# Sara Aviel v. Sergio Gor

> Court of Appeals for the D.C. Circuit · June 5, 2025

URL: https://www.frixlaw.com/law-library/cases/11065855

## Case

- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** June 5, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11065855

## How later opinions describe it (automated extraction)

- explaining an equitable “remedy must ... be limited to the inadequacy that produced the injury in fact that the plaintiff has established”
- explaining “the harm to the opposing party” and “the public interest” factors “merge when the Government is the opposing party”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11065855. Public record. Not legal advice.