Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SUSAN TSUI GRUNDMANN,
Plaintiff ,
Civil Action No. 25 - 425 (SLS) v. Judge Sparkle L. Sooknanan DONALD J. TRUMP, et al.
Defendants . MEMORANDUM OPINION
The Constitution vests Congress with broad authority to organize the Executive Branch.
U.S. Const. art. I, §§ 1, 8. From its earliest days, Congress exercised this power by creating
institutions to structure the government. And for almost a century and a half, Congress has created
independent federal agencies with specific expertise and limited the President’s power to remove
principal officers leading those agencies. The Supreme Court first blessed that approach in 1935
when it rejected the President’s claim of “illimitable power of removal” over all federal officers,
Humphrey’s Ex’r v. United States
,
Congress created the Federal Labor Relations Authority (FLRA) to impartially manage and resolve disputes surrounding labor organization in the federal workforce. The independence of the *2 FLRA was central to its creation, as Congress wanted to ensure a fair, consistent, and unbiased process for managing federal labor relations that would not shift with political whims. To achieve this goal, Congress decided to give the three Members of the FLRA a limited statutory protection from removal by the President. They could be removed only for inefficiency, neglect of duty, or malfeasance in office during their staggered five-year terms, and only after notice and a hearing.
In the nearly fifty years since the FLRA’s creation, no President has ever removed a Member. Until now. On February 10, 2025, the Plaintiff, Susan Tsui Grundmann, received a two-sentence email on behalf of President Donald J. Trump informing her that her position on the FLRA had been terminated. Ms. Grundmann received no explanation whatsoever for her termination. And she did not receive notice or a hearing. Ms. Grundmann is not alone. This is one of a series of cases filed in this District challenging the President’s unprecedented removal of officers across the federal government without cause, including Members of the Merit Systems Protection Board and the National Labor Relations Board, as well as the Special Counsel.
The Government vigorously defends Ms. Grundmann’s hasty termination on the basis that
the Constitution vests the entirety of the “executive Power” in the President. U.S. Const. art. II,
§ 1, cl. 1. It argues that the President may remove federal officials on a whim, and in doing so,
override Congress’s considered judgment. The Government’s arguments paint with a broad brush
and threaten to upend fundamental protections in our Constitution. But ours is not an autocracy; it
is a system of checks and balances. Our Founders recognized that the concentration of power in
one branch of government would spell disaster. “The doctrine of the separation of powers was
adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of
arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction
*3
incident to the distribution of the governmental powers among three departments, to save the
people from autocracy.”
Myers v. United States
,
The removal in this case was unlawful. The Government concedes that Ms. Grundmann’s removal violated the FLRA’s founding statute—a statute that Congress enacted and the President signed into law to revamp federal labor relations in the federal government. The Government’s argument that the statutory removal provision is unconstitutional cannot be reconciled with longstanding Supreme Court precedent that is binding on this Court. And it would encroach on Congress’s authority under Article I of the Constitution. 1
As for remedies, the Government takes the position that this Court lacks the authority to provide meaningful relief in these circumstances. It argues that where a President removes a Senate-confirmed federal officer in violation of a duly enacted and constitutional statute, the only recourse is an award of backpay to that officer. Why? According to the Government, any order from this Court that results in the officer continuing her role against the President’s will would raise grave separation-of-powers concerns. In other words, where a President exceeds his power under Article II of the Constitution and intrudes on Congress’s Article I authority, the Government’s position is that an Article III court may not interpret the law and redress the resulting injury. It is the Government’s own argument that raises grave separation-of-powers concerns. There can be no doubt that “the President is bound to abide by the requirements of duly enacted and otherwise constitutional statutes.” Swan v. Clinton , 100 F.3d. 973, 977 (D.C. Cir. 1996). And it is precisely the role of an Article III court to step in when that does not 1 The Government has hinted that it intends to ask the Supreme Court to overrule its precedent, invalidating statutory provisions that have been in place for nearly a century and a half and leaving the President free to fire whomever he wants in the Executive Branch. See Letter from Sarah Harris, Acting Solicitor General, to Sen. Richard Durbin on Restrictions on the Removal of Certain Principal Officers of the United States (Feb. 12, 2025), https://perma.cc/D67G-FKK4. *4 happen. Ms. Grundmann is entitled to relief that would redress her injury and allow her to continue her work on the FLRA.
For those reasons and the reasons that follow, the Court grants Ms. Grundmann’s Motion for Summary Judgment and denies the Defendants’ Cross-Motion for Summary Judgment.
BACKGROUND
A. Statutory Background
Nearly fifty years ago, Congress enacted the Federal Service Labor-Management Relations
Statute (FSLMRS), 5 U.S.C. §§ 7101–7135, as part of the Civil Service Reform Act (CSRA),
Pub. L. No. 95-454, 92 Stat. 1111 (1978). These statutes “comprehensively reorganized the
structure of labor-management relations in the federal government.”
Library of Cong. v. FLRA
Congress created the Federal Labor Relations Authority (FLRA) to “carry[] out the purpose” of the FSLMRS. 5 U.S.C. § 7105(a)(1). It tasked the FLRA with “conduct[ing] hearings and resolv[ing] complaints of unfair labor practices,” “resolv[ing] issues relating to the duty to bargain in good faith,” and “resolv[ing] exceptions to arbitrator’s awards.” Id. § 7105(a)(2). Congress also empowered the FLRA to supervise elections for the selection of labor organizations by employees and to prescribe certain criteria related to labor bargaining in the federal workforce. Id.
The FLRA is composed of three Members, all appointed by the President with the advice and consent of the Senate. § 7104. No more than two of the three Members are permitted to *5 “be adherents of the same political party.” Id. § 7104(a). And each Member is to serve a staggered five-year term. 5 U.S.C. § 7104(c) (establishing five-year terms); CSRA, Pub. L. No. 95-454, § 7104(c)(1), 92 Stat. 1196 (1978) (staggering terms). The Members can be removed by the President “only upon notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. § 7104(b). But the President has the authority to designate one of the Members as the “Chairman of the Authority.” Id.
The structure of the FLRA was meant to ensure “the resolution of disputes by the intervention of neutral, independent, third parties[.]” 124 Cong. Rec. 25,720 (1978). Congress sought to “eliminate what [was] perceived by Federal employee unions and others as conflict of interest in the existing council,” H.R. Rep. No. 95-1717, at 159 (1978), and to create a body that was “impartial by independence from any direct responsibility to the incumbent administration,” S Rep. No. 95-969, at 7 (1978). As one sponsor stated:
One of the central elements of a fair labor relations program is effective, impartial administration. Title VII provides for the creation of an independent and neutral Federal labor relations authority to administer the Federal labor management program . . . . Currently the Federal labor-management program is administered by the Federal Labor Relations Council which is composed of three administration officials, . . . none of whom can be considered neutral.
124 Cong. Rec. 25,721 (1978). The belief was that “[i]mpartiality [was] guaranteed by protecting authority members from unwarranted ‘Saturday night’ removals.” Id. at 25,721–25,722.
B. Factual Background
The facts are drawn from the Plaintiff’s Complaint and Statement of Material Facts, which the Defendants do not dispute. Joint Status Report at 3, ECF No. 8.
The Plaintiff, Susan Tsui Grundmann, became a Member of the FLRA on May 12, 2022. Compl. ¶ 3, ECF No. 1. She was appointed by President Joseph R. Biden and confirmed by the Senate to a term set to expire on July 1, 2025. But that expiration date was not set in stone. *6 Under the FSLMRS, she was permitted to continue serving until either her successor took office or the last day of the Congress beginning after the original expiration date, 5 U.S.C. § 7104(c), which in her case would fall in January 2029, Compl. ¶ 3. On January 3, 2023, President Biden designated her as Chairman of the Authority. Pl.’s Mot. for Summ. J. & Prelim. Inj. (“Pl.’s Mot.”) at 1, ECF No. 4; Defs.’ Opp’n to Pl.’s Mot. for Summ. J. (“Defs.’ Opp’n”) at 5, ECF No. 12.
The Government does not allege that Ms. Grundmann has been an ineffective Member of the FLRA. Yet on February 10, 2025, at 10:46 PM, Ms. Grundmann received a two-sentence email from Trent Morse, the Deputy Director of the White House Office of Presidential Personnel: “On behalf of President Donald J. Trump, I am writing to inform you that your position on the Federal Labor Relations Authority is terminated, effective immediately. Thank you for your service.” Pl.’s Decl. in Supp. of Pl.’s Mot. for Summ. J. & Prelim. Inj. (“Pl.’s Decl.”) ¶ 3, ECF No. 4-2. She did not receive notice or a hearing, nor was any “inefficiency, neglect of duty, or malfeasance in office” identified. Compl. ¶ 17. And she has since been unable to perform her duties as a Member of the FLRA. ¶ 20. To the best of Ms. Grundmann’s knowledge, this is the first time a President has ever removed a Member of the FLRA without cause. Pl.’s Decl. ¶ 12.
On February 11, 2025, President Trump named Colleen Duffy Kiko as Chairman, Compl. ¶ 19, leaving the FLRA with only two Members, see id. ¶ 20. Although the FLRA maintains a quorum, without Ms. Grundmann’s tiebreaking vote, certain cases may deadlock and go into abeyance. Pl.’s Decl. ¶ 7. This is exactly what happened when Ms. Grundmann served as one of only two Members of the FLRA for eighteen months, resulting in about one-third of the cases being deadlocked. Id.
C. Procedural Background
On February 13, 2025, Ms. Grundmann filed a Complaint alleging that her removal without cause violated the FSLMRS. See Compl. ¶¶ 22–25. She named President Trump and Ms. Kiko as Defendants, id. ¶¶ 4–5, and she requested both declaratory and injunctive relief, Compl., Prayer for Relief, ¶¶ 1–3. The next day, on February 14, 2025, she filed a Motion for Preliminary Injunction and Summary Judgment. See Pl.’s Mot. for Summ. J. & Prelim. Inj. (“Pl.’s Mot.”). On February 25, 2025, the Defendants filed their Opposition to the Plaintiff’s Motion for Summary Judgment, see Defs.’ Opp’n, and a Cross-Motion for Summary Judgment, see Defs.’ Cross-Mot. for Summ. J. (“Defs.’ Cross-Mot.”), ECF No. 11. The Plaintiff responded to both on February 28, 2025. See Pl.’s Mem. in Opp’n to Defs.’ Cross-Mot. for Summ. J. (“Pl.’s Opp’n”), ECF No. 15; Pl.’s Reply in Supp. of Pl.’s Mot. for Summ. J. (“Pl.’s Reply”), ECF No. 16. And the Defendants filed their Reply in support of their Cross-Motion for Summary Judgment on March 5, 2025. Defs. Reply in Supp. of Defs.’ Cross-Mot. for Summ. J. (“Defs.’ Reply), ECF No. 18. The Court held a hearing on March 7, 2025. Both motions are now ripe for decision.
LEGAL STANDARD
A court “shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “The burden is on the movant to make the initial showing of the absence of
any genuine issues of material fact.”
Ehrman v. United States
, 429 F. Supp. 2d 61, 66
(D.D.C. 2006). “The evidence of the non-movant is to be believed, and all justifiable inferences
are to be drawn in [its] favor.”
Estate of Parsons v. Palestinian Auth.
, 651 F.3d 118, 123
(D.C. Cir. 2011) (quoting
Anderson v. Liberty Lobby, Inc.
,
DISCUSSION
The President violated the law when he removed Ms. Grundmann. The removal was in clear contravention of the FSLMRS. And under longstanding Supreme Court precedent, that statute was a valid exercise of Congress’s authority under Article I of the Constitution.
A. Statutory Violation
The Government concedes that Ms. Grundmann’s removal violated the FSLMRS. Motions H’rg (Mar. 7, 2025), Draft Tr. at 24:10–14. The statute provides that “Members of the Authority . . . may be removed by the President only upon notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. § 7104(b). But Ms. Grundmann received no notice or hearing. See Compl. ¶ 17. And the two-sentence email on behalf of the President informing her of the removal did not allege any inefficiency, neglect of duty, or malfeasance in office. See id. The Government instead argues that the removal protection in the FSLMRS is unconstitutional. Defs.’ Opp’n at 6–12.
B. Constitutionality of the Statute
“[T]he Necessary and Proper Clause grants Congress broad authority to enact federal
legislation.”
United States v. Comstock
, 560 U.S. 126, 133 (2010). This includes the power to
provide removal protections to “multimember bodies with ‘quasi-judicial’ or ‘quasi-legislative’
functions.”
Seila Law LLC
,
But this power is not without limits. “Article II provides that ‘[t]he executive Power shall
be vested in a President,’ who must ‘take Care that the Laws be faithfully executed.’”
Seila Law
,
The Supreme Court has identified “two exceptions” that “represent what up to now have
been the outermost constitutional limits of permissible congressional restrictions on the President’s
removal power.”
Id.
(quoting
PHH Corp. v. CFPB
, 881 F.3d 75, 196 (D.C. Cir. 2018)
(Kavanaugh, J., dissenting)). The first comes from
Humphrey’s Executor
, and it extends to
“multimember expert agencies that do not wield substantial executive power.”
Seila Law
,
1. The
Humphrey’s Executor
Exception
Seila Law
is best read as teaching that the
Humphrey’s Executor
exception applies in two
steps.
Seila Law
, 591 U.S. at 218–19. First, courts must ask whether an agency’s structure
resembles that of the “New Deal-era FTC” described in
Humphrey’s Executor
.
Seila Law
The Government quibbles with step two. Even though Seila Law squarely states that the exception extends to “multimember expert agencies that do not wield substantial executive power,” id. (emphasis added), it argues that the exception is limited to agencies “that exercise no executive power,” Defs.’ Opp’n at 8 (emphasis added). Although some language in Seila Law could be read that way, a careful reading of each passage reveals that the opinion is more restrained.
First
,
Seila Law
outlines its general rule in very broad terms. The Supreme Court says that
“the ‘executive Power’—all of it—is ‘vested in a President.’”
Seila Law
, 591 U.S. at 203
(quoting U.S. Const. art. II, § 1, cl. 1;
id.
, § 3). Then it says that the President has the “power to
remove . . . those who wield executive power on his behalf.”
Id.
at 204. The combination of these
two statements initially suggests that
all
executive power is wielded on behalf of the President,
so anyone exercising
any
executive power must be removable at will. Defs.’ Opp’n at 7.
But the Court immediately acknowledges that there are “two exceptions” to this removal power.
Seila Law
,
Second
,
Seila Law
highlights that in
Humphrey’s Executor
, “[r]ightly or wrongly, the Court
viewed the FTC (as it existed in 1935) as exercising ‘no part of the executive power.’”
Seila Law
Collins v. Yellen
, 594 U.S. 220 (2021), does not change this reading of
Seila Law
.
The Government points to broad language from the opinion: “Courts are not well-suited to weigh
the relative importance of the regulatory and enforcement authority of disparate agencies, and we
do not think that the constitutionality of removal restrictions hinges on such an inquiry.”
Collins
2. The Structure of the FLRA
The first question is whether the FLRA’s structure resembles how
Humphrey’s Executor
described the “New Deal-era FTC.”
Seila Law
,
All three features are present in the FLRA. First, the Authority has three Members, and no
more than two of them may be “adherents of the same political party,” which ensures
bipartisanship. 5 U.S.C. § 7104(a). Second, “the FLRA was intended to develop specialized
There is also a more ambitious way to square
Collins
. As the Fifth Circuit noted,
id.
at 352 n.53, in
Seila Law
, the Chief Justice and two other Justices said that there “may be means
of remedying the defect in the CFPB’s structure,” including, “for example, converting the CFPB
into a multimember agency,”
3. The Powers of the FLRA
The next step is to ensure that the FLRA does not exercise substantial executive power.
Seila Law
, 591 U.S. at 218–19. Whether an agency exercises substantial executive power is a
fact-bound inquiry.
Humphrey’s Executor
“acknowledged that between purely executive officers
on the one hand, and officers that closely resembled the FTC Commissioners on the other,
there existed ‘a field of doubt’ that the Court left ‘for future consideration.’”
Seila Law
,
First
, the Government points to the fact that the FLRA “conduct[s] hearings and resolve[s]
complaints of unfair labor practices.” Defs.’ Opp’n at 9 (quoting 5 U.S.C. § 7105(a)(2)(G)).
They argue that this puts the FLRA in the same camp as the CFPB in
Seila Law
, which could
“unilaterally issue final decisions awarding legal and equitable relief in administrative
adjudications.” (quoting
Second , the Government points out that the FLRA “has the authority to litigate and enforce its orders in federal court.” Defs.’ Opp’n at 9. It highlights three facts. See id.
1. The FLRA can “require an agency or a labor organization to cease and desist” from
statutory violations and “require [the agency or labor organization] to take any remedial action it
considers appropriate to carry out the policies” of the FSLMRS. Defs.’ Opp’n at 9
(quoting 5 U.S.C. § 7105(g)(3)). But
Humphrey’s Executor
was unbothered by the FTC’s ability
to “issue and cause to be served a cease and desist order.”
2. The FLRA “may petition to enforce such an order in federal court[.]” Defs.’ Opp’n at 9
(citing 5 U.S.C. § 7123(b)). It is true that
Seila Law
said that “the power to seek daunting monetary
penalties against private parties in federal court” is “a quintessentially executive power[.]”
3. The FLRA “has independent litigation authority to send its own attorneys (not Department of Justice attorneys) to litigate civil actions outside the Supreme Court in connection with any of its functions.” Opp’n at 9 (citing 5 U.S.C. § 7105(h)). But again, it is not clear why this would make the power more substantial. When Seila Law described the CFPB’s enforcement powers, it did not even mention whether the attorneys belonged to the CFPB. 591 U.S. at 206. It was much more concerned about the scale of relief. See id. (“Since its inception, the CFPB has obtained over $11 billion in relief for over 25 million consumers, including a $1 billion penalty against a single bank in 2018.”).
Third , the Government notes that the FLRA has the power to “prescribe rules and regulations to carry out the provisions of the [FSLMRS] applicable to [it].” Defs.’ Opp’n at 9 (quoting 5 U.S.C. § 7134). This includes (1) specifying the criteria for determining when a labor organization represents “a substantial number of the employees of the agency,” which allows the labor organization to be granted consultation rights by the agency, 5 U.S.C. §§ 7105(a)(2)(C), 7113(a); (2) determining whether an agency has a “compelling need” for an agency-wide regulation, which would allow the agency to avoid having to bargain in good faith with a proposal by a labor organization, 5 U.S.C. §§ 7105(a)(2)(D), 7117(b); see also Fed. Lab. Rels. Auth., The Negotiability Guide (June 17, 2013); and (3) determining “who is eligible to vote” for labor organization recognition and establishing the “rules governing such an election,” subject to certain statutory limitations, 5 U.S.C. §§ 7105(a)(2)(B), 7111(d).
These narrow, largely administrative regulatory assignments pale in comparison to what was feared in Seila Law , where “the [CFPB] Director possess[ed] the authority to promulgate *16 binding rules fleshing out 19 federal statutes, including a broad prohibition on unfair and deceptive practices in a major segment of the U.S. economy.” 591 U.S. at 218. The FLRA promulgates regulations under fewer statutes, Motions H’rg (Mar. 7, 2025), Draft Tr. at 31: 16–17; those statutes provide more guidance than the broad prohibition of “unfair and deceptive practices,” Seila Law , 591 U.S. at 218; and the federal workforce is a smaller segment of the economy than was covered by the CFPB statutes, which included “everything from credit cards and car payments to mortgages and student loans,” id. at 219.
4. Other
Seila Law
Factors
Seila Law
mentions other factors as well, although it is unclear how they should fit into the
Humphrey’s Executor
exception.
See Consumers’ Rsch. v. CPSC
,
First
, the FLRA’s structure is not “almost wholly unprecedented.”
Seila Law
,
Second
, the FLRA has levers of Presidential accountability. The CFPB Director served a
five-year term, leaving some Presidents without “any opportunity to shape its leadership and
thereby influence its activities.”
Seila Law
, 591 U.S. at 225. But the FLRA Members serve
staggered five-year terms, allowing every President to wield influence over the agency.
See
5
U.S.C. § 7104(c) (establishing five-year terms); CSRA, Pub. L. No. 95-454, § 7104(c)(1), 92 Stat.
1196 (1978) (staggering terms). If the President follows the ordinary course and nominates
someone to replace Ms. Grundmann, her term would end on July 1, 2025. Defs.’ Statement of
Undisputed Material Facts (Defs.’ SUMF) ¶ 1, ECF No. 11-2. The CFPB also received funds
“outside the appropriations process,” which “further aggravate[ed] the agency’s threat to
Presidential control.”
Seila Law
,
And that is not all. The General Counsel of the FLRA, who may investigate labor practices
and prosecute complaints, “may be removed at any time by the President.” 5 U.S.C. § 7104(f).
With the selection of the General Counsel, the President can immediately influence the FLRA’s
investigative and prosecutorial power. The President may also “designate one member
[of the FLRA] to serve as Chairman of the Authority,” who serves as “the chief executive and
administrative officer. § 7104(b). And this title that may be revoked at will. Pl.’s Reply at 10;
see, e.g.
, Fed. Lab. Rels. Auth., Press Release, Patrick Pizzella Designated Acting FLRA Chairman
(Sept. 10, 2019), https://perma.cc/ED2R-HVKG. There are therefore no additional features of the
FLRA that render its Members’ removal protections “even more problematic.”
Seila Law
***
A straightforward reading of Supreme Court precedent thus resolves the merits of this case.
The FLRA triggers and satisfies the
Humphrey’s Executor
exception, making the FSLMRS
removal provision a valid exercise of Congress’s constitutional authority. Although the
Government claims fidelity to
Humphrey’s Executor
and the cases that follow, its arguments seem
to contemplate absolute presidential authority over the removal of federal officers and would leave
Humphrey’s Executor
toothless. Indeed, it is difficult to conceive of a federal agency that would
fit within the
Humphrey’s Executor
exception as the Government reads it. But it has been clear for
almost a century that Article II does not give the President an “illimitable power of removal” over
all federal officers.
Humphrey’s Executor
,
When pressed at oral argument to identify existing federal agencies that would satisfy the Humphrey’s Executor exception, the Government identified only a single agency: the Federal Reserve. Motions H’rg (Mar. 7, 2025), Draft Tr. at 36:19–20. But the Government declined to explain why the Federal Reserve would fit within the exception under the broad arguments it advances in this case. at 36:21–37:5. The Federal Reserve sets the federal funds rate, 12 U.S.C. §§ 225, 263, which permeates every corner of the American economy. If control over that does not rise to an exercise of substantial executive power, then neither does laying down the administrative rules for labor organizing within the federal workforce.
REMEDIES
The Court now turns to the question of remedies. Ms. Grundmann requests both declaratory and injunctive relief. See Compl., Prayer for Relief, ¶¶ 1–2. The Government broadly argues that the Court lacks the authority to award either and is instead limited to an award of backpay to Ms. Grundmann. Motions H’rg (Mar. 7, 2025), Draft Tr. at 45:1–19. According to the *19 Government, because prior removed officials chose to seek backpay only, the Court may not award more than that. The Government held this line at oral argument, insisting that an Article III court is without authority to award relief to redress the injury caused by a President exceeding his Article II authority and intruding on Congress’s Article I authority. at 46:11. The Court disagrees. Ms. Grundmann is entitled to a declaratory judgment saying that her removal was unlawful. And she has also met her burden to receive the permanent injunction that she seeks.
A. Declaratory Relief
The Plaintiff requests that the Court “[d]eclare that Ms. Grundmann was unlawfully removed as a member of the [FLRA].” Compl., Prayer for Relief, ¶ 1. The Court has the authority to issue such a declaratory judgment, and it exercises its discretion to do so.
The Declaratory Judgment Act (DJA) provides that, “in a case of actual controversy within
its jurisdiction, . . . any court of the United States, upon the filing of an appropriate pleading,
may declare the rights and other legal relations of any interested party seeking such declaration,
whether or not
further relief is or could be sought.” 28 U.S.C. § 2201(a) (emphasis added).
The DJA “alone does not provide a court with jurisdiction,”
California v. Texas
,
In its reply brief, the Government appears to take the position that the Court may not award
“declaratory relief stating that the President’s removal of Plaintiff was unlawful.” Defs.’ Reply
*20
at 15. In support, they cite a single quote from a concurring opinion that is inapposite and not
binding on this Court.
See Franklin v. Massachusetts
, 505 U.S. 788, 827 (1992)
(Scalia, J., concurring in part and concurring the judgment) (“I think we cannot issue a declaratory
judgment against the President.”). When pressed at oral argument, the Government walked this
back and agreed that the Court could issue a declaratory judgment saying that Ms. Grundmann’s
removal was unlawful. Motions H’rg (Mar. 7, 2025), Draft Tr. at 42:19-20 (“A declaratory
judgment saying that the removal was unlawful I think would be an acceptable outcome.”).
To be sure, “[i]t is emphatically the province and duty of the judicial department to say what the
law is.”
Marbury v. Madison
,
The Government also makes a more modest argument that declaratory relief is generally
unavailable whenever injunctive relief is unavailable. Defs.’ Reply at 15. They cite
Samuels
v. Mackell
for support.
“[I]t is well settled that a declaratory judgment always rests within the sound discretion of
the court.”
President v. Vance
,
B. Injunctive Relief
The question of injunctive relief is more difficult. An injunction ordering the President to reinstate Ms. Grundmann would raise complicated questions about the separation of powers. And the availability of such an order may turn on technical differences between equitable remedies and legal remedies. These questions can largely be avoided, however, because Ms. Grundmann has never sought reinstatement from the President and ultimately requests a type of injunction that has been blessed by the D.C. Circuit. The Court therefore has the authority to issue the requested injunctive relief, and it finds that such relief is warranted.
1. Availability of Injunctive Relief
Ms. Grundmann has requested various types of injunctive relief throughout these
proceedings. She originally asked the Court to enter an injunction ordering Ms. Kiko to reinstate
her as a Member of the Authority. But Ms. Kiko lacks the authority to formally reinstate
Ms. Grundmann, and it is not clear how such an injunction could be squared with
Grupo Mexicano
de Desarrollo S.A. v. Alliance Bond Fund, Inc.
,
a. Formal Reinstatement In her Complaint, Ms. Grundmann asked the Court to “[e]nter an injunction against Defendant Kiko, ordering her to reinstate Ms. Grundmann as a member of the Board and to refrain from taking any further action to obstruct Ms. Grundmann’s ability to carry out her duties.” Compl., Prayer for Relief, ¶ 2. There are two problems with this request.
First , Ms. Kiko lacks the authority to reinstate Ms. Grundmann. “Members of the Authority shall be appointed by the President by and with the advice and consent of the Senate.” *23 5 U.S.C. § 7104(b). The Plaintiff conceded this at oral argument. Motions H’rg (Mar. 7, 2025), Draft Tr. at 18:12–16.
Second
, it is not clear how such an injunction can be squared with
Grupo
. The Supreme
Court in
Grupo
taught that “the general availability of injunctive relief . . . depend[s] on traditional
principles of equity jurisdiction.”
It is easy to find evidence from the turn of the last century. In 1888, the Supreme Court
said it was “well settled that a court of equity has no jurisdiction over the appointment and removal
of public officers.”
In re Sawyer
,
But evidence from the 1880s might not settle the
Grupo
debate.
See Grupo
,
The Court looks in vain to
In re Sawyer
for help.
The vintage of these cases matters.
In re Sawyer
itself recognized that the Supreme Court
of Alabama had only recently decided that reinstatement was not available in equity,
“overruling its own prior decisions to the contrary.”
b. De Facto Reinstatement
This brings us to the relief that is really at issue. In her later briefing and at oral argument,
Ms. Grundmann clarified that she seeks only the relief discussed in
Swan v. Clinton
,
The D.C. Circuit is no stranger to removal challenges. In Swan , a Senate-confirmed Board member of an independent agency was removed by President Clinton after being appointed by President Bush. See 100 F.3d at 975–76. He sued President Clinton and some staff who had implemented the firing, “seeking to have his removal . . . declared unlawful and to obtain injunctive relief ordering his reinstatement as a member of the Board.” Id. at 975. The district court granted summary judgment for the government, and the plaintiff appealed. Id. at 976. On appeal, the D.C. Circuit assessed the plaintiff’s standing, focusing on the redressability prong. See id. at 976. It questioned “whether a federal court has the power to grant injunctive relief against the President of the United States in the exercise of his official duties.” Id. at 976.
Resolving this question required balancing two important values. On the one hand, the Court recognized the “bedrock principle that our system of government is founded on the rule of law, and it is sometimes a necessary function of the judiciary to determine if the executive branch is abiding by the terms of legislative enactments.” Id. at 978. On the other hand, ordering the President “to perform particular executive [acts] . . . at best creates an unseemly appearance of constitutional tension and at worst risks a violation of the constitutional separation of powers.” Id. (internal quotation marks and citations omitted). The Court struggled to resolve this tension the usual way, by enjoining a subordinate official, “because only the President has the power to remove or reinstate [the] Board members.” Id. at 979.
The Court then concluded that certain subordinate officials had enough authority to “substantially redress” the injury without formal reinstatement. See id. at 979. The Executive Director of the agency “could direct the staff to treat [the plaintiff] as a Board member.” at 979. And although they were not initially named in the complaint, the “Chairman, other NCUA Board members[, and] the Board Secretary” could accomplish reinstatement “ de facto by treating Swan *27 as a member of the NCUA Board and allowing him to exercise the privileges of that office.” Id. at 979–80. The Court decided that such “partial relief [was] sufficient for standing purposes when determining whether [it could] order more complete relief would require [it] to delve into the complicated and exceptionally difficult questions regarding the constitutional relationship between the judiciary and the executive branch.” Id. at 981.
The D.C. Circuit recited this same analysis just two years ago. In
Severino
, a member of
the Administrative Conference of the United States Council was removed by President Biden after
being appointed by President Trump.
See
The Government argues that
Swan
and
Severino
are inapposite because they are standing
cases. Defs.’ Reply at 11–12. The Court disagrees. The redressability analysis asks whether it
is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.”
Swan
,
And this Court is in good company reading
Swan
and
Severino
as standing for the
proposition that such de facto reinstatement is an available remedy.
See, e.g.
,
Harris v. Bessent
,
-- F. Supp. 3d --, No. 25-cv-412, 2025 WL 521027 (D.D.C. Feb. 18, 2025) (Contreras, J.);
Dellinger v. Bessent
, -- F. Supp. 3d --, No. 25-cv-385,
The Government’s other arguments seem to ignore the existence of
Swan
and
Severino
altogether. First, it argues that “[w]hen executive officers have challenged their removal by the
President, they have traditionally sought back pay, not reinstatement.” Defs.’ Opp’n at 12
(citing
Parsons v. United States
, 167 U.S. 324, 326 (1897);
Shurtleff v. United States
,
Second, the Government argues that “members of the First Congress argued against
requiring the Senate’s advice and consent for removals precisely because of the risk that such a
procedure would require the President to retain someone he had sought to remove.”
Defs.’ Opp’n at 13. It points to three Representatives in particular.
See id.
(citing
Myers
Third, the Government argues that
Grupo
forecloses reinstatement, “[w]hether the order is
expressly directed at the President or not.” Defs.’ Opp’n at 15. But this argument fails to appreciate
the nuance of the remedy recognized in
Swan
and
Severino
. The Court has already acknowledged
the strong—albeit imperfect—evidence that reinstatement was not traditionally available in a court
of equity.
See supra
at 23–25. But that evidence does not clearly extend to de facto reinstatement;
nor does the Government offer a theory for how it could. The Court is particularly hesitant to
second-guess its authority to order de facto reinstatement now that the D.C. Circuit has reaffirmed
the remedy’s availability even after
Grupo
.
See Severino
,
Finally, the Government invites the Court to consider afresh the values already weighed by
the D.C. Circuit in
Swan
and
Severino
. It argues that the “Plaintiff’s injunction necessarily targets
the President.” Defs.’ Reply at 11 (cleaned up). But issuing no relief at all would undermine
“the bedrock principle that our system of government is founded on the rule of law.”
Swan
For all of these reasons, the Court concludes that it has the authority to order injunctive relief as to Ms. Kiko. 3
3 In a Notice of Supplemental Authority and at oral argument, the Plaintiff asks the Court to consider a writ of mandamus as an alternative remedy. ECF No. 17 at 1. Given the lack of briefing on mandamus as a remedy, the Court leaves it for another day. But as other courts in this District have found, a writ of mandamus may well be an available remedy were injunctive relief unavailable in this case. See, e.g. , Harris v. Bessent , No. 25-cv-412, 2025 WL 679303, at *11 (D.D.C. Mar. 4 2025); Wilcox v. Trump , No. 25-cv-334, 2025 WL 720914, at *16 n.22 (D.D.C. Mar. 6, 2025).
2. Permanent Injunction
Having established its authority to grant injunctive relief, the Court now addresses whether
an injunction is appropriate in this case. “[A] plaintiff seeking a permanent injunction must satisfy
a four-factor test before a court may grant such relief.”
eBay Inc. v. MercExchange, LLC
,
a. Irreparable Harm and Inadequate Remedy at Law
The first two factors “are often considered together.”
Wilcox
,
4 The Plaintiff filed a Motion for Preliminary Injunction and Summary Judgment. See Pl.’s Mot. In her Reply, she sought only a permanent injunction. See Pl.’s Reply at 11–21. The Government has argued that the Plaintiff is not entitled to a preliminary injunction or permanent injunction. Defs.’ Opp’n at 16 n.5. Because this Court grants the Plaintiff’s Motion for Summary Judgment, it awards a permanent injunction.
Ms. Grundmann claims that “[h]er removal has deprived her of her statutory right to
function in her office.” Pl.’s Reply at 16. And courts in this District have recognized that this harm
can be irreparable.
See, e.g.
,
Berry
,
According to the Government, several cases “reject[] the notion that the deprivation of a unique, singular, or high-level position is any more of an irreparable injury.” Defs.’ Opp’n at 17– 18. But the Government’s cases cannot support such a broad rule. See id. (cases involving corporate managers, subordinate local and state officials, lower-level federal employees, and a credit union board member). Ms. Grundmann is a Senate-confirmed principal officer of a congressionally-created independent agency. She accepted the President’s nomination and earned *33 Senate confirmation in order to serve her country at the highest possible level in her field. This represented the capstone of her long career in public service, see Pl.’s Decl. ¶ 7, and her unlawful termination deprived her of the opportunity to make her mark in this statutorily protected role.
b. Balance of the Equities and Public Interest
The final two injunction factors merge when the Government is a party.
Wilcox
Without this relief, the Authority has only two of its three Members. This runs the risk of letting cases deadlock with no tiebreaker, which would cause those cases to go into abeyance. Pl.’s Mot. at 14; see also Pl.’s Decl. ¶ 7. This is not mere speculation either. “[D]uring the eighteen-month period that Plaintiff Grundmann served as part of a two-member Authority, approximately one-third of the Authority’s cases deadlocked, leading to duplicative disputes and resource waste.” Pl.’s Mot. at 14. Abeyance “results in increased costs and confusion to the parties” and adds “to the bottom line of the agencies, the cost of which is ultimately borne by taxpayers.” Pl.’s Decl. ¶ 10. “It also creates legal uncertainty and likely inconsistency in labor practices the longer key labor issues remain unsolved.” Pl.’s Reply at 20. And this would be a particularly bad time for deadlock considering the widespread firings across the federal workforce in recent months. Pl.’s Mot. at 15; Pl.’s Reply at 20. In fact, only weeks ago, a court in this District told fired federal workers to pursue their claims before the FLRA before seeking judicial relief. See Nat’l Treasury Emps.’ Union v. Trump , No. 25-cv-420, 2025 WL 561080, at *8 (D.D.C. Feb. 20, 2025). Leaving the Authority with only two voters would make that instruction hollow.
The Government argues that providing this relief raises grave separation-of-powers
concerns. Defs.’ Opp’n at 19. They say that “[s]uch a remedy would undermine the
accountability of the Executive Branch enshrined in the Constitution” and that “[t]he Government
has traditionally been granted the widest latitude in the ‘dispatch of its own internal affairs.’”
at 20 (citing
Sampson v. Murray
, 415 U.S. 61, 83 (1974)). But the Government ignores the
separation-of-powers risks posed by non-intervention. If the Government had its way, it would
place unchecked power in the hands of the President, which is antithetical to our system of
government. Again, nearly fifty years ago, Congress and the President worked together to create
the FLRA as an independent agency. The President appointed Ms. Grundmann to her position,
and the Senate confirmed her. The two political branches decided to give her removal
protections—protections that have now been ruled constitutional by a federal court. Providing no
injunctive relief would allow the President to flout not only Congress’s Article I power to create
independent multimember agencies, but also the Court’s Article III power to maintain the rule of
law,
see Swan
,
Congress has already balanced the equities at stake in this case. The FLRA “safeguards the public interest” and “contributes to the effective conduct of public business.” 5 U.S.C. § 7101(a)(1). “[L]abor organizations and collective bargaining in the civil service are in the public interest,” and “the public interest demands . . . the efficient accomplishment of the 5 The Government also argues that the President “cannot be compelled to retain the services of a principal officer whom the President no longer believes should be entrusted with the exercise of executive power.” See Defs.’ Opp’n at 20. But Congress set forth permissible limits on the President’s ability to remove Ms. Grundmann. And the Government has made no attempt to establish inefficiency, neglect of duty, or malfeasance in office on Ms. Grundmann’s part. Absent cause to remove Ms. Grundmann, the President may of course nominate someone to replace her when her term expires in less than four months. Curiously, although the FLRA’s General Counsel may be removed at will, the President has taken no steps to remove that officer.
operations of the Government.” § 7101(a)(2). The public interest therefore favors Ms. Grundmann, and a permanent injunction is warranted.
CONCLUSION
For the foregoing reasons, the Court grants the Plaintiff’s Motion for Summary Judgment and denies the Defendants’ Cross-Motion for Summary Judgment.
The Court has issued a separate order consistent with this Memorandum Opinion. SPARKLE L. SOOKNANAN United States District Judge Date: March 12, 2025