GRUNDMANN v. TRUMPGRUNDMANN v. TRUMP
The Constitution vests Congress with broad authority to organize the Executive Branch.
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
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.
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
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),
Congress created the Federal Labor Relations Authority (FLRA) to “carry[] out the purpose” of the FSLMRS.
The FLRA is composed of three Members, all appointed by the President with the advice and consent of the Senate.
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. Id. But that expiration date was not set in stone.
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. Id. ¶ 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. See 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.
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. See 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.”
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.”
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, 591 U.S. at 217. This power to “create a traditional independent agency headed by a multimember board or commission,” id. at 207, “cannot well be doubted,” Humphrey‘s Ex‘r, 295 U.S. at 629. The Court has repeatedly endorsed such removal protections throughout the last century. See, e.g., id.; Wiener v. United States, 357 U.S. 349 (1958).
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, 591 U.S. at 218. The second comes from Morrison v. Olson, 487 U.S. 654 (1988), and it applies to “inferior officers with limited duties and no policymaking or administrative authority.” Seila Law, 591 U.S. at 218. Congress may provide removal restrictions to an executive officer who fits within either of these two exceptions. See id.
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, 591 U.S. at 218. Second, courts must ensure that the agency does not exercise substantial executive power. Id. at 218-19. If both conditions are met, then Congress has the authority to provide removal restrictions. Id. at 218.
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
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, 591 U.S. at 215 (quoting Humphrey‘s Ex‘r, 295 U.S. at 628). This makes it into the summary of the holding: “In short, Humphrey‘s Executor permitted Congress to give for-cause removal protections to a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.” Id. at 216 (emphasis added). But we should not read into this because Seila Law cites Wiener as falling within the Humphrey‘s Executor exception. See Seila Law, 591 U.S. at 216. This could not be the case if
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, 594 U.S. at 253. But Collins was a case about single agency heads, not multimember agencies, so the Humphrey‘s Executor exception was not at issue. See id. at 251. The Court in Collins merely declined to create a new exception—beyond the two recognized in Seila Law—for single agency heads that exercise minimal executive power. Id. at 250. Collins even included a footnote right after the broad language that limited its reach to single agency heads. See id. at 253 n.19. That footnote distinguished two historical examples of removal restrictions by saying that “those agencies are materially different because neither of them operated beyond the President‘s control, and one of them was led by a multi-member Commission.” Id. (emphasis added). So the language the Government identifies was not meant to apply to multimember agencies. And the Court expressly warned against reading Collins to apply to agencies not before the Court. See id. at 256 n.21. This would make little sense if Collins were meant to change Seila Law.2
The first question is whether the FLRA‘s structure resembles how Humphrey‘s Executor described the “New Deal-era FTC.” Seila Law, 591 U.S. at 218. Humphrey‘s Executor “identified several organizational features that helped explain its characterization of the FTC as non-executive.” Seila Law, 591 U.S. at 216. First, the Board was “[c]omposed of five members” with “no more than three from the same political party,” signaling that it was “designed to be ‘non-partisan’ and to ‘act with entire impartiality.‘” Id. at 216 (quoting Humphrey‘s Ex‘r, 295 U.S. at 624). Second, “[t]he FTC‘s duties were ‘neither political nor executive,’ but instead called for ‘the trained judgment of a body of experts’ ‘informed by experience.‘” Id. (quoting Humphrey‘s Ex‘r, 295 U.S. at 624). And third, “the Commissioners’ staggered, seven-year terms enabled the agency to accumulate technical expertise and avoid a ‘complete change’ in leadership ‘at any one time.‘” Id. (quoting Humphrey‘s Ex‘r, 295 U.S. at 624).
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.
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, 591 U.S. at 217 (quoting Humphrey‘s Ex‘r, 295 U.S. at 632). This is because “[t]he versatility of circumstances often mocks a natural desire for definitiveness.” Wiener, 357 U.S. at 252. In other words, bright-line rules are not always possible. But by all indications, none of the FRLA‘s powers identified by the Government qualifies as a substantial executive power.
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
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.
- 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.” 295 U.S. at 620. And the FLRA‘s other tools do not resemble the wide range of remedies available to the CFPB in Seila Law, which included restitution, disgorgement, and “civil penalties of up to $1,000,000 (inflation adjusted) for each day that a violation occurs.” 591 U.S. at 206. - 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[.]” 591 U.S. at 199. But it is not clear that the object of an FLRA order—an agency or labor union—should be considered a private party for this analysis. And either way, this is not a substantial exercise of executive power. In Humphrey‘s Executor, if an FTC “order [was] disobeyed, thecommission [could] apply to the appropriate Circuit Court of Appeals for its enforcement.” 295 U.S. at 620-21. This posed no problem. Id. at 629. - 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. See 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
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
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, 91 F.4th 342, 355-56 (5th Cir. 2024). The Court need not solve this puzzle, however, because none of these factors apply.
First, the FLRA‘s structure is not “almost wholly unprecedented.” Seila Law, 591 U.S. at 220. To the contrary, agencies like the FLRA are part of the fabric of our federal government. Congress has created independent multimember agencies for nearly a century and a half. See Marshall J. Berger & Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 Admin. L. Rev. 1111, 1116 (2000). The “structure, role, and functions of the [FLRA] were closely patterned after those of the NLRB.” Library of Congress v. FLRA, 699 F.2d 1280, 1287 (D.C. Cir. 1983). And the powers of the NLRB were modeled after those of the FTC, Dish Network Corp. v. NLRB, 953 F.3d 370, 375 n.2 (5th Cir. 2020), only one month after Humphrey‘s Executor approved of the FTC‘s removal protections, Free Enterprise Fund, 561 U.S. at 547 (Breyer, J., dissenting). The FLRA is “a traditional independent agency, run by a multimember board with a diverse set of viewpoints and experiences.” Seila Law, 591 U.S. at 205-06 (cleaned up).
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.”
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, 295 U.S. at 629.
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. Id. at 36:21-37:5. The Federal Reserve sets the federal funds rate,
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
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.”
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.” See Defs.’ Reply
The Government also makes a more modest argument that declaratory relief is generally unavailable whenever injunctive relief is unavailable. See Defs.’ Reply at 15. They cite Samuels v. Mackell for support. 401 U.S. 66, 73 (1971) (“[W]here an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well.“). But Samuels merely extended Younger abstention to relief under the Declaratory Judgment Act from ongoing state criminal prosecutions, explaining that a declaratory judgment could have a res judicata effect on the state court proceedings that is not meaningfully different from an injunction. See id. at 68, 73 (“[T]he basic policy against federal interference with pending state criminal prosecutions will be frustrated as much by a declaratory judgment as it would be by an injunction.“). The Court “express[ed] no views on the propriety of declaratory relief when no state proceedings is pending at the time the federal suit is begun.” Id. at 73. So Samuels does not apply.
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.
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., 527 U.S. 308 (1999), given the plausible evidence that wrongfully removed executive officers were historically reinstated by courts of law instead of courts of equity. Fortunately for Ms. Grundmann, the D.C. Circuit has twice recognized a more modest equitable remedy when an officer has been removed by the President. See Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996), and Severino v. Biden, 71 F.4th 1038 (D.C. Cir. 2023). These cases teach that courts may order the members of an agency—or even just the Chair—to recognize the unlawfully removed member as a member and to halt any efforts to hinder her work in that capacity. While this relief may be less complete than formal reinstatement, the D.C. Circuit has said that it strikes the right balance between respecting the rule of law and avoiding conflicts between the branches of government. The Plaintiff now requests this more modest relief, and the Court has the authority to grant it.
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.”
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.” 527 U.S. at 318–19 (internal citations omitted). This means that “unless Congress expressly provides otherwise, equitable remedies must track remedies traditionally afforded by the equity courts.” Goodluck v. Biden, 104 F.4th 920, 924 (D.C. Cir. 2024) (citing Grupo, 527 U.S. at 318–19). But a preliminary review of the historical record suggests that, at least by the late nineteenth century, wrongfully removed executive officers sought relief in courts of law, not courts of equity. See White v. Berry, 171 U.S. 366 (1898); In re Sawyer, 124 U.S. 200 (1888). Whether this was already true at the Founding is less clear.
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, 124 U.S. at 212. And it repeated that statement ten years later. White, 171 U.S. at 377; see also Harkrader v. Wadley, 172 U.S. 148, 165 (1898). According to the Court, “[t]he jurisdiction to determine the title to a public office belong[ed] exclusively to the courts of law, and [was] exercised either by certiorari, error, or appeal, or by mandamus, prohibition, quo warranto, or information in the nature of the writ of quo warranto.” In re Sawyer, 124 U.S. at 212; see also White, 171 U.S. at 377. This is consistent with treatises from the time. See, e.g., 2 James L. High, A Treatise on the Law of Injunctions § 1312 (2d ed., Chicago, Callaghan & Co., 1880) (“No principle of the law of injunctions, and perhaps no doctrine of equity jurisprudence, is more definitely fixed or more clearly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment of public officers
But evidence from the 1880s might not settle the Grupo debate. See Grupo, 527 U.S. at 318 (discussing equitable principles “at the time of the separation of the two countries” (quoting Atlas Life Ins. Co. v. W.I. Southern, Inc., 306 U.S. 563, 568 (1939))); id. at 335 (Ginsburg, J., concurring in part and dissenting in part) (discussing equitable principles “at the time of the founding“); Bessent v. Dellinger, 145 S. Ct. 515, 517 (2025) (Gorsuch, J., dissenting) (discussing equitable remedies “at the time of the Nation‘s founding“). And the earlier evidence is sparse.
The Court looks in vain to In re Sawyer for help. 124 U.S. 200. The Court there said that “[n]o English case has been found of a bill for an injunction to restrain the appointment or removal of a municipal officer.” Id. at 212. But this argument from silence is far from determinative. And the only English cases cited dealt with corporate officers. See Att‘y Gen. v. Earl of Clarendon, 17 Ves. Jr. 490, 498, 34 Eng. Rep. 190, 193 (Ch. 1810); Queen v. Saddlers’ Co., 10 H.L. Cas. 404 (1863); Osgood v. Nelson, L. R. 5 H. L. 636 (1872). The Court also cited many “well-considered” state court cases denying “the power of a court of equity to restrain by injunction the removal of a municipal officer.” In re Sawyer, 124 U.S. at 212. But all of those cases were decided at least a half century after the Founding. See Tappan v. Gray, 7 Hill 259 (N.Y. 1843); Hagner v. Heyberger, 3 Pa. L.J. 370 (1844); Updegraff v. Crans, 47 Pa. 103 (1864); Cochran v. McCleary, 22 Iowa 75 (1867); Delahanty v. Warner, 75 Ill. 185 (1874); Sheridan v. Colvin, 78 Ill. 237 (1875); Dickey v. Reed, 78 Ill. 261 (1875); Harris v. Schryock, 82 Ill. 119 (1876); Beebe v. Robinson, 52 Ala. 66 (1875); Moulton v. Reid, 54 Ala. 320 (1875); cf. State v. Sheldon, 6 N.W. 757 (Neb. 1880); State v. Oleson, 18 N.W. 45 (Neb. 1883); State v. Meeker, 27 N.W. 427 (Neb. 1886).
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.” 124 U.S. at 214 (citing Beebe, 52 Ala. 66; Moulton, 54 Ala. 320). Those prior decisions had allowed courts of equity to enjoin an unlawfully appointed sheriff where the incumbent sheriff could not proceed by quo warranto, Bruner v. Bryan, 50 Ala. 522, 529 (1874), and to exercise jurisdiction over a dispute about the identity of the true mayor because a quo warranto “would not be a complete remedy,” Reid v. Moulton, 51 Ala. 255, 266 (1874). This flip-flopping could be read as evidence that the consensus view recognized in In re Sawyer was not as well-established at the Founding. But the Court need not come to a firm conclusion on this point since the Plaintiff now seeks different relief.
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, 100 F.3d 973 (D.C. Cir. 1996), and Severino v. Biden, 71 F.4th 1038 (D.C. Cir. 2023). That is, she “seeks injunctive relief from Defendant Kiko, a subordinate official, to treat her as a de facto member of the FLRA.” Pl.‘s Reply at 14. While resuming her work on the Authority “in this de facto fashion might not be as complete a remedy for [the Plaintiff] as an official reinstatement by the President,” Swan, 100 F.3d at 980, the D.C. Circuit has twice recognized that this relief is available and advisable. See id. at 979–81; Severino, 71 F.4th at 1042–43.
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.” Id. 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
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 71 F.4th at 1041. He sued President Biden and others, “request[ing] that the court issue an injunction requiring that the President restore him to his position on the Council.” Id. at 1041 (cleaned up). The Court again assessed redressability, looking to Swan for guidance. Severino, 71 F.4th at 1042–43. It declined to answer whether such an injunction could run against the President because it could “enjoin ‘subordinate executive officials’ to reinstate a wrongly terminated official ‘de facto,’ even without a formal presidential reappointment.” Id. at 1042–43 (quoting Swan, 100 F.3d at 980). It explained that the Conference‘s Chairperson could include the plaintiff in Board meetings and give him access to his former office, among other things, thereby providing partial relief. Id. at 1043.
The Government argues that Swan and Severino are inapposite because they are standing cases. See 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, 100 F.3d at 976 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). So a remedy cannot establish redressability if it is beyond the authority of the court. See, e.g., Ege v. U.S. Dep‘t of Homeland Sec., 784 F.3d 791, 793 (D.C. Cir. 2015) (“And because we have no jurisdiction under
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, 2025 WL 665041 (D.D.C. Mar. 1, 2025) (Berman Jackson, J.); Wilcox v. Trump, -- F. Supp. 3d --, No. 25-cv-334, 2025 WL 720914 (D.D.C. Mar. 6, 2025) (Howell, J.); Spicer v. Biden, 575 F. Supp. 3d 93, 97 (D.D.C. 2021) (Friedrich, J.) (“Following Swan, the Court could grant effective relief in this case by ordering Ruppersberger and Thalakottur, in their capacities as the Board‘s Chairman and DFO, to treat the plaintiffs are full members of the Board.“).
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, 189 U.S. 311, 318 (1903); Myers, 272 U.S. at 106; Humphrey‘s Ex‘r, 295 U.S. at 612; Wiener, 357 U.S. at 350). But reinstatement was not an issue in Humphrey‘s Executor or Myers because
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, 272 U.S. at 124 (saying that Rep. Benson worried that “the President would then have a man forced on him whom he considered as unfaithful“); id. at 131–32 (saying that Rep. Boudinot bemoaned a situation where the President would be “surrounded by officers . . . in whom he can have no confidence“); id. at 132 (saying that Rep. Sedwick asked whether such “a man under these circumstances” should “be saddled upon the President“)). But this paints with too broad a brush. Those very same Representatives highlighted the special danger of removal protections for the office at issue—the Secretary of Foreign Affairs—on the ground that “the direction of our foreign relations” was an “unquestioned field of executive prerogative.” Edward S. Corwin, Tenure of Office and the Removal Power Under the Constitution, 27 Colum. L. Rev. 353, 364–66 (1927) (collecting quotations). So their concerns may well have been limited to the character of the office. See id. at 366 And in any case, three individuals cannot speak for the entire First Congress, especially considering the wide spectrum of opinion it expressed on removal protections. See id. at 361–62. The “implications of the debate, properly understood, were highly ambiguous and prone to overreading.” John F. Manning, Separation of Powers as Ordinary
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, 71 F.4th at 1042–43.
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, 100 F.3d at 978. The Court therefore defers to the careful balance struck by the D.C. Circuit in Swan and Severino, which are binding on this Court.
For all of these reasons, the Court concludes that it has the authority to order injunctive relief as to Ms. Kiko.3
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, 547 U.S. 388, 391 (2006). “A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” Id. Ms. Grundmann has satisfied all four factors. The Court therefore grants a permanent injunction.4
a. Irreparable Harm and Inadequate Remedy at Law
The first two factors “are often considered together.” Wilcox, 2025 WL 720914, at *15 n.20 (citing Ridgley v. Lew, 55 F. Supp. 3d 89, 98 (D.D.C. 2014)). And Ms. Grundmann has satisfied both. Her “unlawful removal from office by the President” was an irreparable harm. Berry v. Reagan, No. 83-cv-3182, 1983 WL 538, at *5 (D.D.C. Nov. 14, 1983), vacated as moot, 732 F.2d 949 (Mem.) (D.C. Cir. 1983). And as the Government conceded at oral argument, there is no available remedy at law that would effectuate her reinstatement. See Motions H‘rg (Mar. 7, 2025), Draft Tr. at 45:18–46:12.
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
b. Balance of the Equities and Public Interest
The final two injunction factors merge when the Government is a party. Wilcox, 2025 WL 720914, at *17 (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). And Ms. Grundmann has satisfied both. The Authority needs all three voters to avoid deadlock, especially at a time when there have been mass firings across the federal government. And the Government‘s arguments about the separation of powers actually weigh in favor of an injunction.
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. See 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.
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.”
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