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U.S. President Donald Trump speaks during a joint press conference with Britain’s Prime Minister Keir Starmer in the East Room at the White House Thursday, Feb. 27, 2025, in Washington (Carl Court/Pool Photo via AP).
A federal judge on Tuesday reinstated, for the foreseeable future, a member of the Merit Systems Protection Board after she sued to regain her position following her removal by President Donald Trump.
On Feb. 10, the 45th and 47th president tried to fire Cathy Harris, a Joe Biden appointee whose term expires in 2028, in an email from an assistant, telling her she was “terminated, effective immediately.”
But under the federal law governing the decades-old civil service employee dispute agency, early termination requires quite a bit more than just a “conclusory” notice of dismissal, a court determined.
In a 35-page memorandum opinion, U.S. District Judge Rudolph Contreras, a Barack Obama appointee, ruled firmly in Harris’ favor by granting her a preliminary injunction. The decision is based on a 1935 U.S. Supreme Court case keeping “quasi judicial and quasi legislative” agencies largely insulated from the whims of the president.
“The Court first considers the constitutionality of the MSPB’s structure, concluding that its members’ for-cause removal protections are constitutional,” the court’s opinion reads. “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.”
In February, Contreras issued a temporary restraining order — that ruling allowed Harris to keep her job but was just a temporary fix. Afterward, Harris filed for a preliminary injunction. Then, Harris argued 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. Now, the court has issued a permanent injunction that can only be overturned by a court of appeal.
Then, as now, the judge’s analysis relied on long-standing precedent from the nation’s high court that has proven repeatedly instructive, as of late, in a number of high-profile federal lawsuits against the Trump administration over its plans to remove Biden appointees. This case, the aforementioned 1935 opinion, controls the originating statute that created the MSPB, the Civil Service Reform Act of 1978 (CSRA).
In tandem, the two sources of law mean that a president can fire a member of an independent agency “only for inefficiency, neglect of duty, or malfeasance in office.” The court notes, as the leading example, that the Federal Trade Commission is another such agency with so-called “for-cause” removal protections.
The court applies the law to the facts, at length:
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. 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.
The government protested — arguing that much more recent Supreme Court rulings found that the independence provided by for-cause removal protections violates the separation of powers.
But there are different kinds of agencies, the court observed.
“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,” the opinion goes on. “Neither of those cases undermines the constitutionality of for-cause removal provisions for multimember bodies of experts heading an independent agency.”
The government also offered a separate-but-related argument: the MSPB is just too powerful for such protections to remain intact.
Again the court was not convinced.
“Defendants cannot argue that [the 1935 case] 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 [a 2020 case],” Contreras writes. “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.”
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In the end, Trump’s staff simply attempted to fire Harris incorrectly.
Again, the court, at length:
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 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.
The U.S. Department of Justice also argued that the court had no power to keep Harris in her position. This was another argument the court rejected out of hand.
“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,” the opinion continues. “In fact, that is precisely the remedy the Supreme Court affirmed.”
