Travis LeBlanc v. U.S. Privacy and Civil Liberties Oversight Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 25-5197 September Term, 2024

1:25-cv-00542-RBW

Filed On: July 1, 2025

Travis LeBlanc and Edward Felten,

Appellees

v.

United States Privacy and Civil Liberties

Oversight Board, et al.,

Appellants

BEFORE: Katsas, Rao, and Walker, Circuit Judges

ORDER

Upon consideration of the motion for a stay pending appeal and an

administrative stay, the opposition thereto, the reply, the Rule 28(j) letter, and the

response thereto, it is

ORDERED that the motion for a stay pending appeal be granted and that the

district court’s order entered on May 21, 2025, be stayed pending further order of the

court. Appellants have 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).

This appeal presents the question whether Congress has restricted the

President's power to remove members of the Privacy and Civil Liberties Oversight

Board (PCLOB). The President removed PCLOB members Travis LeBlanc and Edward

Felten. The district court held that the removals were unlawful. LeBlanc v. U.S. Priv. &

C.L. Oversight Bd., No. 25-cv-542, 2025 WL 1454010 (D.D.C. May 21, 2025). The

government appealed and moved for a stay. Because it has met its burden under

Nken, 556 U.S. at 426, we grant the stay.

Likelihood of Success on the Merits. The PCLOB is in the Executive Branch, 42

U.S.C. § 2000ee(a), and the President appoints its members with the Senate's advice

and consent, id. § 2000ee(h)(1). Because PCLOB members report to nobody except

the President, they are principal officers of the United States. See Edmond v. United

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No. 25-5197 September Term, 2024

States, 520 U.S. 651, 662-63 (1997). Generally, such appointees must serve at the

President's pleasure. Trump v. United States, 603 U.S. 593, 608-09 (2024); Myers v.

United States, 272 U.S. 52, 162 (1926). The Supreme Court has recognized a narrow

exception for certain officers who serve on "multimember expert agencies that do not

wield substantial executive power." Seila L. LLC v. CFPB, 591 U.S. 197, 218 (2020);

see Humphrey's Ex'r v. United States, 295 U.S. 602, 628 (1935). But a statute "must

use 'very clear and explicit language'" to restrict the President's removal power.

Kennedy v. Braidwood Management, Inc., 606 U.S. ___, ___ (June 27, 2025) (slip op.

at 19) (quoting Shurtleff v. United States, 189 U.S. 311, 315 (1903)) ("mere inference or

implication does not suffice” (cleaned up)); see Severino v. Biden, 71 F.4th 1038, 1044

(D.C. Cir. 2023) ("Congress must make it clear in a statute if it wishes to restrict the

President's removal power."). PCLOB's organic statute contains no language restricting

the President's removal power.

Nor does the statutory scheme support inferring such a restriction. The Supreme

Court occasionally has "read a removal restriction into" the governing statute, but only

for officials serving on an "adjudicatory body" with "a unique need for 'absolute freedom

from Executive interference.'" Collins v. Yellen, 594 U.S. 220, 250 n.18 (2021) (quoting

Wiener v. United States, 357 U.S. 349, 353 (1958)); see Wiener, 357 U.S. at 353-56

(members of the War Claims Commission, a non-Article III court). Where the officials

at issue do not have such adjudicatory functions, they enjoy no implied removal

protection. See Severino, 71 F.4th at 1049 (members of Administrative Conference of

the United States); Collins, 594 U.S. at 247-50, 250 n.18 (Acting Director of the Federal

Housing Finance Agency) ("The FHFA is not an adjudicatory body, so Shurtleff, not

Weiner, is the more applicable precedent."); Shurtleff, 189 U.S. at 315-19 (general

appraisers of merchandise); Parsons v. United States, 167 U.S. 324, 327-28, 338-39

(1897) (United States Attorneys). The PCLOB does not adjudicate cases. Its function

is to analyze executive-branch actions and to advise the President and Congress. 42

U.S.C. § 2000ee(c)-(f). Because PCLOB is not an adjudicatory tribunal, its members

do not have implied protection from at-will removal by the President.

Irreparable Injury Absent a Stay. Injunctions that require the President to work

with removed principal officers interfere with his constitutional power to supervise the

Executive Branch. Such interference is "obviously disruptive" and inflicts irreparable

injury. Sampson v. Murray, 415 U.S. 61, 83 (1974); Dellinger v. Bessent, No. 25-5052,

2025 WL 887518, at *3 (D.C. Cir. Mar. 10, 2025) (per curiam). So in Trump v. Wilcox,

145 S. Ct. 1415 (2025) (per curiam), the Supreme Court stayed preliminary injunctions

effectively reinstating removed members of the National Labor Relations Board and the

Merit Systems Protection Board to "avoid the disruptive effect of the repeated removal

and reinstatement of officers" while litigation is ongoing. Id. at 1415.

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No. 25-5197 September Term, 2024

Harm to Others. Granting the stays in Wilcox, the Supreme Court 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." 145 S. Ct. at 1415. We can

discern no reason why this balance would be different in the case of removed PCLOB

members than it is in cases of removed NLRB or MSPB members.

Public Interest. The public interest is harmed when an injunction wrongfully

insulates the President's Executive Branch appointees from his oversight. Such

injunctions sever a key constitutional link between the People and their elected

President. See Seila L. LLC v. CFPB, 591 U.S. 197, 224 (2020). LeBlanc and Felten

counter that their removals would deprive PCLOB of a quorum, preventing the agency

from performing its statutory duties. But the Supreme Court, when pressed with similar

arguments in Wilcox, nonetheless stayed orders restoring the removed officers. Cathy

A. Harris's Opp'n to Appl. for a Stay at 36-37, Wilcox, No. 24A966, 145 S. Ct. 1415

(Apr. 15, 2025); Resp. of Gwynne A. Wilcox in Opp'n to the Appl. for a Stay at 26-27,

No. 24A966, Wilcox, 145 S. Ct. 1415 (Apr. 15, 2025). We do the same here.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Scott H. Atchue

Deputy Clerk

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