DOJ argues Harper, Otsuka can be removed at will by president

The Department of Justice—on behalf of the NCUA—filed its opposition to the legal challenge from ousted NCUA board members Todd Harper and Tanya Otsuka late Friday. Harper and Otsuka were dismissed by President Donald Trump April 16, and filed a lawsuit April 28 seeking to be reinstated and nullify any agency actions taken with a single board member.

The government argues the president can remove NCUA Board members at will because the Federal Credit Union Act does not impose any removal restrictions, citing the U.S. Supreme Court finding “the NCUA is an agency for which Congress has not imposed 'any restriction on the President’s power to remove the agency’s leadership’” in Collins v. Yellen.

It states the NCUA Board "consists of principal officers who exercise significant executive power and must be accountable to the President through the removal power,” which stands in contrast to the Federal Trade Commission in the 1935 case Harper and Otsuka rely on for their argument.

The motion also argues Harper and Otsuka are not entitled to reinstatement and the other relief they seek, as the government claims “this Court lacks the power to issue any order reinstating principal executive officers removed by the President. Traditionally, executive officers challenging their removal by the President have sought back pay, not reinstatement."

The government claims a permanent injunction is inappropriate because though the removal deprives Harper and Otsuka of their employment and salary, “such consequences ordinarily do not amount to irreparable injury.”

The motion also cites recent remarks from Harper at a Brookings Institute event, arguing that Harper acknowledged NCUA can “continue to do its essential functions” with a single board member.

The plaintiffs must file a reply and opposition to any cross-motion by May 19, followed by the defendants filing their reply in support of any cross-motion by May 23.