Read U.S. Court of Appeals for District of Columbia Circuit unanimous ruling upholding District Court order about KARI LAKE's illegal firing of Voice of America Director MICHAEL ABRAMOWITZ.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 23, 2026 Decided November 10, 2026
No. 25-5314
MICHAEL ABRAMOWITZ, IN HIS OFFICIAL CAPACITY AS
DIRECTOR OF VOICE OF AMERICA, ET AL.,
APPELLEES
v.
KARI LAKE, IN HER OFFICIAL CAPACITY AS SENIOR ADVISOR
TO THE ACTING CEO OF THE UNITED STATES AGENCY FOR
GLOBAL MEDIA, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:25-cv-00887)
Elizabeth T. Hedges, Attorney, U.S. Department of
Justice, argued the cause for appellants. With her on the briefs
were Brett A. Shumate, Assistant Attorney General, Yaakov M.
Roth, Principal Deputy Assistant Attorney General, and John
Bailey and Abigail Stout, Attorneys.
William B. Schultz argued the cause for appellees. On the
brief were Jacobus P. van der Ven and Brian J. Beaton, Jr.
Margaret Dotzel entered an appearance.2
Before: SRINIVASAN, Chief Judge, PILLARD and PAN,
Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: Seeking to preserve the
journalistic integrity of the news broadcasters within the U.S.
Agency for Global Media, Congress empowered a separate
agency, the International Broadcasting Advisory Board, with
final authority over the hiring and firing of the broadcasters’
heads-of-network. The leaders of the Agency for Global Media
ignored that statute when they attempted unilaterally to fire
Michael Abramowitz, the head of Voice of America.
Abramowitz sued, and the district court permanently enjoined
the Agency for Global Media from removing Abramowitz
without the International Broadcasting Advisory Board’s
approval.
We affirm the injunction. The district court had
jurisdiction to enforce the statutory requirements governing the
Voice of America directorship. Those statutory requirements
are consistent with Article II. And the district court had
equitable power to enjoin defendants from effectuating the
illegal termination.
I.
A.
Congress has charged the U.S. Agency for Global Media
(the Agency) to “use broadcasting to support freedom and
democracy in a rapidly changing international environment.”
22 U.S.C. § 6201(5). To carry out that mission, Congress
placed within the Agency six federally funded international
news broadcasters that “export[] the cardinal American values
of free speech, freedom of the press, and open debate to the3
dark corners of the world where independent, objective
coverage of current events is otherwise unavailable.”
Widakuswara v. Lake, 779 F. Supp. 3d 10, 19-20 (D.D.C. 2025)
(citation omitted).
Voice of America is the flagship international broadcaster
of the United States. The United States created Voice of
America during World War II to counter Nazi propaganda in
Europe with free, fact-based reporting. Voice of America’s
congressionally codified charter dictates that it serve the “long-
range interests of the United States” by directly providing
“accurate, objective, and comprehensive” news to listeners
around the globe. 22 U.S.C. § 6202(c). Congress explained
that, “[t]o be effective, the Voice of America must win the
attention and respect of listeners.” Id. And it has. During its
eighty-plus years of broadcasting, Voice of America has
“cultivated an audience of 425 million listeners who rely on
[its] output—particularly in areas of the world where a free
press is otherwise unavailable.” Widakuswara, 779 F. Supp.
3d at 34. Congress has directed the Agency to sponsor other
regional news networks as non-governmental, not-for-profit
entities supported with appropriated funds via grant
agreements, see 22 U.S.C. §§ 6207-6209, 6215, but Voice of
America remains the largest of the Agency’s broadcasters.
By statute, the Agency for Global Media’s Chief
Executive Officer is a presidential appointee who “supervise[s]
all broadcasting activities” and logistical needs of the Agency.
Id. §§ 6203(b)(1), 6204(a). (The position is currently occupied
by an Acting CEO pending confirmation of the nominee.) “[I]n
carrying out [those] functions,” the CEO is required to “respect
the professional independence and integrity of” each of the
Agency’s “broadcasting services.” Id. § 6204(b). The CEO
once held unilateral authority to appoint and remove the heads
of Agency broadcasters. In 2020, however, the Agency’s then-4
CEO, Michael Pack, sparked bipartisan congressional outrage
when he “unilaterally fired the heads of several networks,”
jeopardizing the broadcasters’ “credibility and independence.”
Abramowitz v. Lake, 803 F. Supp. 3d 1, 6 (D.D.C. 2025)
(quoting Letter from Sens. Rubio, Graham, Moran, Collins,
Durbin, Leahy, and Van Hollen to Michael Pack, CEO,
USAGM (July 1, 2020), at 1).
Following that episode, Congress converted the Agency’s
advisory board, the International Broadcasting Advisory Board
(the Broadcasting Board), into a separate, independent agency
with stronger oversight powers. See Pub. L. No. 116-283,
§ 1299Q, 134 Stat. 3388, 4022-24 (2021). First, Congress
overhauled the structure and composition of the Broadcasting
Board. Congress recreated it as a partisan-balanced
independent agency composed of seven members requiring
Senate confirmation. 22 U.S.C. §§ 6205(a), (b)(1), (b)(3),
(b)(4)(A) (2021). Second, Congress gave the Broadcasting
Board additional responsibilities to advise and oversee the
Agency for Global Media. The Board now meets at least
quarterly with the Agency CEO, reports on the Agency to
Congress, and “advise[s] the [Agency CEO] to ensure” that he
“fully respects the professional integrity and editorial
independence” of the broadcasters. Id. § 6205(d). Third,
Congress vested the Broadcasting Board with control over the
hiring and firing of the six network heads, including the head
of Voice of America. The CEO may make recommendations,
but network heads “may only be appointed or removed if such
action has been approved by a majority vote of the
[Broadcasting] Board.” Id. § 6205(e)(1). And the Board may
itself “unilaterally remove any . . . head of network” by a vote
of “five or more” out of its seven members. Id. § 6205(e)(2).5
B.
Michael Abramowitz is the head of Voice of America. He
was appointed in April 2024 with the unanimous approval of
the Broadcasting Board.
President Trump, upon assuming office in January 2025,
fired six of the seven members of the Broadcasting Board. He
then issued an executive order directing that the Agency’s
“non-statutory components and functions . . . be eliminated to
the maximum extent consistent with applicable law.” Exec.
Order No. 14,238, § 2(a), 90 Fed. Reg. 13043 (Mar. 14, 2025).
Defendants—the Agency, then-Acting CEO Victor Morales,
and then-Senior Advisor to the Acting CEO Kari Lake—
promptly took action to implement the executive order. They
placed Abramowitz and approximately 1,300 other Voice of
America employees on indefinite administrative leave.
Abramowitz, 803 F. Supp. 3d at 7.
Abramowitz and three Voice of America journalists filed
suit requesting emergency injunctive relief. Id. The district
court granted preliminary injunctions, id. at 8; see Abramowitz
v. Lake, No. 25-cv-887, 2025 WL 1176796, at *2 (D.D.C.
Apr. 22, 2025); Widakuswara v. Lake, 779 F. Supp. 3d 10, 40
(D.D.C. 2025), which a divided panel of this court stayed in
part pending the Agency’s appeal. See Widakuswara v. Lake,
No. 25-5144, 2025 WL 1288817, at *2 (D.C. Cir. May 3,
2025). Because the Agency did not appeal the third part of the
Widakuswara preliminary injunction, which required
restoration of Voice of America’s programming, the panel’s
stay did not affect that relief. Our full court reconsidered en
banc the stay order, which halted preliminary injunctions in
five related cases concerning the Agency for Global Media’s
networks, and we largely lifted the stay. See Widakuswara v.
Lake, No. 25-5144, 2025 WL 1521355, at *1 (D.C. Cir. May6
28, 2025) (en banc). But the en banc court did not disturb the
stay of the injunction in Abramowitz’s suit because the district
court retained authority to enforce that injunction’s un-
appealed and unstayed third part directing the Agency to
restore Voice of America’s programming. See Widakuswara
v. Lake, No. 25-5144, 2025 WL 2787974, at *1 (D.C. Cir. May
28, 2025) (en banc) (statement of Srinivasan, J.); see also
Abramowitz v. Lake, 803 F. Supp. 3d at 8 (proceeding to grant
partial summary judgment and a permanent injunction under
the APA).
In July, with the Board inquorate, defendants sent
Abramowitz a notice stating that he would be “reassigned” out
of his position as head of Voice of America “to a role as Chief
Management Officer in Greenville, North Carolina.
”
Abramowitz, 803 F. Supp. 3d at 7. Unless Abramowitz
promptly accepted the reassignment, the notice warned, “he
would be removed” from his head-of-network post. Id.
Abramowitz did not accept. After the deadline expired,
defendants sent another letter, dated August 1, 2025, informing
Abramowitz that they “had made the decision to remove him”
due to his refusal of reassignment. Id.
Abramowitz moved for partial summary judgment. He
argued that defendants violated the Administrative Procedure
Act (APA), 5 U.S.C. §§ 551 et seq., and acted ultra vires when
they attempted to remove him in violation of section 6205.
The district court granted partial summary judgment on the
APA claim and entered a permanent injunction barring
defendants “from removing Plaintiff Abramowitz from his
position as [head] of Voice of America without the approval of
a majority of the [Broadcasting Board].” Order, No. 25-cv-887
(D.D.C. Aug. 28, 2025) (J.A. 81). The district court concluded
that Abramowitz’s suit fell within its federal-question7
jurisdiction. Abramowitz, 803 F. Supp. 3d at 10-11; see 28
U.S.C. § 1331. And it held that defendants’ removal of
Abramowitz without the Broadcasting Board’s approval was
contrary to law. Abramowitz, 803 F. Supp. 3d at 16-17; see 5
U.S.C. § 706(2)(A).
Defendants timely appealed. They also moved for a stay
pending appeal, which a panel of this court denied.
Six of the seven seats on the Broadcasting Board remain
empty.
II.
We have appellate jurisdiction to review the district
court’s entry of a permanent injunction. 28 U.S.C.
§ 1292(a)(1). We review de novo both the district court’s
jurisdiction to issue the injunction, Atlas Air, Inc. v. Int’l Bhd.
of Teamsters, 928 F.3d 1102, 1108 (D.C. Cir. 2019), and its
grant of summary judgment, N.M. Cattle Growers’ Ass’n v.
U.S. Fish & Wildlife Serv., 148 F.4th 755, 764 (D.C. Cir. 2025).
A.
Defendants first contend that the district court lacked
jurisdiction over Abramowitz’s claim. Congress, they assert,
implicitly precluded the district court’s federal-question
jurisdiction by channeling Abramowitz’s claim into the
specialized administrative framework for personnel actions
subject to the Civil Service Reform Act (CSRA), 5 U.S.C.
§§ 1101 et seq. Appellants’ Br. 22. We hold that the district
court had jurisdiction over Abramowitz’s suit.
Congress has empowered federal district courts to
adjudicate civil actions “arising under” the Constitution and
laws of the United States. Royal Canin U. S. A., Inc. v.8
Wullschleger, 604 U.S. 22, 26 (2025) (quoting 28 U.S.C
§ 1331). That broad grant secures district court jurisdiction
over “cases founded on federal law” except where Congress
has withdrawn it. Id. Congress excepts suits from federal-
question jurisdiction either “explicitly,” by providing “that
district court jurisdiction will yield,
” or “implicitly, by
specifying a different method to resolve [the] claims,
” such as
review by an administrative agency. Axon Enter., Inc. v. Fed.
Trade Comm’n, 598 U.S. 175, 185 (2023).
We have long understood that Congress implicitly
abridged the district court’s federal-question authority when it
enacted the CSRA. The CSRA provides “a comprehensive
system for reviewing personnel action taken against federal
employees.” United States v. Fausto, 484 U.S. 439, 455
(1988). It channels almost all federal employment claims
through the Merit Systems Protection Board (the MSPB) in lieu
of suit in district court. See Elgin v. Dep’t of Treasury, 567
U.S. 1, 12-13 (2012). Defendants contend that Abramowitz’s
claim belongs before the MSPB, so the district court lacked
power to hear it. Abramowitz acknowledges that the CSRA
provides the exclusive remedy for claims within its scope but
argues that his claim to enforce the network-head removal
statute—22 U.S.C. § 6205(e)—falls outside of the CSRA’s
ambit.
We thus consider whether Abramowitz’s claims “are of
the type Congress intended to be reviewed within [the]
statutory structure” of the CSRA. Thunder Basin Coal Co. v.
Reich, 510 U.S. 200, 212 (1994). “The ultimate question is
how best to understand what Congress has done”—namely,
whether Congress intended to preclude a district court from
hearing a claim of the type before us. Axon, 598 U.S. at 186.
We begin by taking “the 30,000-foot view” of Congress’s
statutory scheme. Id. at 189. We then evaluate the Thunder9
Basin factors—three considerations that the Supreme Court has
identified as typical indicia of congressional intent regarding
whether to preclude district court review.
Viewed from “30,000 feet,” this case is “not very hard.”
Id. at 188. Congress gave no hint that it intended the CSRA to
channel a section 6205(e) claim like Abramowitz’s to the
MSPB for resolution. The CSRA’s administrative scheme
serves goals that are distinct from the goals of section 6205(e),
and channeling to the MSPB would render section 6205(e)
entirely ineffective.
The CSRA, enacted in 1978, was “designed to balance the
legitimate interests of the various categories of federal
employees with the needs of sound and efficient
administration.” Fausto, 484 U.S. at 445. It “establishes the
principles of the merit system of employment” and “governs
personnel actions based on unacceptable job performance” as
well as “adverse action taken against employees for the
‘efficiency of the service.’” Id. at 445-46 (citation omitted). It
provides the mechanism for employees to vindicate their
private interests in their employment, and it accounts for the
government’s interests as an employer in building a workforce
of ability and integrity.
As relevant here, the CSRA channels employee appeals of
covered actions to a specialized administrative agency, the
MSPB. See 5 U.S.C. § 7543(d). And in most circumstances,
the Federal Circuit has exclusive jurisdiction to review
decisions of the MSPB. See id. § 7703(b)(1)(A). “Congress
enacted the detailed CSRA review system to ensure greater
uniformity of process and consistency of interpretation” in the
government’s disputes with its employees. Fed. L. Enf’t
Officers Ass’n v. Ahuja, 62 F.4th 551, 559 (D.C. Cir. 2023).10
Section 6205(e) serves an entirely different purpose.
Congress enacted section 6205 in 2021 as part of a package of
reforms meant to secure the journalistic independence and
efficacy of the networks under the umbrella of the Agency for
Global Media. Those reforms strengthened the Broadcasting
Board as an adviser and watchdog of the Agency CEO, see 22
U.S.C. § 6205(d), and gave the Broadcasting Board the final
say over the appointments and removals of a handful of inferior
officers, including the heads of Voice of America and five
other congressionally established networks, id. § 6205(e)(1)-
(2). Defendants have offered no evidence that Congress
enacted section 6205(e) to serve the government’s generic
interests as an employer. Indeed, there is no dispute that
section 6205(e) was designed to protect the nation’s
substantive policy in favor of objective reporting, reflecting our
national interest in free media around the globe. It is not a
standard employment law, but a durable barrier against any
breach of the firewall protecting the journalistic integrity of
Voice of America and the affiliate networks. As a matter of
common sense, it is difficult to explain why Congress would
treat a section 6205(e) claim as a federal employment matter
appropriately channeled to the MSPB.
Applying the ordinary principles of federal-question
jurisdiction allows a plaintiff alleging a violation of section
6205(e) to obtain immediate equitable relief in federal district
court, vindicating Congress’s design to preserve the networks’
integrity. Channeling section 6205(e) claims through the
CSRA, in contrast, would effectively nullify Congress’s
decision to make the Broadcasting Board the guardian of the
independence of the networks’ leadership. The CSRA offers
no mechanism for keeping a network head in the job; the
MSPB lacks power to award preliminary relief. See Oral Arg.
at 17:58-18:14. And the CSRA’s potential remedies of backpay
or reinstatement for an individual employee cannot repair11
harms to a network’s reputation, reach, and reliability. Any
remedy available through the CSRA would come too late to
accomplish the purpose of section 6205. And no remedy under
the CSRA could provide a network head with ongoing
injunctive protection from a renewed attempt to effect an
illegal removal.
Section 6205(e) evinces Congress’s intent to advance the
journalistic integrity of the Agency for Global Media networks.
And, for the provision to have the effect Congress sought, the
legal protections it established must be immediately and
continuously enforceable—that is, they must fall outside the
CSRA’s ouster of federal-question jurisdiction. Thus, even
were we to assume that agency action affecting Abramowitz’s
employment would otherwise be channeled under the CSRA,
we would treat enactment of section 6205(e) as having restored
federal-question jurisdiction over the type of claim at issue
here. The Supreme Court has recognized that “a specific policy
embodied in a later federal statute should control our
construction of the [earlier] statute,” even where the earlier
statute “ha[s] not been expressly amended.” Food & Drug
Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
143 (2000) (alterations in original) (citation omitted). Here,
section 6205(e)’s policy empowering the Broadcasting Board
to control a handful of appointments and removals guides our
interpretation of the CSRA’s exclusivity.
In response, defendants point to the Supreme Court’s
broad language describing the CSRA’s exclusivity: “When a
covered employee appeals a covered adverse action, the CSRA
grants the MSPB jurisdiction over the appeal.” Elgin, 567 U.S.
at 20. But the Court has cautioned that “‘general language in
judicial opinions’ does not control ‘quite different
circumstances that the Court was not then considering,’” nor
does it “preclude Congress from enacting a later exception” to12
a broad rule articulated by the Court. Exxon Mobil Corp. v.
Corporación Cimex, S. A., 609 U.S. 108, 128 (2026) (quoting
Turkiye Halk Bankasi A.S. v. United States, 598 U.S. 264, 278
(2023)). We understand the Congress that enacted section
6205 to have intended it to fall outside the broad scope of
CSRA preclusion.
We are especially wary of overreading the CSRA’s
preclusive scope given that the exclusivity of its administrative
remedies is not expressly guaranteed. Because CSRA
preclusion is only implicit, its scope is nowhere delineated in
the statutory text. See Elgin, 567 U.S. at 12 (deeming it “fairly
discernible” from the CSRA’s comprehensive scheme “that
Congress intended to deny . . . an additional avenue of review”
to employees seeking review of adverse employment actions
covered by the CSRA). “[I]t can be strongly presumed that
Congress will specifically address language on the statute
books that it wishes to change,” but courts “frequently” find
that Congress has made a “repeal by implication of a legal
disposition implied by a statutory text.” Fausto, 484 U.S. at
453. Even assuming that, under Elgin, we must start by
presuming preclusion, we hold that Section 6205(e) is best read
to effect an implicit exemption from CSRA’s implied
preclusion, restoring the default of federal-question jurisdiction
for Abramowitz’s suit.
We next consider the Thunder Basin factors as elucidated
in Axon. Because Congress “rarely allows” government
actions “to escape effective judicial review,” the first factor is
whether “precluding district court jurisdiction [would]
‘foreclose all meaningful judicial review’” of a plaintiff’s
claim. Axon, 598 U.S. at 186 (quoting Thunder Basin, 510 U.S.
at 212-13). Because Congress may wish “to give [an] agency
a heightened role in the matters it customarily handles,” the
second factor is whether the claim filed in federal court is13
central or “wholly collateral to [the] statute’s [alternate] review
provisions.” Id. (quoting Thunder Basin, 510 U.S. at 212).
And because Congress generally designs special review
provisions to draw on an agency’s “distinctive knowledge,” the
third factor is whether the claim falls within or “outside the
agency’s expertise.” Id. (quoting Thunder Basin, 510 U.S. at
212). The factors need not all favor Abramowitz to support the
district court’s jurisdiction. Id. On balance, the Thunder Basin
factors confirm our understanding of Congress’s intent.
First, if CSRA preclusion applied, Abramowitz might be
denied access to meaningful judicial review. The first factor
has greatest relevance when a plaintiff loses all access to
Article III courts—a highly unusual result. Id. at 186. Here,
Abramowitz might eventually reach the Federal Circuit: Under
the CSRA, he could obtain judicial review in the Federal
Circuit if he lost his claim before the MSPB. Elgin, 567 U.S.
at 21. But we have reason to question whether an agency
review scheme satisfies the first factor if it “foreclose[s] all
meaningful judicial review at the preliminary injunction stage”
despite an irreparable harm. See New York v. Trump, 181 F.4th
132, 140 n.3 (D.C. Cir. 2026); Axon, 598 U.S. 175, 191
(explaining that judicial review “come[s] too late to be
meaningful” if an injury is “impossible to remedy” by the time
“appellate review kicks in”). The harm Abramowitz faces is
an immediate one. And, as explained, the MSPB lacks power
to enter preliminary relief. The threat of removal is “a powerful
tool for control,” Edmond v. United States, 520 U.S. 651, 664
(1997), and if defendants can remove Abramowitz for the
lengthy duration of MSPB proceedings, they can effectively
exercise control over Abramowitz and Voice of America that
Congress by statute vested elsewhere.
Second, Abramowitz’s claim is collateral to the CSRA’s
scheme. Unlike the typical aggrieved employee, Abramowitz14
does not seek to reverse his termination on its merits. He
instead argues that defendants failed to satisfy section 6205,
which poses a procedural hurdle to Abramowitz’s removal.
Nowhere does Abramowitz call on the MSPB to “address the
sorts of procedural [and] evidentiary matters [the] agency often
resolves on the way to a merits decision.” Axon, 598 U.S. at
193. Defendants presented Abramowitz with a Notice of
Proposed Removal asserting insubordination, but its
contents—the usual focal point for MSPB review—are
irrelevant to Abramowitz’s section 6205 claim. Rather than
seeking “reinstatement, backpay, and attorney’s fees”—
“precisely the kinds of relief that the CSRA empowers the
MSPB and the Federal Circuit to provide,” Elgin, 567 U.S. at
22—Abramowitz seeks an injunction against unlawful
interference with his head-of-network position.
Third, Abramowitz’s suit plainly lies outside of the
MSPB’s substantive expertise. Agencies have no “distinctive
knowledge” to apply to “[c]laims that tenure protections violate
Article II.” Axon, 598 U.S. at 186, 194. That is the sole merits
issue in Abramowitz’s suit. Since Abramowitz’s claim is not
“intertwined with or embedded in matters on which the [MSPB
is] expert,” id. at 195, we have no substantive reason to infer
that Congress intended to channel his claim through the
agency.
In sum, the Thunder Basin analysis confirms what the
statute itself makes clear: that Congress had no reason to
channel Abramowitz’s claim through the CSRA, and every
reason not to. Section 6205 evinces a special need for district
court jurisdiction. Section 6205(e) is designed to safeguard the
independence of the Agency for Global Media network heads
by barring their removal in the absence of the Broadcasting
Board’s approval. That safeguard works only when it can be
promptly enforced.15
B.
On the merits, defendants concede that they removed
Abramowitz in violation of section 6205(e). They offer a
single defense: that the removal procedures in that section
“violate Article II.” Appellants’ Br. 32. We conclude that
section 6205(e) is constitutionally valid, so defendants’ attempt
to remove Abramowitz was contrary to law. 5 U.S.C.
§ 706(2)(A).
Article II provides that “Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in
the President alone, in the Courts of Law, or in the Heads of
Departments.” U.S. Const. art. II, § 2. By implication,
Congress has power to vest removals in those same entities,
since “the ‘power of removal of executive officers’ is ‘incident
to the power of appointment.’” Kennedy v. Braidwood Mgmt.,
Inc., 606 U.S. 748, 763 (2025) (quoting Myers v. United States,
272 U.S. 52, 119 (1926)).
Abramowitz, the head of Voice of America, is
“undisputedly an inferior officer.” Appellants’ Br. 32;
Appellees’ Br. 29. And the Broadcasting Board is
undisputedly a department head. See Appellants’ Br. 33
(“assuming the [] Board could be viewed as a department head”
and providing no argument to the contrary); Appellees’ Br. 29
(“Defendants do not challenge that the Board ‘could be viewed
as a department head’”); Reply Br. 10 (describing the Board
as “an entity that might be described as a ‘head’ of a separate
department”); Abramowitz v. Lake, No. 25-cv-887, 2025 WL
4632354, at *2 n.4 (D.D.C. Sept. 2, 2025) (concluding that any
argument by defendants that the “Board does not qualify as a
Head of Department . . . is doubly waived”).
Congress thus has constitutional authority to vest power
over Abramowitz’s removal in the Broadcasting Board. That16
is just what section 6205(e) does. The section creates two
pathways for removal of a network head. First, “only” the
approval of “a majority” of the Broadcasting Board can
authorize the Agency CEO to appoint or remove a network
head. 22 U.S.C. § 6205(e)(1). Second, without the CEO’s
initiative or agreement, “five or more members” of the
Broadcasting Board “may unilaterally remove” a network head
“[a]fter consulting with the [Agency CEO].” 22 U.S.C.
§ 6205(e)(2). Both pathways give the Board the final say in the
removal.
Focusing on the first pathway, defendants object that
Congress violated Article II by “[m]aking removal a joint
concern” of the Broadcasting Board and the Agency CEO.
Appellants’ Br. 33. But the Supreme Court has consistently
“found that the department head’s approval satisfies the
Appointments Clause” even where a statute assigns an initial
or proposed decision to a different official. Free Enter. Fund
v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 512 n.13 (2010).
What is more, the Broadcasting Board can also remove
Abramowitz on its own initiative through the second pathway.
To employ that pathway, the Broadcasting Board need only
“consult[] with” the Agency CEO, 22 U.S.C. § 6205(e)(2), who
must meet with the Board on its “request,” id. § 6205(d)(2).
That pathway thus affords the Board comprehensive—not
shared—statutory power over Abramowitz’s removal.
Defendants next insist that the Appointments Clause
requires Congress to vest control of inferior officers in the head
of “the department that actually employs” the inferior officer—
here, the Agency CEO. Reply Br. 14. The Supreme Court’s
decision in Morrison v. Olson, 487 U.S. 654 (1988), forecloses
that argument. There, the Court sustained a statute creating a
special Article III court “for the purpose of appointing
independent counsels.” Id. at 661 (quoting 28 U.S.C. § 4917
(1982 ed., Supp. V)). The Court first concluded that an
independent counsel so appointed was an inferior officer and
then held that the Appointments Clause does not prohibit
Congress from providing that an inferior “officer of one
branch” shall be “appointed by officers of another branch.” Id.
at 673.
Section 6205 involves a more modest distance between
employing and appointing body than did the provision for
interbranch appointment sustained in Morrison. It falls
comfortably within the constitutional power of Congress to “by
Law vest the Appointment of such inferior Officers, as they
think proper, in the President alone, in the Courts of Law, or in
the Heads of Departments.” U.S. Const. art. II, § 2. As the
Court in Morrison underscored, the words “as they think
proper” seem “clearly to give Congress significant discretion.
”
487 U.S. at 673. Here, instead of giving the federal judiciary
power to appoint an executive-branch law-enforcement
official, Congress gave the head of one executive agency the
power to remove an officer in another executive agency. The
heads of both agencies are removable at the President’s will.
Congress simply deems it “proper” to assign each a measure of
authority over heads of network: The Agency CEO manages
the heads of network on a day-to-day basis, while the Board
has the final say on their removal.
Defendants lastly contend that section 6205 creates an
unconstitutional “exception[] to the President’s unrestricted
removal power.” Appellants’ Br. 34 (citing Seila L. LLC v.
Consumer Fin. Prot. Bureau, 591 U.S. 197, 204 (2020)). In
Trump v. Slaughter, 609 U.S. 422 (2026), the Supreme Court
announced that “the President may remove his subordinates at
will” from principal officer positions. Id. at 442. We need not
consider here whether the same rule applies to inferior officers
and employees because, regardless, section 6205 secures the18
President’s ability to remove Abramowitz for any or no
reason—albeit more indirectly than defendants would like.
The scheme parallels one that the Supreme Court approved in
Free Enterprise Fund v. Public Company Accounting
Oversight Board, 561 U.S. 477 (2010). In Free Enterprise
Fund, the Court explained that when a department head can
“remove [an inferior officer] at any time,” the department head
is “fully responsible for what the [inferior officer] does.” Id. at
495. The President can then “hold the [department head] to
account for its supervision of the [inferior officer], to the same
extent that he may hold the [department head] to account for
everything else it does.” Id. at 495-96. So long as the President
has adequate control over the department head, and the
department head can control the inferior officer (as is the case
here), the President can transitively control the inferior officer.
The department head’s supervision “preserv[es] the chain of
command in Article II.” Braidwood, 606 U.S. at 754.
Section 6205’s scheme maps neatly onto the outline the
Supreme Court laid out in Free Enterprise Fund. Indeed, an
important distinction serves to provide more presidential
control under section 6205. In Free Enterprise Fund, the
department head was the Securities and Exchange
Commission, a multimember body whose commissioners each
had for-cause removal protection. 561 U.S. at 487. Here, the
parties have not disputed that the President can, consistent with
Slaughter, remove members of the Broadcasting Board at will.
609 U.S. at 442. Free Enterprise Fund tells us that
Abramowitz is as subject to Presidential oversight as the
members of the Board that appoints and removes him. 561
U.S. at 509. Given that the Broadcasting Board is subject to
at-will presidential removal, Abramowitz is effectively subject
to the same.19
Defendants complain that because the power to remove
Abramowitz is “diffused” across a multimember body, he is
effectively shielded from removal. Appellants’ Br. 36. As a
practical matter, it is true that the President might face delay if
he had to fire and replace a majority of the Board to effectuate
his removal decision. But that delay is attributable to the
Appointments Clause itself, which requires that principal
officers receive Senate confirmation and “contemplates
collective appointments,” including by “multimember bodies”
that head departments. Free Enter. Fund, 561 U.S. at 512-13;
see U.S. Const. art. II, § 2. The President retains the power to
supervise the Broadcasting Board (and thus, the heads of
network) consistent with the requirements of the Constitution.
III.
We conclude by considering remedy. Defendants assert
that the district court lacked authority to enjoin them from
removing Abramowitz without the Broadcasting Board’s
approval. That argument, too, is foreclosed by our precedent.
We have long held that courts may enforce statutory “removal
restrictions” through “injunctive relief against subordinate
[executive] officials.” Swan v. Clinton, 100 F.3d 973, 977-78
(D.C. Cir. 1996); see Severino v. Biden, 71 F.4th 1038, 1042-
43 (D.C. Cir. 2023).
The Supreme Court’s recent decision in Trump v. Cook,
609 U.S. 528 (2026), reinforces our precedent. There, the
Court held that a district court “may order that a removed
[official] remain in office during the pendency of litigation.”
Id. at 549. The availability of a permanent injunction then turns
on whether any remedy at law, such as money damages, could
adequately redress a plaintiff’s injury. See id.; eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (setting out
four-part test for permanent injunctions, including the absence20
of an adequate remedy at law). Defendants contest the district
court’s power to enjoin Abramowitz’s removal, but they point
to nothing to counter his contention that no other form of relief
would redress his injury. We accordingly have no basis on
which to disturb the district court’s determination that
Abramowitz made the necessary showings to support a
permanent injunction. Abramowitz, 803 F. Supp. 3d at 17-18.
IV.
For the foregoing reasons, we affirm the district court’s
order of August 28, 2025.
No comments:
Post a Comment