USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 1 of 56
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`ORAL ARGUMENT NOT YET SCHEDULED
`No. 25-5052
`IN THE
`United States Court of Appeals
`for the District of Columbia Circuit
`
`
`HAMPTON DELLINGER, IN HIS PERSONAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS
`SPECIAL COUNSEL OF THE OFFICE OF SPECIAL COUNSEL,
`Plaintiff-Appellee,
`
`v.
`SCOTT BESSENT, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE TREASURY, et al.,
`Defendants-Appellants.
`
`
`
`
`
`
`
`
`
`On Appeal from the United States District Court
`for the District of Columbia, No. 1:25-cv-00385-ABJ
`Before Amy Berman Jackson, J.
`BRIEF OF AMICUS CURIAE MEMBER OF THE MERIT SYSTEMS
`PROTECTION BOARD CATHY A. HARRIS IN OPPOSITION TO A STAY
`PENDING APPEAL, AND IN SUPPORT OF APPELLEE AND
`AFFIRMANCE
`
`
`
`
`
`
`
`NEAL KUMAR KATYAL
` Counsel of Record
`NATHANIEL A.G. ZELINSKY
`EZRA P. LOUVIS
`SAMANTHA K. ILAGAN
`MILBANK LLP
`1850 K St., NW
`Suite 1100
`Washington, DC 20006
`(202) 835-7505
` nkatyal@milbank.com
`
`MICHAEL J. KATOR
`JEREMY D. WRIGHT
`KERRIE D. RIGGS
`KATOR, PARKS, WEISER &
`WRIGHT, P.L.L.C.
`1150 Connecticut Ave., NW
`Suite 705
`Washington, DC 20036
`(202) 898-4800
`
`
`March 5, 2025
`
`
`
`LINDA M. CORREIA
`CORREIA & PUTH, PLLC
`1400 16th St., NW
`Suite 450
`Washington, D.C. 20036
`(202) 602-6500
`
`CARL RIZZI
`LUCILLE E. BAEURLE
`MILBANK LLP
`55 Hudson Yards
`New York, NY 10001
`(212) 530-5088
`
`
`
`
`

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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 2 of 56
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`CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
`At the time of this filing, all parties, intervenors, and amici appearing before
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`the district court and in this Court are listed in Appellants’ emergency stay motion,
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`except for amicus curiae Cathy A. Harris and amicus curiae the Separation of
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`Powers Clinic.
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`References to the ruling at issue and related cases appear in the Appellants’
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`stay motion.
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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 3 of 56
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`TABLE OF CONTENTS
`
`
`INTEREST OF AMICUS CURIAE AND SUMMARY OF ARGUMENT ............. 1
`
`ARGUMENT ............................................................................................................. 3
`
`I.
`
`II.
`
`The Merit Systems Protection Board Falls Squarely Within The
`Humphrey’s Executor Framework. ....................................................... 3
`The Government’s Remedies Arguments Are Wrong. ......................... 7
`
`CONCLUSION ........................................................................................................12
`
`APPENDIX
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`i
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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 4 of 56
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`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`* Collins v. Yellen,
`594 U.S. 220 (2021) .......................................................................................... 4, 5
`Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,
`561 U.S. 477 (2010) .......................................................................................... 4, 5
`Fuller v. Trs. of the Acad. Sch. in Plainfield,
`6 Conn. 532 (Conn. 1827) .................................................................................... 9
`Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc.,
`527 U.S. 308 (1999) ............................................................................................ 10
`* Harris v. Bessent,
`No. 25-cv-00412, 2025 WL 679303 (D.D.C. Mar. 4, 2025) .............. 1, 5, 6, 8, 11
`* Humphrey’s Executor v. United States,
`295 U.S. 602 (1935) .................................................................................. 2, 3, 4, 5
`* Kalbfus v. Siddons,
`42 App. D.C. 310 (D.C. Cir. 1914) ................................................................. 9, 11
`Leachco, Inc. v. Consumer Prod. Safety Comm’n,
`103 F.4th 748 (10th Cir. 2024) ............................................................................. 3
`Leachco, Inc. v. Consumer Prod. Safety Comm’n,
`No. 24-156 (2024) ................................................................................................. 4
`Macfarland v. U. S. ex rel Russell,
`31 App. D.C. 321 (D.C. Cir. 1908) ................................................................. 9, 11
`* Marbury v. Madison,
`5 U.S. 137 (1803) ...................................................................................... 2, 10, 11
`
`
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`*Authorities on which we principally rely are marked with asterisks.
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`

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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 5 of 56
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`Meta Platforms, Inc. v. FTC,
`No. 24-5054, 2024 WL 1549732 (D.C. Cir. Mar. 29, 2024) ................................ 3
`R. v. Mayor and Aldermen of Doncaster,
`96 Eng. Rep. 795 (1752) ....................................................................................... 9
`R. v. Mayor of London,
`100 Eng. Rep. 96 (1787) ....................................................................................... 9
`Sampson v. Murray,
`415 U.S. 61 ........................................................................................................... 8
`* Seila Law LLC v. CFPB,
`591 U.S. 197 (2020) .......................................................................................... 4, 5
`* Severino v. Biden,
`71 F.4th 1038 (D.C. Cir. 2023) ............................................................................. 8
`* Swan v. Clinton,
`100 F.3d 973 (D.C. Cir. 1996) ........................................................................ 8, 10
`Truitt v. City of Philadelphia,
`70 A. 757 (Pa. 1908) ............................................................................................. 9
`United States v. Malmin,
`272 F. 785 (3d Cir. 1921) ..................................................................................... 9
`Vitarelli v. Seaton,
`359 U.S. 535 (1959) .............................................................................................. 8
`* Wiener v. United States,
`357 U.S. 349 (1958) ...................................................................................... 4, 5, 7
`Wise v. Withers,
`7 U.S. 331 (1806) ................................................................................................ 11
`Statutes
`5 U.S.C. § 1202(d) ..................................................................................................... 1
`5 U.S.C. § 1212 .......................................................................................................... 6
`5 U.S.C. § 2302 .......................................................................................................... 6
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`iii
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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 6 of 56
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`Civil Service Reform Act, Pub. L. No. 95-454, 92 Stat. 1111 (1978) ...................... 6
`Other Authorities
`About MSPB,
`U.S. MERIT SYSTEMS PROTECTION BOARD,
`https://www.mspb.gov/about/about.htm (last visited Mar. 5, 2025) .................... 7
`James L. High, A Treatise on Extraordinary Remedies 69–70 (2d ed.
`1884) ..................................................................................................................... 9
`* William Blackstone, Vol. 3, Commentaries on the Laws of England
`(1768) .................................................................................................................... 9
`Thomas Tapping, The Law and Practice of the High Prerogative Writ
`of Mandamus 240 (1853) ...................................................................................... 9
`
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`iv
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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 7 of 56
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`INTEREST OF AMICUS CURIAE AND SUMMARY OF ARGUMENT1
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`Amicus Cathy A. Harris is a member of the Merit Systems Protection Board,
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`who, under a longstanding law enacted by Congress, “may be removed” from that
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`position “by the President only for inefficiency, neglect of duty, or malfeasance in
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`office.” 5 U.S.C. § 1202(d) (emphasis added). But on February 10, 2025—three
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`days after the President purported to terminate Hampton Dellinger by email—Harris
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`received a similar email stating that Harris’s “position on the Merit Systems
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`Protection Board” was “terminated, effective immediately.”
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`Harris immediately brought suit in the District Court. Judge Contreras
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`granted Harris a temporary restraining order on February 18, 2025, and the parties
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`agreed to consolidate the preliminary injunction hearing with trial on the merits. On
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`March 4, 2024, Judge Contreras granted Harris’s motion for judgment on the merits
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`and entered a permanent injunction in her favor. See Harris v. Bessent, No. 25-cv-
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`00412, 2025 WL 679303, at *1 (D.D.C. Mar. 4, 2025).2 The government
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`immediately appealed to this Court. See Harris v. Bessent, No. 25-5055 (D.C. Cir.).
`
`
`1 No counsel for a party authored this brief in whole or in part, no party or counsel
`for a party contributed money that was intended to fund preparing or submitting this
`brief, and no person other than amicus or her counsel contributed money that was
`intended to fund the preparation or submission of this brief. All parties have
`consented to the filing of this amicus brief.
`2 Judge Contreras’s Memorandum Opinion is appended to this Brief.
`
`
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`1
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`

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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 8 of 56
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`Harris has an interest in this appeal because the government has presented
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`similar arguments in both cases, and the government has similarly sought a stay of
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`the judgment pending its appeal in Harris v. Bessent. Harris submits this amicus
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`brief for two reasons. First, she respectfully alerts the Court to the government’s
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`appeal in Harris v. Bessent and underscores that Harris presents a different
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`constitutional question than the one presented here. As Judge Contreras’s opinion
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`details, the multi-member Merit Systems Protection Board lies squarely within the
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`framework of Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and its
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`progeny. The Board is a purely adjudicatory body balanced along partisan lines that
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`does not exercise substantial executive power. Under binding and longstanding
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`precedent, Congress may outline the circumstances in which the President may
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`remove the members of this kind of multimember board.
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`Second, Harris urges the Court to conclusively reject the government’s
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`ahistorical argument that Article III courts are powerless to protect officials like her
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`and Hampton Dellinger, and give effect to the removal statutes that Congress passed.
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`As Judge Contreras’s opinion in Harris v. Bessent detailed, not only do courts have
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`the power to issue an injunction in this context, but Anglo-American courts have
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`long also issued writs of mandamus in precisely this circumstance. The
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`government’s argument that Article III courts may not provide effective relief
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`2
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`

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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 9 of 56
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`conflicts with foundational authority, from Blackstone to Marbury v. Madison, 5
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`U.S. 137 (1803), as well as this Court’s decisions.
`
`ARGUMENT
`
`I.
`
`The Merit Systems Protection Board Falls Squarely Within The
`Humphrey’s Executor Framework.
`The merits issues presented in this case are distinct from those presented in
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`Harris v. Bessent. In this case, the government has argued that the Constitution
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`prohibits Congress from restricting the President’s power to remove Hampton
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`Dellinger from his position as Special Counsel because Dellinger is the single head
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`of an agency. That argument, however, has no bearing on Harris v. Bessent, and
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`amicus urges the Court in this case to avoid reaching the distinct constitutional
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`question presented in Harris, which will be before this Court in short order.
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`The Merit Systems Protection Board—of which Harris is a member—is a
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`purely adjudicatory, traditional multimember body that falls squarely within the
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`Humphrey’s Executor framework. In the decisions on which the government relies,
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`the Supreme Court has been careful to preserve Humphrey’s Executor, as this Court
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`and others have confirmed. See, e.g., Meta Platforms, Inc. v. FTC, No. 24-5054,
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`2024 WL 1549732, at *2 (D.C. Cir. Mar. 29, 2024); Leachco, Inc. v. Consumer Prod.
`
`Safety Comm’n, 103 F.4th 748, 762 (10th Cir. 2024). Under that settled precedent,
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`Harris’s case is straightforward.
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`3
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`

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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 10 of 56
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`Indeed, just last year, the Solicitor General told the Supreme Court that
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`“[l]imits on the removal of the heads of multimember regulatory agencies have been
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`a feature of our system of government for as long as such agencies have existed”;
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`that “in the 90 years since Humphrey’s Executor, Congress has repeatedly relied on
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`the Court’s decision”; and that there was “no sound reason to upset that
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`understanding at this late date.” U.S. Br. in Opp. at 7, Leachco, Inc. v. Consumer
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`Prod. Safety Comm’n, No. 24-156 (2024). That was true then, and it is true now.
`
`A. From Humphrey’s Executor onward, the Supreme Court has confirmed
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`that Congress may afford a measure of removal protection to “multimember board[s]
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`or commission[s],” Seila Law LLC v. CFPB, 591 U.S. 197, 207 (2020), which
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`exercise “predominantly quasi judicial” functions, Humphrey’s Executor, 295 U.S.
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`at 624, and serve as “adjudicatory bod[ies],” Wiener v. United States, 357 U.S. 349,
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`356 (1958).
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`In two recent cases, the Supreme Court held that for-cause removal provisions
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`for independent agencies led by a single director violated the separation of powers.
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`Seila Law, 591 U.S. at 218; Collins v. Yellen, 594 U.S. 220 (2021). But in each case,
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`the Court was careful to emphasize the novel and non-traditional structure of those
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`independent agencies. See Seila Law, 591 U.S. at 207; Collins, 594 U.S. at 251; see
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`also Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 496 (2010).
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`Indeed, the Court went out of its way to contrast those novel agencies with
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`4
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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 11 of 56
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`permissible multi-member bodies.3 As Judge Contreras explained in his decision,
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`Humphrey’s Executor “remains alive and well.” Harris, 2025 WL 679303, at *6.
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`B. As Judge Contreras also explained, Humphrey’s Executor “dictates the
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`outcome” of Harris v. Bessent. Id. The Merit Systems Protection Board is “a
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`traditional independent agency headed by a multimember board or commission,”
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`which is “balanced along partisan lines.” Id. (quoting Seila Law, 591 U.S. at 207,
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`216). Members serve “overlapping, staggered seven-year terms, meaning that the
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`President will have the ‘opportunity to shape [the Board’s] leadership and thereby
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`influence its activities.’ ” Id. (quoting Seila Law, 591 U.S. at 225). This is precisely
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`the kind of board upheld in Humphrey’s Executor.
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`The Merit Systems Protection Board is also the quintessential example of a
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`purely “adjudicatory body.” Wiener, 357 U.S. at 356. The Board’s core function is
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`to hear federal employee appeals of adverse actions, including those alleged to
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`involve prohibited personnel practices and employment discrimination—for
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`example, on
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`the basis of race or political affiliation—and reprisal for
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`3 See Seila Law, 591 U.S. at 207 (“Rather than create a traditional independent
`agency headed by a multimember board or commission . . . .”); id. at 216
`(“Humphrey’s Executor permitted Congress to give for-cause removal protections to
`a multimember body of experts.”); id. at 218 (noting Congress may choose to
`provide “multimember expert agencies” for-cause protection); id. at 237 (noting that
`Congress could convert “the CFPB into a multimember agency”); see also Collins,
`594 U.S. at 253 n.19 (contrasting the structure of the Federal Housing Finance
`Agency with “a multi-member Commission.”); Free Enter. Fund, 561 U.S. at 501
`(“The point is not to take issue with for-cause limitations in general.”).
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`5
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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 12 of 56
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`whistleblowing. See 5 U.S.C. § 2302. The Board does not launch investigations,
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`fill up vague statutes, set reasonable prices, or police against unfair competition.
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`Instead, like an Article III court, the Board adjudicates the discrete disputes brought
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`before it. The Board’s decisions, moreover, are subject to judicial review, meaning
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`“federal courts” may always provide “the final say if the parties so desire.” Harris,
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`2025 WL 679303, at *1.
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`Finally, the historical evolution of the Merit Systems Protection Board
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`confirms that it is a purely adjudicatory body. The Board’s precursor was the Civil
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`Service Commission, established in 1883. In 1978, Congress passed the Civil
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`Service Reform Act and split the Commission into multiple entities, including:
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`(1) the Office of Personnel Management, to manage the Federal work force as a true
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`organ of executive power; and (2) the Merit Systems Protection Board, which
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`assumed the Civil Service Commission’s adjudicatory authority. See Civil Service
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`Reform Act, Pub. L. No. 95-454, 92 Stat. 1111, 1122 (1978).
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`The Civil Service Reform Act also established the Office of Special Counsel,
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`which investigates allegations of prohibited personnel practices, prosecutes violators
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`of civil service rules and regulations, and enforces the Hatch Act. See 5 U.S.C.
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`§ 1212. The Special Counsel was originally established as an office within the Merit
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`Systems Protection Board. But in 1989, Congress established the Special Counsel
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`as an independent executive branch agency, and it “now functions independently as
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`6
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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 13 of 56
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`a prosecutor of cases before the Board.”4 If Congress cannot provide a purely
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`“adjudicatory body” like Merit Systems Protection Board members for-cause
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`removal protection, it is not clear that Congress may provide anyone that
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`protection—even ordinary civil servants. Wiener, 357 U.S. at 356.
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`In any event, the constitutionality of multimember boards like the Merit
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`Systems Protection Board presents a delicate and distinct question from that
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`presented here. Amicus respectfully urges this Court not to reach it in this case.
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`II. The Government’s Remedies Arguments Are Wrong.
`In this appeal and in Harris v. Bessent, the government has advanced a
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`breathtaking theory that Article III courts are powerless to prevent the executive
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`from violating a for-cause removal statute, and that courts may only award aggrieved
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`officials backpay. Stay Mot. 21-22. The government is simply wrong: Binding
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`precedent from this Court confirms that courts may enjoin the President’s
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`subordinates to enforce a for-cause removal statute. Moreover, there is an extremely
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`long history of Anglo-American courts providing writs of mandamus in precisely
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`this circumstance.
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`This Court has repeatedly and recently recognized that courts may “enjoin
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`‘subordinate executive officials’ to reinstate a wrongly terminated official.”
`
`
`PROTECTION
`SYSTEMS
`U.S. MERIT
`MSPB,
`4About
`https://www.mspb.gov/about/about.htm (last visited Mar. 5, 2025).
`
`BOARD,
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`
`
`7
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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 14 of 56
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`Severino v. Biden, 71 F.4th 1038, 1042-1043 (D.C. Cir. 2023) (quoting Swan v.
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`Clinton, 100 F.3d 973, 980 (D.C. Cir. 1996)); see also Sampson v. Murray, 415 U.S.
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`61, 92 n.68 (explaining that courts may use their “injunctive power” to remedy an
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`unlawful removal in the “extraordinary situation”); Vitarelli v. Seaton, 359 U.S. 535,
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`546 (1959) (holding that wrongfully terminated official seeking declaratory
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`judgment and an injunction was “entitled to the reinstatement which he seeks”). This
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`Court could stop there and reject the government’s stay application.
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`But “even if Sampson, Swan, and Severino did not make equitable relief
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`available,” Dellinger and Harris would be entitled to “writ[s] of mandamus.” Harris,
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`2025 WL 679303, at *11. In Harris, Judge Contreras was clear that, “[t]o the extent
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`that injunctive relief may be unavailable, the Court would grant mandamus relief in
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`the alternative.” Id. at *3.5
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`As Judge Contreras detailed, English courts “around the time of the founding
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`recognized this power and exercised it regularly.” Id. at *11.6 Multiple common
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`law treatises confirm this tradition. As Blackstone explained, “mandamus” is a “full
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`and effectual remedy” “for refusal or admission where a person is intitled to an
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`5 Dellinger’s complaint also sought mandamus.
`6 See also id. (citing, inter alia, R. v. Mayor of London, 100 Eng. Rep. 96, 98 (1787)
`(recognizing power to issue mandamus restoring public official to office), R. v.
`Mayor and Aldermen of Doncaster, 96 Eng. Rep. 795 (1752) (mandamus to restore
`municipal official to office)).
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`
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`8
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`office” and “for wrongful removal, where a person is legally possessed.” See 3 W.
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`Blackstone, Commentaries on the Laws of England *264-265.7 This Court
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`confirmed as much in 1914: The authority is “overwhelming” that “ ‘[a] mandamus
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`to restore’ ” lies where a person removable only for “causes specified” “is
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`wrongfully dispossessed of [an] office.” Kalbfus v. Siddons, 42 App. D.C. 310, 319
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`(D.C. Cir. 1914).8
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`That long history dispels the government’s arguments and in fact confirms
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`that courts have the power to issue injunctions. In the context of a suit to “comply
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`with removal restrictions,” the remedies of mandamus and injunction are
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`“essentially” the same. Swan, 100 F.3d at 977 & n.1. The government is therefore
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`simply wrong to suggest (at 23) that this case involves “a type of relief that has never
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`7 See also, e.g., James L. High, A Treatise on Extraordinary Remedies 69–70 (2d ed.
`1884) (recognizing that, where officers removable only “ ‘for due cause’ ” are
`illegally terminated, courts may “restore” that person “by mandamus . . . to an office
`to which he is justly entitled”); Thomas Tapping, The Law and Practice of the High
`Prerogative Writ of Mandamus 240 (1853) (mandamus “to restore” lies as a “remedy
`for a wrongful dispossession of an office or function which has temporal rights
`attached to it”).
`8 United States v. Malmin, 272 F. 785, 790 (3d Cir. 1921) (“[M]andamus is an
`appropriate remedy to restore to office one lawfully in possession and unlawfully
`removed.”); Macfarland v. U. S. ex rel Russell, 31 App. D.C. 321, 322 (D.C. Cir.
`1908) (mandamus to compel re-enrollment of plaintiff as a police officer); Truitt v.
`City of Philadelphia, 70 A. 757, 761 (Pa. 1908) (mandamus “to reinstate” local
`superintendent after he was “illegally removed”); Fuller v. Trs. of the Acad. Sch. in
`Plainfield, 6 Conn. 532, 547 (Conn. 1827) (mandamus to “restore the plaintiff” as a
`trustee of public retirement board).
`
`
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`9
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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 16 of 56
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`been available before.” Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc.,
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`527 U.S. 308, 322 (1999). Regardless, even if courts should formalistically label the
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`order mandamus and not injunction, what matters is that courts have the power to
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`issue relief and enforce the laws that Congress passed.
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`The government briefly acknowledges (at 21-22) the long history of courts
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`issuing mandamus in this context but suggests that mandamus was limited to
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`individuals removed from “non-executive offices,” citing Marbury v. Madison.
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`Marbury v. Madison says nothing of the sort, and the government does not point to
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`any source that does. That fact alone means that government has not made the strong
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`showing of success necessary to receive the extraordinary remedy of a stay pending
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`appeal.
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`In fact, Marbury disproves the government’s theory. William Marbury’s
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`commission as a justice of the peace was wrongfully withheld by then Secretary of
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`State James Madison. As the Supreme Court, in an opinion also penned by Chief
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`Justice Marshall, explained just a few years later, a justice of the peace’s “powers”
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`are “partly judicial, and partly executive.” Wise v. Withers, 7 U.S. 331, 336 (1806)
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`(emphasis added). Chief Justice Marshall nevertheless concluded that Marbury
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`presented a “plain case for a mandamus.” Marbury, 5 U.S. at 173. If that were not
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`enough, yet more cases confirm that Anglo-American courts granted mandamus to
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`executive officials. See, e.g., Kalbfus, 42 App. D.C. at 314 (this Court granting
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`
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`10
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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 17 of 56
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`mandamus to assistant assessor); Macfarland, 31 App. D.C. at 322; (same to compel
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`re-enrollment of plaintiff as a police officer); Harris, 2025 WL 679303, at *11
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`(collecting numerous English cases).
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`In any event, even if the government’s suggestion held any merit, it would
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`only confirm that mandamus is appropriate in Harris v. Bessent because Harris
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`serves as a member of a purely adjudicatory body and is therefore akin to a judicial
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`official.
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`* * *
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`Our Anglo-American traditions matter. The government’s legal theory isn’t
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`rooted in those traditions. It is pure make-believe. This Court should reject it.
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`11
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`

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`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 18 of 56
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`
`CONCLUSION
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`For the foregoing reasons, Defendants’ motion should be denied.
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`Dated: March 5, 2025
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`
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`
`
`MICHAEL J. KATOR
`JEREMY D. WRIGHT
`KERRIE D. RIGGS
`KATOR, PARKS, WEISER & WRIGHT,
`P.L.L.C.
`1150 Connecticut Ave., NW
`Suite 705
`Washington, DC 20036
`(202) 898-4800
`
`LINDA M. CORREIA
`CORREIA & PUTH, PLLC
`1400 16th St., NW
`Suite 450
`Washington, D.C. 20036
`(202) 602-6500
`
`
` Respectfully submitted,
`By: /s/ Neal Kumar Katyal
`NEAL KUMAR KATYAL
` Counsel of Record
`NATHANIEL A.G. ZELINSKY
`EZRA P. LOUVIS
`SAMANTHA K. ILAGAN
`MILBANK LLP
`1850 K St., NW
`Suite 1100
`Washington, DC 20006
`(202) 835-7505
`nkatyal@milbank.com
`
`CARL RIZZI
`LUCILLE E. BAEURLE
`MILBANK LLP
`55 Hudson Yards
`New York, NY 10001
`(212) 530-5088
`
`
`
` Counsel for Amicus Curiae Cathy A. Harris
`
`
`
`12
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`

`

`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 19 of 56
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`
`CERTIFICATE OF COMPLIANCE
`I certify that this Brief complies with the type-volume limits set out in Federal
`
`Rule of Appellate Procedure 29 because it contains 2,581 words. This Brief also
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`complies with the requirements of Federal Rules of Appellate Procedure 32(a)(5)
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`and 32(a)(6) because it has been prepared using Microsoft Word in 14-point Times
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`New Roman, a proportionally spaced font.
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`
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`Dated: March 5, 2025
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`
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`
`
`
`By: /s/ Neal Kumar Katyal
`NEAL KUMAR KATYAL
` Counsel of Record
`MILBANK LLP
`1850 K St., NW
`Suite 1100
`Washington, DC 20006
`(202) 835-7505
`nkatyal@milbank.com
`
`Counsel for Amicus Curiae Cathy A.
`Harris
`
`
`
`
`

`

`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 20 of 56
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`
`CERTIFICATE OF SERVICE
`I hereby certify that, on March 5, 2025, I caused the foregoing to be
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`electronically filed with the Clerk of the United States Court of Appeals for the
`
`District of Columbia Circuit by using the appellate CM/ECF system. All counsel in
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`this case are registered CM/ECF users and will be served by the appellate CM/ECF.
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`
`
`Dated: March 5, 2025
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`
`
`
`
` By: /s/ Neal Kumar Katyal
`NEAL KUMAR KATYAL
` Counsel of Record
`MILBANK LLP
`1850 K St., NW
`Suite 1100
`Washington, DC 20006
`(202) 835-7505
`nkatyal@milbank.com
`
`Counsel for Amicus Curiae Cathy A.
`Harris
`
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`

`

`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 21 of 56
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`
`
`Appendix
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`

`

`Case 1:25-cv-00412-RC Document 40 Filed 03/04/25 Page 1 of 35
`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 22 of 56
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`
`CATHY A. HARRIS, in her personal capacity :
`:
`and in her official capacity as Member of the
`Merit Systems Protection Board,
`:
`
`
`:
`
`Plaintiff,
`:
`
`
`:
`
`v.
`:
`
`
`:
`SCOTT BESSENT, in his official capacity as
`:
`Secretary of the Treasury, et al.,
`:
`
`
`:
`
`Defendants.
`:
`
`Civil Action No.:
`
`25-412 (RC)
`
`Re Document No.:
`
`22
`
`MEMORANDUM OPINION
`
`GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
`
`I. INTRODUCTION
`
`Plaintiff Cathy A. Harris was appointed to the Merit Systems Protection Board (“MSPB”)
`
`on June 1, 2022, for a term set to expire on March 1, 2028. Federal law states that members of
`
`the MSPB may be removed from office “only for inefficiency, neglect of duty, or malfeasance in
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`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. The following day, Harris filed this lawsuit against President Trump and several
`
`other federal officials (“Defendants”), claiming that her termination violated federal law. She
`
`moved for a temporary restraining order enjoining Defendants from treating her as removed from
`
`office, which this Court granted. The parties consolidated preliminary injunction briefing with
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`the merits, and Harris moved for summary judgment. The Court grants that motion, along with
`
`declaratory judgment and a permanent injunction.
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`

`

`Case 1:25-cv-00412-RC Document 40 Filed 03/04/25 Page 2 of 35
`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 23 of 56
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`II. BACKGROUND
`
`A. Statutory Background
`
`Congress created the Merit Systems Protection Board as a component of the Civil Service
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`Reform Act of 1978 (“CSRA”), which “establishes a framework for evaluating personnel actions
`
`taken against federal employees.” Kloeckner v. Solis, 568 U.S. 41, 44 (2012); see also CSRA,
`
`Pub. L. No. 95-454, § 202, 92 Stat. 1111, 1121–25 (1978) (codified at 5 U.S.C. §§ 1201–05).
`
`Congress’s Findings and Statement of Purpose indicate that “[i]t is the policy of the United
`
`States that . . . to provide the people of the United States with a competent, honest, and
`
`productive Federal work force[,] . . . Federal personnel management should be implemented
`
`consistent with merit system principles.” CSRA § 3, 92 Stat. at 1112. Those merit system
`
`principles include, among others, “[r]ecruitment . . . from qualified individuals” where “selection
`
`and advancement [is] determined solely on the basis of relative ability, knowledge, and skills,
`
`after fair and open competition which assures that all receive equal opportunity.” Id. § 101, 92
`
`Stat. at 1113 (codified at 5 U.S.C. § 2301). Congress additionally instructed that “[e]mployees
`
`should be . . . protected against arbitrary action, personal favoritism, or coercion for partisan
`
`political purposes,” as well as “against reprisal for the lawful disclosure of information which the
`
`employees reasonably believe evidences,” among other things, violations of law, gross waste of
`
`funds, an abuse of authority, or substantial and specific dangers to public health or safety. Id., 92
`
`Stat. at 1114 (codified at 5 U.S.C. § 2301).
`
`The CSRA established the MSPB as “an independent agency consisting of three
`
`members” and “charged [it] with protecting the merit system principles and adjudicating
`
`conflicts between federal workers and their employing agencies.” Frazier v. Merit Sys. Prot.
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`Bd., 672 F.2d 150, 154 (D.C. Cir. 1982); see also CSRA § 101, 92 Stat. at 1114–17 (codified at 5
`
`2
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`

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`Case 1:25-cv-00412-RC Document 40 Filed 03/04/25 Page 3 of 35
`USCA Case #25-5052 Document #2104084 Filed: 03/05/2025 Page 24 of 56
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`U.S.C. § 2302) (establishing prohibited personnel practices, such as employment discrimination,
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`unlawful political activities, and any other violations of law within the federal civil service). The
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`Board’s primary function is to review federal employee appeals of adverse actions “which [are]
`
`appealable to the Board under any law, rule, or regulation,” including those related to removal or
`
`suspension for periods greater than fourteen