Appellee

v. Sergio Gor, in his official capacity as Director of the White House Presidential Personnel Office, et al.,

Appellants

BEFORE: Pillard*, Katsas*, and Rao**, Circuit Judges

ORDER

Upon consideration of the emergency motion for a stay pending appeal, the opposition thereto, the reply, and the Rule 28(j) letters, it is

ORDERED that the motion be denied. Appellants have not satisfied the stringent requirements for a stay pending appeal. See Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2024).

Per Curiam

FOR THE COURT: Clifton B. Cislak, Clerk

BY: /s/ Selena R. Gancasz Deputy Clerk

* A statement by Circuit Judge Katsas, joined by Circuit Judge Pillard, concurring in this order, is attached. ** A statement by Circuit Judge Rao, dissenting from this order, is attached. KATSAS, Circuit Judge, joined by PILLARD, Circuit Judge, concurring: This case involves a dispute over whether plaintiff Sara Aviel is presently the Chief Executive Officer of the Inter- American Foundation (IAF), a government corporation that issues grants to further development in the Caribbean and Latin America. See 22 U.S.C. § 290f. The IAF is run by a Board of Directors appointed by the President with the advice and consent of the Senate. Id. § 290f(g). In turn, the Board appoints and supervises the Foundation’s CEO. Id. § 290f(l). In February 2025, the President removed all the incumbent IAF Board members, as permitted by statute. Aviel v. Gor, No. 25-cv-778, 2025 WL 1009035, at *3, *6 (D.D.C. Apr. 4, 2025). The President then purported to unilaterally designate Pete Marocco as an acting member of the Board. Id. at *4. Both the President and Marocco then purported to remove Aviel from her position as the Foundation’s CEO. Id. Aviel sued various government officials, including the President, and sought injunctive relief to continue serving as CEO. The district court granted a preliminary injunction requiring the defendants to recognize her as still holding that office. Aviel, 2025 WL 1009035, at *13; Order, id., No. 25-cv- 778, ECF Doc. 23. The government appealed and sought an emergency stay. We deny the stay because the government is unlikely to succeed on the merits of its contentions that Aviel (1) was permissibly removed from her position as CEO and (2) is not entitled to reinstatement as a remedy. See Nken v. Holder, 556 U.S. 418, 434 (2009). The first point follows from the law regarding presidential removals and appointments, while the second reflects a recent stay decision by our en banc Court. I It is unlikely that either the President or Marocco permissibly removed Aviel. 2 To begin, the President’s putative removal was likely invalid. The governing statute authorizes the IAF Board of Directors—not the President—to appoint the CEO, and it is silent regarding the question of removal. 22 U.S.C. § 290f(l). That means the Board—not the President—has the power to remove Aviel. See Free Enter. Fund v. PCAOB, 561 U.S. 477, 493, 509 (2010). As the Supreme Court explained in Free Enterprise Fund, “Congress may vest in heads of departments” the appointment of inferior officers, and, “[i]f Congress does so, it is ordinarily the department head, rather than the President, who enjoys the power of removal.” Id. at 493. Likewise, in In re Hennen, 38 U.S. 230 (1839), the Court noted that if Congress vests a department head with the power to appoint and remove an inferior officer, “the