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Left: Donald Trump delivers a speech at the annual Road to Majority conference in Washington, DC, in June 2024 (photo by Allison Bailey/NurPhoto via AP). Right: Cathy Harris addresses a Senate HSGAC Committee nominations hearing on September 21, 2021, concerning her appointment as member and chair of the Merit Systems Protection Board (photo from Sen. James Lankford/YouTube).
The Trump administration’s efforts to remove officials from two independent federal labor agencies have been turned down by a federal appeals court. These cases are likely to escalate to the U.S. Supreme Court and could significantly influence President Donald Trump’s ongoing initiatives to reduce the size of the federal workforce.
The U.S. Circuit Court of Appeals for the District of Columbia, in a 7-4 decision, prevented President Trump from removing Cathy A. Harris from the Merit Systems Protection Board (MSPB) and Gwynne Wilcox from the National Labor Relations Board (NLRB). The court found that their dismissals were executed without proper justification.
“The government has not demonstrated the requisite ‘strong showing that [it] is likely [to] succeed on the merits’ of these two appeals,” the panel wrote in a three-page per curiam order. “The government likewise has not shown a strong likelihood of success on the merits of its claim that there is no available remedy for Harris or Wilcox, or that allowing the district court’s injunctions to remain in place pending appeal is impermissible.”
The Justice Department argued that prohibiting the president from being able to remove the board members at will effectively disenfranchised those who voted for Trump.
Harris, a Democrat who was nominated to the MSPB by President Joe Biden, was supposed to serve until her term expired in 2028 before she received notice in February that she had been “terminated, effective immediately.” Without Harris, the board lacks a quorum, which could hamper its ability to function as the Trump administration continues its sprawling efforts to gut the federal workforce.
Harris sued the Trump administration and won her job back through a temporary restraining order and a subsequent permanent injunction, both of which were issued by U.S. District Judge Rudolph Contreras. The administration appealed the district court’s ruling and a three-judge appeals court panel late last month voted 2-1 in the government’s favor, staying Contreras’ injunction and allowing both firings to remain in place.
As previously reported by Law&Crime, the 2-1 ruling was particularly vulnerable to being overturned because the majority’s opinion conflicted with long-standing legal precedent stemming from the U.S. Supreme Court’s 1935 decision in Humphrey’s Executor v. United States, which controls the originating statute that created the MSPB: the Civil Service Reform Act of 1978 (CSRA).
In tandem, the two sources of law have, for decades, been understood to mean that a president can fire a member of an independent agency “only for inefficiency, neglect of duty, or malfeasance in office.” Harris emphatically highlighted that understanding in her en banc appeal, accusing the three-judge panel of attempting to rewrite Supreme Court precedent by allowing Trump to remove her without cause.
While the high court has indicated that it may be inclined to address Humphrey’s Executor, the en banc majority was clear that the three-judge panel had gotten ahead of itself by essentially doing away with the precedent before the justices could weigh in on the matter.
The en banc panel found that the government failed to demonstrate it suffered an “irreparable injury” by reinstating Harris and Wilcox to their board positions because the claimed “intrusion on presidential power” that the administration asserted “only exists” if Humphrey’s Executor is overturned.
“‘No such power’ to remove a predominantly adjudicatory board official ‘is given to the President directly by the Constitution,”” the court wrote.
The en banc panel further set a “highly expedited schedule” for arguments on the merits to “allow the cases to be resolved in short order.”
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