A three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit seemed inclined on March 18 to allow President Donald Trump’s removals of two agency heads who alleged that their removals violated federal law.
Judges Justin Walker and Karen Henderson asked questions indicating they were skeptical of arguments from Cathy Harris, chair of the Merit Systems Protection Board. Two separate district courts blocked the administration’s firing of her as well as its firing of National Labor Relations Board member Gwynne Wilcox.
Both agency heads argued that the president disregarded federal law by tersely removing them via emails that didn’t attempt to comply with Congress’s requirement that their termination needs to have a particular cause.
Trump is asking the appeals court to temporarily stay the lower court decisions before making firmer decisions on the merits of the legal issues involved.
In deciding whether to grant temporary stays, courts consider the prospect of irreparable harm to both parties. Henderson, at one point, told Department of Justice attorney Eric McArthur that it seemed there was “no irreparable harm” on the part of the two agency heads and asked the administration to speak about harm to the president.
Millett, meanwhile, noted that the lower court orders maintained the status quo by allowing members to stay in their positions, suggesting that their orders didn’t cause significant disruption.
In a lengthy exchange with McArthur, she repeatedly suggested that it was suggesting the court disregard the decades-old Supreme Court precedent in Humphrey’s Executor v. United States, which held that President Franklin D. Roosevelt had wrongly fired a commissioner of the Federal Trade Commission.
Harris’s attorney, Nathaniel Zelinsky, who spoke after McArthur, argued the administration had said the court should throw out centuries of precedent.
Walker interjected. He said he thought the administration said “about 25 times” the court needed to follow Humphrey’s Executor.
Walker also told Deepak Gupta, an attorney for Wilcox, that the court had to interpret Humphrey’s Executor through the lens of Seila Law LLC v. Consumer Financial Protection Bureau, which has been viewed as narrowing the holding in the former case. He added that if the court were deciding this case “two months” after the Supreme Court decided Humphrey’s, it might be easier to decide.
Harris’s and Wilcox’s cases were just two of many challenging the Trump administration’s decisions to fire various federal employees. Another case involving special counsel Hampton Dellinger, who similarly raised Humphrey’s Executor and the issue of for-cause removal, has worked its way through the D.C. Circuit and received a brief order from the Supreme Court.
