Samuel L. Bray (University of Chicago Law School) has posted Remedies in the Officer Removal Cases (37 pages) on SSRN. Here is the abstract:
When a federal officer challenges her removal by the president, what forms of interim relief and what final remedies are available? This Article considers those questions. It shows that the appropriate remedy for a prevailing officer will typically be a declaratory one, either a declaratory judgment or quo warranto. The interim relief question is harder. The suggestion here is that if an officer sues immediately to challenge her removal, and remains the de facto officer, there should be a presumption that the district court should prevent her removal during the pendency of the litigation. But if the officer fails to sue immediately, and is no longer the de facto officer, the presumption should be against any interim relief. This suggestion is subject to some qualifications, but it would prevent “flipping” back and forth during the litigation with respect to who occupies the office and exercises its powers. These presumptions are supported by historical practice with respect to injunctions and quo warranto, by equitable considerations such as laches, and by normative concerns that are especially strong in the officer-removal context.
Posted at 2:49 PM