DOJ says Trump can fire Biden-appointed board chair, and appellate court agrees – again

A federal appeals court will leave in place an earlier ruling allowing the president to terminate the head of a board that reviews firings of federal employees after the Justice Department argued that staying its order would effectively disenfranchise those who voted for President Donald Trump.

A three-judge panel on the U.S. Circuit Court for the District of Columbia had previously rejected a request to stay its decision allowing President Trump to fire Cathy A. Harris from the Merit Systems Protection Board (MSPB). Mirroring the appellate panel’s Friday tally, the judges voted 2-1 in rejecting a request to stay its Friday decision, which granted a stay of a lower court’s order that required Harris be returned to her role on the board.

U.S. Circuit Judge Justin Walker, a Trump appointee, and U.S. Circuit Judge Karen L. Henderson, an appointee of George H.W. Bush, on Friday both voted in favor of staying the district court’s ruling, while U.S. Circuit Judge Patricia Millett, a Barack Obama appointee, dissented. Harris immediately requested a stay of the appeals court’s order pending her request that the case be presented to the court “en banc,” meaning all of the judges on the circuit.

Walker and Henderson again voted to reject Harris’ request for a stay of the stay while Millett said she would grant the request.

Harris, a Democrat who was nominated to the MSPB by President Joe Biden, was supposed to serve until her term expired in 2028 before she received notice last month that she was “terminated, effective immediately.” Without Harris, the board lacks a quorum, which could hamper its ability to function as the Trump administration continues its sprawling efforts to gut the federal workforce.

“As a panel of this Court explained in Dellinger v. Bessent — when staying an order reinstating another principal executive officer whom the President removed — and as Judge Henderson reiterated in this case, ‘it is impossible to unwind the days during which a President is directed to recognize and work with an agency head whom he has already removed,’” the DOJ’s 12-page filing opposing both Harris’ second stay request and her request for a rehearing en banc states. “Judge Walker similarly recognized that ‘[t]he forcible reinstatement of a presidentially removed principal officer disenfranchises voters by hampering the President’s ability to govern.’”