Judge Rudolph Contreras granted Harris’ request to issue a
temporary restraining order on the basis that the two-sentence White House email purporting to remove her from her position didn’t meet the legal requirements to fire a member of the MSPB, the three-member board that adjudicates federal employees’ claims of wrongful termination and other allegations of civil service rule violations.
“Harris has established that this case represents a ‘genuinely extraordinary situation’ meriting injunctive relief for a discharged government employee,” Contreras wrote. “The conditions under which the president may end her tenure are made plain by federal statute and supported by ninety years of Supreme Court precedent.”
That statute, the Civil Service Reform Act, spells out that members of the MSPB are supposed to serve seven-year terms — partly so that their tenures extend across presidential terms — and that the president can only remove them “for inefficiency, neglect of duty, or malfeasance in office.”
Contreras noted that the termination email Harris received from Trent Morse, the deputy director of the White House Presidential Personnel Office, did not allege that Harris had committed any wrongdoing.
The Trump administration made no such allegations in its response to the lawsuit either, asserting only that as an executive branch employee, Harris and the other members of the board “fall squarely within the president’s removal power” under Article II of the Constitution, and that the CSRA’s legal protections for board members are unconstitutional.
“Board members are principal officers who lead a freestanding component within the executive branch and exercise executive power,” government attorneys wrote in a motion opposing the restraining order. “Accordingly, because the entirety of the executive power is vested in the president, the president must be able to remove board members at will.”
In Tuesday’s ruling, Contreras ordered that Harris continue to serve as chair of the MSPB, and barred administration officials from “treating her as having been removed, 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 MSPB in Harris’s position, pending further order of the court.”
While the restraining order is not the final word in the case, the judge found Harris is likely to succeed on the merits of her lawsuit once it’s fully litigated. He said that finding is based not only on the plain text of the statute and Supreme Court precedent, but also an extremely recent case involving the firing of another independent agency head.
In that case, involving the similar removal of Hampton Dellinger, the head of the U.S. Office of Special Counsel, a federal court also found that his removal was improper and ordered him reinstated. And on Saturday, a divided three-judge panel of the D.C. Circuit Court of Appeals declined the Trump administration’s request to intervene in the case, based on allegations that reinstating Dellinger would impose “extraordinary harm” on presidential power.
“The cited “extraordinary harm” is the incursion on the President’s authority to remove executive-branch officials at will — but the legality of such constraints in [OSC’s enabling legislation] is the very merits issue that has not yet been adjudicated by the district court,” the judges wrote. “We cannot presume “extraordinary harm” without presuming that [the law] is unconstitutional, and presuming the invalidity of a duly enacted statute is the opposite of what courts normally do.”
A day later, the Justice Department took the case to the Supreme Court, arguing, as it did in Harris’ case, that Trump has unbridled power to fire the heads of independent agencies. The brief cited last year’s Supreme Court decision that gave Trump immunity from criminal prosecution and reflected a muscular view of executive power.
On Tuesday, Dellinger’s lawyers said the justices don’t have to reach potentially weighty issues of presidential power at the moment. They should rely on standard legal rules that typically do not allow the appeal of a short-lasting court order known as a temporary restraining order, Dellinger’s lawyers wrote.
“At bottom, there is no merit to the government’s effort to declare a five-alarm fire based on a short-lived TRO that preserves” Dellinger’s job while lower courts weigh the legal issues, Dellinger’s lawyers wrote.
The Associated Press contributed to this report.
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