A federal judge on Tuesday reinstated Cathy Harris, the Democrat chairwoman of the Merit Systems Protection Board (MSPB).
“The mission of the MSPB is to “Protect the Merit System Principles and promote an effective Federal workforce free of Prohibited Personnel Practices.”” the agency’s website says.
Cathy Harris was appointed to the MSPB in 2021 and her term was set to expire on March 1, 2028, but Trump fired her earlier this month.
Judge Rudolph Contreras, an Obama appointee with a history of anti-Trump bias, said Trump’s decision to fire Cathy Harris, a member of an agency in the executive branch, exceeded his authority.
“Federal law states that members of the Merit Systems Protection Board may be removed from office “only for inefficiency, neglect of duty, or malfeasance in office.” On February 10, 2025, President Donald J. Trump informed Harris that her position on the MSPB was “terminated, effective immediately” but provided no reason for Harris’s termination,” Judge Contreras wrote in a 21-page opinion reviewed by The Gateway Pundit.
Contreras issued a temporary restraining order and reinstated Cathy Harris.
“The following day, Harris filed this lawsuit against President Trump and several other federal officials (“Defendants”), claiming that her termination violated federal law. She moves for a temporary restraining order declaring her removal from office to be unlawful, declaring that she remains a member of the MSPB, and enjoining Defendants from treating her as having been removed. For the following reasons, the Court grants that motion while the parties fully brief a motion for a preliminary injunction,” Contreras wrote.
Cathy Harris was ordered to file a motion for a preliminary injunction on or before February 23, 2025. Trump’s DOJ must file any opposition by on or before February 28. Harris must reply on or before March 3. The court will rule on a preliminary injunction as soon as possible after both parties have filed replies.
Trump fired Cathy Harris earlier this month, Bloomberg Law reported.
“President Donald Trump fired Cathy Harris, a Democrat and member of the appeals board for terminated federal workers, and stripped another member of his vice-chair position,” Bloomberg Law reported a couple of weeks ago.
“The Merit Systems Protection Board received notice of Harris’s termination on Monday evening, agency spokesperson William Spencer said Tuesday. Trump also removed Democrat Ray Limon’s vice-chair title, but left him on the board. His term expires on March 1.” the outlet reported.
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Biden booted me off a nonpartisan board — Setting Precedent for Trump to clean house now – Spicer
Our case was dismissed by the district court — and while our appeal was pending, the US Court of Appeals for the DC Circuit ruled, in the parallel case of Severino v. Biden et al., that a presidential appointee in a similar position to mine is removable at will by the president
By Sean Spicer Published Jan. 16, 2025, 5:21 p.m. ET
Early in his term, President Biden made history: He fired, en masse, his predecessor’s appointees to presidential boards and commissions before their terms ended.
On Monday, when President Trump is sworn in for his second term, he should not hesitate to follow the precedent that Biden established.
Like every president before him, Trump appointed thousands of people to boards and commissions during his first term.
These generally nonpartisan groups advise the president on our military academies, the Kennedy Center for the Performing Arts, public television and radio, national cemeteries and more.
I was fortunate to be one of those people appointed after leaving the White House as Trump’s press secretary: He named me to serve on the Commission on White House Fellows and the Board of Visitors to the US Naval Academy.
When Biden was inaugurated, all members of the Commission on White House Fellows were immediately asked to submit their resignations, and we did.
That was not unusual for this particular commission; after all, it vets and approves people to work directly within the administration.
But nine months later, I was suddenly asked via email to resign from the US Naval Academy’s Board of Visitors — and to do so that very day.
“Should we not receive your resignation, your position with the Board will be terminated effective 6:00 p.m. tonight. Thank you,” the email read.
I did not see this coming.
It was an unprecedented move; never before in history had a president dismissed a member of the board of a service academy without cause prior to the end of their term.
Trump had not done so, nor had President Barack Obama.
And this action was not specific to me: The Biden team fired every person Trump had named to a service academy board: the Naval Academy, West Point and the Air Force Academy.
Unlike other Presidential Advisory Boards and commissions, service academy boards are statutory, enacted in law by Congress to provide oversight responsibilities.
Each board member is sworn in to the position for a set term, most for three years.
Many of us kicked off the various service academy boards thought Biden’s move was an attempt to silence criticism of the new administration’s woke policies of diversity, equity and inclusion that it was then pushing on our military.
When then-White House Press Secretary Jen Psaki was asked about the removals, she responded by questioning my credentials to serve on the board — failing to mention my more than 20 years of US Navy service and my degree from the Naval War College.
She also didn’t note that Biden also dismissed Lt. Gen. H.R. McMaster, a highly decorated officer and distinguished academic, from the West Point board in the same mass firing, along with other highly qualified members.
In order to make the Biden administration answer for these unprecedented dismissals, America First Legal, led former Trump aide Stephen Miller, decided to take action.
I signed on to the case they filed, which became known as Spicer v. Biden.
The lawsuit was filed right before my term would have expired — I had no expectation of winning a return to the board.
The goal was to get the Biden administration to argue affirmatively in court that it had the absolute authority to remove and replace any appointee.
As our lead attorney Gene Hamilton stated, “Even if the Biden administration prevails in its arguments, President Biden has perhaps unwittingly created a precedent that will be followed by all future administrations.”
Gene was right: The Biden arguments, which a court affirmed, will now benefit President Trump.
Our case was dismissed by the district court — and while our appeal was pending, the US Court of Appeals for the DC Circuit ruled, in the parallel case of Severino v. Biden et al., that a presidential appointee in a similar position to mine is removable at will by the president.
In the end, the DC Circuit clarified the extent of the president’s removal authority for such positions, which will be helpful for all future administrations to understand.
If President Trump dismisses Biden board and commission appointees on Jan. 20, he will be on firm legal ground — and will simply be following the precedent established, and fought for, by Joe Biden.
Sean Spicer served as the 30th White House press secretary and now hosts the Sean Spicer Show podcast.
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Spicer v. Biden
Opinion
21-cv-2493 (DLF)
07-11-2022
SEAN M. SPICER et al., Plaintiffs, v. JOSEPH R. BIDEN, JR., President of the United States, et al., Defendants.
DABNEY L. FRIEDRICH, UNITED STATES DISTRICT JUDGE.
MEMORANDUM OPINION AND ORDER
DABNEY L. FRIEDRICH, UNITED STATES DISTRICT JUDGE.
On September 8, 2021, President Joseph Biden removed the plaintiffs Sean Spicer and Russell Vought from the Board of Visitors to the United States Naval Academy. See Compl. ¶¶ 28-30, Dkt. 1. In this action, the plaintiffs challenge their removals and seek an injunction requiring the President and other federal officials to treat them “as present Board members.” Mem. Op. & Order of Dec. 4, 2021 at 1, Dkt. 9. This Court denied the plaintiffs’ motion for a preliminary injunction because “no statute insulate[d] [them] from removal.” Id. at 10. The defendants now move to dismiss the plaintiffs’ complaint on substantially the same ground. See Dkt. 12. For the reasons below, the Court will grant the motion.
Congress created the Board of Visitors to advise the President on the “state of morale and discipline” at the Naval Academy, as well as its “curriculum, instruction, physical equipment, fiscal affairs, [and] academic methods.” 10 U.S.C. § 8468(e). To that end, Congress directed the Board to “visit the Academy annually” and prepare a “written report” for the President on both the above matters and “other matters relating to the academy that [it] decides to consider.” Id. § 8468(d)-(f). Congress also specified the Board’s membership. Along with several Senators and Representatives, see id. § 8468(a)(1)-(4), the Board includes “six persons designated by the President,” id. § 8468(a)(5). Those persons “serve for three years each” in staggered terms “except that any member whose term of office has expired shall continue to serve until his successor is appointed.” Id. § 8468(b).
On September 8, 2021, the President removed the plaintiffs from their positions on the Board. See Mem. Op. at 2. The plaintiffs then brought a civil action against the President, the Chairman of the Board, its Designated Federal Officer (DFO), and two other government officials. See id. (identifying the particular officials). They also moved for a preliminary injunction that would have required “some or all [of the] defendants to treat [them] as present Board members.” Pls.’ Mot. For a Prelim. Injunction at 8, Dkt. 3-1. This Court denied that motion on December 4, 2021, see Mem. Op. at 11, and the defendants subsequently moved to dismiss the plaintiffs’ complaint, see Dkt. 12.
This Court previously held that the plaintiffs had established a “substantial likelihood” of standing to seek injunctive relief. See Mem. Op. at 6 (quoting EPIC v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 377 (D.C. Cir. 2017)). First, the Court held that removal from federal office is an injury in fact. See id. at 4 (citing Swan v. Clinton, 100 F.3d 973, 976 (D.C. Cir. 1996)). Second, it held that the plaintiffs’ removal from the Board was traceable to the defendants. See id. And third, it read Swan to hold that the plaintiffs’ injuries were redressable through an order requiring the Board’s Chairman and DFO to treat them “as full members of the Board.” Id. at 4-5. The same reasoning explains why the plaintiffs’ allegations on standing are sufficient to survive a motion to dismiss. See EPIC, 878 F.3d at 377 (holding that plaintiffs’ burden to show standing is lower at the motion to dismiss stage than it is at the preliminary injunction stage).
Because Vought’s original term on the Board was scheduled to run through December 31, 2023, see Compl. ¶ 3, this Court need not consider whether the expiration of Spicer’s term alters its subject-matter jurisdiction. See In re Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012) (noting that “only one plaintiff must have standing”).
On the merits, this Court previously held that no provision of § 8468 prevented the plaintiffs’ removal. See Mem. Op. at 7. First, the Court noted that “the power of removal from office is incident to the power of appointment” “absent a specific provision to the contrary.” Id. at 6 (quoting Carlucci v. Doe, 488 U.S. 93, 95 (1988) (citation omitted)). Second, the Court held that the plain text of § 8468(b), which provides only that Board members “serve for three years each” on staggered terms, does not meet that standard. Id. at 7. Third, the Court read Parsons v. United States, 167 U.S. 324 (1897), and Myers v. United States, 272 U.S. 52 (1926), to hold that term-of-office provisions, standing alone, do not confer removal protection. See id. at 7-8 (citing Parsons, 167 U.S. at 344; Myers, 272 U.S. at 47). Fourth, the Court noted that its reading of Parsons and Myers is consistent with the Supreme Court’s recent removal cases. See id. at 89. Fifth, the Court distinguished the defendants’ authorities, including Humphrey’s Executor v. United States, 295 U.S. 602 (1935). See id. at 9-10. And finally, the Court explained that interpreting § 8468(b) to insulate the plaintiffs from removal would raise serious constitutional issues, as Board members are executive officials whose “only role . . . is to advise the President on the performance of a quintessentially executive function.” Id. at 10.
The plaintiffs’ new arguments on the merits do not persuade.
First, the phrase “shall continue” in § 8468(b) does not support the plaintiffs’ claim to removal protection. See Pls.’ Opp’n to Mot. Dismiss at 13, Dkt. 13. “[I]t is generally clear that ‘shall’ imposes a mandatory duty.” Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 172 (2016) (citation omitted). But here, the phrase “shall continue” falls outside the portion of § 8468(b) that describes Board members’ terms of service. See 10 U.S.C. § 8468(b). Section 8468(b) provides, first, that members “designated by the President serve for three years each” and, second, that “any member whose term of office has expired shall continue to serve until his successor is appointed by the President.” Id. The phrase “shall continue” falls within the second clause. See id. And because that clause concerns what happens at the conclusion of members’ terms, as opposed to the length of those terms themselves, the phrase has no bearing on members’ tenure.
Second, this Court properly declined to apply the surplusage canon. See Pls.’ Opp’n at 13-14. It is well-settled that “the power of removal from office is incident to the power of appointment” “absent a specific provision to the contrary.” Carlucci, 488 U.S. at 95 (emphasis added) (citation omitted). The plaintiffs have not identified a specific removal protection in § 8468(b). See Mem. Op. at 6-7. And to the extent that the surplusage canon did render any language in that statute ambiguous, see Pls.’ Opp’n at 13-14, Carlucci would require resolving that ambiguity in the President’s favor. Moreover, that statute’s term-of-office clause is not superfluous. As then-Professor Rao explained, a “statutory term may reinforce a culture of independence and imply a sort of presumption against removal during the term, raising the political costs of removal for the President.” Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala.L.Rev. 1205, 1252-53 (2014). Interpreting § 8468(b) to have that effect is consistent with the “cardinal rule . . . that no provision should be construed to be entirely redundant.” Nielsen v. Preap, 139 S.Ct. 954, 969 (2019) (citation omitted). The surplusage canon thus has no application here.
Third, the plaintiffs have failed to distinguish Myers. See Pls.’ Opp’n. at 20-21. In addition to the arguments in their initial briefing, the plaintiffs now suggest that even if Myers once governed the interpretation of terms-of-office provisions, “any change in the original public meaning of [those provisions] would change the result.” Id. But to the extent that the plaintiffs argue that Humphrey’s Executor overruled Myers on this issue, the argument fails for the reasons discussed in this Court’s previous opinion. See Mem. Op. at 9. And to the extent they argue that a change in ordinary meaning otherwise rendered Myers obsolete, they neglect the presumption that Congress legislates with a knowledge of “relevant judicial precedent[s].” Ryan v. Gonzales, 568 U.S. 57, 66 (2013). Those precedents provide that term-of-office provisions do not independently insulate executive officials from presidential removal. See Mem. Op. at 7-10. And because Congress legislated against that backdrop, there is no occasion to speculate about how ordinary meaning may have shifted between Myers and the passage of § 8468(b).
Fourth, the Court’s holding at the preliminary injunction stage did not imply that the President may remove the members of Congress that sit on the Board pursuant to § 8468(a)(1)-(4). See Pls.’ Opp’n at 26. To the contrary, that holding rests on the text of § 8468(b), which applies only to the Board members “designated by the President” pursuant to § 8468(a)(5). 10 U.S.C. § 8468(b). And because this case presents no occasion to address the status of the other Board members, the reference to those members is a red herring.
Finally, the plaintiffs’ remaining arguments lack merit. The Court may not consider the plaintiffs’ additional historical materials, which include a bevy of early state court decisions, see Pls.’ Opp’n at 10-11, because those materials “cannot trump a controlling decision of the Supreme Court,” Mem. Op. at 10. Likewise, the Court may not consider amendments to § 8468 that postdate September 8, 2021, see Pls.’ Opp’n at 18-19, as this case turns on whether the President lawfully removed the plaintiffs on that date. And Wilson v. United States, 290 F.3d 347 (D.C. Cir. 2002), is inapposite, as it concerned only whether an official’s term had expired and did not address the distinct issue of removal. See id. at 361 (holding that “mid-term vacancies [on the United States Commission on Civil Rights] are to be filled only for the remainder of the unexpired term”); see Pls.’ Opp’n at 18-19.
For all of the above reasons, as well as the reasons discussed in this Court’s previous opinion, § 8468(b) did not insulate the plaintiffs from the President’s removal. The plaintiffs have thus failed to state a claim for which relief can be granted.
CONCLUSION
Accordingly, it is
ORDERED that the defendants’ Motion to Dismiss, Dkt. 12, is GRANTED. It is further
ORDERED that the case is DISMISSED WITH PREJUDICE.
SO ORDERED.
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