Sara Aviel v. Sergio Gor

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 25-5105 September Term, 2024

1:25-cv-00778-LLA

Filed On: June 5, 2025

Sara Aviel, in her personal capacity and in

her official capacity as President of the

Inter-American Foundation,

Appellee

v.

Sergio Gor, in his official capacity as Director

of the White House Presidential Personnel

Office, et al.,

Appellants

BEFORE: Pillard*, Katsas*, and Rao**, Circuit Judges

ORDER

Upon consideration of the emergency motion for a stay pending appeal, the

opposition thereto, the reply, and the Rule 28(j) letters, it is

ORDERED that the motion be denied. Appellants have not satisfied the

stringent requirements for a stay pending appeal. See Nken v. Holder, 556 U.S. 418,

434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2024).

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Selena R. Gancasz

Deputy Clerk

* A statement by Circuit Judge Katsas, joined by Circuit Judge Pillard, concurring in this

order, is attached.

** A statement by Circuit Judge Rao, dissenting from this order, is attached.

KATSAS, Circuit Judge, joined by PILLARD, Circuit Judge,

concurring: This case involves a dispute over whether plaintiff

Sara Aviel is presently the Chief Executive Officer of the Inter-

American Foundation (IAF), a government corporation that

issues grants to further development in the Caribbean and Latin

America. See 22 U.S.C. § 290f. The IAF is run by a Board of

Directors appointed by the President with the advice and

consent of the Senate. Id. § 290f(g). In turn, the Board

appoints and supervises the Foundation’s CEO. Id. § 290f(l).

In February 2025, the President removed all the incumbent

IAF Board members, as permitted by statute. Aviel v. Gor, No.

25-cv-778, 2025 WL 1009035, at *3, *6 (D.D.C. Apr. 4, 2025).

The President then purported to unilaterally designate Pete

Marocco as an acting member of the Board. Id. at *4. Both

the President and Marocco then purported to remove Aviel

from her position as the Foundation’s CEO. Id.

Aviel sued various government officials, including the

President, and sought injunctive relief to continue serving as

CEO. The district court granted a preliminary injunction

requiring the defendants to recognize her as still holding that

office. Aviel, 2025 WL 1009035, at *13; Order, id., No. 25-cv-

778, ECF Doc. 23. The government appealed and sought an

emergency stay.

We deny the stay because the government is unlikely to

succeed on the merits of its contentions that Aviel (1) was

permissibly removed from her position as CEO and (2) is not

entitled to reinstatement as a remedy. See Nken v. Holder, 556

U.S. 418, 434 (2009). The first point follows from the law

regarding presidential removals and appointments, while the

second reflects a recent stay decision by our en banc Court.

I

It is unlikely that either the President or Marocco

permissibly removed Aviel.

2

To begin, the President’s putative removal was likely

invalid. The governing statute authorizes the IAF Board of

Directors—not the President—to appoint the CEO, and it is

silent regarding the question of removal. 22 U.S.C. § 290f(l).

That means the Board—not the President—has the power to

remove Aviel. See Free Enter. Fund v. PCAOB, 561 U.S. 477,

493, 509 (2010). As the Supreme Court explained in Free

Enterprise Fund, “Congress may vest in heads of departments”

the appointment of inferior officers, and, “[i]f Congress does

so, it is ordinarily the department head, rather than the

President, who enjoys the power of removal.” Id. at 493.

Likewise, in In re Hennen, 38 U.S. 230 (1839), the Court noted

that if Congress vests a department head with the power to

appoint and remove an inferior officer, “the President has

certainly no power to remove” the inferior officer directly. Id.

at 260.

Marocco independently purported to remove Aviel, but he

likely lacked authority to act as an IAF Board member. The

IAF Board reports to nobody except the President, so its

members are principal officers of the United States. See, e.g.,

Edmond v. United States, 520 U.S. 651, 662–63 (1997). Yet

Marocco was not appointed with the advice and consent of the

Senate, as required by the Appointments Clause of the

Constitution, U.S. Const. Art. II, § 2, cl. 2, and by the

Foundation’s organic statute, 22 U.S.C. § 290f(l). And in the

absence of any Senate recess, the President could not

unilaterally appoint him to fill a vacancy pursuant to the Recess

Appointments Clause, U.S. Const. Art. II, § 2, cl. 3. The parties

vigorously dispute whether the Federal Vacancies Reform Act

separately prohibits the President from designating individuals

to serve as acting members of multi-member boards like that of

the Foundation. But regardless, the FVRA’s temporary-

designation provisions do not apply to such boards. See 5

U.S.C. § 3349c(1). And in any event, Marocco would not have

qualified for such a designation. See id. § 3345(a). So the

3

government does not contend that the FVRA affirmatively

authorized the appointment or designation at issue.

Instead, the government asserts that the President has

inherent Article II authority to designate acting principal

officers to ensure that he may faithfully execute federal law, as

required by the Take Care Clause, U.S. Const. Art II, § 3. That

contention is unlikely to succeed. The Appointments Clause

prohibits the appointment of principal officers without the

advice and consent of the Senate. Such consent “is a critical

structural safeguard” against presidential overreach—a feature

of our constitutional system, not a bug. NLRB v. SW General,

Inc., 580 U.S. 288, 293 (2017) (cleaned up). Furthermore, the

Constitution provides only one express exception to the Senate-

confirmation requirement for principal officers, which applies

only when the Senate is in recess. And the only statutory

scheme for delaying Senate confirmation does not support the

putative designation at issue. Given these specific checks and

balances regarding appointments, it is unlikely that the Take

Care Clause gives the President unfettered discretion to

designate acting principal officers with neither Senate

confirmation nor a Senate recess nor even statutory

authorization through the FVRA.1

II

There are further questions whether the government is

likely to succeed on its arguments about remedies. A serious

and important question would have arisen had the district court

purported to enjoin the President directly. See Mississippi v.

1

We have suggested that the President might possess an

inherent Article II power to designate someone to temporarily

exercise the powers of a vacant office in order to abate an emergency.

See Williams v. Phillips, 482 F.2d 669, 670 n.1 (D.C. Cir. 1973) (per

curiam). The government does not argue that any such emergency

exists here, so we do not consider this theory.

4

Johnson, 71 U.S. (4 Wall.) 475, 501 (1867). But the

preliminary injunction—which runs against the “Defendants”

generally—is best construed not to reach the President. In

Franklin v. Massachusetts, 505 U.S. 788 (1992), the Supreme

Court held that the Administrative Procedure Act, which by its

terms regulates “each authority of the Government of the

United States,” does not speak clearly enough to include the

President. See id. at 800–01. If that reference was

insufficiently clear to sweep in the President, then so too was

the district court’s generic reference to the “Defendants,” even

though one of them is the President.

Beyond that point, judges of our Court have expressed

concerns with other aspects of the kind of injunctive relief

ordered here, including whether or when reinstatement is an

available remedy for unlawfully removed officials. See, e.g.,

Harris v. Bessent, No. 25-5037, 2025 WL 1021435, at *2–7

(D.C. Cir. Apr. 7, 2025) (Rao, J., dissenting); Dellinger v.

Bessent, No. 25-5028, 2025 WL 559669, at *14 (D.C. Cir. Feb.

15, 2025) (Katsas, J., dissenting). Nevertheless, in considering

this stay motion, it seems appropriate to defer to the views

expressed by our en banc Court in denying a stay pending

appeal in Harris, which found the government unlikely to

succeed in its contention that reinstatement is rarely if ever an

available remedy for unlawfully removed officials. See 2025

WL 1021435, at *2 (per curiam). This does not suggest that

unpublished stay decisions rendered on our emergency

docket—by the en banc Court or otherwise—would bind future

merits panels. But an en banc stay decision can inform a later

panel stay decision when both present the same question.2

2

Although the Supreme Court issued a stay in Harris and a

companion case, its merits ruling rested on the proposition that the

removals at issue in those cases were likely lawful. See Trump v.

Wilcox, No. 24A966, slip op. at 1–2 (U.S. May 22, 2025). The Court

did not separately address the question whether reinstatement would

have been an appropriate remedy if the removals at issue were

unlawful. Accordingly, our en banc order is the last word on that

question until either the Supreme Court or a merits panel of our Court

more definitively resolves the remedies issues.

RAO, Circuit Judge, dissenting: The district court enjoined

the President of the United States and ordered the reinstatement

of an officer removed by the President. This court should stay

the injunction because it intrudes on the President’s Article II

removal power. The removed officer is not “independent” and

enjoys no for-cause removal protections, so this case does not

implicate the ongoing dispute over whether Humphrey’s

Executor remains good law. A stay is also necessary because

the injunction exceeds the equitable power of the Article III

courts. Courts cannot enjoin the President. Mississippi v.

Johnson, 71 U.S. (4 Wall.) 475, 500–01 (1867). And the

injunction directs actions that impermissibly impinge on the

President’s control and supervision of the Executive Branch.

See Trump v. Wilcox, No. 24A966, 2025 WL 1464804, at *1

(U.S. May 22, 2025). Because I would stay the district court’s

injunction in full, I respectfully dissent.

I.

The Inter-American Foundation (“IAF”) is a government

corporation that distributes grants for social development in

Latin America and the Caribbean. 22 U.S.C. § 290f(b). It is

managed by a board of directors whose nine members are

appointed by the President with the advice and consent of the

Senate. Id. § 290f(g). The Board appointed Sara Aviel as IAF

president and CEO. As part of the broader effort to streamline

the federal government, President Trump removed the IAF

Board members and then removed Aviel. Two days later, the

President named Pete Marocco as acting chairman of the IAF

Board. Marocco also purported to remove Aviel.

Aviel sued the President and numerous other officials. The

district court issued a preliminary injunction against named

“Defendants,” including “President Trump, Mr. Marocco, and

other government officials and entities.” Aviel v. Gor, No. 25-

778, 2025 WL 1009035, at *1 (D.D.C. Apr. 4, 2025). As

relevant here, the injunction orders Aviel reinstated as CEO,

2

removes Marocco from the IAF Board, prohibits the President

from appointing any other acting IAF Board members, and

declares Marocco’s actions “void ab initio.” The government

seeks a stay pending appeal.

II.

I would grant a stay because the government is likely to

succeed on the merits of its claim, and the balance of harms

favors the government. See Nken v. Holder, 556 U.S. 418, 434

(2009).

A.

The government is likely to succeed on its challenge to the

injunction for two independent reasons. First, the President’s

removal of Aviel was lawful. Second, the remedy issued by the

district court is inconsistent with equitable remedies

traditionally available for the allegedly unlawful removal of an

executive branch officer.

1.

The district court concluded the President lacked authority

to remove Aviel, an inferior officer, because she was appointed

by the IAF Board and therefore could be removed only by the

Board. Nothing in the governing statute or the Constitution,

however, limits the President’s power to remove this executive

branch officer.

The Constitution vests all the executive power in the

President. U.S. Const. art. II, § 1. As a consequence of this

vesting, the President “may remove without cause executive

officers who exercise that power on his behalf, subject to

narrow exceptions recognized by [Supreme Court]

precedents.” Wilcox, 2025 WL 1464804, at *1. The removal

3

power is essential to the President’s oversight and control of

officers who exercise executive power on his behalf. See Free

Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 483

(2010) (“Since 1789, the Constitution has been understood to

empower the President to keep … officers accountable—by

removing them from office, if necessary.”). “Article II ‘grants

to the President’ the ‘general administrative control of those

executing the laws, including the power of appointment and

removal of executive officers.’” Seila Law LLC v. CFPB, 140

S. Ct. 2183, 2197–98 (2020) (quoting Myers v. United States,

272 U.S. 52, 163–64 (1926)). Under these well-established

principles, the President’s removal of Aviel was lawful.

The district court (and my colleagues) conclude that the

President could not remove Aviel because “the Board holds

hiring and firing power over the IAF’s president and CEO.”

Aviel, 2025 WL 1009035, at *7; see also Katsas, J., concurring,

at 2. I agree that the Board has authority to remove Aviel as an

incident of its appointment power. 1 22 U.S.C. § 290f(l)(1). See

Kalaris v. Donovan, 697 F.2d 376, 401 (D.C. Cir. 1983)

1

The government also argues that Aviel was properly terminated by

Marocco in his capacity as an acting IAF Board member. I agree with

my colleagues that this argument is unlikely to succeed because the

text and structure of the Constitution strongly suggest the President

has no inherent authority to appoint officers of the United States, like

IAF Board members, outside the strictures of the Appointments

Clause. U.S. Const. art. II, § 2; see NLRB v. SW Gen., Inc., 137 S. Ct.

929, 946 (2017) (Thomas, J., concurring) (“[T]he Appointments

Clause forbids the President to appoint principal officers without the

advice and consent of the Senate.”). And the Federal Vacancies

Reform Act does not apply to the IAF. 5 U.S.C. §§ 3349c(1)(B),

3345. If Marocco was not properly appointed as an acting IAF Board

member, he lacked the authority to remove Aviel.

4

(“[T]he power of removal is incident to the power of

appointment.”); Seila Law, 140 S. Ct. at 2197–98.

Nothing in the IAF statute, our caselaw, or the

Constitution, however, renders the Board’s removal authority

exclusive or forecloses the President’s ability to remove this

officer. For officers who “wield significant executive power,”

“the President’s removal power is the rule, not the exception.” 2

Seila Law, 140 S. Ct. at 2211, 2190. Congress did not limit who

may remove the CEO or on what terms. The CEO therefore

remains removable at will by either the Board or the President.

The President may direct and control the management of the

IAF and remove officers who fail to follow his directives.

That is precisely what occurred here. The President

removed all remaining IAF Board members for refusing to

follow his directives to substantially downsize the IAF. Aviel

remained in charge of the IAF, executing the laws without the

possibility of Board supervision or removal. See IAF Bylaws,

art. III, § 2 (providing the CEO “shall exercise all powers and

authorities of the Foundation except as the Board may

otherwise provide”). The President’s representatives asked

2

The “sound and necessary rule, to consider the power of removal

as incident to the power of appointment,” may always be qualified

by a “constitutional provision, or statutory regulation.” In re Hennen,

38 U.S. (13 Pet.) 230, 259 (1839). The constitutional provision here

is Article II, which provides for presidential removal of executive

branch officers, particularly when no statute provides to the contrary.

It is true that when reviewing a challenge to the removal of a federal

district court clerk, i.e., a judicial officer, the Supreme Court stated

in obiter dicta that “the President has certainly no power to remove”

an inferior officer. See id. at 260. But that statement has never been

repeated as a holding of the Supreme Court and runs contrary to

recent decisions reaffirming the breadth of the President’s

constitutional removal authority.

5

Aviel to confirm she would implement the President’s agenda

in the absence of a Board. When she refused, the President fired

her.

The President rarely has cause to turn his attention to the

removal of an inferior officer because such officers are directly

controlled by principal officers in the chain of command. But

at a minimum, when that chain of command is broken, as it was

here, “[t]he Constitution requires that such officials remain

dependent on the President” and subject to his control. Seila

Law, 140 S. Ct. at 2211; see Myers, 272 U.S. at 131 (“If the

President should possess alone the power of removal from

office, those who are employed in the execution of the law will

be in their proper situation, and the chain of dependence be

preserved; the lowest officers, the middle grade, and the

highest, will depend, as they ought, on the President, and the

President on the community.”) (quoting 1 Annals of Cong. 499

(1789)). The President cannot “take Care that the Laws be

faithfully executed” if he is saddled with subordinates who

obstruct his agenda. U.S. Const. art. II, § 3.

Aviel flatly refused to follow the President’s directives.

Her removal for insubordination is within the heartland of the

Article II power. “The moment that [the President] loses

confidence in the intelligence, ability, judgment or loyalty of

any one of [his officers], he must have the power to remove

him without delay.” Myers, 272 U.S. at 134. The President’s

removal of Aviel was lawful.

2.

The government is also likely to succeed because the

district court’s order exceeds the judiciary’s traditional

equitable powers. Even if we were to assume that Aviel’s

removal was unlawful, the remedies imposed by the district

court—a sweeping injunction against the President, the

6

removal of an appointed officer, and the reinstatement of an

ousted officer—are beyond the equity powers of the federal

courts and inconsistent with longstanding Supreme Court

precedent.

First and most remarkably, the district court enjoined the

President. The order enjoins all “Defendants,” a category that

explicitly includes President Trump. See Aviel, 2025 WL

1009035, at *1. This is not a mere formality. The injunction

proscribes actions that only the President can take because the

President is the only Defendant with the statutory authority to

appoint IAF Board members. 22 U.S.C. § 290f(g).

The injunction necessarily runs against the President. I do

not understand how the injunction can be “construed not to

reach the President,” Katsas, J., concurring, at 4, when the

injunction expressly extends to the President. 3 Cf. Dellinger v.

Bessent, No. 25-5028, 2025 WL 559669, at *13 n.2 (D.C. Cir.

Feb. 15, 2025) (Katsas, J., dissenting) (“My colleagues seek to

cure the Mississippi v. Johnson problem by excluding the

President from the scope of the TRO. But by its terms, the order

expressly applies to all ‘Defendants.’”).

The district court enjoined the President despite the fact

that the Supreme Court has long held courts lack authority to

“enjoin the President in the performance of his official duties.”

3

Although my colleagues point to Franklin v. Massachusetts to

justify their construction of the injunction, the reasoning of that case

is wholly inapposite. 505 U.S. 788 (1992). In Franklin, the Court

applied a clear statement rule to conclude that the Administrative

Procedure Act’s definition of “agency” did not include the President.

See id. at 800–01. Even putting aside the oddity of applying statutory

clear statement rules to judicial orders, the district court here

explicitly defined Defendants to include the President, so we have no

grounds to “construe” the injunction otherwise.

7

Johnson, 71 U.S. at 501. “The apparently unbroken historical

tradition supports the view, … implicit in the separation of

powers established by the Constitution, that the principals in

whom the executive and legislative powers are ultimately

vested—viz., the President and the Congress (as opposed to

their agents)—may not be ordered to perform particular

executive or legislative acts at the behest of the Judiciary.”

Franklin v. Massachusetts, 505 U.S. 788, 827 (1992) (Scalia,

J., concurring). While a court may have some limited ability to

enjoin the President to discharge a duty over which he has no

discretion, the President’s exercise of his appointment and

removal authority, core Article II powers essential to his

control and supervision of the Executive Branch, “can in no

way be denominated as ‘ministerial.’” Harris v. Bessent, No.

25-5037, 2025 WL 1021435, at *5 n.2 (D.C. Cir. Apr. 7, 2025)

(Rao, J., dissenting). Flouting a previously unbroken historical

tradition, the district court directly commanded and restrained

the President in quintessential executive functions. Because

this injunction oversteps the traditional limits on Article III

courts, it should be stayed.

Second, the injunction exceeds the district court’s

equitable authority because it effectively orders Aviel’s

reinstatement. See Order at 1, Aviel v. Gor, No. 25-778 (D.D.C.

Apr. 4, 2025), ECF No. 23 (enjoining Defendants from

removing Aviel as president and CEO and “from otherwise

obstructing her ability to carry out the duties of that position”).

Reinstatement is not a remedy federal courts sitting in equity

may give. “Federal courts have authority to issue only those

equitable remedies administered by the English Court of

Chancery and courts sitting in equity at the time of the

Founding.” Harris, 2025 WL 1021435, at *5 (Rao, J.,

dissenting); see Grupo Mexicano de Desarrollo, S.A. v. All.

Bond Fund, Inc., 527 U.S. 308, 318–19 (1999) (“The

substantive prerequisites for obtaining an equitable

8

remedy … depend on traditional principles of equity

jurisdiction.”) (cleaned up). At the Founding, it was well-

established that a court sitting in equity had “no jurisdiction

over the appointment and removal of public officers.” White v.

Berry, 171 U.S. 366, 377 (1898) (quoting In re Sawyer, 124

U.S. 200, 212 (1888)); see also Bessent v. Dellinger, 145 S. Ct.

515, 517 (2025) (Gorsuch, J., dissenting). Officers challenging

their removals have historically pursued damages, not

injunctions mandating their return to office. “The lesson from

history is clear: Federal courts have no equitable authority to

enjoin the removal or to mandate the reinstatement of executive

officers.” Harris, 2025 WL 1021435, at *5 (Rao, J.,

dissenting).

Third, the district court erred in finding irreparable harm.

A preliminary injunction is an extraordinary and drastic

remedy that may issue only if the plaintiff demonstrates that

she will suffer irreparable harm absent an injunction. See

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290,

297 (D.C. Cir. 2006) (“A movant’s failure to show any

irreparable harm is … grounds for refusing to issue a

preliminary injunction, even if the other three factors … merit

such relief.”). Aviel fails to meet this threshold. Her primary

asserted harm is the loss of her position as CEO of IAF. The

Supreme Court has made clear, however, that the loss of

employment is normally not enough to show irreparable harm.

Sampson v. Murray, 415 U.S. 61, 91–92 & n.68 (1974). The

loss of income, even when accompanied by reputational

damage, “falls far short of the type of irreparable injury which

is a necessary predicate to the issuance of a temporary

injunction in this type of case.” Id. at 91–92. Moreover, as the

CEO of a government corporation, Aviel falls within the ambit

of the Back Pay Act, which allows for monetary damages upon

a finding that an employment action was unjustified. See 5

U.S.C. §§ 5596(b), 2105(a). The availability of a statutory

9

remedy further reinforces the inappropriateness of equitable

relief in this context.

The district court dodged Sampson and concluded that

Aviel suffered irreparable harm because “the very survival of

her organization is at stake” and “absent immediate injunctive

relief, there will be no IAF left for her to lead.” Aviel, 2025 WL

1009035, at *10. This reasoning improperly conflates Aviel’s

personal harms with the IAF’s programmatic harms. “The

Judiciary should hesitate to adjudicate dispute[s] involving

only officials, and the official interests of those, who serve in

the branches of the National Government because such

disputes lie far from the model of the traditional common-law

cause of action at the conceptual core of the case-or-

controversy requirement.” Maloney v. Carnahan, 45 F.4th 215,

223 (D.C. Cir. 2022) (Rao, J., dissenting) (cleaned up).

While Aviel may sue for damages resulting from her

removal, she possesses no private right in the powers of her

office or the policy direction of the agency. Cf. Raines v. Byrd,

521 U.S. 811, 821 (1997) (holding members of Congress

lacked standing to sue because the “claim of standing [was]

based on a loss of political power, not loss of any private right”

so “[t]he claimed injury” ran “with the Member’s seat, a seat

which the Member holds … as trustee for his constituents, not

as a prerogative of personal power”) (emphasis added). As an

officer of the IAF, Aviel executes the laws and acts at the

direction of the Board and, ultimately, the President. The

notion that public officials “have a separate private right, akin

to a property interest, in the powers of their offices” is

fundamentally “alien to the concept of a republican form of

government.” Barnes v. Kline, 759 F.2d 21, 50 (D.C. Cir. 1984)

(Bork, J., dissenting). Because Aviel’s alleged harms are

compensable through ordinary legal remedies such as backpay,

and she lacks standing to challenge institutional harms, she is

10

not entitled to the extraordinary relief of a preliminary

injunction.

Finally, the scope of the district court’s injunction exceeds

what would be necessary to remedy Aviel’s alleged

employment injury. An injunction must be tailored to the

specific harm shown by the plaintiff. Lewis v. Casey, 518 U.S.

343, 357 (1996) (explaining an equitable “remedy must ... be

limited to the inadequacy that produced the injury in fact that

the plaintiff has established”). This means that “a federal court

may not issue an equitable remedy more burdensome to the

defendant than necessary to redress the plaintiff’s injuries.”

Labrador v. Poe, 144 S. Ct. 921, 923 (2024) (Gorsuch, J.,

concurring) (cleaned up).

Aviel’s only cognizable harm is her loss of employment,

which is compensable—if at all—through backpay. The district

court relied on this individual injury to order the reinstatement

of Aviel and the removal of Marocco and to declare “void ab

initio” all actions taken by Marocco, including previous grant

terminations and attempted reductions in force. The

injunction’s extreme mismatch between injury and remedy

warrants a stay.

B.

The balance of harms also favors a stay. Trump v. Int’l

Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per

curiam) (“The purpose of ... interim equitable relief is not to

conclusively determine the rights of the parties, but to balance

the equities as the litigation moves forward.”) (cleaned up); see

Nken, 556 U.S. at 435 (explaining “the harm to the opposing

party” and “the public interest” factors “merge when the

Government is the opposing party”). The district court’s

injunction encroaches on the President’s constitutional control

over the Executive Branch.

11

In granting a stay of district court injunctions that, like the

injunction here, ordered reinstatement, the Supreme Court

recently concluded that “the Government faces greater risk of

harm from an order allowing a removed officer to continue

exercising the executive power than a wrongfully removed

officer faces from being unable to perform her statutory duty.”

Wilcox, 2025 WL 1464804, at *1. In that case, our en banc

court had denied the stay. Rather than follow the Supreme

Court’s lead, my colleagues defer to the en banc decision

because the Supreme Court “did not separately address” the

remedies question. Katsas, J., concurring, at 4 & n.2. But the

Supreme Court did address the remedies question for the

purposes of a stay. The Court squarely concluded that “[a] stay

is appropriate to avoid the disruptive effect of the repeated

removal and reinstatement of officers during the pendency

of … litigation.” 4 See Wilcox, 2025 WL 1464804, at *1.

Not to put too fine a point on it, the Supreme Court

disagreed with our en banc court. I would follow the clear

direction of our highest court and stay the district court’s far-

reaching injunction.

***

The district court cannot, through a single plaintiff’s

lawsuit, impose an injunction that overrides the President’s

appointment and removal powers, manages the IAF, and

adjudicates the rights of non-parties. A stay is necessary

because the government is likely to succeed on the merits, and

4

If anything, the argument against the reinstatement remedy is

stronger here because Aviel has no statutory removal protections

implicating the ongoing validity of Humphrey’s Executor.

12

this remarkable injunction exceeds the traditional equitable

power of the federal courts. I respectfully dissent.