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The Trump Administration has declined to respond to a Supreme Court petition by the two ousted Democratic NCUA board members who are asking for the court to consider their case.
"The Government hereby waives its right to file a response to the petition in this case, unless requested to do so by the Court," Solicitor General D. John Sauer told the Supreme Court.
Todd Harper and Tanya Otsuka are challenging their firings even though the Federal Credit Union Act, unlike some federal laws governing other financial regulators, does not state that members of the agency board may only be removed for cause.
And they have asked the court to consider their case when the court considers a case in which Rebecca Slaughter is challenging her firing by Trump from the FTC. The court has agreed to hear that case, with oral arguments scheduled for December.
The two Democrats have stressed the urgency of their case. The firings left one NCUA Board Member, Republican Chairman Kyle Hauptman. The NCUA has advised that it can function appropriately with only a single board member.
The litigation has followed a somewhat familiar path. After being notified that they had been fired, Harper and Otsuka sued in the District Court for the District of Columbia. The District Court found in their favor, issued a permanent injunction ordering their reinstatement, and declined to stay that order.
The Trump Administration then sought an emergency stay and a stay pending appeal from the U.S. Court of Appeals for the District of Columbia and told the Court of Appeals that federal law did not provide the ousted NCUA board members with protection from firing.
A panel of three judges granted the Administration's request for an emergency stay, then granted the request for a stay pending appeal, and then later issued an order holding the case in abeyance pending the decision of the Supreme Court in the Slaughter case.
Subsequently, Otsuka and Harper filed a petition for a writ of certiorari before judgment, asking asked the Supreme Court to consider their firings on an expedited basis.
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