WASHINGTON—The Department of Justice—on behalf of NCUA—has filed its reply to dismissed NCUA board members Todd Harper and Tanya Otsuka, arguing Congress has not restricted the President’s authority to remove NCUA board members at will.
This latest filing addresses Harper and Otsuka’s argument from early last week, in which they claimed their removal violates federal law.
As CUToday.info reported, Harper and Otsuka were fired by the Trump Administration mid-April and responded with their lawsuit before the end of last month.
As both Harper and Otsuka stated in an interview with CUToday.info, they are seeking to be reinstated and nullify any agency actions taken with a single board member. Both Harper and Otsuka stated they are confident they will be reinstated.
The latest filing by the DoJ not only argues that Congress has not restricted the President’s authority to remove NCUA board members at will, but that any such restrictions would be unconstitutional, as the exception cited by the plaintiffs is narrow and only meant to apply to multi-member expert agencies that do not wield substantive executive power.
As CUToday.info has reported, in previous instances where federal agency board members have been removed, and then won their lawsuits, they have received money but have not been reinstated.
However, Harper told CUToday.info he is optimistic.
“The other cases that have been outlined do not involve the fact pattern involved in this case,” Harper said. “We are serving within our terms. There was no cause for our removal. We've also seen that at other federal agencies, like the National Labor Relations Board and the Merit Systems Protection Board, that the board members removed were reinstated by the courts. I anticipate that Tanya and I will be reinstated as well.”
The latest filing from the DoJ further argues Harper and Otsuka are not entitled to reinstatement or the permanent injunction they seek.
“This court may not reinstate plaintiffs to their former offices. As Defendants explained, Article III courts may not order the reinstatement of a principal executive officer because such relief contravenes our nation’s constitutional structure and exceeds the scope of federal courts’ equitable powers,” the reply states.