Petition for Writ of Certiorari — Cathy Harris, Petitioner v. Scott Bessent, Secretary of the Treasury, et al.

Supreme Court briefSep 15, 2025

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No. 25-____

IN THE

Supreme Court of the United States

_________

CATHY A. HARRIS,

Petitioner,

SCOTT BESSENT, ET AL.,

Respondents.

_________

On Petition for Writ of Certiorari Before

Judgment to the United States Court of

Appeals for the D.C. Circuit

_________

PETITION FOR A WRIT OF CERTIORARI

BEFORE JUDGMENT

_________

NATHANIEL A.G. ZELINSKY

NEAL KUMAR KATYAL

Counsel of Record

SAMANTHA BATEMAN

KRISTINA ALEKSEYEVA

MARY L. DOHRMANN†

MILBANK LLP

JAMES I. PEARCE††

1101 New York Ave., NW

WASHINGTON LITIGATION

Washington, DC 20005

GROUP

(202) 835-7500

5335 Wisconsin Ave., NW

nkatyal@milbank.com

Suite 440

Washington, DC 20015

Counsel for Petitioner

(Additional counsel listed on inside cover)

MICHAEL KATOR

LINDA MARIE CORREIA

KERRIE DIANE RIGGS

CORREIA & PUTH, PLLC

JEREMY D. WRIGHT

1400 16th Street, NW

KATOR, PARKS, WEISER &

Suite 450

WRIGHT, PLLC

Washington, DC 20036

1150 Connecticut Ave., NW

Suite 705

Washington, DC 20036

† Admitted only in New York; practicing under the

supervision of D.C. Bar Members.

†† Admitted only in New York and North Carolina;

practicing under the supervision of D.C. Bar Members.

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether Congress may provide by statute that

members of the Merit Systems Protection Board—an

adjudicatory body that does not make policy—“may be

removed by the President only for inefficiency, neglect

of duty, or malfeasance in office.” 5 U.S.C. § 1202(d).

2. Whether Article III courts can provide a remedy

other than backpay when the President violates a constitutional for-cause removal provision.

(i)

PARTIES TO THE PROCEEDING

Petitioner in this Court is Cathy A. Harris.

Respondents are Scott Bessent, Trent Morse, Sergio Gor, Henry Kerner, Donald J. Trump, and Russell

T. Vought.

iii

STATEMENT OF RELATED PROCEEDINGS

The case is before the U.S. Court of Appeals for the

District of Columbia Circuit as Harris v. Bessent, No.

25-5055.

The case was before the U.S. District Court for the

District of Columbia as Harris v. Bessent, No. 1:25-cv00412-RC.

The case was previously before this Court as

Trump v. Wilcox, No. 24A966.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................i

PARTIES TO THE PROCEEDING ........................... ii

STATEMENT OF RELATED PROCEEDINGS....... iii

TABLE OF AUTHORITIES ........................................ v

INTRODUCTION ........................................................ 1

OPINIONS AND ORDERS BELOW .......................... 4

JURISDICTION .......................................................... 4

STATUTES INVOLVED ............................................. 5

STATEMENT .............................................................. 5

A. The Humphrey’s Executor Framework ............ 5

B. The Merit Systems Protection Board .............. 6

C. Procedural History ........................................... 6

REASONS FOR GRANTING THE PETITION ....... 12

I. THE COURT SHOULD GRANT THE

PETITION IF IT GRANTS SLAUGHTER ................ 13

II. THE COURT HAS GRANTED CERTIORARI

BEFORE JUDGMENT IN SIMILAR CONTEXTS ...... 16

CONCLUSION .......................................................... 18

APPENDIX

TABLE OF AUTHORITIES

Page(s)

CASES:

Collins v. Yellen,

594 U.S. 220 (2021) ............................................. 2, 5

Free Enter. Fund v. PCAOB,

561 U.S. 477 (2010) ................................................. 5

Gratz v. Bollinger,

539 U.S. 244 (2003) ............................................... 17

Humphrey’s Executor v. United States,

295 U.S. 602 (1935) ....................... 2, 3, 4, 13, 14, 15

Kalbfus v. Siddons,

42 App. D.C. 310 (D.C. Cir. 1914) ................... 14, 15

Kaplan v. Conyers,

733 F.3d 1148 (Fed. Cir. 2013) ................................ 6

Learning Res., Inc. v. Trump,

No. CV 25-1248, 2025 WL 1525376 (D.D.C.

May 29, 2025) .................................................. 16, 17

McLane Co. v. EEOC,

581 U.S. 72 (2017) ................................................. 15

Sampson v. Murray,

415 U.S. 61 (1974) ................................................. 14

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) ............................................. 2, 5

Service v. Dulles,

354 U.S. 363 (1957) ............................................... 14

Severino v. Biden,

71 F.4th 1038 (D.C. Cir. 2023) .............................. 14

TABLE OF AUTHORITIES—Continued

Page(s)

Students for Fair Admissions, Inc. v. President

& Fellows of Harvard Coll.,

600 U.S. 181 (2023) ............................................... 17

Swan v. Clinton,

100 F.3d 973 (D.C. Cir. 1996)................................ 14

Trump v. Boyle,

145 S. Ct. 2653 (2025) (per curiam) ...................... 11

Trump v. Wilcox,

145 S. Ct. 1415 (2025) (per curiam) .......... 10, 11, 12

United States v. Booker,

543 U.S. 220 (2005) ............................................... 17

V.O.S. Selections, Inc. v. Trump,

Nos. 2025-1812, 2025-1813, 2025 WL

2490634 (Fed. Cir. Aug. 29, 2025) ........................ 17

Vitarelli v. Seaton,

359 U.S. 535 (1959) ............................................... 14

Wiener v. United States,

357 U.S. 349 (1958) ......................1, 2, 3, 4, 5, 15, 16

Williams v. United States,

289 U.S. 553 (1933) ............................................... 14

STATUTES:

5 U.S.C. § 1201 ........................................................... 6

5 U.S.C. § 1202(a) ................................................... 5, 6

5 U.S.C. § 1202(a)-(c) .................................................. 6

5 U.S.C. § 1202(d) ........................................... 2, 5, 6, 7

5 U.S.C. § 2302(b)(1) .................................................. 6

vii

TABLE OF AUTHORITIES—Continued

Page(s)

5 U.S.C. § 2302(b)(8) .................................................. 6

5 U.S.C. § 3592(a) ....................................................... 6

5 U.S.C. § 7511 ........................................................... 6

10 U.S.C. § 942(c) ..................................................... 14

26 U.S.C § 7443(f) ............................................... 13, 14

28 U.S.C. § 1254(1) ............................................... 5, 16

28 U.S.C. § 2101(e) ............................................... 5, 16

28 U.S.C. § 2201 ....................................................... 15

38 U.S.C. § 7253(f) .................................................... 14

42 U.S.C. § 7171(b)(1) .............................................. 13

Act of Apr. 7, 1798,

ch. 28, § 3, 1 Stat. 549 (1798) ................................ 13

Act of Aug. 17, 1789,

ch. 8, 1 Stat. 50 (1789) ........................................... 13

Act of Feb. 24, 1855,

ch. 122, § 1, 33 Stat. 612 (1855) ...................... 13, 14

OTHER AUTHORITIES:

3 William Blackstone, Commentaries ..................... 14

S. Rep. No. 95-969 (1978) ........................................... 6

IN THE

Supreme Court of the United States

_________

No. 25-____

_________

CATHY A. HARRIS,

Petitioner,

SCOTT BESSENT, ET AL.

Respondent.

_________

On Petition Before Judgment

for Writ of Certiorari to the

United States Court of Appeals

for the D.C. Circuit

_________

PETITION FOR A WRIT OF CERTIORARI

BEFORE JUDGMENT

_________

Cathy Harris respectfully petitions this Court, if it

grants certiorari before judgment in Trump v. Slaughter, No. 25A264 (U.S.), to grant certiorari before judgment in this case and consolidate it for briefing and

argument alongside Slaughter.

INTRODUCTION

Petitioner Cathy Harris is a member of the Merit

Systems Protection Board (MSPB), an “adjudicatory

body” that hears employment appeals regarding civil

(1)

servants. Wiener v. United States, 357 U.S. 349, 356

(1958). Under a law that has existed for a half-century without challenge by chief executives such as

President Ronald Reagan, President George H.W.

Bush, and President George W. Bush, the President

may terminate members of the Board “only for inefficiency, neglect of duty, or malfeasance in office.” 5

U.S.C. § 1202(d).

In February, the President purported to remove

Harris—without any cause and in direct defiance of

the law that Congress passed. The Government insists that Article II of the Constitution provides the

President unchecked authority to remove Board members at will. That is wrong. Under the longstanding

Humphrey’s Executor framework, Congress may enact

standards of removal for “multimember board[s],”

Seila Law LLC v. CFPB, 591 U.S. 197, 207 (2020),

particularly for “predominantly quasi judicial,”

Humphrey’s Executor v. United States, 295 U.S. 602,

624 (1935), and “adjudicatory bod[ies],” Wiener, 357

U.S. at 356.

The MSPB is the quintessential example of an “adjudicatory body” whose members can be protected

from arbitrary removal. Wiener, 357 U.S. at 356. The

MSPB does not launch investigations, set policy, fill

up vague statutes, or regulate “the economy at large.”

Collins v. Yellen, 594 U.S. 220, 253 (2021). The MSPB

merely hears discrete cases regarding civil servants,

and neutrally applies the laws that Congress passed

prohibiting arbitrary dismissal, discrimination, and

retaliation to the facts of each individual case. If the

MSPB is not constitutional under Humphrey’s Executor, nothing is.

In April, the Government requested certiorari before judgment in this case, which Petitioner opposed

and which this Court denied. The Government has

now sought certiorari before judgment in Trump v.

Slaughter, No. 25A264 (U.S.), a case involving a member of the Federal Trade Commission (FTC).

Petitioner continues to believe that the Court

should not overturn Humphrey’s Executor without the

benefit of the Court of Appeals’ input. A blitzkrieg-tojudgment is no way to remake century-old precedent.

The Court should wait for the Court of Appeals to provide this Court with the full benefit of its reasoning.

Nor will this Court need to wait long. The D.C. Circuit

merits panel heard expedited oral argument in this

case in May 2025, the issues were thoroughly ventilated below, and this Court could likely review that

court’s judgment this Term.

But should the Court grant certiorari before judgment in Slaughter—and only if the Court grants review in Slaughter—Petitioner requests the Court

grant review in this case. If the Court considers

whether to revisit Humphrey’s Executor, the Court

should have before it an agency that is a “predominantly quasi judicial” “adjudicatory body” at the core

of the Humphrey’s Executor framework. Humphrey’s

Executor, 295 U.S. at 624; Wiener, 357 U.S. at 356.

Doing so will allow this Court to provide Congress, the

executive branch, and lower courts with the most fulsome guidance regarding the continued validity of the

Humphrey’s Executor framework in the widest array

of circumstances.

Even the Government agrees that the MSPB is

“predominantly an adjudicatory body.” Pet. App. 215a

(quoting government counsel at oral argument in the

D.C. Circuit). Indeed, the Board notably performs

none of the non-adjudicatory functions that the Government now claims in Slaughter render the modern

FTC unconstitutional. Unlike the functions the Government claims the modern FTC performs, for example, the Merit Systems Protection Board does not (i)

“initiate judicial proceedings against private parties”;

(ii) wield “significant rulemaking authority”; (iii) “investigate potential violations”; (iv) or exercise “substantial foreign-relations powers.” Application at 1215, Trump v. Slaughter, No. 25A264 (U.S., Sep. 4,

2025).

In short, if this Court grants Slaughter, it should

grant this Petition too. This Petition presents this

Court the opportunity to provide guidance on whether

the Humphrey’s Executor framework remains binding

precedent for “predominantly quasi judicial” “adjudicatory bod[ies].” Humphrey’s Executor, 295 U.S. at

624; Wiener, 357 U.S. at 356. To only grant Slaughter,

by contrast, would risk this Court having before it a

skewed picture of the types of agencies protected by

the Humphrey’s Executor framework, and would potentially leave all three branches without sufficient

guidance on how the Court’s decision applies to adjudicatory entities.

OPINIONS AND ORDERS BELOW

The opinion of the district court, Pet. App. 4a-52a,

is reported at 775 F.Supp.3d 164. The order of the

D.C. Circuit special panel granting a stay pending appeal, Pet. App. 53a-188a, is not reported but is available at 2025 WL 980278. The order of the en banc

D.C. Circuit denying a stay, Pet. App. 189a-212a, is

not reported but is available at 2025 WL 1021435.

JURISDICTION

The district court entered a final judgment on

March 4, 2025. Pet. App. 1a-3a. Respondents appealed to the U.S. Court of Appeals for the District of

Columbia Circuit on March 4, 2025. The D.C. Circuit

heard expedited argument on the merits on May 16,

2025, and the case remains pending in that court.

This petition for certiorari before judgment is filed under Supreme Court Rule 11, and this Court has jurisdiction under 28 U.S.C. §§ 1254(1) and 2101(e).

STATUTES INVOLVED

5 U.S.C. § 1202(a) provides: “The term of office of

each member of the Merit Systems Protection

Board is 7 years.”

5 U.S.C. § 1202(d) provides: “Any member may be

removed by the President only for inefficiency, neglect

of duty, or malfeasance in office.”

STATEMENT

A. The Humphrey’s Executor Framework

Under Humphrey’s Executor, Congress may “create expert agencies led by a group of principal officers

removable by the President only for good cause.” Seila

Law, 591 U.S. at 204 (emphasis omitted). At the heart

of that framework are “adjudicatory bod[ies]” performing tasks of an “intrinsic judicial character.” Wiener, 357 U.S. at 355-356.

In Seila Law and Collins, the Supreme Court

struck down removal provisions for “novel” single-director-led agencies. Seila Law, 591 U.S. at 204; Collins, 594 U.S. at 251; see Free Enter. Fund v. PCAOB,

561 U.S. 477, 496 (2010). The Court did “not revisit

Humphrey’s Executor or any other precedent,” and

contrasted novel single-director-led agencies with a

“traditional” “multimember board or commission.”

Seila Law, 591 U.S. at 207, 228.

B. The Merit Systems Protection Board

This case involves a quintessential adjudicatory

body—the multimember Merit Systems Protection

Board—that reflects a centuries-long effort to combat

patronage in federal employment. Almost a half-century ago, in 1978, Congress passed the Civil Service

Reform Act to ensure a government “impartially administered” by employees judged on merit rather than

political favoritism. S. Rep. No. 95-969, at *4 (1978),

as reprinted in 1978 U.S.C.C.A.N. 2723, 2726. Among

other things, the Act created the Board.

At then-President Carter’s urging, Congress provided that the new Board’s members “may be removed

by the President only for inefficiency, neglect of duty,

or malfeasance in office.” 5 U.S.C. § 1202(d). The

Board’s three members serve staggered seven-year

terms, with no more than two belonging to the same

political party. Id. §§ 1201, 1202(a)-(c).

The Board adjudicates federal employee appeals

from adverse employment actions, including claims of

political discrimination and whistleblower retaliation.

Id. §§ 2302(b)(1), (b)(8). Its jurisdiction is circumscribed to avoid encroaching on the President’s core

prerogatives. The Board may not hear appeals by political appointees, id. § 7511, has limited authority regarding senior executive managers, id. § 3592(a), and

cannot wade into national security issues, Kaplan v.

Conyers, 733 F.3d 1148, 1166 (Fed. Cir. 2013) (en

banc).

C. Procedural History

1. In 2022, Cathy Harris was nominated and confirmed as a member. Her term expires March 1, 2028.

On February 10, 2025, Harris received an email

stating that the President terminated her. She filed

this action the next day. At no point has the government claimed that Harris has committed “inefficiency,

neglect of duty, or malfeasance in office.” 5 U.S.C.

§ 1202(d).

In the proceedings below, the government did not

contest: (i) that the “Board does not establish policy,”

and does not “dictate or enforce policies regarding the

federal workforce”; (ii) that the Board “performs no investigations of external parties and does not prosecute

cases”; (iii) that the “Board does not initiate disciplinary actions” and lacks “enforcement units”; (iv) that

it “does not order other agencies to conduct investigations or to produce written reports”; and (v) that “over

95% of the decisions” of the Board are “unanimous.”

Statement of Facts, D. Ct. Dkt. 22-2 at 7-9.

The District Court issued a detailed decision for

Harris, Pet. App. 4a-52a. On the merits, the District

Court concluded that “removal protections are constitutional under Humphrey’s Executor.” Pet. App. 12a.

The Merit Systems Protection Board is a quintessential multimember body with “ ‘quasi judicial’ ” “duties”

that “conducts preliminary adjudications of federal

employees’ claims.” Pet. App. 19a-20a (citation omitted). “The Board does not regulate the conduct of private parties, nor does it possess its own rulemaking

authority except in furtherance of its judicial functions.” Pet. App. 20a. “It cannot initiate its own personnel cases, but must instead passively wait for them

to be brought.” Pet. App. 20a-21a. (quotation marks

and citation omitted).

With respect to remedy, the District Court rejected

the Government’s argument that Article III courts are

powerless to provide a remedy, and issued both injunctive and declaratory relief for Harris. The court

explained that D.C. Circuit precedent confirms

“injunctive relief” is “available” in removal cases, Pet.

App. 41a, and that “declaratory judgment” would be

“appropriate to clarify Harris’s legal status,” Pet. App.

28a.

The District Court also made clear that, were “equitable injunctive relief unavailable” for any reason, it

would issue “a writ of mandamus” as “an alternative

remedy.” Pet. App. 50a-51a. In an exhaustive decision, the court outlined the long history of AngloAmerican courts issuing mandamus in this circumstance. Pet. App. 48a-51a.

2. The government appealed and sought a stay

pending appeal in the D.C. Circuit.1

At oral argument on the stay, the government

characterized the Merit Systems Protection Board as

“predominantly an adjudicatory body.” Pet. App.

215a.

The panel granted the stay pending appeal. Pet.

App. 53a-188a. There was no majority opinion. In a

concurrence, Judge Walker explained that he would

narrow Humphrey’s Executor into virtual non-existence. According to Judge Walker, the Humphrey’s Executor framework applies only “if the agency in question is the identical twin of the 1935” Federal Trade

Commission. Pet. App. 87a (Walker, J., concurring).

In another concurrence, Judge Henderson voted to

grant the stay. But Judge Henderson stated that the

Merit Systems Protection Board’s “powers are

1 In the D.C. Circuit and at the stay stage in this Court, this case

was consolidated for briefing and argument with Wilcox v.

Trump, No. 25-5057 (D.C. Cir.).

relatively more circumscribed” than those of other

agencies. Pet. App. 114a (Henderson, J., concurring).

Judge Millett dissented and emphasized that the

panel’s decision conflicted with “controlling Supreme

Court precedent.” Pet. App. 122a (Millett, J., dissenting). As Judge Millett explained, invalidating the removal statute in this case would call “into question the

constitutionality of dozens” of multimember bodies

“from the Federal Reserve Board and the Nuclear

Regulatory Commission to the National Transportation Safety Board and the Court of Appeals for Veterans Claims.” Pet. App. 122a.

3. Harris filed a petition requesting en banc review of the stay order. The en banc D.C. Circuit vacated the panel’s order and denied the government’s

motion. The en banc court explained that it was applying this Court’s precedent “concerning multimember adjudicatory bodies.” Pet. App. 193a.

The D.C. Circuit also noted that, “at both parties’

request, the court has set a highly expedited schedule

for the merits of these appeals that will allow the

cases to be resolved in short order.” Pet. App. 193a.

The D.C. Circuit merits panel heard oral argument on

May 16, 2025.

4. After the D.C. Circuit denied the government’s

motion for a stay, the government filed an application

for a stay in this Court. See Application, Trump v.

Wilcox, No. 24A966 (U.S. Apr. 9, 2025). The government asked the Court to construe its application as a

request for certiorari before judgment and hear the

case in a special sitting in May 2025. Id. at 36-38.

Petitioner opposed a stay and certiorari before

judgment. She explained that the D.C. Circuit had

expedited proceedings and that waiting for the D.C.

Circuit would allow that court to explain “the effect of

ruling for the government on the Federal Reserve and

adjudicators like Tax Court judges, and the broader

ramifications of the government’s remedies theory.”

Resp. at 39, Trump v. Wilcox, No. 24A966 (U.S. Apr.

15, 2025).

This Court granted the government’s stay pending

appeal but denied certiorari before judgment. According to the Court, “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.” Trump v. Wilcox, 145 S. Ct.

1415, 1415 (2025) (per curiam).

The Court did not opine on whether the Government was likely to succeed on the merits. The Court

instead stated that the President “may remove without cause executive officers who exercise” “power on

his behalf, subject to narrow exceptions recognized by”

“precedent[ ].” Id. But the Court determined that

whether the Merit Systems Protection Board “falls

within such a recognized exception” is a question “better left for resolution after full briefing and argument.” Id.

The Court separately stated that the arguments in

this case did not “necessarily implicate the constitutionality of for-cause removal protections for members

of the Federal Reserve’s Board of Governors or other

members of the Federal Open Market Committee”—

who by statute are not removable at will by the President. Id. (emphasis added). According to the Court,

the Federal Reserve may be able to claim a “distinct

historical tradition.” Id.

The Court did not address the government’s alternative remedial argument that—even if Petitioner’s

purported removal was unlawful—Article III courts

are powerless to provide her meaningful relief.

Justice Kagan dissented, joined by Justices Sotomayor and Jackson. Id. at 1416 (Kagan, J., dissenting).

5. On July 23, 2025, the Court issued an order

staying a judgment in Trump v. Boyle, involving members of the Consumer Products Safety Commission.

See Trump v. Boyle, 145 S. Ct. 2653, 2654 (2025) (per

curiam). The Court reiterated that its stay in Boyle

and in this case reflected the Court’s “judgment that

the Government faces greater risk of harm.” Id. (quoting Wilcox, 145 S. Ct. at 1415).

The Court again declined the Government’s request to grant certiorari before judgment. In a concurrence, Justice Kavanaugh noted that he “would

have granted certiorari before judgment in” Boyle or

in this case. Id. at 2654 (Kavanaugh, J., concurring).

Justice Kagan dissented, joined by Justices Sotomayor and Jackson. Id. at 2655 (Kagan, J., dissenting).

6. On September 4, 2025, the Government filed an

application requesting a stay in Slaughter, which involves a member of the Federal Trade Commission

whom the President purported to remove without

cause.

The Government argued that the Federal Trade

Commission “has amassed considerable executive

power in the intervening 90 years” since this Court

decided Humphrey’s Executor—indeed far “more executive power than the” purely adjudicatory “MSPB.”

Application at 3, 16, Trump v. Slaughter, No. 25A264

(U.S., Sep. 4, 2025).

As in this case and in Boyle, the Government has

requested certiorari before judgment. Id. at 28-29.

This conditional petition for certiorari before judgment follows.

REASONS FOR GRANTING THE PETITION

For all the reasons Petitioner provided at the stay

stage, Petitioner maintains that the best course of action is for this Court to decide whether to narrow or

overrule Humphrey’s Executor only after receiving the

benefit of the full analysis of the Court of Appeals.

Nothing has changed to disturb this Court’s prior conclusion that the merits are “better left for resolution

after full briefing and argument.” Wilcox, 145 S. Ct. at

1415.

But if this Court grants certiorari before judgment

in Slaughter, it should grant this Petition as well. Doing so will ensure that this Court has before it an

agency—the MSPB—that everyone agrees is the kind

of adjudicatory body that lies at the heart of the

Humphrey’s Executor framework. This approach

would mirror this Court’s recent decision to grant certiorari before judgment in Learning Resources Inc. v.

Trump, No. 24-1287 (U.S.), which ensured that the

Court had before it decisions from both the Federal

Circuit and D.C. Circuit on the legality of the President’s tariff regime. And this approach would allow

this Court to provide the most fulsome guidance to all

three branches of government regarding Congress’s

ability to enact for-cause removal statutes for principal officers.

I. THE COURT SHOULD GRANT THE PETITION IF IT

GRANTS SLAUGHTER.

A. The Humphrey’s Executor framework has stood

for nearly a century, and Congress has relied on it to

structure everything from the Tax Court, 26 U.S.C

§ 7443(f), to the Federal Energy Regulatory Commission, 42 U.S.C. § 7171(b)(1). The Court should not

rush to remake the federal government as we know it.

The Court of Appeals should have first crack at the

arguments—which were fully ventilated in the proceedings below by the extensive district court decision, the parties’ appellate briefing, and a wide array

of amici. These arguments include, to name just a

few, the history of independent adjudicators dating to

the Founding; the ramifications of overturning

Humphrey’s Executor for the Federal Reserve; congressional reliance on Humphrey’s Executor; and the

unique constitutional history regarding congressional

efforts to combat patronage in federal employment.

Consider just one of the arguments that the D.C.

Circuit is currently considering. As Humphrey’s Executor recognized—and as Petitioner explained in the

Court of Appeals—Congress has long enacted

measures to protect the “independence” of adjudicators outside of Article III—mirroring the independence provided to Article III judges by the Constitution.

295 U.S. at 630. In the first years of the new nation,

Congress passed laws under which non-Article III

judges held their commissions during good behavior.2

Shortly before the Civil War, Congress created the

Court of Claims, a “legislative [c]ourt” whose judges

2 See, e.g., Act of Aug. 17, 1789, ch. 8, 1 Stat. 50, 51 (1789); Act of

Apr. 7, 1798, ch. 28, § 3, 1 Stat. 549, 550 (1798).

were likewise protected from arbitrary removal.

Humphrey’s Executor, 295 U.S. at 629.3 Today, like

members of the MSPB, judges on the Tax Court, 26

U.S.C. § 7443(f), the Court of Appeals for Veterans

Claims, 38 U.S.C. § 7253(f), and the Court of Appeals

for the Armed Forces, 10 U.S.C. § 942(c), are all adjudicators protected from arbitrary dismissal through

for-cause removal provisions.

The Court of Appeals should also have the first opportunity to address the Government’s extraordinary

argument that Article III courts are powerless to issue

a meaningful remedy whenever the President violates

a for-cause removal statute. These issues were likewise thoroughly ventilated both in the district court’s

decision and in briefing before the Court of Appeals.

As we explained, this Court’s precedent confirms that

courts may issue equitable relief. See Sampson v.

Murray, 415 U.S. 61, 71 (1974); Service v. Dulles, 354

U.S. 363, 370, 389 (1957); Vitarelli v. Seaton, 359 U.S.

535, 537, 546 (1959); see also Severino v. Biden, 71

F.4th 1038, 1042-43 (D.C. Cir. 2023); Swan v. Clinton,

100 F.3d 973, 980 (D.C. Cir. 1996). There is an extremely long Anglo-American history and tradition of

courts issuing the same relief in the form of mandamus to provide a “full and effectual remedy” “for

wrongful removal.” 3 William Blackstone, Commentaries *264; see Kalbfus v. Siddons, 42 App. D.C. 310,

319 (D.C. Cir. 1914) (explaining that there is “overwhelming” authority supporting issuance of

3 See Act of Feb. 24, 1855, ch. 122, § 1, 33 Stat. 612 (1855). The

Court of Claims was a “legislative court.” Williams v. United

States, 289 U.S. 553, 571, 581 (1933); accord Humphrey’s Executor, 295 U.S. at 629.

mandamus). And declaratory relief is available to

clarify the relationship of the parties. See 28 U.S.C.

§ 2201.

All of these issues should be considered, in the first

instance, by the Court of Appeals. See McLane Co. v.

EEOC, 581 U.S. 72, 85 (2017) (explaining this is “a

court of review, not of first view” (citation omitted)).

B. But if this Court chooses to forgo its ordinary

processes and grants review in Slaughter, the Court

should grant certiorari before judgment in this case.

Doing so will ensure that this Court has before it a

vehicle that best presents an opportunity to determine

whether the core of Humphrey’s Executor—Congress’s

ability to enact for-cause removal for adjudicators—

remains good law.

In seeking to overturn Humphrey’s Executor, the

Government has argued that modern independent

agencies cannot be accurately characterized as “predominantly quasi judicial.” Humphrey’s Executor, 295

U.S. at 624. But even the government agrees that the

MSPB is a predominantly adjudicatory body. See Pet.

App. 215a. Whatever the merits of that argument for

other independent agencies—and Petitioner takes no

position on other agencies at this time—that is not

true for MSPB. The MSPB does not fill up vague statutes or regulate large swaths of the economy. Nor

does it perform any of the non-adjudicatory tasks that

the Government claims make the FTC constitutionally suspect. See Application at 12-16, Trump v.

Slaughter, No. 25A264 (U.S., Sep. 4, 2025). The

MSPB is a quintessential “adjudicatory body” that applies law to the facts of the cases brought before it.

Wiener, 357 U.S. at 356. In doing so, the MSPB performs an “intrinsic judicial” “task” that could have

been assigned “to the District Courts or to the Court

of Claims.” Id. at 355. To secure critical due process

values—including both the appearance and reality of

impartiality—Congress may enact modest provisions

protecting MSPB members from arbitrary removal so

that they do not live with “the Damocles’ sword of removal by the President” overhead. Id. at 356.

If the Court is to reconsider Humphrey’s Executor,

it should have before it an adjudicatory body that everyone agrees lies at the heart of that framework. This

Petition presents this Court with that vehicle and the

opportunity to provide definitive guidance to lower

courts, the executive branch, and Congress. By contrast, if the Court does not take this Petition, anything

the Court says about adjudicatory bodies in the course

of its opinion will be dicta. Thus, if the Court grants

Slaughter, it should grant this Petition and set the

cases on parallel briefing schedules.

II. THE COURT HAS GRANTED CERTIORARI BEFORE

JUDGMENT IN SIMILAR CONTEXTS.

As the Court recently underscored in Learning Resources Inc. v. Trump, No. 24-1287 (U.S.), the Court

has the authority to and has granted certiorari before

judgment in this procedural posture.

As to the Court’s authority to grant certiorari before judgment, “any party to any civil or criminal case”

may petition for a writ of certiorari “before” “rendition

of judgment or decree” in the Court of Appeals. 28

U.S.C. § 1254(1). Such an “application to the Supreme

Court for a writ of certiorari to review a case before

judgment has been rendered in the court of appeals

may be made at any time before judgment.” Id.

§ 2101(e).

In Learning Resources, the district court had ruled

for the plaintiff challenging the President’s authority

to unilaterally impose widespread tariffs. See Learning Res., Inc. v. Trump, No. CV 25-1248, 2025 WL

1525376 (D.D.C. May 29, 2025). The government appealed to the D.C. Circuit, and the plaintiff filed a petition for certiorari before judgment in this Court.

When the Federal Circuit similarly concluded that the

President lacked authority to impose tariffs in V.O.S.

Selections, Inc. v. Trump, Nos. 2025-1812, 2025-1813,

2025 WL 2490634 (Fed. Cir. Aug. 29, 2025), the government sought certiorari in that case. In response,

the Court granted the Government’s petition in V.O.S.

Selections, granted the plaintiff’s petition in Learning

Resources, and consolidated the cases.

A similar approach is available here. See also, e.g.,

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 198 (2023) (noting

Court granted “certiorari before judgment in the UNC

case”); United States v. Booker, 543 U.S. 220, 229

(2005) (noting Court granted certiorari before judgment in one case and certiorari after judgment in another); Gratz v. Bollinger, 539 U.S. 244, 259-260

(2003) (noting Court granted certiorari before judgment in a companion case to “address the constitutionality of the consideration of race in university admissions in a wider range of circumstances”).

CONCLUSION

If but only if the Court grants review in Slaughter,

this Petition for a writ of certiorari before judgment

should be granted.

Respectfully submitted,

NATHANIEL A.G. ZELINSKY

SAMANTHA BATEMAN

MARY L. DOHRMANN†

JAMES I. PEARCE††

WASHINGTON LITIGATION

GROUP

5335 Wisconsin Ave., NW

Suite 440

Washington, DC 20015

LINDA MARIE CORREIA

CORREIA & PUTH, PLLC

1400 16th Street, NW

Suite 450

Washington, DC 20036

† Admitted only in New

York; practicing under the

supervision of D.C. Bar

Members.

NEAL KUMAR KATYAL

Counsel of Record

KRISTINA ALEKSEYEVA

MILBANK LLP

1101 New York Ave., NW

Washington, D.C. 20005

(202) 835-7500

nkatyal@milbank.com

MICHAEL KATOR

KERRIE DIANE RIGGS

JEREMY D. WRIGHT

KATOR, PARKS, WEISER &

WRIGHT, PLLC

1150 Connecticut Ave., NW

Suite 705

Washington, DC 20036

†† Admitted only in New

York and North Carolina;

practicing under the

supervision of D.C. Bar

Members.

Counsel for Petitioner

September 2025

APPENDIX

TABLE OF CONTENTS

APPENDIX A—D.D.C. Order Granting

Summary Judgment (Mar. 4, 2025) .................. 1a

APPENDIX B—D.D.C. Memorandum

Opinion Granting Summary Judgment

(Mar. 4, 2025) ..................................................... 4a

APPENDIX C—D.C. Circuit Order Granting

Emergency Stay Motions (Mar. 28, 2025)....... 53a

APPENDIX D—D.C. Circuit En Banc Order

Vacating Emergency Stay Order and

Denying Stay Pending Appeal

(Apr. 7, 2025).................................................. 189a

APPENDIX E—Excerpt of Transcript of D.C.

Circuit Oral Argument (Mar. 18, 2025) ........ 213a

APPENDIX A

___________

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA CIRCUIT

___________

Civil Action No.: 25-412 (RC)

Re Document No.: 22

___________

CATHY A. HARRIS, IN HER PERSONAL CAPACITY AND

IN HER OFFICIAL CAPACITY AS MEMBER OF THE MERIT

SYSTEMS PROTECTION BOARD,

Plaintiff,

SCOTT BESSENT, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE TREASURY, ET AL.,

Defendants.

___________

ORDER

GRANTING PLAINTIFF’S MOTION FOR SUMMARY

JUDGMENT

For the reasons stated in the Court’s Memorandum

Opinion separately and contemporaneously issued,

Plaintiff Cathy A. Harris’s Motion for Summary

Judgment (ECF No. 22) is GRANTED. It is hereby:

DECLARED that Plaintiff Cathy A. Harris

remains a member of the Merit Systems Protection

Board, having been confirmed by the Senate on May

25, 2022, and sworn in on June 1, 2022, and that she

may be removed by the President prior to the

expiration of her term in office only for inefficiency,

neglect of duty, or malfeasance in office pursuant to 5

U.S.C. § 1202; and it is

FURTHER ORDERED that Plaintiff Cathy A.

Harris shall continue to serve as a member of the

Merit Systems Protection Board until her term

expires pursuant to 5 U.S.C. § 1202, unless she is

earlier removed for inefficiency, neglect of duty, or

malfeasance in office under that statute. Defendants

Secretary Scott Bessent, Deputy Director Trent

Morse, Director Sergio Gor, Acting Chairman Henry

Kerner, and Director Russell Vought are ENJOINED

from removing Harris from her office without cause or

in any way treating her as having been removed

without cause, denying or obstructing Harris’s access

to any of the benefits or resources of her office, placing

a replacement in Harris’s position, or otherwise

recognizing any other person as a member of the

Merit Systems Protection Board in Harris’s position;

and it is

FURTHER ORDERED that the Court’s

Temporary Restraining Order (ECF No. 8) is

VACATED.

SO ORDERED.

Dated: March 4, 2025 RUDOLPH CONTRERAS

United States District Judge

APPENDIX B

___________

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA CIRCUIT

___________

Civil Action No.: 25-412 (RC)

Re Document No.: 22

___________

CATHY A. HARRIS, IN HER PERSONAL CAPACITY AND

IN HER OFFICIAL CAPACITY AS MEMBER OF THE MERIT

SYSTEMS PROTECTION BOARD,

Plaintiff,

SCOTT BESSENT, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE TREASURY, ET AL.,

Defendants.

___________

MEMORANDUM OPINION

GRANTING PLAINTIFF’S MOTION FOR SUMMARY

JUDGMENT

I. INTRODUCTION

Plaintiff Cathy A. Harris was appointed to the

Merit Systems Protection Board ("MSPB") on June 1,

2022, for a term set to expire on March 1, 2028.

Federal law states that members of the MSPB may be

removed from office "only for inefficiency, neglect of

duty, or malfeasance in office." On February 10, 2025,

President Donald J. Trump informed Harris that her

position on the MSPB was "terminated, effective

immediately" but provided no reason for Harris's

termination. The following day, Harris filed this

lawsuit against President Trump and several other

federal officials ("Defendants"), claiming that her

termination violated federal law. She moved for a

temporary restraining order enjoining Defendants

from treating her as removed from office, which this

Court granted. The parties consolidated preliminary

injunction briefing with the merits, and Harris moved

for summary judgment. The Court grants that

motion, along with declaratory judgment and a

permanent injunction.

II. BACKGROUND

A. Statutory Background

Congress created the Merit Systems Protection

Board as a component of the Civil Service Reform Act

of 1978 ("CSRA"), which "establishes a framework for

evaluating personnel actions taken against federal

employees." Kloeckner v. Solis, 568 U.S. 41, 44, 133 S.

Ct. 596, 184 L. Ed. 2d 433 (2012); see also CSRA, Pub.

L. No. 95-454, § 202, 92 Stat. 1111, 1121-25 (1978)

(codified at 5 U.S.C. §§ 1201-05). Congress's Findings

and Statement of Purpose indicate that "[i]t is the

policy of the United States that . . . to provide the

people of the United States with a competent, honest,

and productive Federal work force[,] . . . Federal

personnel management should be implemented

consistent with merit system principles." CSRA § 3,

92 Stat. at 1112. Those merit system principles

include, among others, "[r]ecruitment . . . from

qualified individuals" where "selection and

advancement [is] determined solely on the basis of

relative ability, knowledge, and skills, after fair and

open competition which assures that all receive equal

opportunity." Id. § 101, 92 Stat. at 1113 (codified at 5

U.S.C. § 2301). Congress additionally instructed that

"[e]mployees should be . . . protected against arbitrary

action, personal favoritism, or coercion for partisan

political purposes," as well as "against reprisal for the

lawful disclosure of information which the employees

reasonably believe evidences," among other things,

violations of law, gross waste of funds, an abuse of

authority, or substantial and specific dangers to

public health or safety. Id., 92 Stat. at 1114 (codified

at 5 U.S.C. § 2301).

The CSRA established the MSPB as "an

independent agency consisting of three members" and

"charged [it] with protecting the merit system

principles and adjudicating conflicts between federal

workers and their employing agencies." Frazier v.

Merit Sys. Prot. Bd., 672 F.2d 150, 154, 217 U.S. App.

D.C. 297 (D.C. Cir. 1982); see also CSRA § 101, 92

Stat. at 1114-17 (codified at 5 U.S.C. § 2302)

(establishing prohibited personnel practices, such as

employment discrimination, unlawful political

activities, and any other violations of law within the

federal civil service). The Board's primary function is

to review federal employee appeals of adverse actions

"which [are] appealable to the Board under any law,

rule, or regulation," including those related to

removal or suspension for periods greater than

fourteen days. 5 U.S.C. § 7701(a); see also id. §

1204(a)(1).

These

adjudications

consume

approximately 95 percent of MSPB members' time.

See Pl.'s Statement of Undisputed Material Facts ¶ 54

("SUMF"), ECF No. 22-2. The Board may order

federal agencies and employees to comply with its

decisions, see 5 U.S.C. § 1204(a)(2), which are

nonetheless subject to judicial review. See id. § 7703.

The MSPB thus acts as a preliminary adjudicator of

these employment disputes, with federal courts

providing the final say if the parties so desire.

The MSPB carries out other limited tasks in

pursuit of its mission. It conducts studies "relating to

the civil service" for the President and Congress, see

5 U.S.C. § 1204(a)(3), although this function takes up

less than one percent of members' time, see SUMF ¶

62. The Board may also review "rules and regulations

of the Office of Personnel Management," see id. §

1204(a)(4), on its own motion, following a complaint

from the Special Counsel, or in response to a third

party's petition, see id. § 1204(f)(1). The MSPB may

invalidate the rule or its implementation if it would

require a federal employee to engage in prohibited

personnel practices. See id. § 1204(f)(2).1

Members of the MSPB are "appointed by the

President, by and with the advice and consent of the

Senate," and "not more than 2 of [the members] may

be adherents of the same political party." CSRA § 202

(codified at 5 U.S.C. § 1201). Members of the MSPB

are appointed to seven-year terms that may be

extended by up to one year if a successor has not yet

been appointed. Id. (codified at 5 U.S.C. § 1202(a)-(c)).

"Any member may be removed by the President only

for inefficiency, neglect of duty, or malfeasance in

office." Id. (codified at 5 U.S.C. § 1202(d)).

B. Factual and Procedural Background

President Joseph R. Biden nominated Harris to be

a member of the MSPB in January 2022. SUMF ¶ 1.

The Senate confirmed her on May 25, 2022, and she

was sworn in on June 1, 2022. Id. ¶ 2. Her term

expires on March 1, 2028. Id. ¶ 3. The Senate later

confirmed Harris as Chairman, and she was sworn in

as Chairman on March 14, 2024. Id. ¶¶ 4-5.

Defendants do not dispute that Harris has been

efficient and effective in her role at the MSPB. See id.

¶ 8. When the MSPB's quorum was restored in March

2022, the agency had a backlog of approximately

1 Harris explains that invalidation of an Office of Personnel

Management rule under this mechanism "is an exceedingly rare

occurrence" that has not happened during her tenure. Harris

Decl. ¶ 31, ECF No. 22-3.

3,800 cases that had accrued since 2017, and officials

estimated that it would take five or six years for the

agency to catch up. Id. ¶¶ 12-14. By January 2025,

however, the MSPB had cleared nearly 99 percent of

its backlog. Id. ¶ 20. From June 1, 2022, to February

10, 2025, Harris participated in nearly 4,500

decisions. Id. ¶ 10.

On February 10, 2025, Harris received an email

from Trent Morse, Deputy Assistant to the President

and the Deputy Director of the White House

Presidential Personnel Office, which stated in its

entirety:

On behalf of President Donald J. Trump, I am

writing to inform you that your position on the

Merit Systems Protection Board is terminated,

effective immediately. Thank you for your service[.]

Ex. 4 to Pl.'s Mot. for Prelim. Inj. and J. on the Merits,

ECF No. 22-4. The communication did not explain the

basis for Harris's termination.

Harris filed this lawsuit on February 11, 2025,

claiming that her firing was ultra vires,

unconstitutional,

and

violation

the

Administrative Procedure Act ("APA"). See Compl. ¶¶

31-37, 40-41, ECF No. 1. She seeks relief under the

Declaratory Judgment Act, issuance of a writ of

mandamus, and equitable relief. See id. ¶¶ 38-39, 4246. Harris additionally filed a motion for a temporary

restraining order, see Pl.'s Mot. for TRO, ECF No. 2,

which Defendants opposed, see Defs.' Opp'n to Mot.

10a

for TRO, ECF No. 6. The Court held a hearing on the

TRO motion on February 13, 2025, and granted the

motion on February 18, 2025. See Min. Entry dated

Feb. 13, 2025; Order Granting Pl.'s Mot. for TRO,

ECF No. 8; Mem. Op. Granting Pl.'s Mot. for TRO

("Mem. Op."), ECF No. 9. Defendants appealed that

order to the D.C. Circuit, and the appeal remains

pending. See Notice of Appeal, ECF No. 15.

On February 19, 2025, the parties filed a joint

status report indicating that the Court's

consideration of the subsequent motion for

preliminary injunction should be consolidated with

the merits of the case pursuant to Federal Rule of

Civil Procedure 65(a)(2). See Joint Status Report,

ECF No. 13. On February 23, 2025, Harris filed a

motion for a preliminary injunction and judgment on

the merits. See Pl.'s Mot. for Prelim. Inj. and J. on the

Merits ("Pl.'s Mot."), ECF No. 22. Defendants opposed

the motion, see Defs.' Opp'n to Pl.'s Mot. for Prelim.

Inj. and J. on the Merits ("Defs.' Opp'n"), ECF No. 33,

and Harris filed a reply, see Defs.' Reply, ECF No. 38.

The parties appeared for a hearing before the Court

on March 3, 2025.

III. LEGAL STANDARD

"Having granted consolidation under Rule 65(a)(2),

the Court 'treats the parties' briefing as cross-motions

for summary judgment.'" Penkoski v. Bowser, 486 F.

Supp. 3d 219, 226 (D.D.C. 2020) (quoting Trump v.

Comm. on Oversight & Reform of the U.S. House of

11a

Representatives, 380 F. Supp. 3d 76, 90 (D.D.C.

2019)). "The court shall grant summary judgment if

the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(a). A

dispute is genuine if "the evidence presents a

sufficient disagreement to require submission to a

jury." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). And

a fact is material if it "might affect the outcome of the

suit under the governing law." Id. at 248. On

summary judgment, the Court views all evidence "in

the light most favorable to the nonmoving party and .

. . must draw all reasonable inferences in favor of the

nonmoving party." Talavera v. Shah, 638 F.3d 303,

308, 395 U.S. App. D.C. 7 (D.C. Cir. 2011).

The principal purpose of summary judgment is to

streamline litigation by disposing of factually

unsupported claims or defenses and determining

whether there is a genuine need for trial. See Celotex

Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S. Ct. 2548,

91 L. Ed. 2d 265 (1986). The movant bears the initial

burden of identifying portions of the record that

demonstrate the absence of any genuine issue of

material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477

U.S. at 323. In response, the non-movant must point

to specific facts in the record that reveal a genuine

issue that is suitable for trial. See Celotex, 477 U.S. at

324. In considering a motion for summary judgment,

a court must "eschew making credibility

12a

determinations or weighing the evidence[,]" Czekalski

v. Peters, 475 F.3d 360, 363, 374 U.S. App. D.C. 351

(D.C. Cir. 2007), and all underlying facts and

inferences must be analyzed in the light most

favorable to the non-movant, see Anderson, 477 U.S.

at 255. Nevertheless, conclusory assertions offered

without any evidentiary support do not establish a

genuine issue for trial. See Greene v. Dalton, 164 F.3d

671, 675, 334 U.S. App. D.C. 92 (D.C. Cir. 1999).

IV. ANALYSIS

The Court first considers the constitutionality of

the MSPB's structure, concluding that its members'

for-cause removal protections are constitutional

under Humphrey's Executor. Federal law thus

prevents the President from removing members of the

MSPB without cause, and the President's attempt to

terminate Harris was unlawful. As such, Harris is

entitled to summary judgment. The Court next

determines the remedies to which Harris may be

entitled, granting her declaratory judgment and a

permanent injunction. To the extent that injunctive

relief may be unavailable, the Court would grant

mandamus relief in the alternative.

A. Constitutionality of the MSPB Members'

Removal Protections

Harris claims that her termination was ultra vires

in violation of statutory authority, violated the

separation of powers, and was contrary to law under

the APA. See Compl. ¶¶ 31-37, 40-41. She argues that

13a

this case falls squarely within the heartland of

Humphrey's Executor v. United States, 295 U.S. 602,

55 S. Ct. 869, 79 L. Ed. 1611 (1935), and its progeny,

and that the Board is a traditional multimember body

that does not wield traditional executive power. See

Pl.'s Mot. at 11-20. MSPB members' removal

protections are therefore constitutional, according to

Harris. See id. at 11-12. Defendants respond that the

MSPB does not fall within Humphrey's Executor, and

that the independent agency wields substantial

executive power. See Defs.' Opp'n at 5-13. The Court

concludes that MSPB members' removal protections

are constitutional under Humphrey's Executor and

must be upheld here.

In Humphrey's Executor, the Supreme Court

upheld a statutory provision identical to the one at

issue here restricting removal of Federal Trade

Commission ("FTC") members. See Humphrey's

Executor, 295 U.S. at 619-20 (discussing 15 U.S.C. §

41); 5 U.S.C. § 1202(d). The FTC comprises five

members "appointed by the President[,] by and with

the advice and consent of the Senate," and "[n]ot more

than three of the commissioners shall be members of

the same political party." Humphrey's Executor, 295

U.S. at 619-20 (quoting 15 U.S.C. § 41). "Any

Commissioner may be removed by the President for

inefficiency, neglect of duty, or malfeasance in office."

Id. (quoting 15 U.S.C. § 41). In Humphrey's Executor,

President Hoover had appointed William Humphrey

as a member of the Federal Trade Commission, which

14a

carried a term of seven years. 295 U.S. at 612. Less

than two years later, President Roosevelt terminated

Humphrey over differences of political opinion,

stating, "[e]ffective as of this date you are hereby

removed from the office of Commissioner of the

Federal Trade Commission." Id. at 619. Humphrey

died several months later, but his estate sued to

recover backpay on the basis that his removal was

unlawful. Id. at 612.

The Supreme Court confirmed that President

Roosevelt's termination of Humphrey was indeed

unlawful. The Court observed that "[t]he statute fixes

a term of office, in accordance with many precedents."

Id. at 623. The Court further explained that the

commission comprised a "nonpartisan" "body of

experts" that was intended to "act with entire

impartiality." Id. at 624. It was "charged with the

enforcement of no policy except the policy of the law"

and acted in a manner that was "predominantly quasi

judicial and quasi legislative" rather than

traditionally "political []or executive" in nature. Id.

The Court differentiated FTC members from the

postmaster in Myers v. United States, 272 U.S. 52, 47

S. Ct. 21, 71 L. Ed. 160 (1926) (evaluating statute

stating that postmasters "shall hold their offices for

four years unless sooner removed or suspended

according to law"). "A postmaster is an executive

officer restricted to the performance of executive

functions" and is "charged with no duty at all related

to either the legislative or judicial power." Id. at 627.

15a

The FTC, in contrast, "acts in part quasi legislatively

and in part quasi judicially" rather than exercising

traditional executive powers. Id. at 628. "We think it

plain under the Constitution that illimitable power of

removal is not possessed by the President in respect

of officers of the character of those just named," the

Court concluded. Id. at 629.

Two decades later, the Court considered President

Eisenhower's removal of a member of the War Claims

Commission, whom President Truman had appointed

and the Senate had confirmed. See Wiener v. United

States, 357 U.S. 349, 350, 78 S. Ct. 1275, 2 L. Ed. 2d

1377, 142 Ct. Cl. 932 (1958). Congress charged that

commission with processing "claims for compensating

internees, prisoners of war, and religious

organizations . . . who suffered personal injury or

property damage at the hands of the enemy in

connection with World War II," and the

commissioners' terms were limited by the short

duration of the commission's existence. Id. The Court

reasoned that Congress intended to "preclude[] the

President from influencing the Commission in

passing on a particular claim," which meant that the

President naturally could not "hang . . . the Damocles'

sword of removal" over the commissioners. Id. at 356.

The Court reaffirmed that the President had "no such

power" to "remove a member of an adjudicatory body

like the War Claims Commission merely because he

16a

wanted his own appointees on such a Commission."

Id. 2

In two more recent cases, however, the Supreme

Court ruled that for-cause removal provisions

applying to independent agencies with a single

director violated the separation of powers. See Seila

Law LLC v. Consumer Financial Protection Bureau,

591 U.S. 197, 218, 140 S. Ct. 2183, 207 L. Ed. 2d 494

(2020); Collins v. Yellen, 594 U.S. 220, 253, 141 S. Ct.

1761, 210 L. Ed. 2d 432 (2021). Neither of those cases

undermines the constitutionality of for-cause removal

provisions for multimember bodies of experts heading

an independent agency. See Seila Law, 591 U.S. at

228 ("[W]e do not revisit Humphrey's Executor or any

other precedent today.").

2 The Court once again considered a multimember body in

Mistretta v. United States when passing on the constitutionality

of the United States Sentencing Commission, which formally

resides in the Judiciary. 488 U.S. 361, 109 S. Ct. 647, 102 L. Ed.

2d 714 (1989). The Sentencing Report Act of 1984 empowered

the President to appoint commissioners to the Sentencing

Commission, with members "subject to removal by the President

'only for neglect of duty or malfeasance in office or for other good

cause shown.'" Id. at 368 (quoting 28 U.S.C. § 991(a)). When

considering whether the Act affords the President undue

influence over federal judges who served as commissioners, the

Court recognized that "the President's removal power under the

Act is limited." Id. at 410. "Such congressional limitation on the

President's removal power, like the removal provisions upheld

in Morrison v. Olson, 487 U.S. 654, 108 S. Ct. 2597, 101 L. Ed.

2d 569 (1988), and Humphrey's Executor . . ., is specifically

crafted to prevent the President from exercising 'coercive

influence' over independent agencies." Id. at 410-411.

17a

"Rather than create a traditional independent

agency headed by a multimember board or

commission, Congress elected to place the [Consumer

Financial Protection Bureau ("CFPB")] under the

leadership of a single Director." Seila Law, 591 U.S.

at 207. In Seila Law, the Court observed that "[a]n

agency with a structure like that of the CFPB is

almost wholly unprecedented." Id. as 220; see also id.

at 220-22 (searching for historical precedent to

support the CFPB's structure). The Court further

concluded that "[t]he CFPB's single-Director

structure" contravenes the separation of powers "by

vesting significant governmental power in the hands

of a single individual accountable to no one,"

emphasizing that the director may act "unilaterally"

and "[w]ith no colleagues to persuade." Id. at 224-25.

Two other features of the CFPB undermined the

constitutionality of the agency's structure. First, the

director's five-year term meant that "some Presidents

may not have any opportunity to shape [the agency's]

leadership and thereby influence its activities." Id. at

225. Second, "[t]he CFPB's receipt of funds outside the

appropriations process further aggravates the

agency's threat to Presidential control." Id. at 226.

For these reasons, the Court concluded that the

CFPB's structure violated the separation of powers.

See id. at 232.

None of the reasoning in Seila Law undermined the

constitutionality of the traditional independent

agency structure outlined in Humphrey's Executor.

18a

See id. at 218 (describing "exception[]" for

"multimember expert agencies that do not wield

substantial executive power"). Rather, the Court's

reasoning reaffirmed the constitutionality of

multimember boards with for-cause removal

protections, as those agencies have a robust basis in

this country's history, and their members lack the

power to act unilaterally. See Pl.'s Mot. at 11

(emphasizing that Congress established the first such

board in 1887). The Court's rationale also relied on

the CFPB's divergence from traditional agency

structures when finding the for-cause removal

protections unconstitutional. See, e.g., Seila Law, 591

U.S. at 205-07 (emphasizing facts showing drift from

Elizabeth Warren's initial proposal for multimember

board to Congress's enactment of single-headed

agency). The Court even opined that Congress could

fix the problem by "for example, converting the CFPB

into a multimember agency." Id. at 237.

Collins then represented a "straightforward

application" of the Court's "reasoning in Seila Law" to

the Federal Housing Finance Agency ("FHFA"). 594

U.S. at 251; see also Seila Law, 591 U.S. at 222 (noting

doubt as to the constitutionality of the FHFA's

structure). Similarly to the CFPB, the FHFA was "an

agency led by a single Director" that "lack[ed] a

foundation in historical practice and clashe[d] with

constitutional structure by concentrating power in a

unilateral actor insulated from Presidential control."

594 U.S. at 251.

19a

Humphrey's Executor thus remains alive and well,

and it dictates the outcome here. The MSPB is "a

traditional independent agency headed by a

multimember board or commission," Seila Law, 591

U.S. at 207, and as such Congress may grant the

Board's members for-cause removal protections. The

MSPB is "a multimember body of experts" that is

"balanced along partisan lines." Seila Law, 591 U.S.

at 216; see also Humphrey's Executor, 295 U.S. at 624

(noting that the FTC is a "nonpartisan" "body of

experts" that was intended to "act with entire

impartiality"). The CSRA envisions that the Board "is

to be nonpartisan; and it must, from the very nature

of its duties, act with entire impartiality."

Humphrey's Executor, 295 U.S. at 624. The CSRA also

"fixes a term of office." Id. at 623. The Board's

members serve on overlapping, staggered seven-year

terms, meaning that the President will have the

"opportunity to shape [the MSPB's] leadership and

thereby influence its activities."3 Seila Law, 591 U.S.

at 225. The members' staggered terms permit them

to "accumulate[] expertise" in the operation of federal

agencies and federal employment law. Id. at 218. The

MSPB's duties are "quasi judicial," Humphrey's

Executor, 295 U.S. at 624, in that it conducts

3 One MSPB member's term has now expired, and Harris's term

expires on March 1, 2028. See Pl.'s Mot. at 29 n.20; Pl.'s Reply at

13-14; SUMF ¶ 3. President Trump will therefore have the

opportunity to appoint at least two members to the MSPB during

his term in office.

20a

preliminary adjudications of federal employees'

claims, which may then be appealed to Article III

courts. See 5 U.S.C. § 7703 (providing for review in

the Federal Circuit); Perry v. Merit Sys. Prot. Bd., 582

U.S. 420, 423, 137 S. Ct. 1975, 198 L. Ed. 2d 527

(2017) (providing for review of mixed cases in district

court). The MSPB's rulemaking authority is limited

to "regulations . . . necessary for the performance of

its functions." 5 U.S.C. § 1204(h). Congress further

intended the agency to aid its legislative goals by

regularly transmitting reports to Congress regarding

the Board's functions. See 5 U.S.C. §§ 1204(l), 1205. It

is additionally evident that Congress hoped to

"preclude[] the President from influencing the [Board]

in passing on a particular claim." Wiener, 357 U.S. at

356. The MSPB nonetheless remains politically

accountable to both Congress and the President

through the appropriations process in a manner

inapplicable to independent agencies with their own

funding sources, such as the CFPB and FHFA. See

Seila Law, 591 U.S. at 226; Collins, 594 U.S. at 231.

The MSPB also "do[es] not wield substantial

executive power," Seila Law, 591 U.S. at 218, but

rather spends nearly all of its time adjudicating

"inward-facing personnel matters" involving federal

employees, Pl.'s Mot. at 4. The Board does not

regulate the conduct of private parties, nor does it

possess its own rulemaking authority except in

furtherance of its judicial functions. See id. at 12. It

cannot initiate its own personnel cases, but must

21a

instead "passively wait for them to be brought." Id. at

12; see also 5 U.S.C. § 1204 (defining the Board's

powers and functions). Harris additionally points out

that the MSPB preserves power within the executive

branch by charging presidentially appointed Board

members with mediation and initial adjudication of

federal employment disputes, rather than shifting

those decisions to Article III courts in the first

instance. See Pl.'s Mot. at 14.

Several other features of the MSPB demonstrate

its limited effects on the President's powers. The

MSPB's jurisdiction is generally restricted to civil

servants and does not include political appointees.4

See 5 U.S.C. § 7511. Even among civil servants,

members of the Senior Executive Service removed "for

less than fully successful executive performance" are

entitled only to an informal hearing before the Board.

See 5 U.S.C. § 3592(a). Furthermore, the MSPB's

decisions are generally not the final word. Federal

employees may appeal the Board's decisions to Article

III courts, see 5 U.S.C. § 7703(a), and the Director of

the Office of Personnel Management may similarly

seek review of any decision that he determines "will

have a substantial impact on a civil service law, rule,

regulation, or policy directive," id. § 7703(d)(1)- (2).

4 Nor may the Board review the merits of determinations

concerning an employee's eligibility to occupy a sensitive

position that implicates national security. See Kaplan v.

Conyers, 733 F.3d 1148, 1166 (Fed. Cir. 2013).

22a

Finally, the MSPB's mission and purpose require

independence. In enacting the CSRA, Congress

exercised its power to regulate the civil service,

defining certain prohibited personnel practices, to

include discrimination, loyalty oaths, coercion to

engage in political activity, and retaliation against

whistleblowers. See 5 U.S.C. § 2302(b)(1)-(3), (8).

Direct political control over the MSPB would have

limited effect on the President's implementation of his

policy agenda. It would instead neuter the CSRA's

statutory scheme by allowing high-ranking

government officials to engage in prohibited practices

and then pressure the MSPB into inaction. The

MSPB's independence is therefore structurally

inseparable from the CSRA itself. These duties

dovetail with United States v. Perkins, in which the

Supreme Court held that Congress may "limit,

restrict, and regulate the removal" of inferior officers.

116 U.S. 483, 485, 6 S. Ct. 449, 29 L. Ed. 700, 21 Ct.

Cl. 499 (1886). Denying independence to the Board

would undermine these constitutionally sound

limitations on the removal of civil servants.

Defendants cannot argue that Humphrey's

Executor has been overturned, so they instead suggest

that even if the MSPB is a traditional multimember

agency, it wields "'substantial' executive power" in a

manner found significant in Seila Law. Defs.' Opp'n

at 8 (quoting Seila Law, 591 U.S. at 218). Yet the

Supreme Court has clarified that it did not mean

Humphrey's Executor to exclude removal protections

23a

for any official exercising authority within the

executive branch. See Morrison v. Olson, 487 U.S.

654, 688-89, 108 S. Ct. 2597, 101 L. Ed. 2d 569 (1988);

see also Seila Law, 591 U.S. at 216 (detailing "several

organizational features that helped explain" the

Humphrey's Executor court's "characterization of the

FTC as non-executive"). There is instead a "spectrum"

that runs from "'purely executive' officials who must

be removable by the President at will if he is to be able

to accomplish his constitutional role" and those who

serve "'quasi-legislative' or 'quasi-judicial'" roles,

where the President's control is not "so central to the

functioning of the Executive Branch" as to require the

President to be able to terminate the official at will.

Morrison, 487 U.S. at 690-91. As the Court explained

above, the Board's duties—which primarily include

adjudication of employment claims—do not represent

"substantial" executive power and instead take on a

quasi-judicial role. Furthermore, the MSPB's powers

are no more expansive than the FTC's functions

upheld in Humphrey's Executor, which remains good

law.

Several courts have deployed similar reasoning

when rejecting challenges to the structures of

traditional multimember agencies in the years since

Seila Law and Collins. Last year, the Fifth Circuit

upheld the structure of the Consumer Product Safety

Commission ("CPSC"), concluding that the agency is

"a prototypical 'traditional independent agency, run

by a multimember board,'" is not directed by a single

24a

individual, and that the President may influence its

activities through appointments or the appropriations

process. Consumers' Rsch. v. Consumer Prod. Safety

Comm'n, 91 F.4th 342, 354-55 (5th Cir. 2024), cert.

denied, 145 S. Ct. 414, 220 L. Ed. 2d 170, 170 (2024).

The Tenth Circuit turned away a comparable

challenge to the agency, reasoning that Humphrey's

Executor remains good law, that the CPSC is

structured similarly to the FTC, and that limited civil

and criminal enforcement powers do not undermine

the constitutionality of its tenure protections.

Leachco, Inc. v. Consumer Prod. Safety Comm'n, 103

F.4th 748, 762 (10th Cir. 2024), cert. denied, No. 24156, 220 L. Ed. 2d 378, 2025 WL 76435 (U.S. Jan. 13,

2025). Courts have additionally found the FTC's

structure constitutionally

sound because the

Supreme Court has not revisited Humphrey's

Executor. See Illumina, Inc. v. Fed. Trade Comm'n, 88

F.4th 1036, 1047 (5th Cir. 2023); Meta Platforms, Inc.

v. Fed. Trade Comm'n, 723 F. Supp. 3d 64, 87 (D.D.C.

2024). This Court, likewise, cannot reach a different

outcome regarding the MSPB.

Because the MSPB falls within the scope of

Humphrey's Executor, Congress has the power to

specify that members of the MSPB may serve for a

term of years, with the President empowered to

remove those members only for inefficiency, neglect of

duty, or malfeasance in office. The President thus

lacks the power to remove Harris from office at will.

Because the President did not indicate that he sought

25a

to remove Harris for inefficiency, neglect of duty, or

malfeasance in office, his attempt to terminate her

was unlawful and exceeded the scope of his

authority.5

B. Remedy

With the merits aside, the Court turns to the

question of remedy. Harris offers up three avenues for

relief: declaratory judgment, a permanent injunction,

and a writ of mandamus. See Compl. ¶¶ 38-39, 42-44,

45-46; Pl.'s Mot. at 27-36. The Court concludes that

because any attempt to remove Harris is unlawful,

she is entitled to declaratory judgment that she

remains a properly appointed member of the MSPB.

The Court additionally determines that Harris has

met her burden for the permanent injunction she

seeks, and that a writ of mandamus would be

appropriate if such injunctive relief were unavailable.

1. Declaratory Judgment

The Declaratory Judgment Act provides that, "[i]n

a case of actual controversy within its jurisdiction . . .

any court of the United States . . . may declare the

rights and other legal relations of any interested

party seeking such declaration, whether or not

5 The parties do not debate the cause of action through which

this legal challenge must flow—whether it be the APA, an ultra

vires claim, or a separation of powers claim. These distinctions

can be meaningful. See, e.g., Lewis v. U.S. Parole Comm'n, 743

F. Supp. 3d 181, 199-201 (D.D.C. 2024) (examining the

compatibility of an APA and ultra vires claim). The Court does

not interpret this issue to be jurisdictional, however, and does

not address an question the parties themselves declined to raise.

26a

further relief is or could be sought." 28 U.S.C. §

2201(a). It provides neither jurisdiction nor a cause of

action, but rather a form of relief when the case is

already properly before the Court. See C&E Servs.

Inc. of Wash. v. D.C. Water & Sewer Auth., 310 F.3d

197, 201, 354 U.S. App. D.C. 1 (D.C. Cir. 2002); Glenn

v. Thomas Fortune Fay, 222 F. Supp. 3d 31, 35 (D.D.C.

2016).

The

Article

III

case-or-controversy

requirement "is no less strict when a party is seeking

a declaratory judgment than for any other relief." Fed.

Express Corp. v. Air Line Pilots Ass'n, 67 F.3d 961,

963, 314 U.S. App. D.C. 267 (D.C. Cir. 1995) (citing

Altvater v. Freeman, 319 U.S. 359, 363, 63 S. Ct. 1115,

87 L. Ed. 1450, 1943 Dec. Comm'r Pat. 833 (1943)). To

establish that a matter is a "controversy" within the

meaning of the Declaratory Judgment Act and Article

III of the Constitution, a party "must 'show that there

is a substantial controversy, between parties having

adverse legal interests, of sufficient immediacy and

reality to warrant the issuance of a declaratory

judgment.'" Hoffman v. Dist. of Columbia, 643 F.

Supp. 2d 132, 140 (D.D.C. 2009) (quoting Md. Cas. Co.

v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct.

510, 85 L. Ed. 826 (1941)).

"[A] declaratory judgment always rests within the

sound discretion of the court," President v. Vance, 627

F.2d 353, 365 n.76, 200 U.S. App. D.C. 300 (D.C. Cir.

1980) (citing Brillhart v. Excess Ins. Co. of America,

316 U.S. 491, 494, 62 S. Ct. 1173, 86 L. Ed. 1620

(1942)), and "[t]here are no dispositive factors a

27a

district court should consider in determining whether

it should entertain an action brought under the

Declaratory Judgment Act." State of N.Y. v. Biden,

636 F. Supp. 3d 1, 31 (D.D.C. 2022) (quoting POM

Wonderful LLC v. FTC, 894 F. Supp. 2d 40, 44 (D.D.C.

2012)). Several factors may be helpful to the Court's

consideration of "the propriety of granting a

declaratory judgment," however, such as "whether it

would finally settle the controversy between the

parties"; "whether other remedies are available or

other proceedings pending"; and "the public

importance of the question to be decided." Hanes

Corp. v. Millard, 531 F.2d 585, 592 n.4, 174 U.S. App.

D.C. 253 (D.C. Cir. 1976). The Court might also

consider "1) whether the judgment will serve a useful

purpose in clarifying the legal relations at issue, or 2)

whether the judgment will terminate and afford relief

from the uncertainty, insecurity, and controversy

giving rise to the proceeding." Glenn, 222 F. Supp. 3d

at 36 (citing President, 627 F.2d at 365 n.76).

First, the Court finds a "controversy" here within

the meaning of the Declaratory Judgment Act. The

parties place before the Court a "substantial

controversy" over the lawfulness of the President's

effort to terminate Harris without cause, and whether

she remains a member of the MSPB. Hoffman, 643 F.

Supp. 2d at 140; see also Pl.'s Mot. at 11-26; Defs.'

Opp'n at 5-13. The parties have adverse legal

interests, with Defendants arguing that the President

has a power that Harris claims he does not. See, e.g.,

28a

Defs.' Opp'n at 5 (arguing that the President's

removal power over principal officers is absolute).

This controversy is also "of sufficient immediacy and

reality to warrant the issuance of a declaratory

judgment." Hoffman, 643 F. Supp. 2d at 140. The

controversy here is not based, for instance, on "the

occurrence of a future or contingent event," but has

rather come to a head after the President attempted

to terminate Harris. C.F. Folks, Ltd. v. DC Jefferson

Bldg., LLC, 308 F. Supp. 3d 145, 150 (D.D.C. 2018).

The Court additionally finds that declaratory relief

is appropriate here. A declaratory "judgment will

serve a useful purpose in clarifying the legal

relations" between Harris and Defendants and abate

ongoing "uncertainty, insecurity, and controversy"

over her status as a member of the MSPB. Glenn, 222

F. Supp. 3d at 36. The question is also one of

significant "public importance," Hanes Corp., 531

F.2d at 592 n.4, given that it concerns the structure

and independence of a federal agency. Although

"other remedies" may be available, id., declaratory

judgment remains appropriate to clarify Harris's

legal status, particularly given the complexity of

injunctive relief in this area. In addition, the

Declaratory Judgment Act grants authority to enter

declaratory judgment "whether or not further relief is

or could be sought." 28 U.S.C. § 2201(a).

Defendants argue that the Court cannot issue

declaratory judgment because it cannot enjoin the

President. See Defs.' Mot. at 21-22 (citing Samuels v.

29a

Mackell, 401 U.S. 66, 70, 91 S. Ct. 764, 27 L. Ed. 2d

688 (1971)). First, the declaratory judgment here

clarifies not just the President's legal relationship

with MSPB members, but also subordinate officials'

legal rights and duties. Second, the Supreme Court

clarified in Samuels that it did "not mean to suggest

that a declaratory judgment should never be issued in

cases of this type if it has been concluded that

injunctive relief would be improper." Samuels, 401

U.S. at 73. "There may be unusual circumstances in

which an injunction might be withheld because,

despite a plaintiff's strong claim for relief under the

established standards, the injunctive remedy seemed

particularly intrusive or offensive." Id. "[I]n such a

situation, a declaratory judgment might be

appropriate and might not be contrary to the basic

equitable doctrines governing the availability of

relief." Id. Courts withhold injunctive relief against

the President precisely because it is considered

"particularly intrusive or offensive," and declaratory

judgment remains warranted here given Harris's

"strong claim for relief under the established

standards." Id. Defendants additionally cite no

controlling authority for the notion that declaratory

judgment may not clarify the legal relationship

between the President and other parties. To the

contrary, appellate courts have previously affirmed

the issuance of declaratory relief involving the

President. See Nat'l Treasury Emps. Union v. Nixon,

492 F.2d 587, 616, 160 U.S. App. D.C. 321 (D.C. Cir.

30a

1974) (considering declaratory judgment to be a less

drastic remedy than a writ of mandamus); see also

Clinton v. City of New York, 524 U.S. 417, 421, 118 S.

Ct. 2091, 141 L. Ed. 2d 393 (1998) (affirming

declaratory judgment that the President's actions

under Line Item Veto Act were invalid).

For these reasons, the Court enters declaratory

judgment in this case clarifying that Harris remains

a member of the MSPB, and that she may not be

removed from her position absent inefficiency, neglect

of duty, or malfeasance in office.

2. Permanent Injunction

Harris additionally seeks a permanent injunction

barring several officials—not including the

President—from removing her or treating her as

removed. See Compl. ¶¶ 45-46; Pl.'s Mot. at 28-30;

Pl.'s Proposed Order, ECF No. 22-1. Defendants argue

that Harris is not entitled to an injunction because

the Court lacks the power to issue equitable relief

"reinstating" an officer removed by the President.

Defs.' Opp'n at 14-18. Defendants also contend that

Harris has not suffered an irreparable injury and that

the balance of the equities weigh in their favor. See

id. at 18-21. The Court must therefore examine its

power to issue equitable relief here before it considers

whether to issue that relief.

a. Availability of Injunctive Relief

Defendants argue that Harris's remedy must be

limited to backpay, and that an injunction is

31a

inappropriate because that relief was not

"traditionally accorded by courts of equity" to remedy

an official's wrongful removal from office. Defs.' Opp'n

at 14 (quoting Grupo Mexicano de Desarrollo S.A. v.

All. Bond Fund, Inc., 527 U.S. 308, 319, 119 S. Ct.

1961, 144 L. Ed. 2d 319 (1999)). Plaintiff responds

that federal courts have long granted injunctive relief

reinstating federal employees, and that mandamus

should be available in the alternative. See Pl.'s Reply

at 10-19.

In Grupo Mexicano, the Supreme Court considered

whether "a United States District Court has the

power to issue a preliminary injunction preventing

the [debtor] defendant from transferring assets in

which no lien or equitable interest is claimed." 527

U.S. at 310. The Court explained that "equity is

flexible; but in the federal system, at least, that

flexibility is confined within the broad boundaries of

traditional equitable relief." Id. at 322. "[E]quity

jurisdiction of the federal courts is the jurisdiction in

equity exercised by the High Court of Chancery in

England at the time of the adoption of the

Constitution and the enactment of the original

Judiciary Act, 1789 (1 Stat. 73)." Id. at 318 (quoting

A. Dobie, Handbook of Federal Jurisdiction and

Procedure 660 (1928)). The Court concluded that

because the Court of Chancery lacked "an equitable

power to restrict a debtor's use of his unencumbered

property before judgment," a contemporary federal

court lacks that power as well. Id. at 322; see also id.

32a

at 319-20. Defendants similarly reason that because

the Court of Chancery did not issue injunctions

returning public officials to their offices, this Court

cannot either. See Defs.' Opp'n at 14-15. That

contention stumbles, however, for at least two

reasons.

The first is on-point Supreme Court guidance. In

Sampson v. Murray, the Supreme Court considered

whether a probationary employee at the General

Services Administration could receive a temporary

restraining order enjoining her dismissal during an

administrative appeal to the Civil Service

Commission. 415 U.S. 61, 62-63, 94 S. Ct. 937, 39 L.

Ed. 2d 166 (1974). The Court explained that a district

court has "authority to grant interim injunctive relief

to a discharged Government employee," id. at 63, but

that the plaintiff before the Court did not make the

elevated "showing of irreparable injury sufficient in

kind and degree to override" the Government's usual

autonomy over its internal affairs, id. at 84. Loss of

wages and reputation could be remedied through

further proceedings and was not enough to warrant

injunctive relief for a federal employee, see id. at 9192, but that relief may be appropriate "in the

genuinely extraordinary situation," rather than "in

the routine case." Id. at 92 n.68. The Court specifically

addressed White v. Berry, in which the Supreme

Court reasoned that "a court of equity has no

jurisdiction over the appointment and removal of

public officers." 171 U.S. 366, 377, 18 S. Ct. 917, 43 L.

33a

Ed. 199 (1898) (quoting In re Sawyer, 124 U.S. 200,

212, 8 S. Ct. 482, 31 L. Ed. 402 (1888)). The Sampson

Court asserted that "[m]uch water has flowed over the

dam since 1898," and that subsequent cases had

recognized that federal courts are generally

empowered to review the claims of discharged federal

employees. Sampson, 415 U.S. 71-72 (citing Service v.

Dulles, 354 U.S. 363, 77 S. Ct. 1152, 1 L. Ed. 2d 1403

(1957)); see also Kloeckner, 568 U.S. at 44-46

(discussing remedies for federal employee under the

CSRA, Title VII of the Civil Rights Act of 1964, and

the Age Discrimination in Employment Act of 1967);

Elgin v. Dep't of Treasury, 567 U.S. 1, 22, 132 S. Ct.

2126, 183 L. Ed. 2d 1 (2012) (listing "reinstatement"

as among "the kinds of relief that the CSRA

empowers" courts to provide). Harris's situation is

additionally akin to that of the Sampson plaintiff

because there is a federal standard to which Harris's

hiring and firing must adhere, and one that the Court

must enforce. Sampson thus instructs that equitable

relief is available to Harris if she can show that her

termination represents a "genuinely extraordinary

situation," rather than a "routine case." Sampson, 415

U.S. at 92 n.68.6 Sampson is not unique; the Supreme

6 There can additionally be no dispute that federal courts may

grant injunctive relief "with respect to violations of federal law

by federal officials." Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320, 327, 135 S. Ct. 1378, 191 L. Ed. 2d 471 (2015)

(citing Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94,

110, 23 S. Ct. 33, 47 L. Ed. 90 (1902)).

34a

Court has repeatedly determined that plaintiff

federal employees were entitled to reinstatement

after termination violated their legal rights. See

Service, 354 U.S. at 388-89; Vitarelli v. Seaton, 359

U.S. 535, 546, 79 S. Ct. 968, 3 L. Ed. 2d 1012 (1959);

see also Miller v. Clinton, 687 F.3d 1332, 1360 n.7, 402

U.S. App. D.C. 106 (D.C. Cir. 2012) (Kavanaugh, J.,

dissenting) (explaining that for a federal employee

experiencing

"unconstitutional

discrimination,

equitable relief could include an injunction prior to

termination or reinstatement subsequent to

termination").

The D.C. Circuit has also found injunctive relief

against subordinate federal officials to be available to

restore presidential appointees to their offices,

although the Government did not raise the scope of

historical equitable relief in those cases. See Swan v.

Clinton, 100 F.3d 973, 976-81, 321 U.S. App. D.C. 359

(D.C. Cir. 1996); Severino v. Biden, 71 F.4th 1038,

1042-43, 461 U.S. App. D.C. 313 (D.C. Cir. 2023).7 In

Swan, the six-year term of a member of the Board of

the National Credit Union Administration ("NCUA")

had expired, but he remained in office because the

relevant statute allowed members to serve until their

successors had qualified. Swan, 100 F.3d at 975-76.

President Clinton removed the board member, who

then sued seeking declaratory judgment and an

7 Cases before other courts add further evidence that this power

exists. See Pl.'s Reply at 11-12 (collecting cases).

35a

injunction ordering his reinstatement. See id. The

court assessed the board member's standing to bring

the case, focusing on whether his claims were

judicially redressable. Id. at 976-81. The court was

uncertain of its power to enjoin the President himself

from removing the plaintiff from office, see id. at 97778, but reasoned that it could instead "ensure the rule

of law" by issuing "injunctive relief against

subordinate officials" effectuating his reinstatement

"de facto by" requiring his colleagues to treat him "as

a member of the NCUA Board and allowing him to

exercise the privileges of that office," id. at 978, 980.

This encompassed, for instance, "including [the

plaintiff official] in Board meetings, giving him access

to his former office, recording his votes as official

votes of a Board member, allowing him to draw the

salary of a Board member etc."8 Id. at 980. The Circuit

reprised this analysis in Severino, in which President

Biden removed a member of the Administrative

Conference of the United States Council, see Severino,

71 F.4th at 1041, and the plaintiff had standing

because a court could "enjoin 'subordinate executive

officials' to reinstate a wrongly terminated official 'de

facto,' even without a formal presidential

8 The Circuit ultimately concluded that the board member's

claim failed on the merits because, even assuming that NCUA

board members had removal protections, holdover members

would be entitled to no such protection. See Swan, 100 F.3d at

983-88.

36a

reappointment," id. at 1042-43 (quoting Swan, 100

F.3d at 980).9

Second, it is also clear that even if Sampson, Swan,

and Severino did not make equitable relief available

to Harris in a "genuinely extraordinary situation,"

she would nonetheless be entitled to a writ of

mandamus—which is a remedy at law. See Kalbfus v.

Siddons, 42 App. D.C. 310, 319-21 (D.C. Cir. 1914)

(collecting cases); see also Pl.'s Reply at 15-16

(collecting sources). To the extent that English equity

courts declined to issue injunctions reinstating

officials to their positions, they likely did so because

the King's Bench, a court of law, would readily issue

mandamus instead. See Walkley v. City of Muscatine,

73 U.S. 481, 483-84, 18 L. Ed. 930 (1867) (explaining,

relying on English cases, that "a court of equity is

invoked" only where "a court of law . . . is inadequate

to afford the proper remedy"); Parker v. Winnipiseogee

Lake Cotton & Woolen Co., 67 U.S. 545, 550-51, 17 L.

Ed. 333 (1862) (similar). English courts around the

time of the founding recognized this power and

exercised it regularly. See, e.g., R. v. Mayor of London,

9 Defendants argue that these cases are not on point because the

courts there were considering the redressability of the plaintiffs'

claims when evaluating their standing. See Defs.' Opp'n at 16;

Swan, 100 F.3d 976-81; Severino, 71 F.4th at 1042-43. Yet the

Circuit's reasoning is no mere dicta, as a federal court must

determine that it has the power to grant effective relief before

assuming jurisdiction over a case. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351

(1992).

37a

100 Eng. Rep. 96, 98 (1787) (recognizing power to

issue mandamus reinstating public official);10 R. v.

Mayor and Aldermen of Doncaster (1752), 96 Eng.

Rep. 795 (restoring municipal official to his office

after removal by town council); R. v. Mayor, Bailiffs,

and Common Council of the Town of Liverpool (1759),

97 Eng. Rep. 533 (same);11 R. v. Mayor, Aldermen and

Burgesses of Doncaster (1729), 92 Eng. Rep. 513

(same); 73 Eng. Rep. at 752 (discussing Thompson v.

Edmonds, in which the King's Bench restored a bailiff

to his office because he "was removed" by the mayor

"without cause"); R. v. Mayor, Aldermen, and

Common Council of Gloucester, 90 Eng. Rep. 1148

(restoring official to office of capital burgess).

Numerous treatises further confirm this practice. See

3 W. Blackstone, Commentaries *264-265 ("The writ

of mandamus is . . . a most full and effective remedy,

in the first place, for refusal of admission where a

person is entitled to an office or place in any such

[municipal] corporation; and, secondly, for wrongful

10 During this case, respected trial lawyer Thomas Erskine

explained that "[w]henever a person is improperly suspended or

removed from an office, whether it concern public or private

duties, if he has a certain term in it, and there are profits

annexed to it, and the party has no other specific legal remedy,

the Court will grant mandamus to restore him." 100 Eng. Rep.

at 97.

11 Here, Lord Mansfield explained that when officials respond

to an action for mandamus, "the return must set out all the

necessary facts, precisely; to shew that the person is removed in

legal and proper manner, and for a legal cause." 97 Eng. Rep. at

537.

38a

removal, when a person is legally possessed.");

Thomas Tapping, The Law and Practice of the High

Prerogative Writ of Mandamus as it Obtains Both in

England and in Ireland 221 (1853) ("The writ of

mandamus . . . has by a great number of cases held to

be grantable . . . to restore him who has been

wrongfully displaced, to any office, function, or

franchise of a public nature . . . ."); id. at 224

(distinguishing an officer "at pleasure" who may be

removed without cause).12 Even the treatise cited in

Defendants' opposition explains that a court sitting in

equity would "not interfere by injunction" in such

cases simply because it would instead "leave that

question to be determined by a legal forum." 2 James

L. High, Treatise on the Law of Injunctions § 1312 (2d

ed. 1880); see also Defs.' Opp'n at 15. This was the

state of the law at the time of the founding, as well as

when Congress passed the All Writs Act as part of the

12 Later treatises provide additional support for use of the writ

of mandamus "for the purpose of restoring an individual to an

office, where he has been illegally deprived of the possession

thereof." Horace G. Wood, A Treatise on the Legal Remedies of

Mandamus and Prohibition, Habeas Corpus, Certiorari and Quo

Warranto 11 (1891). "When the title to the office is indisputable,"

proceedings for the writ of quo warranto would be "dilatory" and

"a mandamus would be proper and should be awarded." Id. at 12

(quoting 7 How., 128); see also 1 Howard Clifford Joyce, A

Treatise on the Law Relating to Injunctions § 55 (1909) ("The

jurisdiction to determine the title to a public office belongs only

to courts of law and is exercised . . . by mandamus . . . and the

mode of procedure established by the common law or by

statute"); 2 Eugene McQuillin, A Treatise on the Law of

Municipal Corporations § 582 (1911) (same).

39a

Judiciary Act of 1789. See Pa. Bureau of Corr. v. U.S.

Marshals Serv., 474 U.S. 34, 40, 106 S. Ct. 355, 88 L.

Ed. 2d 189 (1985). For this reason, the Supreme Court

was careful in both In re Sawyer and White v. Berry to

specify that mandamus was available "to determine

the title to a public office" in "the courts of law." In re

Sawyer, 124 U.S. at 212; White, 171 U.S. at 377.13

As the Court explains below, however, a writ of

mandamus can issue under our contemporary

jurisprudence only when "the party seeking issuance

of the writ ha[s] no other adequate means to attain

the relief he desires." Kerr v. United States Dist. Court

for Northern Dist., 426 U.S. 394, 403, 96 S. Ct. 2119,

48 L. Ed. 2d 725 (1976) (citing Roche v. Evaporated

Milk Ass'n, 319 U.S. 21, 26, 63 S. Ct. 938, 87 L. Ed.

1185 (1943)). Because the Court reads Sampson,

Swan, and Severino to allow it to issue an injunction,

it concludes that this injunction represents "adequate

means" to provide Harris's requested relief, barring a

mandamus remedy. Kerr, 426 U.S. at 403. This

represents a curious reversal from norms before

English courts, where reinstatement of officials

through legal means was preferred over restoration

through equitable means. See Swan, 100 F.3d at 976-

13 Defendants argue that Harris was effectively removed from

office and seeks a court order returning her to it. See Defs.' Opp'n

at 15. The D.C. Circuit has clarified that this is not the case, and

that Harris was never in fact removed. See Kalbfus, 42 App. D.C.

at 321 ("In the present case the removal of the relator having

been illegal and void, the office never became vacant . . . .").

40a

81; Severino, 71 F.4th at 1042-43. Yet the broader

point is that this Court may provide Harris some form

of effective relief preventing her unlawful termination

from the MSPB, whether it be through an injunction

or a writ of mandamus. See Swan, 100 F.3d at 977 n.1

(explaining that a request for injunction and request

for writ of mandamus can be "essentially" the same

thing in some contexts).

Finally, Defendants argue that the Court cannot

enjoin the President or enjoin others in a manner that

restricts his Article II authority. See Defs.' Opp'n at

16. To be clear, Harris does not ask the Court to enjoin

President Trump, see, e.g., Pl.'s Proposed Order, and

the Court does not do so.14 Yet Defendants cite no

authority for the proposition that a court lacks the

power to enjoin the President's subordinates to

restrain the President's violation of law. In fact, that

is precisely the remedy the Supreme Court affirmed

in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

14 The availability of injunctive relief against the President may

depend in part on whether compliance with 5 U.S.C. 1202(d)

represents a ministerial rather than executive duty, a question

the Supreme Court has "left open." Franklin v. Massachusetts,

505 U.S. 788, 802, 112 S. Ct. 2767, 120 L. Ed. 2d 636 (1992)

(plurality opinion); see also State of Mississippi v. Johnson, 71

U.S. 475, 498, 18 L. Ed. 437 (1866) (declining to decide whether

a court may require the President "to perform a purely

ministerial act," and defining a "ministerial duty" as "one in

respect to which nothing is left to discretion); McCray v. Biden,

574 F. Supp. 3d 1, 9 (D.D.C. 2021) ("Franklin, however, did not

absolutely slam the door shut on presidential injunctions."). Of

course, the Court need not decide this question here.

41a

579, 584, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law

Abs. 417 (1952) (describing preliminary injunction

restraining Secretary of Commerce from following

President Truman's orders and "continuing the

seizure and possession of the [steel] plant"). And in

Swan v. Clinton, the D.C. Circuit concluded that a

district court could enjoin the President's

subordinates in order to effectuate a federal official's

reinstatement. See 100 F.3d at 979; see also id.

(concluding that "injunctive relief against such

officials could substantially redress [the terminated

official's] injury"); see also Severino, 71 F.4th at 104243. Having assured itself that injunctive relief is

available here, the Court proceeds to consider

whether a permanent injunction is warranted.15

b. Factors for Permanent Injunction

An injunction "is an extraordinary remedy never

awarded as of right." Winter v. Nat. Res. Def. Council,

Inc., 555 U.S. 7, 24, 129 S. Ct. 365, 172 L. Ed. 2d 249

(2008). Yet "it goes without saying that federal courts

must vigilantly enforce federal law and must not

hesitate in awarding necessary relief." DL v. Dist. of

Columbia, 860 F.3d 713, 726, 429 U.S. App. D.C. 420

(D.C. Cir. 2017) (quoting Horne v. Flores, 557 U.S.

15 Defendants additionally suggest that "when executive officers

have challenged their removal by the President, they have

traditionally sought back pay, not reinstatement." Defs.' Opp'n

at 13. The Court fails to see how it might lack the power to issue

injunctive relief here simply because the plaintiffs in Wiener and

Humphrey's Executor decided to seek another remedy.

42a

433, 450, 129 S. Ct. 2579, 174 L. Ed. 2d 406 (2009)). A

permanent injunction is a "forward-looking" remedy,

Gratz v. Bollinger, 539 U.S. 244, 284, 123 S. Ct. 2411,

156 L. Ed. 2d 257 (2003), the "principal purpose" of

which is to "deter future violations, and not to punish

the violator," Sec. & Exch. Comm'n v. Savoy Indus.,

Inc., 587 F.2d 1149, 1169, 190 U.S. App. D.C. 252

(D.C. Cir. 1978). "[A] plaintiff seeking a permanent

injunction must satisfy a four-factor test before a

court may grant such relief." eBay Inc. v.

MercExchange, LLC, 547 U.S. 388, 391, 126 S. Ct.

1837, 164 L. Ed. 2d 641 (2006). A plaintiff must

demonstrate: "(1) that it has suffered an irreparable

injury; (2) that remedies available at law, such as

monetary damages, are inadequate to compensate for

that injury; (3) that, considering the balance of

hardships between the plaintiff and defendant, a

remedy in equity is warranted; and (4) that the public

interest would not be disserved by a permanent

injunction." Id. Where the federal government is the

opposing party, the balance of equities and public

interest factors merge. See Nken v. Holder, 556 U.S.

418, 435, 129 S. Ct. 1749, 173 L. Ed. 2d 550 (2009).

The Supreme Court "has repeatedly held that the

basis for injunctive relief in the federal courts has

always been irreparable injury and the inadequacy of

legal remedies." Weinberger v. Romero-Barcelo, 456

U.S. 305, 312, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982);

see also Chaplaincy of Full Gospel Churches v.

43a

England, 454 F.3d 290, 297, 372 U.S. App. D.C. 94

(D.C. Cir. 2006) (same).

For the same reasons the Court discussed in its

previous opinion, Harris has established that she has

suffered irreparable harm and will likely suffer

irreparable harm in the future absent injunctive

relief. See Mem. Op. at 11-19; Standing Rock Sioux

Tribe v. U.S. Army Corps of Eng'rs, 540 F. Supp. 3d.

45, 55 (D.D.C. May 21, 2021) ("While the irreparableharm requirement is recited in the past tense, it is

clear that future harm may qualify." (citing Monsanto

Co. v. Geertson Seed Farms, 561 U.S. 139, 162, 130 S.

Ct. 2743, 177 L. Ed. 2d 461 (2010))). Congress

intended the MSPB and its members to carry out

their limited duties with a degree of independence

from the President, guided primarily by his selection

of members for the multimember board rather than

"the Damocles' sword of removal." Wiener, 357 U.S. at

356. As the Court reasoned in its previous

memorandum opinion, the MSPB's independence

would evaporate if the President could terminate its

members without cause, even if a court could later

order them reinstated. See Mem. Op. at 16. Harris has

undoubtedly experienced an injury to this

independence in her capacity as a member of the

MSPB following the President's attempt to terminate

her without cause, and any future attempts would

prove just as harmful to that autonomy.

Harris additionally suffers irreparable harm

because she has been "depriv[ed] of [her] statutory

44a

right to function" as a member of the MSPB, and any

further attempts to separate her from her position

will exacerbate this injury. Berry v. Reagan, No. 833182, 1983 WL 538, at *5 (D.D.C. Nov. 14, 1983). The

termination email Harris received resulted in the

inability to pursue her "statutory mission" to protect

employees from prohibited personnel practices, such

that "the loss of the ability to do what Congress

specifically directed [her] to do cannot be remediated

with anything other than equitable relief." Dellinger

v. Bessent, No. 25-cv-0385, 2025 WL 471022, at *11

(D.D.C. Feb. 12, 2025). In addition, unlike most other

federal employees, Harris was duly appointed by the

President and confirmed by the Senate to a position

carrying a term of years with specific reasons for her

removal.

The Court finds that this harm represents a

"genuinely

extraordinary

situation"

meriting

injunctive relief related to a federal employee's

discharge. Sampson, 415 U.S. at 92 n.68; see also

Mem. Op. at 12-13 (discussing Sampson). The clear

federal statute granting Harris for-cause removal

protections, coupled with longstanding precedent

upholding the constitutionality of analogous

provisions, overcomes the "latitude" traditionally

afforded the Government "in the 'dispatch of its own

internal affairs.'" Sampson, 415 U.S. at 83. The

plaintiff in Sampson, who failed to meet this

standard, sought an injunction temporarily enjoining

her dismissal during an administrative appeal. See

45a

id. at 63. Yet the parties point to no administrative

pathway here through which Harris could seek

reinstatement following improper termination.

Furthermore, whereas the Sampson plaintiff was a

probational employee, see id. at 62, Harris is a

member of the board of an independent agency, was

appointed by the President and confirmed by the

Senate, and enjoys tenure protections to preserve her

independence.

For similar reasons, it is also apparent that

"remedies available at law, such as monetary

damages, are inadequate to compensate for" Harris's

injuries. eBay Inc., 547 U.S. at 391. Defendants argue

that loss of salary generally does not represent

irreparable harm. See Defs.' Opp'n at 19. As the Court

has explained, however, this is not a standard

employment action that can be remedied through

back pay and later reinstatement, and Harris's claims

do not revolve around her salary. See Mem. Op. at 15.

Defendants additionally cite Raines v. Byrd, 521

U.S. 811, 117 S. Ct. 2312, 138 L. Ed. 2d 849 (1997),

for the notion that "a loss of political power" does not

represent injury. Defs.' Mot. at 15. Raines is a case

about legislators' standing to sue over legislation they

perceive to cede power to the Executive Branch, and

the case has minimal application to the irreparable

injury analysis here. See 521 U.S. at 820-21. Harris is

not a member of Congress, nor is standing at issue.

The Supreme Court reasoned in Raines that any

injury would be far too diffuse to support the

46a

legislators' standing, as it was spread across both

Houses of Congress, and the legislators did not claim

injury arising from "something to which they

personally are entitled." Id. at 821. If anything,

Raines supports Harris's claim to injury based on

exclusion from her office: she has "been singled out for

specially unfavorable treatment as opposed to other

Members," and has lost something to which she is

"personally" entitled. Id.

Finally, injunctive relief in this case is in the

public interest, and the balance of the equities tips in

Harris's favor. Given that federal law limits the

conditions under which Harris's tenure may be

terminated, Supreme Court precedent supports the

constitutionality of those conditions, and Defendants

do not argue that those conditions were met here, the

Court finds that it is in the public interest to issue

injunctive relief. "[T]here is a substantial public

interest 'in having governmental agencies abide by

the federal laws that govern their existence and

operations.'" League of Women Voters of United States

v. Newby, 838 F.3d 1, 12, 426 U.S. App. D.C. 67 (D.C.

Cir. 2016) (quoting Washington v. Reno, 35 F.3d 1093,

1103 (6th Cir. 1994)). So too is there substantial

public interest in the for-cause removal protections

Congress has given to certain members of

independent agencies. Furthermore, the government

"cannot suffer harm from an injunction that merely

ends an unlawful practice or reads a statute as

required." R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 191

47a

(D.D.C. 2015) (quoting Rodriguez v. Robbins, 715 F.3d

1127, 1145 (9th Cir. 2013)).

Defendants suggest that the public interest weighs

against injunctive relief here because "[s]uch a

remedy would undermine the accountability of the

Executive Branch instilled by the Constitution," and

the President "cannot be compelled to retain the

services of a principal officer." Defs.' Opp'n at 20-21.

This argument largely relies on Defendants' success

on the merits, and the Court has already determined

that the President lacks the power to remove Harris

at will. Defendants additionally argue that "the public

interest is better served by an MSPB member who

holds the President's confidence." Id. at 21. Yet

Defendants decline to explain exactly how the public

interest would be better served by removing Harris

from her position. They do not dispute any of Harris's

factual assertions, including her efforts to consider,

deliberate, and vote on 35 cases per week to clear the

MSPB's backlog of nearly 3,800 cases. See SUMF ¶¶

12-28. This effort was successful, as by early this year

the inherited cases had all but disappeared. See id. ¶

20. Recall that many of these cases involve allegations

that federal agencies engaged in prohibited personnel

practices, such as targeting of federal employees

based on political affiliation; retaliation against

whistleblowers reporting violations of law, waste,

fraud and abuse; discrimination; and USERRA

violations, among others. See Pl.'s Mot. at 4-5

(collecting cases). Defendants make no effort to

48a

enlighten the Court as to how Harris's handling of

these cases might differ from the President's

preferred approach, let alone in a manner that might

tilt the public interest factor in their favor.

Defendants additionally overlook the fact that if

Harris or her colleagues were ever to become

inefficient, neglect their duty, or engage in

malfeasance in office, the President would be

empowered to remove them for cause. See 5 U.S.C. §

1202(d). The Court thus finds nothing in Defendants'

arguments that might support a public interest

against injunctive relief here.

The Court additionally notes that in opposing

injunctive relief in its entirety, Defendants have

declined to engage with the scope of Harris's proposed

relief. See generally Proposed Order; Defs.' Opp'n. The

Court will nonetheless tailor its declaratory and

injunctive relief to meet Harris's entitlement under

the law.16

3. Writ of Mandamus

Harris requests that the Court issue a writ of

mandamus if no other relief is available. See Pl.'s Mot.

16 Although injunctive relief is merited, the Court narrows

Harris's request slightly. Harris seeks a permanent injunction

prohibiting several Defendants from removing her or treating

her as removed. See Proposed Order. Yet § 1202(d) permits the

President to remove her for inefficiency, neglect of duty, or

malfeasance in office. The Court nonetheless notes the

undisputed record demonstrating that Harris and her colleagues

have carried out their duties to decide cases in addition to

clearing a significant backlog.

49a

at 34-35. Defendants argue that the President has no

clear nondiscretionary duty here, as his selection of

"who should lead an Executive Branch agency is

certainly not a mere ministerial task." Defs.' Mot. at

22.

"The preemptory common-law writs are among the

most potent weapons in the judicial arsenal." Will v.

United States, 389 U.S. 90, 107, 88 S. Ct. 269, 19 L.

Ed. 2d 305 (1967). A district court has "original

jurisdiction of any action in the nature of mandamus"

only if "(1) the plaintiff has a clear right to relief; (2)

the defendant has a clear duty to act; and (3) there is

no other adequate remedy available to [the] plaintiff."

In re Nat'l Nurses United, 47 F.4th 746, 752 n.4, 459

U.S. App. D.C. 26 (D.C. Cir. 2022) (quoting Muthana

v. Pompeo, 985 F.3d 893, 910, 450 U.S. App. D.C. 364

(D.C. Cir. 2021)). "[M]andamus jurisdiction under §

1361 merges with the merits." Muthana, 985 F.3d at

910 (quoting Lovitky v. Trump, 949 F.3d 753, 759, 445

U.S. App. D.C. 186 (D.C. Cir. 2020)). "[E]ven if the

plaintiff overcomes all these hurdles, whether

mandamus relief should issue is discretionary." In re

Cheney, 406 F.3d 723, 729, 365 U.S. App. D.C. 387

(D.C. Cir. 2005).

The Court finds the first two requirements for

mandamus relief to be satisfied. A court "can analyze

the clear right to relief and clear duty to act

requirements for mandamus 'concurrently.'" Illinois

v. Ferriero, 60 F.4th 704, 715, 460 U.S. App. D.C. 107

(D.C. Cir. 2023) (quoting Lovitky, 949 F.3d at 760).

50a

"[T]o meet the 'clear duty to act' standard, '[t]he law

must not only authorize the demanded action, but

require it; the duty must be clear and indisputable.'"

Ferriero, 60 F.4th at 715 (quoting United States ex rel.

McLennan v. Wilbur, 283 U.S. 414, 420, 51 S. Ct. 502,

75 L. Ed. 1148 (1931). Based on the Court's holding

that federal law precludes the President's power to

remove Harris at will, the Court finds a duty here that

is clear and indisputable, and under binding Supreme

Court precedent there is no "room for an honest

difference of opinion" on the part of federal officials.

Reichelderfer v. Johnson, 72 F.2d 552, 554 (D.C. Cir.

1934). In other words, the statute does not provide

room for executive discretion—the President has no

menu of options to pick from when he categorically

may not remove Harris without cause. In making this

determination, the Court additionally looks to the

voluminous precedent demonstrating that courts of

law issued mandamus relief in similar situations at

the time Congress passed the All Writs Act in 1789

and over the ensuing centuries.

As the Court previewed earlier, however, it

appears at present that Harris has a separate,

"adequate remedy" available in the form of a

permanent injunction. In re Nat'l Nurses United, 47

F.4th at 752 n.4. The Court thus determines that her

request for mandamus relief fails on that basis alone.

Were equitable injunctive relief unavailable here,

however, the Court would not hesitate to "vigilantly

enforce federal law" and "award[] necessary relief"

51a

through a writ of mandamus as an alternative remedy

at law. DL, 860 F.3d at 726.

V. CONCLUSION

For the foregoing reasons, Plaintiff Cathy A.

Harris's motion for summary judgment is

GRANTED; and it is

DECLARED that Plaintiff Cathy A. Harris

remains a member of the Merit Systems Protection

Board, having been confirmed by the Senate on May

25, 2022, and sworn in on June 1, 2022, and that she

may be removed by the President prior to the

expiration of her term in office only for inefficiency,

neglect of duty, or malfeasance in office pursuant to 5

U.S.C. § 1202; and it is

FURTHER ORDERED that Plaintiff Cathy A.

Harris shall continue to serve as a member of the

Merit Systems Protection Board until her term

expires pursuant to 5 U.S.C. § 1202, unless she is

earlier removed for inefficiency, neglect of duty, or

malfeasance in office under that statute. Defendants

Secretary Scott Bessent, Deputy Director Trent

Morse, Director Sergio Gor, Acting Chairman Henry

Kerner, and Director Russell Vought are ENJOINED

from removing Harris from her office without cause or

in any way treating her as having been removed

without cause, denying or obstructing Harris's access

to any of the benefits or resources of her office, placing

a replacement in Harris's position, or otherwise

recognizing any other person as a member of the

52a

Merit Systems Protection Board in Harris's position;

and it is FURTHER ORDERED that the Court's

Temporary Restraining Order is VACATED.

An order consistent with this Memorandum

Opinion is separately and contemporaneously issued.

Dated: March 4, 2025 RUDOLPH CONTRERAS

United States District Judge

53a

APPENDIX C

___________

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

___________

No. 25-5037

September Term, 2024

1:25-cv-00412-RC

Filed On: March 28, 2025

___________

CATHY A. HARRIS, IN HER PERSONAL CAPACITY AND

IN HER OFFICIAL CAPACITY AS MEMBER OF THE MERIT

SYSTEMS PROTECTION BOARD,

Appellee,

SCOTT BESSENT, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE TREASURY, ET AL.,

Appellants.

___________

Consolidated with 25-5055

___________

No. 25-5057

1:25-cv-00334-BAH

___________

54a

GWYNNE A. WILCOX,

Appellee,

DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS

PRESIDENT OF THE UNITED STATES AND MARVIN E.

KAPLAN, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF

THE NATIONAL LABOR RELATIONS BOARD,

Appellants.

___________

BEFORE: Henderson, Millett*, and Walker, Circuit

Judges

___________

ORDER

Upon consideration of the emergency motions for

stay filed in Nos. 25-5055 and 25-5057, the

oppositions thereto, the replies, and the briefs filed by

amici curiae regarding the stay motions; it is

ORDERED that the emergency motions for stay

be granted. Separate concurring statements of Judge

Walker and Judge Henderson and a dissenting

statement of Judge Millett are attached.

Per Curiam

*Judge Millett dissents from the grant of the

emergency motions for stay.

55a

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

56a

WALKER, Circuit Judge, concurring:

Article II of the Constitution vests the "executive

Power" in "a President of the United States" and

requires him to "take Care that the Laws be faithfully

executed."1 "To protect individual liberty, the

Framers . . . created a President independent from the

Legislative Branch."2 "To further safeguard liberty,

the Framers insisted upon accountability for the

exercise of executive power," so they "lodged full

responsibility for the executive power in a President

of the United States, who is elected by and

accountable to the people."3

Executive branch agencies do not disrupt that

design when they are accountable to the President.

"But consent of the governed is a sham if an

administrative agency, by design, does not

meaningfully answer for its policies to either of the

elected branches."4 That's why the Supreme Court

has said that Congress cannot restrict the President's

removal authority over agencies that "wield

substantial executive power."5

That Court's precedents control this court's case.

Under those precedents, the Government is likely to

1 U.S. Const., art. II, §§ 1, 3.

2 Free Enterprise Fund v. PCAOB, 537 F.3d 667, 689, 383 U.S.

App. D.C. 119 (D.C. Cir. 2008) (Kavanaugh, J., dissenting).

3 PHH Corp. v. CFPB, 881 F.3d 75, 164, 434 U.S. App. D.C. 98

(D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting).

4 Id. at 137 (Henderson, J., dissenting).

5 Seila Law LLC v. CFPB, 591 U.S. 197, 140 S. Ct. 2183, 21992200, 207 L. Ed. 2d 494 (2020).

57a

succeed in showing that the statutory removal

protections for National Labor Relations Board

commissioners and Merit Systems Protection Board

members are unconstitutional. The Government has

also shown that it will suffer irreparable harm each

day the President is deprived of the ability to control

the executive branch. Conversely, the removed

officials suffer no cognizable irreparable harm during

the pendency of these appeals, nor do the agencies

where they previously worked until the President

fired them. Finally, the public interest also supports

a stay. The people elected the President to enforce the

nation's laws, and a stay serves that purpose by

allowing the people's chosen officer to control the

executive branch.

I therefore support granting the motions for a stay

pending appeal in Harris v. Bessent (25-5055) and

Wilcox v. Trump (25-5057).

I. Background

The National Labor Relations Board and the Merit

Systems Protection Board are executive branch

agencies. By the terms of statutes that the

Government argues are unconstitutional, their

members may be removed only for cause.6

On January 27, 2025, President Donald Trump

removed Gwynne Wilcox from the NLRB prior to her

term's expiration in 2028. In an explanatory letter,

the President informed Wilcox that the NLRB had not

6 5 U.S.C. § 1202(d) (MSPB); 29 U.S.C § 153(a) (NLRB).

58a

"been operating in a manner consistent with the

objectives of [his] administration."7 Citing several

recent Board decisions, he expressed concern that

Wilcox was "unduly disfavoring the interests of

employers."8

Wilcox sued for reinstatement on February 5, 2025.

Five days later, she moved for summary judgment on

an expedited basis. After a hearing on March 5, the

district court granted summary judgment to Wilcox,

declaring that she remained a member of the NLRB

and permanently enjoining the NLRB's Chair and his

subordinates from effectuating the President's

removal order.

A similar chain of events occurred in Harris v.

Bessent. On February 10, 2025, the President

removed Cathy Harris from the MSPB prior to her

term's expiration in 2028. Unlike Wilcox, Harris did

not receive an explanatory letter.

Harris sued for reinstatement on February 11,

2025. Seven days later, the district court granted her

request for a temporary restraining order, effectively

reinstating her to the MSPB. A few weeks later, the

court granted summary judgment for Harris,

declaring that she remained a member of the MSPB

and permanently enjoining various government

officials from executing the President's removal order.

7 Pl.'s Ex. A at 2, Wilcox v. Trump, No. 25-cv-334 (D.D.C. Feb. 20,

2025), ECF No. 10-4.

8 Id.

59a

In defending these removals, the Government has

not argued that the President met the statutory

criteria for removal.9 Instead, it has insisted that

those provisions are unconstitutional infringements

on the President's Article II removal power — a

position consistent with the President's recent

executive order regarding independent agencies.10

On that basis, the Government appealed both

orders and moved for emergency stays pending

appeal. We considered the two motions together and

heard oral argument on March 18, 2025.

II. The Presidential Removal Power

9 See 5 U.S.C. § 1202(d) (removal "only for inefficiency, neglect of

duty, or malfeasance in office"); 29 U.S.C. § 153(a) (removal only

"upon notice and hearing, for neglect of duty or malfeasance in

office, but for no other cause").

10 Exec. Order No. 14,215, Ensuring Accountability for All

Agencies (Feb. 18, 2025), https://www.federalregister.gov/

d/2025-03063.

The Government also maintains that federal district courts

lack the equitable power to reinstate an officer who has been

removed by the President. Because this court grants the

Government's stay application on alternative grounds, I have no

occasion to address this argument. Cf. Bessent v. Dellinger, 145

S. Ct. 515, 517, 221 L. Ed. 2d 226 (2025) (Gorsuch, J., dissenting)

(observing that "by the 1880s [the Supreme] Court considered it

'well settled that a court of equity has no jurisdiction over the

appointment and removal of public officers'" (quoting In re

Sawyer, 124 U.S. 200, 212, 8 S. Ct. 482, 31 L. Ed. 402 (1888)));

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

Cir. Feb. 15, 2025) (Katsas, J., dissenting) (reinstating a

principal officer is "virtually unheard of").

60a

Before addressing the stay factors, it is prudent to

address the text, history, and precedents that control

this preliminary merits determination.

A. History

I begin with a review of our nation's founding

period, the creation of our Constitution, and the

historical practice in the decades that followed.

1. The Energetic Executive

Under the Articles of Confederation, the early

Republic experienced the perils of having a weak

executive. With "no executive separate from

Congress,"11 the federal government had to rely on the

states' good graces to carry out national policies.12

And it was powerless to respond to national

emergencies, like the 1786 Shays' Rebellion.13 As

Henry Knox put it, the federal government was but "a

shadow without power, or effect."14

So when "the Framers met in Philadelphia in the

summer of 1787, they sought to create a cohesive

national sovereign in response to the failings of the

Articles of Confederation."15 But the Framers also

understood that a strong federal government could be

11 William P. Barr, The Role of the Executive, 43 Harv. J.L. &

Pub. Pol'y 605, 607 (2020).

12 Printz v. United States, 521 U.S. 898, 919, 117 S. Ct. 2365, 138

L. Ed. 2d 914 (1997).

13 Max Farrand, The Fathers of the Constitution 95 (1921).

14 Letter

from Henry Knox to George Washington (March 19,

1787), https://perma.cc/9UCC-ZYAP.

15 PennEast Pipeline Co. v. New Jersey, 594 U.S. 482, 141 S. Ct.

2244, 2263, 210 L. Ed. 2d 624 (2021).

61a

abused. They recognized that "structural protections"

— most significantly, the separation of powers —

"were critical to preserving liberty."16 By splitting the

legislative, executive, and judicial powers, and "giving

to those who administer each department the

necessary constitutional means and personal motives

to resist encroachments of the others," the federal

government could avoid the "gradual concentration of

the several powers in the same department."17

After their experience with parliamentary

supremacy, the Framers were particularly concerned

about the concentration of legislative power.18 For

example, Gouverneur Morris warned delegates at the

Constitutional Convention that the "Legislature will

continually seek to aggrandize & perpetuate

themselves."19 Drawing on well-established political

traditions, the Framers divided Congress "into two

Chambers: the House of Representatives and the

Senate."20

Whereas the Framers divided the Legislative

Power, they unified the Executive. They were

concerned that "the weakness of the executive may

16 Bowsher v. Synar, 478 U.S. 714, 730, 106 S. Ct. 3181, 92 L. Ed.

2d 583 (1986).

17 The Federalist No. 51 (James Madison).

18 Free Enterprise Fund v. PCAOB, 537 F.3d 667, 689, 383 U.S.

App. D.C. 119 (D.C. Cir. 2008) (Kavanaugh, J., dissenting).

19 James Madison's Notes of the Constitutional Convention (July

19, 1787), https://perma.cc/HU54-J7SU.

20 Seila Law LLC v. CFPB, 591 U.S. 197, 140 S. Ct. 2183, 2203,

207 L. Ed. 2d 494 (2020).

62a

require . . . that it should be fortified."21 After the

"humiliating weakness" of the Articles of

Confederation, the "Framers deemed an energetic

executive essential to 'the protection of the

community against foreign attacks,' 'the steady

administration of the laws,' 'the protection of

property,' and 'the security of liberty.'"22

The Framers debated how to achieve that objective

while also avoiding the dangers of monarchy or

tyranny. Some delegates proposed a plural executive

to limit the concentration of power in any one person.

For example, Edmund Randolph pressed for a threemember executive representing different regions of

the country.23 And some proposed that Congress

should choose the Executive — whether singular or

plural.24

Ultimately, though, the Framers "'insisted' upon

'unity in the Federal Executive' to 'ensure both vigor

21 The Federalist No. 51.

22 First quoting Myers, 272 U.S. 52, 117, 47 S. Ct. 21, 71 L. Ed.

160 (1926); then quoting Seila Law, 140 S. Ct. at 2203 (quoting

The Federalist No. 70); see also Adam White, Chevron Deference

v. Steady Administration, Yale J. Reg.: Notice & Comment (Jan.

24, 2024), https://perma.cc/8GLE-2JX4 ("Energetic presidents

aren't inherently good. Rather, presidential energy is good for a

few important things—especially, Hamilton argued, for 'the

steady administration of the laws.'").

23 Daniel A. Farber & Suzanna Sherry, A History of the

American Constitution 124 (3d ed. 2013).

24 Id. at 118, 127-28.

63a

and accountability' to the people."25 So they settled on

a single executive, the President of the United States,

who "would be personally responsible for his

branch."26

That unity affords the President "[d]ecision,

activity, secrecy, and dispatch," and it guards against

a plural executive's tendency "to conceal faults and

destroy responsibility."27 It also avoids "the 'habitual

feebleness and dilatoriness' that comes with a

'diversity of views and opinions.'"28

At the same time, the Framers understood the

risks posed by a strong executive. Their solution?

Making "the President the most democratic and

politically accountable official in Government,"

subject to election "by the entire Nation" every four

years.29 The "resulting constitutional strategy is

straightforward: divide power everywhere except for

the Presidency, and render the President directly

25 Seila Law, 140 S. Ct. at 2212 (Thomas, J., concurring in part

and dissenting in part) (quoting Printz, 521 U.S. at 922) (cleaned

up).

26 Akhil Reed Amar, America's Constitution: A Biography 197

(2005); see also Clinton v. Jones, 520 U.S. 681, 712, 117 S. Ct.

1636, 137 L. Ed. 2d 945 (1997) (Breyer, J., concurring in the

judgment) ("Article II makes a single President responsible for

the actions of the Executive Branch in much the same way that

the entire Congress is responsible for the actions of the

Legislative Branch, or the entire Judiciary for those of the

Judicial Branch.").

27 The Federalist No. 70 (Alexander Hamilton).

28 Seila Law, 140 S. Ct. at 2203 (quoting The Federalist No. 70).

29 Id.

64a

accountable

elections."30

the

people

through

regular

2. Original Understanding of the Removal

Power

Against that backdrop, the Constitution assigns a

lofty role to the President. Article II vests the

"executive Power" in the "President of the United

States of America."31 And it charges the President to

"take Care that the Laws be faithfully executed."32

Of course, the President cannot carry out his duties

"alone and unaided" — he must enlist the "assistance

of subordinates."33 The Framers envisioned a "chain

of dependence" in the executive branch, where "the

lowest officers, the middle grade, and the highest, will

depend, as they ought, on the President."34 The

Vesting Clause empowers the President to direct and

control those officials. As James Madison explained,

"if any power whatsoever is in its nature executive, it

is the power of appointing, overseeing, and controlling

those who execute the laws."35

30 Id.

31 U.S. Const. art. II, § 1.

32 Id. § 3.

33 Myers, 272 U.S. at 117.

34 1 Annals of Congress 499 (1789) (James Madison).

at 463; see also Neomi Rao, Removal: Necessary and

Sufficient for Presidential Control, 65 Ala. L. Rev. 1205, 1215

(2014) ("The text and structure of Article II provide the President

with the power to control subordinates within the executive

branch.").

35 Id.

65a

That includes "a power to oversee executive officers

through removal."36 Because the Constitution

provided no textual limits on that "traditional

executive power," "it remained with the President."37

Founding-era history confirms that understanding.

The First Congress encountered the question directly,

and its debate and decision — now called "the

Decision of 1789" — provides "contemporaneous and

weighty evidence of the Constitution's meaning since

many of the Members of the First Congress had taken

part in framing that instrument."38

During the summer of 1789 "ensued what has been

many times described as one of the ablest

constitutional debates which has taken place."39 The

topic of the President's removal power came up

"during consideration of a bill establishing certain

Executive Branch offices and providing that the

36 Free Enterprise Fund, 561 U.S. at 492 (quoting Letter from

James Madison to Thomas Jefferson (June 30, 1789), in 16

Documentary History of the First Federal Congress 893 (2004)).

37 Id. (cleaned up).

The absence of a "removal clause" does not mean the

President lacks a removal power, just as the absence of a

"'separation of powers clause' or a 'federalism clause'" does not

undercut those "foundational doctrines." Seila Law, 140 S. Ct. at

2205. As the Supreme Court has "explained many times before,

the President's removal power stems from Article II's vesting of

the 'executive Power' in the President." Id.

38 Bowsher, 478 U.S. at 723-24 (internal quotation marks

omitted).

39 Parsons v. United States, 167 U.S. 324, 329, 17 S. Ct. 880, 42

L. Ed. 185, 32 Ct. Cl. 626 (1897).

66a

officers would be subject to Senate confirmation and

'removable by the President.'"40

The House debated various theories, including that

Congress could specify the President's removal

authority on an office-by-office basis, that officers

could be removed only through impeachment, that

removal required the advice and consent of the

Senate, and that the "executive power" conferred

plenary removal authority to the President.41

The last view, advocated by James Madison,

prevailed: The "executive power included a power to

oversee executive officers through removal."42 To

avoid giving the impression that Congress had any

say in the President's removal decisions, the House

deleted the bill's provision making officers "removable

by the President."43

In retrospect, the Decision of 1789 has been viewed

as "a legislative declaration that the power to remove

officers appointed by the President and the Senate [is]

vested in the President alone."44

Enterprise Fund, 537 F.3d at 691 (Kavanaugh, J.,

dissenting) (quoting Myers, 272 U.S. at 111).

41 Aditya Bamzai & Saikrishna Prakash, The Executive Power of

Removal, 136 Harv. L. Rev. 1756, 1774 (2023).

42 Free Enterprise Fund, 561 U.S. at 492.

43 Myers, 272 U.S. at 113-14.

44 Id. at 114; see also id. at 144 (the Decision of 1789 "has ever

been considered as a full expression of the sense of the

legislature on this important part of the American constitution"

(quoting 5 John Marshall, The Life of George Washington 200

(1807)).

40 Free

67a

3. Historical Practice

The understanding that the President holds

unrestricted removal power "became widely accepted

during the first 60 years of the Nation."45 George

Washington removed "almost twenty officers,

including a consul, diplomats, tax collectors,

surveyors, and military officers."46 What's more, his

commissions typically stated that officeholders served

during "the pleasure of the President," indicating

Washington's apparent belief that he could dismiss

The district court in Wilcox took a different view of the

Decision of 1789. Wilcox v. Trump, No. 25-334, 2025 WL 720914,

at *12 (D.D.C. Mar. 6, 2025). To the extent the Decision of 1789

is susceptible to multiple interpretations, I follow the Supreme

Court's. See Myers, 272 U.S. at 114; Parsons, 167 U.S. at 328-30;

Bowsher, 478 U.S. at 723; Free Enterprise Fund, 561 U.S. at 492;

Seila Law, 140 S. Ct. at 2197.

At least one amicus disputes the Supreme Court's settled

view of the historical evidence. Constitutional Accountability

Center Br. at 10-12. Although Alexander Hamilton originally

took the position that Senate consent would be required to

remove an officer, The Federalist No. 77 (Alexander Hamilton),

he "later abandoned" that "initial" view, Seila Law, 140 S. Ct.

2205. Likewise, "whatever Madison may have meant" by his

statement in Federalist No. 39 that "the 'tenure' of 'ministerial

offices generally will be a subject of legal regulation,'" he later

"led the charge" in defending the President's removal authority

during the Decision of 1789. Seila, 140 S. Ct. at 2205 n.10.

Finally, the Court has "reject[ed]" Chief Justice Marshall's

statement in Marbury that some officers are not "removable at

the will of the executive" as "ill-considered dicta." Id. at 2205

(citing Myers, 272 U.S. at 136-39, 142-44).

45 Free Enterprise Fund, 537 F.3d at 692 (Kavanaugh, J.,

dissenting).

46 Bamzai & Prakash, The Executive Power of Removal, at 1777.

68a

officers at will.47 Then-Secretary of State Timothy

Pickering — the official in charge of signing

commissions — confirmed the meaning of that

language: "In all cases except that of the Judges, it

has been established from the time of organizing the

Government, that removals from offices should

depend on the pleasure of the Executive power."48

Subsequent Presidents also dismissed officers at

will, often based on political disagreements. John

Adams removed Secretary Pickering over a

disagreement about America's alignment with

France.49 (Yes, the same Pickering who defended

Washington's removal power.) James Madison

"compelled the resignation of" Secretary of War John

Armstrong following the War of 1812.50 Andrew

Jackson removed Treasury Secretary William Duane

for his refusal to withdraw federal deposits from the

Second Bank of the United States.51 William Henry

Harrison intended to remove scores of Jacksonian

officials but died before he had the chance — just one

month after entering office.52 His successor, John

47 Id. at 1777-78.

48 Id. at 1778 (quoting Letter from James Monroe to Timothy

Pickering (July 31, 1797), in 3 The Writings of James Monroe 73,

75 n.1 (Stanislaus Murray Hamilton ed., 1969) (quoting a letter

from Pickering to Monroe)).

49 Steven G. Calabresi & Christopher S. Yoo, The Unitary

Executive 62 (2008).

50 Id. at 79.

51 Id. at 106, 108.

52 Id. at 131-32.

69a

Tyler, quickly carried out Harrison's removal plans.53

Not to be outdone, Millard Filmore dismissed Zachary

Taylor's entire cabinet as his "first act in office."54

To be sure, these removals sometimes prompted

minor opposition from Congress. For example, after

Jackson removed Surveyor General Gideon Fitz, "the

Senate adopted a resolution requesting the President

to communicate" his reasons for firing Fitz to aid in

the Senate's "constitutional action upon the

nomination of his successor."55 Jackson refused to

comply with what he deemed "unconstitutional

demands."56 Presidents in our nation's first hundred

years faced other similarly halfhearted resolutions in

response to their exercise of the removal power.57

One exceptional case was the impeachment of

Andrew Johnson, following his removal of Secretary

of War Edwin Stanton.58 The impeachment charged

Johnson with violating the 1867 Tenure of Office Act,

which required Senate consent to remove officers.59

Much of Johnson's defense centered on his view that

53 Id. at 135.

54 Id. at 148.

55 Myers, 272 U.S. at 287 n.77 (Brandeis, J., dissenting).

56 Id.

57 See, e.g., id. at 279-81 & nn. 64 & 67 (Brandeis, J., dissenting)

(discussing proposals to require "the President to give the

number and reasons for removals").

58 Calabresi & Yoo, The Unitary Executive, at 185.

59 Id. at 179.

70a

the Act was unconstitutional,60 a view the Supreme

Court later endorsed.61

The Senate narrowly acquitted Johnson.62 "The

contentious Johnson episode ended in a way that

discouraged congressional restrictions on the

President's removal power and helped preserve

Presidential control over the Executive Branch."63 It

now "stands as one of the most important events in

American history in maintaining the separation of

powers ordained by the Constitution."64

A few decades later, another removal dispute arose

when Grover Cleveland dismissed U.S. Attorney

Lewis Parsons prior to the conclusion of Parsons'

statutory four-year term.65 Parsons argued that the

President could not remove him until the four-year

term elapsed.66 The Court disagreed. After recounting

the Decision of 1789 and the "continued and

uninterrupted practice" of plenary presidential

removal, the Court construed Parsons' four-year term

as a ceiling for how long he could remain in office —

60 David Miller DeWitt, The Impeachment and Trial of Andrew

Johnson 445 (1903).

61 See Myers, 272 U.S. at 176 (declaring the Tenure of Office Act

"invalid" "in so far as it attempted to prevent the President from

removing executive officers who had been appointed by him by

and with the advice and consent of the Senate").

62 Calabresi & Yoo, The Unitary Executive, at 186.

63 Free Enterprise Fund, 537 F.3d at 692 (Kavanaugh, J.,

dissenting).

64 Id. at 692-93.

65 Parsons, 167 U.S. at 327-28.

66 Id. at 328.

71a

not as a restriction on the President's power to remove

him sooner.67

As this history demonstrates, the Founders

understood that the President had inherent,

inviolable,

and

unlimited

authority

remove principal officers exercising substantial

executive authority, and Presidents have exercised

that authority since the very beginning of the

Republic, beginning with George Washington.

B. Precedent

With those historical underpinnings, I turn to the

Supreme Court's more recent precedents. The Court

has reaffirmed the President's inherent removal

power on several occasions, relying often on the

historical evidence recounted in the preceding section.

That is not to say the Court's removal-power

jurisprudence has always been consistent. Though

the Court in Myers reaffirmed the President's

unilateral removal power, Humphrey's Executor

created an exception to the rule. It left future courts

to decide when that exception might apply. To the

extent that Humphrey's created a showdown between

the Myers rule and the Humphrey's exception, the

Court's recent decisions have been unequivocal:

Humphrey's has few, if any, applications today. To

discern the Supreme Court's rule, I review the Court's

holdings, beginning with Myers.

67 Id. at 338-39, 340.

72a

1. Myers

In 1920, President Woodrow Wilson removed

postmaster Frank Myers from office.68 Myers sought

backpay, relying on a statute that required the

President to obtain Senate approval before removing

him — something the President had indisputably not

done.69 The question before the Court was whether

the Constitution permitted such a restriction.

Writing for the Court, Chief Justice Taft undertook

a deep historical survey, concluding that the statutory

provision denying the President the "unrestricted

power of removal" was "in violation of the

Constitution and invalid."70 That survey highlighted

much of the history recounted above, including the

Decision of 1789. The Court focused on four points

advanced by James Madison and his allies during

that congressional debate.

First, Myers stressed that the President's

supervisory power over officers is crucial for

protecting the separation of powers: "If there is any

point in which the separation of the legislative and

executive powers ought to be maintained with great

caution, it is that which relates to officers and

offices."71 It further explained that to "take care that

the laws be faithfully executed," the President must

68 Myers, 272 U.S. at 106.

69 Id. at 107-08.

70 Id. at 176.

(quoting 1 Annals of Congress 581 (1789) (James

Madison)).

71 Id.

73a

be able to "select those who were to act for him under

his direction" and remove "those for whom he cannot

continue to be responsible."72 The Court's conclusion:

"[N]o express limit was placed on the power of

removal by the executive" and "none was intended."73

Second, the Court considered whether the Senate's

role in presidential appointments carried with it a

corresponding role in removals. It concluded that

history would not support that inference. The power

of removal "is different in its nature from that of

appointment," as was "pointed out" in the First

Congress's debate.74 That's because a Senate veto of a

removal "is a much greater limitation upon the

executive branch, and a much more serious blending

of the legislative with the executive, than a rejection

of a proposed appointment."75 So where the

Constitution does not directly provide Congress any

power over removals, that power "is not to be

implied."76

Third, the Court observed that Congress's power to

create offices did not carry a corresponding power to

limit the President's removal power over them. The

"legislative power" is "limited to" the powers

"enumerated" under Article I of the Constitution; the

72 Id. at 117, 122.

73 Myers, 272 U.S. at 118.

74 Id. at 121.

75 Id.

76 Id.

74a

"executive power" is a "more general grant."77 Thus,

the Court found it "reasonable to suppose" that if the

Founders "intended to give to Congress power to

regulate or control removals," they would have

included

those

powers

"among

the

specifically enumerated legislative powers in article

1, or in the specified limitations on the executive

power in article 2."78

Fourth and finally, the Court noted the threat that

Congress could "thwart[] the executive in the exercise

of his great powers and in the bearing of his great

responsibility by fastening upon him . . . men who"

might render his faithful execution of the laws

"difficult or impossible" — be it "by their inefficient

service under him, by their lack of loyalty to the

service, or by their different views of policy."79 To

avoid this possibility, the moment that the President

"loses confidence in the intelligence, ability,

judgment, or loyalty of any one of [his subordinates],

he must have the power to remove him without

delay."80

The Court specifically included within that

authority the power to remove executive officers

whose duties include those "of a quasi judicial

character."81 Though the Court noted that "the

77 Id. at 128.

78 Myers, 272 U.S. at 128.

79 Id. at 131.

80 Id. at 134.

81 Id. at 135.

75a

President cannot . . . properly influence or control" the

discharge of such duties, he may still "consider the

decision after its rendition as a reason for removing

the officer. . . . Otherwise he does not discharge his

own constitutional duty of seeing that the laws be

faithfully executed."82

Myers was a landmark decision. It established that

the President's removal power is grounded in the

Constitution's text and history and bolstered by

tradition. It is essential to the constitutional

separation of powers and to the President's ability to

"take Care that the Laws be faithfully executed."83

2. Humphrey's Executor

Then came Humphrey's Executor.84 It reaffirmed

the core holding of Myers — that the President holds

an "illimitable power of removal" over "purely

executive officers."85 But "in six quick pages devoid of

textual or historical precedent for the novel principle

it set forth,"86 Humphrey's carved out an exception for

agencies that wield "no part of the executive power."87

According to the Court, that exception permitted

Congress to insulate officers of the relevant agency,

the Federal Trade Commission, from at-will removal.

82 Id.

83 U.S. Const. art. I, § 3.

84 Humphrey's Executor v. United States, 295 U.S. 602, 55 S. Ct.

869, 79 L. Ed. 1611 (1935).

85 Id. at 627-28.

86 Morrison v. Olson, 487 U.S. 654, 726, 108 S. Ct. 2597, 101 L.

Ed. 2d 569 (1988) (Scalia, J., dissenting).

87 Humphrey's Executor, 295 U.S. at 628.

76a

That exception rested on the Court's characterization

of the FTC as an entity that exercised "no part of the

executive power" and that in no way acted as "an arm

or an eye of the executive."88 Instead, the Court

viewed the agency as "wholly disconnected from the

executive department" — "an agency of the legislative

and judicial departments."89

Confronted with the 1935 FTC's role in

investigating and reporting violations of the law —

responsibilities typically associated with the

executive branch — the Court insisted that the 1935

FTC did not wield "executive power in the

constitutional sense," even if it performed an

"executive function."90 To justify the distinction, it

classified the agency's work as "neither political nor

executive, but predominantly quasi judicial and quasi

legislative."91

The Humphrey's Court conceded the ambiguity

inherent in its ruling, acknowledging a potential

"field of doubt" between Myers — where presidential

removal power over purely executive officers was

absolute — and Humphrey's, which permitted

88 Id.

89 Id. at 630.

90 Id. at 28.

I say the "1935 FTC" to distinguish it from the 2025 FTC,

which exercises greater power than the 1935 FTC. See, e.g.,

Collins v. Yellen, 594 U.S. 220, 141 S. Ct. 1761, 1806, 210 L. Ed.

2d 432 (2021) (Sotomayor, J., concurring in part and dissenting

in part) ("1935 FTC did not [have] the power to impose fines").

91 Id. at 624.

77a

removal restrictions only if an agency "exercise[d] no

part of the executive power."92 Rather than clarifying

the boundaries between these categories, the Court

explicitly deferred such questions for "future

consideration and determination."93

As the rest of this survey will show, subsequent

decisions by the Supreme Court have come close to

closing the gap that Humphrey's left. The Court has

consistently declined to extend Humphrey's beyond

its facts and has instead reaffirmed Myers as the

default rule that occupies the "field of doubt" for any

agency that wields the substantial executive power

that Humphrey's understood the 1935 FTC not to

exercise.

3. Wiener

One might say Humphrey's had "one good year" in

1958, when the Court applied it in Wiener v. United

States.94 There, the Court "read a removal restriction

into the War Claims Act of 1948" because the War

Claims Commission "was an adjudicatory body."95

The Wiener opinion took for granted that the

Commission was purely an adjudicatory body. Indeed,

the Commission's entire responsibility, in the Court's

92 Id. at 628, 632.

93 Id. at 632.

94 357 U.S. 349, 78 S. Ct. 1275, 2 L. Ed. 2d 1377, 142 Ct. Cl. 932

(1958); cf. Cass Sunstein, Nondelegation Canons, 67 U. Chi. L.

Rev. 315, 322 (2000).

95 Collins, 594 U.S. 220, 141 S. Ct. 1761, 1783 n.18, 210 L. Ed. 2d

432.

78a

view, consisted of "receiv[ing] and adjudicat[ing] . . .

three classes of claims" defined by statute.96 Nothing

more. So in Wiener, the Humphrey's exception

continued unchanged: Officers of agencies that do not

exercise executive power may be insulated from

presidential removal.

4. Free Enterprise Fund

The Court declined to extend Humphrey's in Free

Enterprise Fund v. PCAOB.97 That case involved a

challenge to the Public Company Accounting

Oversight Board's double-layer removal protections

— its members were removable only for cause by SEC

commissioners who in turn were removable only for

cause.98

Reversing a panel decision of this court, the

Supreme Court rejected the Board's structure as a

violation of the Vesting Clause, the Take Care Clause,

and the Constitution's separation of powers.99 Multilayered removal protections rendered the President

helpless to "oversee the faithfulness of the officers

who execute" the law.100 If an inferior officer

performed poorly, the President could not remove

him; nor could the President remove the poor

96 Wiener, 357 U.S. at 354 (quoting War Claims Act of 1948, Pub.

L. No. 80-896, ch. 826, § 3, 62 Stat. 1240, 1241 (codified at 50

U.S.C. § 4102)).

97 561 U.S. 477, 130 S. Ct. 3138, 177 L. Ed. 2d 706 (2010).

98 Id. at 487.

99 Id. at 484, 492.

100 Id. at 484.

79a

performer's supervisor for failing to carry out the

desired removal.101 As a result, the President had no

way to hold officers accountable in the executive

branch.

According to Free Enterprise Fund, the Founders

created a unitary executive in part to ensure political

accountability to the people. Because citizens "do not

vote for the 'Officers of the United States,'" they must

instead "look to the President to guide the 'assistants

or deputies . . . subject to his superintendence."102

Without this "clear and effective chain of command,"

voters cannot identify "on whom the blame or the

punishment" should fall when the government errs.103

The Court stressed that its decision did not

constrain the size of the executive branch but instead

safeguarded its accountability. The larger and more

complex the executive branch becomes, the greater

the risk that it will "slip from the Executive's control,

and thus from that of the people."104 As the executive

branch expands — wielding "vast power and

touch[ing] almost every aspect of daily life" — its

accountability to a democratically elected President is

even more essential.105

101 Id.

102 Free Enterprise Fund, 561 U.S. at 497-98 (first quoting U.S.

Const. art I, § 2, cl. 2, then quoting The Federalist No. 72

(Alexander Hamilton)).

103 Id. at 498 (quoting The Federalist No. 70 (Alexander

Hamilton)).

104 Id. at 499.

105 Id.

80a

Where did Free Enterprise Fund leave Myers? It

called Myers a "landmark."106 And it reaffirmed

Myers'"principle that Article II confers on the

President 'the general administrative control of those

executing the laws,'" including the removal power.107

And Humphrey's? The Court declined to extend

that decision to "a new type of restriction."108 So Free

Enterprise Fund's reasoning "is in tension with"

Humphrey's,109 including Humphrey's departure from

Myers'"traditional default rule" that "removal is

incident to the power of appointment."110 For any

future case about an agency in the "field of doubt"

between Myers and Humphrey's, the Court directed

us to apply Myers, not Humphrey's.

5. Seila Law

The Court again declined to extend Humphrey's in

Seila Law LLC v. CFPB.111 That case presented

another "new situation": "an independent agency,"

the Consumer Financial Protection Bureau, "led by a

106 Id. at 492.

107 Free Enterprise Fund, 561 U.S. at 492 (quoting Myers, 272

U.S. at 164).

108 Id. at 514.

109 PHH Corp. v. CFPB, 881 F.3d 75, 194, 434 U.S. App. D.C. 98

n.18 (D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting)

(citing In re Aiken County, 645 F.3d 428, 444-46, 396 U.S. App.

D.C. 107 (D.C. Cir. 2011) (Kavanaugh, J., concurring)); see also

Rao, Removal, at 1208.

110 Free Enterprise Fund, 561 U.S. at 509.

111 591 U.S. 197, 140 S. Ct. 2183, 2203, 207 L. Ed. 2d 494 (2020).

81a

single Director and vested with significant executive

power."112

As in Free Enterprise Fund, the Supreme Court

repudiated a decision of this court.113 And as in Free

Enterprise Fund, the Supreme Court took the

President's absolute removal power as expressed in

Myers as "the rule," with Humphrey's as a limited

exception.114 The Court explained that Humphrey's

represents "the outermost constitutional limits of

permissible congressional restrictions on the

President's removal power," and it declined to extend

Humphrey's to the novel agency structure at issue in

Seila Law.115

The Court fashioned a clear rule for the

Humphrey's exception: It applies only to

"multimember expert agencies that do not wield

substantial executive power."116

Once again, Seila Law confirmed that in cases

falling in the "field of doubt" between Myers and

Humphrey's, Myers controls.

6. Collins

Collins v. Yellen applied Seila Law's holding to

another independent agency led by a single top officer

112 Id. at 2201.

113 See id. at 2194 (discussing PHH Corp. v. CFPB, 881 F.3d 75,

434 U.S. App. D.C. 98 (D.C. Cir. 2018) (en banc)).

114 Id. at 2201.

115 Id. at 2200 (quoting PHH Corp., 881 F.3d at 196 (Kavanaugh,

J., dissenting)) (emphasis added).

116 Id. at 2200-01.

82a

— the Federal Housing Finance Authority.117 In doing

so, the Court doubled down on its prior reasoning and

has been understood by some — including Justice

Kagan — to have gone even further than Seila Law in

affirming the Myers default rule.118

First, the Court rejected the argument that FHFA's

more limited authority justified its removal

protection.119 Instead, the Court reaffirmed the

President's removal power as serving "vital purposes"

regardless of an agency's scope or power.120

Second, the Court rejected the argument that the

FHFA doesn't exercise executive power given its role

as a conservator or receiver, in which it sometimes

acts as "a private party."121 To the contrary, the FHFA

derived its power from a statute and was tasked with

interpreting and implementing that statute — "the

very essence of execution of the law."122 The FHFA's

ability to issue binding orders further confirmed that

it "clearly exercises executive power."123

Third, the Court asked whether an agency that

does not regulate "purely private actors" might avoid

117 See 594 U.S. 220, 141 S. Ct. 1761, 1783-87, 210 L. Ed. 2d 432

(2021).

118 Id. at 1801 (Kagan, J., concurring in part and concurring in

the judgment) (noting the majority jettisoned "significant

executive power" from the test in Seila Law).

119 Id. at 1784-85.

120 Id. at 1784.

121 Id. at 1785-86.

122 Collins, 141 S. Ct. at 1785 (cleaned up).

123 Id. at 1786.

83a

the presidential removal rule.124 Again, the Court

answered in the negative. Once more, it emphasized

the "important purposes" served by the removal

power, regardless of whether an agency regulates

private actors directly.125 The implication: If an

agency "can deeply impact the lives of millions of

Americans" through its decisions, even indirectly, it is

an agency that the President must be able to

control.126

Finally, the Court addressed whether the "modest"

nature of the FHFA director's tenure protection —

less restrictive than other removal clauses —

warranted a different outcome.127 Again, the Court

rejected the distinction, holding that the Constitution

"prohibits even 'modest restrictions'" on the

President's removal power.128

Once again, Myers occupied the "field of doubt"

between the (by now exceptionally broad) Myers rule

and the (by now exceptionally narrow) Humphrey's

exception.

C. The State of the Doctrine Today

Text, history, and precedent are clear: The

Constitution vests the "entire 'executive Power'" in

the President.129 That power "includes the ability to

124 Id.

125 Id.

126 Id.

127 Collins, 141 S. Ct. at 1786.

128 Id. at 1787 (quoting Seila Law, 140 S. Ct. at 2205).

129 Seila Law, 140 S. Ct. at 2197.

84a

remove executive officials."130 Without such power, it

would be "impossible for the President . . . to take care

that the laws be faithfully executed."131

The Supreme Court has "left in place two

exceptions to the President's unrestricted removal

power."132 Each of them is binding on lower courts,

even if each of them is also on jurisprudential life

support. One of them — Morrison v. Olson — is not

relevant here.133

The second exception is Humphrey's. It allows

Congress to restrict the President's removal power for

"a multimember body of experts, balanced along

partisan lines, that perform[s] legislative and judicial

functions" and exercises "no part of the executive

power."134 Under modern Supreme Court precedent,

that exception stretches no further than partisanbalanced "multimember expert agencies that do not

wield substantial executive power."135

130 Id.

131 Id. at 2198 (quoting Myers, 272 U.S. at 164).

132 Id.

133 487 U.S. 654, 108 S. Ct. 2597, 101 L. Ed. 2d 569 (1988); cf.

Seila Law, 140 S. Ct. at 2200 (Morrison covers "inferior officers

with limited duties and no policymaking or administrative

authority").

134 Id. at 2198-99 (second part quoting Humphrey's Executor, 295

U.S. at 628).

135 Id. at 2199-2200.

Although the CFPB does not conduct adjudications, it's clear

that Seila's "substantial executive power" test applies to

adjudicatory agencies like the MSPB and NLRB. After all, Seila

was describing the exception in Humphrey's, which dealt with

an adjudicatory agency — the 1935 FTC.

85a

For a court to conclude that an executive agency

wields substantial executive power, it need not

assemble a fact-intensive catalog of the agency's

executive functions. The default: Executive agencies

exercise executive power. The exception covers only an

agency materially indistinguishable from the 1935

FTC, as Humphrey's understood the 1935 FTC.

Why did the Supreme Court narrow Humphrey's so

severely in Seila Law and Collins?

Perhaps it was because Humphrey's "authorize[s]

a significant intrusion on the President's Article II

authority to exercise the executive power and take

care that the laws be faithfully executed."136

Or perhaps it was because Humphrey's "did not

pause to examine how a purpose to create a body

'subject only to the people of the United States' — that

is,

apparently,

beyond

control

the

constitutionally defined branches of government —

could itself be sustained under the Constitution."137

Or perhaps it was because Humphrey's relied on

inconsistent separation-of-powers logic, which fails to

account for how "an agency can at the same moment

reside in both the legislative and the judicial

branches" without infringing on "the 'fundamental

necessity of maintaining each of the three general

136 Free Enterprise Fund, 537 F.3d at 696 (Kavanaugh, J.,

dissenting).

137 Peter L. Strauss, The Place of Agencies in Government:

Separation of Powers and the Fourth Branch, 84 Colum. L. Rev.

573, 611-12 (1984).

86a

departments of government entirely free from the

control or coercive influence . . . of either of the

others.'"138

Or perhaps still it was because Humphrey's made

incomprehensible distinctions "between 'executive

function' and 'executive power.'"139 "Of course the

commission was carrying out laws Congress had

enacted; in that sense its functions could hardly have

been characterized as other than executive, whatever

procedures it employed to accomplish its ends."140

Whatever the reason, without overturning

Humphrey's, the Supreme Court has seemed "keen to

prune . . . Humphrey's."141 The Court's recent opinions

have "characterized the 'independent agencies' as

executive and have rejected the notion that these

agencies exercise quasi-legislative or quasi-judicial

powers."142

138 Id. at 612 (quoting Humphrey's Executor, 295 U.S. at 629).

139 Id.

140 Id.

141 Aditya Bamzai & Saikrishna Bangalore Prakash, The

Executive Power of Removal, 136 Harv. L. Rev. 1756, 1759

(2023).

142 Id.

Recent Supreme Court precedents have "doubted Congress's

ability to vest any judicial power (whether 'quasi' or not) in an

executive agency." Severino v. Biden, 71 F.4th 1038, 1050, 461

U.S. App. D.C. 313 (D.C. Cir. 2023) (Walker, J., concurring)

(citing Oil States Energy Services, LLC v. Greene's Energy

Group, LLC, 584 U.S. 325, 138 S. Ct. 1365, 1372-73, 200 L. Ed.

2d 671 (2018)). And "congress cannot delegate legislative power

to the president." Marshall Field & Co. v. Clark, 143 U.S. 649,

692, 12 S. Ct. 495, 36 L. Ed. 294 (1892); cf. Mistretta v. United

87a

No wonder that Humphrey's has been mostly

ignored in recent years by Supreme Court majorities

— like a benched quarterback watching Myers (and

the original meaning of the Constitution) from the

sideline.

To be clear, this court must "follow the case which

directly controls, leaving to th[e] [Supreme] Court the

prerogative of overruling its own decisions."143 We

cannot overrule Humphrey's. And if the agency in

question is the identical twin of the 1935 FTC (as

Humphrey's understood the 1935 FTC) then

Humphrey's controls.

But as Judge Henderson wrote in 2018, we should

"be loath to cede any more of Article II than

States, 488 U.S. 361, 419, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989)

(Scalia, J., dissenting) ("Strictly speaking, there is no acceptable

delegation of legislative power."). As a result, while specifically

listing an executive agency's executive functions is a sufficient

basis for concluding the President may remove that agency's

principal officers, it is not a necessary basis. See Collins, 141 S.

Ct. at 1801 (Kagan, J., concurring in part and concurring in the

judgment) (arguing that Collins "broaden[ed]" Seila Law by

clarifying that "the constitutionality of removal restrictions does

not hinge on the nature and breadth of an agency's authority"

(cleaned up)). If it's not exercising executive power, what is it

doing in the executive branch? Cf. Severino, 71 F.4th at 1050

(Walker, J., concurring) ("[I]t might be that little to nothing is

left of the Humphrey's exception to the general rule that the

President may freely remove his subordinates.").

143 Mallory v. Norfolk Southern Railway Co., 600 U.S. 122, 143

S. Ct. 2028, 2038, 216 L. Ed. 2d 815 (2023) (quoting Rodriguez

de Quijas v. Shearson/American Express, Inc., 490 U.S. 477,

484, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989)).

88a

Humphrey's Executor squarely demands."144 Since

then, Seila Law and Collins have turned that wisdom

into a binding command on the lower courts. As in the

context of Bivens — like Humphrey's, a precedent not

overruled but severely narrowed by subsequent

decisions — "[e]ven a modest extension is still an

extension."145 And because the Supreme Court has

forbidden extensions of Humphrey's to any new

contexts, we cannot extend Humphrey's — not even

an inch.

III. Stay Factors

To determine whether a stay pending appeal is

appropriate, "we ask (1) whether the applicant is

likely to succeed on the merits, (2) whether it will

suffer irreparable injury without a stay, (3) whether

the stay will substantially injure the other parties

interested in the proceedings, and (4) where the

public interest lies."146 "The first two factors . . . are

the most critical."147

A. Likelihood of Success on the Merits

Under binding Supreme Court precedent, Congress

cannot restrict the President's power to remove the

principal officers of agencies that "wield substantial

144 PHH Corp., 881 F.3d at 156 (Henderson, J., dissenting).

145 Id. (Henderson, J., dissenting) (quoting Ziglar v. Abbasi, 582

U.S. 120, 137 S. Ct. 1843, 1864, 198 L. Ed. 2d 290 (2017)).

146 Ohio v. EPA, 603 U.S. 279, 144 S. Ct. 2040, 2052, 219 L. Ed.

2d 772 (2024) (citing Nken v. Holder, 556 U.S. 418, 434, 129 S.

Ct. 1749, 173 L. Ed. 2d 550 (2009)).

147 Nken, 556 U.S. at 434.

89a

executive power."148 And for the reasons explained

below, the NLRB and the MSPB "exercis[e]

substantial executive authority" — as then-Judge

Kavanaugh said in a dissent later vindicated by Seila

Law.149

Because those agencies exercise "substantial

executive power,"150 the Government is likely to

prevail in its contention that the President may fire

NLRB commissioners and MSPB members.

1. Wilcox v. Trump

The NLRB is an executive branch agency that

administers federal labor law.151 It has five members

who are "appointed by the President by and with the

advice and consent of the Senate."152 They serve fiveyear terms, and the President chooses "one member

to serve as Chairman."153 The statute purports to

restrict the President's removal power.154

By law, the NLRB is "empowered . . . to prevent any

person from engaging in any unfair labor practice."155

Like other executive agencies, it carries out this law

148 Seila Law v. CFPB, 591 U.S. 197, 140 S. Ct.2183, 2199-2200,

207 L. Ed. 2d 494 (2020).

149 PHH Corp. v. CFPB, 881 F.3d 75, 173, 434 U.S. App. D.C. 98

(D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting).

150 Seila Law, 140 S. Ct. at 2199-2200.

151 29 U.S.C. §§ 153(a), 160(a).

152 Id. § 153(a).

153 Id.

154 See id. § 153(a) ("Any member of the Board may be removed

by the President, upon notice and hearing, for neglect of duty or

malfeasance in office, but f

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