regardless of how the dust eventually settles on that question, Ms. Aviel identifies an

additional layer of harm on top of her basic “right to function” as the IAF’s president. She argues

that, unlike in any of the above cases, the very survival of her organization is at stake. In her view,

this puts her case squarely in the “genuinely extraordinary situation” contemplated by Sampson,

415 U.S. at 92 n.68, and the court agrees.

Reinstatement matters little if the officer of a government organization returns to a pile of

rubble. Ms. Aviel persuasively argues that, absent immediate injunctive relief, there will be no

IAF left for her to lead. The current, ostensible leadership of the IAF intends to fire every

20

employee except one by the end of the day today. ECF No. 20-1 ¶ 6. And all the organization’s

grants—save a single agreement for $66,000—have been canceled. ECF No. 1 ¶ 78. While

Defendants insist that this dramatic reduction to the IAF’s “minimum presence and function” still

preserves its existence, that is nothing more than artful lawyering. To argue that the IAF remains

functioning when it has one employee, one grant, and little else is comically difficult to believe.

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. Defendants try to argue that this improperly

converts the IAF’s harm into Ms. Aviel’s harm. ECF No. 19, at 13. But because Ms. Aviel can

likely establish that she is the lawful president of the organization, her right to serve in that role is

inextricably intertwined with the organization’s survival. If, during the pendency of this litigation,

the IAF is “reduced to ash,” ECF No. 20, at 8, no amount of relief will resurrect her right to

function. Such an outcome would also make the harm plainly “beyond remediation.” England,

454 F.3d at 297.

None of Defendants’ cases are to the contrary. ECF No. 19, at 10-13. Sampson, which

only addressed the firing of a probationary government employee and discerned no irreparable

harm, carved out an exception for a “genuinely extraordinary situation” that “so far depart[s] from

the normal situation.” 415 U.S. at 92 n.68. Defendants cannot convincingly claim that eliminating

almost the entirety of Ms. Aviel’s employer is in any way “normal.” In English v. Trump, 279 F.

Supp. 3d 307 (D.D.C. 2018), the court also concluded that there was no irreparable harm to a

plaintiff claiming to be the rightful director of the Consumer Financial Protection Bureau. Id.

at 336. But in reaching that conclusion, the court relied on the knowledge that “[t]he CFPB is not

and will not be shuttered; it continues to operate with [the purported director] functioning as acting

Director.” Id. at 335. The court then directly contrasted its case with one in which the relevant

21

agency would be closed. It observed that “in Berry [v. Reagan, No. 83-CV-3182], any harm

suffered by the commissioners was plainly irreparable because the commission would have

expired and they could not have been reinstated to it.” English, 279 F. Supp. 3d at 335 (emphasis

added). Davis v. Billington, 76 F. Supp. 3d 59 (D.D.C. 2014), teaches the same lesson. There, the

court did not find irreparable harm arising from the plaintiff’s termination because “he ha[d] no

concrete proof that the vacancy . . . or some other comparable position w[ould] not be available

when th[e] [case] is ultimately resolved.” Id. at 65.

The most analogous case to the one before the court is Brehm v. Marocco, No. 25-CV-660

(D.D.C. Mar. 11, 2025). There, the court (Leon, J.) considered a request for injunctive relief by

the president of the U.S. African Development Foundation (“USADF”)—an organization

remarkably similar in structure and purpose to the IAF (so much so that the Office of Legal

Counsel’s conveniently timed memorandum jointly discusses both organizations). In holding that

the USADF director could not show irreparable injury, the court emphasized that, if the director

were to eventually prevail, “the Court could remedy any harm by reinstating him to his position

and ordering backpay.” Id. at 5. Going even further, the court directly contrasted the speculative

demise of the USADF to that of the IAF, writing: “the mere possibility that defendants will follow

the same path as they did with the IAF falls short of the ‘imminent threat of injury required to grant

a TRO.’” Id. at 7 (emphasis added) (quoting Beattie v. Barnhart, 663 F. Supp. 2d 5, 9

(D.D.C. 2009)). At the very least, the court implied that subjecting the USADF to the same fate

as the IAF could significantly alter the irreparable harm analysis. See ECF No. 20, at 13 (“This

case is the exact case Judge Leon used as a foil for Brehm. Brehm could not prove his case would

be like the IAF, so he lost. Ms. Aviel’s case is the IAF.”).

22

The court concludes that these cases compel a ruling in Ms. Aviel’s favor on irreparable

harm. The reasons why there was no irremediable injury in Sampson, English, Davis, and Brehm,

are the precise reasons why there is irreparable harm here. If Ms. Aviel is denied injunctive relief

now but ultimately prevails on the merits of her suit, she will very likely find herself leading a

defunct organization.

C. Balance of the Equities and the Public Interest

Lastly, the balance of the equities and the public interest also weigh in favor of a

preliminary injunction. As mentioned previously, these two factors “merge into one . . . when the

government is the non-movant,” as here. Ramirez v. U.S. Immigr. & Customs Enf’t, 310 F. Supp.

3d 7, 32 (D.D.C. 2018) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)); ECF No. 5-1, at 27;

ECF No. 19, at 14-15.

Here, 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.” League of Women

Voters of the U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (quoting Washington v. Reno, 35 F.3d

1093, 1103 (6th Cir. 1994)). As the court has explained, neither President Trump nor Mr. Marocco

had the legal authority to remove Ms. Aviel as president of the IAF. See supra Part IV.A. There

can be no public interest in her unlawful removal. See League of Women Voters, 838 F.3d at 12

(“There is generally no public interest in the perpetuation of unlawful agency action.”).

Nor can Defendants claim that the public’s interest in “reducing the size of the [f]ederal

[g]overnment” tips the equities in their favor. See ECF No. 19, at 15 (quoting Exec. Order

No. 14,217). Congress directed that the IAF may not use appropriated funds to “expand, eliminate,

consolidate, or downsize” the agency without “prior consultation . . . with the appropriate

congressional committees” and “a detailed justification for any proposed action.” Further

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Consolidated Appropriations Act, Div. F, 138 Stat. at 843-44. Based on the facts before the court,

it appears that Defendants have exhibited a callous disregard for those instructions. They cannot

flout Congress’s mandate while simultaneously pretending to act in the public interest. While

pursuing government efficiency is a valid goal, it must be carried out lawfully. Defendants have

not done so here.6

* * *

In sum, the court concludes that all factors weigh in favor of granting Ms. Aviel a

preliminary injunction. Because neither President Trump nor Mr. Marocco had the authority to

fire her from her position as the president of the IAF, Ms. Aviel is likely to succeed on the merits

of her case. She has also shown that she will face irreparable harm without judicial intervention,

given Defendants’ swift attempts to completely dismantle the organization she lawfully runs.

Finally, the equities and the public interest in ensuring that Defendants abide by constitutional

6

Defendants’ final argument is a non-sequitur. Defendants argue that Ms. Aviel seeks “a change

in the status quo” by requesting reinstatement to the IAF, and that such injunctions are disfavored

as “an even more extraordinary remedy” than the “typical preliminary injunction.” ECF No. 19,

at 16 (quoting Strait Shipbrokers Pte. Ltd. cv. Blinken, 560 F. Supp. 3d 81, 93 (D.D.C. 2021)). But

Defendants have it backward. See Huisha-Huisha v. Mayorkas, 27 F.4th 718, 733 (D.C. Cir. 2022)).

“The status quo is the last uncontested status which preceded the pending controversy.” Id.

(quoting Dist. 50, United Mine Workers of Am. v. Int’l Union, United Mine Workers of Am., 412

F.2d 165, 168 (D.C. Cir. 1969)). Here, the last uncontested status for Ms. Aviel was her lawful

appointment as the president and CEO of the IAF. Rather than alter the status quo, she seeks to

maintain it.

24

guardrails when appointing and removing federal officials is significant, and Defendants cannot

persuasively argue otherwise.7

V. CONCLUSION

For the foregoing reasons, the court will grant Ms. Aviel’s Motion for a Preliminary

Injunction, ECF No. 5. A contemporaneous order will issue.

LOREN L. ALIKHAN

United States District Judge

Date: April 4, 2025

7

Federal Rule of Civil Procedure 65(c) provides that the court may issue a preliminary injunction

“only if the movant gives security in an amount that the court considers proper to pay the costs and

damages sustained by any party found to have been wrongfully enjoined or restrained.” Defendants

ask the court to “order [Ms.] Aviel to post security” in the event it grants her motion for a

preliminary injunction. The court exercises its “broad discretion” to decline this request. P.J.E.S.

ex rel. Escobar Francisco v. Wolf, 502 F. Supp. 3d 492, 520 (D.D.C. 2020) (quoting Simms v.

District of Columbia, 872 F. Supp. 2d 90, 107 (D.D.C. 2012)). Ms. Aviel has sufficiently shown

that Defendants unlawfully attempted to terminate her and eradicate the IAF. Setting a bond would

conflict with every holding in this opinion and contravene the interests of justice. See Nat. Res.

Def. Council, Inc. v. Morton, 337 F. Supp. 167, 168 (D.D.C. 1971) (explaining that a bond “is not

necessary where requiring [one] would have the effect of denying the plaintiffs their right to

judicial review of administrative action”).

25