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Left: Donald Trump speaks at the annual Road to Majority conference in Washington, DC, in June 2024 (Allison Bailey/NurPhoto via AP). Right: Cathy Harris speaking at a Senate HSGAC Committee nominations hearing on Sept. 21, 2021, to become member and chair of the Merit Systems Protection Board (Senator James Lankford/YouTube).
The Trump administration is urging the U.S. Court of Appeals for the D.C. Circuit to reverse a ruling by a federal judge to reinstate Cathy Harris, chair of the U.S. Merit Systems Protection Board, after she sued to regain her position in response to being booted last month. The Justice Department points to a district court judge that made “the same error recently” in another firing case that the appellate court “corrected” last week — saying a stay is “equally warranted here.”
The other termination case saw Hampton Dellinger, a fired-then-reinstated ethics enforcer who led the Office of Special Counsel, being ousted for good by the D.C. Circuit last Wednesday following weeks of legal jousting and the threat of a Supreme Court battle. Like Harris, Dellinger fought his firing with a lawsuit in federal court, which led to a temporary restraining order (TRO) being issued by U.S. District Judge Amy Berman Jackson and put in place until the appellate court provided its ruling.
“(Harris) insists that the district court was empowered to restore her to office,” the DOJ said Thursday in a filing showing support for an emergency stay on the lower court’s order, which was handed down by U.S. District Judge Rudolph Contreras, a Barack Obama appointee, in a 35-page memorandum opinion on March 4. “But as this Court recently explained, requiring the President to ‘recognize and work with an agency head whom he has already removed impinges on the conclusive and preclusive power through which the President controls the Executive Branch that he is responsible for supervising,” the DOJ said, citing and quoting from the D.C. Circuit’s ruling in Dellinger directly. “Because the district court committed the same error recently corrected in Dellinger, a stay is equally warranted here.”
In February, Contreras issued a TRO letting Harris keep her job and she promptly filed for a preliminary injunction, arguing for a quick disposition of the case by way of summary judgment — a process that can short-circuit civil litigation by removing the need for a full trial on the merits. Contreras granted a permanent injunction last week, which can only be overturned by the court of appeals.
President Donald Trump’s DOJ said Thursday that Harris’s contention that the president “lacks inherent constitutional authority” to remove principal officers from the Merit Systems Protection Board “depends on a misreading” of legal precedent.
“Her filing in this Court largely rehashes arguments rejected in Seila Law,” the DOJ said, referring to a 2020 Supreme Court case that held that the president has power to hire and fire “lesser executive officers” — such as Harris.
The Trump administration has insisted that the lower court had no power to keep Harris in her position because she’s an executive officer and presidents have the authority to remove executive officers under Article II of the Constitution. The DOJ reiterated this in its appeals court filing, saying Harris’s “entitlement to a restriction on the President’s authority is neither clear nor indisputable,” according to the document.
“The real-world effect of that declaratory and injunctive relief is to countermand the President’s removal of an executive principal officer and to reinstate her to office,” the DOJ said. “But the well-settled rule is that ‘a court of equity has no jurisdiction over the appointment and removal of public officers.””
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Both Harris and Dellinger have proven to be a real thorn in the side of Trump administration officials over the past month as they have helped get federal workers rehired through watchdog investigations and MSPB recommendations. Last Wednesday, Harris and the MSPB temporarily blocked Trump’s firings of approximately 5,900 probationary employees at the U.S. Department of Agriculture who have been terminated since he took office in January. Harris said the board believed there were “reasonable grounds” to stay the firings for 45 days while MSPB members continue to investigate after Dellinger probed the terminations and found cause to reinstate the workers.
Dellinger, who was appointed by Joe Biden in 2024 to lead the Office of Special Counsel and enforce whistleblower laws, filed a petition with the MSPB asking it to stay the firings, which he said came “without consideration” of people’s “individual performance or fitness” for federal employment.
“Rather … it did not identify their positions as ‘mission-critical,’” Dellinger said. “USDA made no attempt to assess the individual performance or conduct of any of these probationary employees before deciding whether to terminate them.”
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