ROGER SEVERINO v. JOSEPH R. BIDEN, JR., IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES, ET AL.
No. 22-5047
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 1, 2022 Decided June 27, 2023
Appeal from the United States District Court for the District of Columbia (No. 1:21-cv-00314)
Adam C. Jed, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Mark B. Stern and Joshua M. Salzman, Attorneys.
Before: MILLETT, WILKINS, and WALKER, Circuit Judges.
Opinion for the Court by Circuit Judge MILLETT.
MILLETT, Circuit Judge: The Administrative Conference of the United States is a governmental entity that produces research, recommendations, and guidance on how to improve the operation of Executive Branch agencies. The Conference has no power to enforce its suggestions; its only power is to persuade.
A Council of ten members, appointed by the President, supervises the work of the Conference. The question in this case is whether an appointee to the Council is removable at will by the President. Because removal at will is the presumption under the Constitution, and because nothing in the text of the Council‘s organic statute or about the Council‘s function within the Executive Branch indicates that Congress constrained the President‘s presumptive removal authority, we affirm the judgment of the district court dismissing the complaint for failure to state a claim.
I
A
Congress created the Administrative Conference of the United States in 1964 to provide a forum for Executive Branch agencies to “cooperatively study mutual problems, exchange information, and develop recommendations for action[.]”
The Conference‘s principal task is to “study the efficiency, adequacy, and fairness” of administrative procedures, in part by “collect[ing] information and statistics” from agencies and using that data to produce research on the Executive Branch. See
In short, the Conference studies administrative procedure and makes recommendations on “how it could be improved” to better “serve the public interest.” Antonin Scalia & Stephen G. Breyer, Reflections on the Administrative Conference, 83 GEO. WASH. L. REV. 1205, 1207 (2014) (quoting Lyndon B. Johnson, Remarks at the Swearing In of Jerre S. Williams as Chairman, Admin. Conf. of the U.S., 1 Pub. Papers 68 (Jan. 25, 1968)).
The Conference‘s functions are strictly advisory. It has “no power whatever to enforce its own recommendations.”
Congress also created a Council to oversee the Conference. The Council consists of the Chairperson of the Conference and ten other members appointed by the President. No more than five of the members can be employees of the federal government.
B
Roger Severino was first appointed to the Council on July 24, 2020. Because Severino was then serving as Director of the Office of Civil Rights in the Department of Health and Human Services, he occupied one of the five seats available for government employees. Although he was appointed for a standard three-year term, when Severino resigned his government employment on January 15, 2021, he lost his seat on the Council. See
President Biden took office four days later. On February 2, 2021, the Deputy Director of the Presidential Personnel Office emailed Severino “on behalf of President Biden” to request Severino‘s “resignation from the Administrative Conference of the United States Council by 5:00 p.m. ET tomorrow.” Am. Compl., Ex. D, J.A. 25. Shortly after 5:00 the next evening, the Deputy Director emailed Severino to inform him that his appointment had been terminated.
C
Severino filed suit the same day he was fired, naming as defendants President Biden, the Director and Deputy Director of the Presidential Personnel Office, the Conference‘s then-Vice Chairperson, who also served in the role of Executive Director, and the United States of America. Severino‘s amended complaint, filed a few months later, alleged that the statute creating the Council precluded his removal from the Council without cause. Severino requested that the court issue an injunction requiring that the President “restore[]” him to his position on the Council. Am Compl. ¶ 32, J.A. 12. He also sought a declaration that his termination was void.
The district court dismissed the amended complaint for failure to state a claim. Severino v. Biden, 581 F. Supp. 3d 110, 112 (D.D.C. 2022); see
Severino timely appealed.
II
The district court‘s jurisdiction arose under
III
We start, as we must, by ensuring our power to resolve this case. See United States v. Philip Morris USA, Inc., 840 F.3d 844, 848 (D.C. Cir. 2016). Under
The difficulty lies in determining whether that injury is redressable by the court. See Western Coal Traffic League v. Surface Transp. Bd., 998 F.3d 945, 950–951 (D.C. Cir. 2021). Severino seeks a judicial order that would “restore[] [his] appointment to the Council[.]” Am. Compl. ¶ 32(c), J.A. 12. President Biden is the only person with the power to reappoint Severino to the Council. See
We need not confront that difficult question because our jurisdiction does not depend on deciding whether an injunction ordering a presidential appointment would be available or appropriate. The redressability prong of standing requires only that we be able to offer Severino “at least some of the relief” he seeks. Collins v. Yellen, 141 S. Ct. 1761, 1779 (2021). And we have held it sufficient for Article III standing if we can enjoin “subordinate executive officials” to reinstate a wrongly terminated official ”de facto,” even without a formal presidential reappointment. Swan, 100 F.3d at 980 (Inferior
The complaint sufficiently alleges that a similar form of relief is available in this case. Our power to enjoin the Conference‘s Chairperson is undisputed, and, at least in principle, the Chairperson may “includ[e] [Severino] in Board meetings,” “giv[e] him access to his former office,” and permit him to cast votes as if he were a Council member, just the same forms of relief we held sufficient in Swan. See 100 F.3d at 980.
There is another potential wrinkle though. Congress has, by statute, limited the Council to ten members, and it is currently fully staffed. See
But this case arises at the motion to dismiss stage, in which Severino need only plausibly allege that relief could be afforded on his claim. See Bennett v. Spear, 520 U.S. 154, 170–171 (1997) (A plaintiff‘s burden to show that his injury will “likely be redressed” is “relatively modest” at the motion to dismiss stage.) (internal quotation marks omitted). Here,
IV
Although we have jurisdiction to hear Severino‘s lawsuit, we agree with the district court that his complaint does not state a legally viable claim on the merits. President Biden had full statutory and constitutional authority to terminate Severino without cause.
Under the Constitution, the “President‘s removal power is the rule, not the exception.” Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2206 (2020); see also Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 492–493 (2010); Kalaris v. Donovan, 697 F.2d 376, 389 (D.C. Cir. 1983). That is because
Because of the background presumption that the President may remove anyone he appoints, Congress must make it clear in a statute if it wishes to restrict the President‘s removal power. See Carlucci v. Doe, 488 U.S. 93, 99 (1988) (“[A]bsent a ‘specific provision to the contrary, the power of removal from office is incident to the power of appointment.‘“) (quoting Keim v. United States, 177 U.S. 290, 293 (1900)). Courts will not assume Congress legislated a potential separation of powers problem unless the statutory text makes Congress‘s intent to test constitutional lines apparent. See Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018); Watkins v. United States, 354 U.S. 178, 204 (1957) (“[E]very reasonable indulgence of legality must be accorded to the actions of a coordinate branch of our Government.“).
In construing statutes, the Supreme Court has recognized only two ways Congress can send such a clear signal. First, Congress may impose a removal restriction in the plain text of a statute. See Seila Law, 140 S. Ct. at 2206–2207; Carlucci, 488 U.S. at 99. Second, Congress may clearly indicate its intent to restrict removals through the statutory structure and function of an office. See Seila Law, 140 S. Ct. at 2206 (citing Humphrey‘s Executor v. United States, 295 U.S. 602 (1935));
A
Nothing in the text of the statute creating the Council clearly expresses a congressional intent to trim the President‘s removal power. The statutory text nowhere imposes conditions or constraints on either the timing of or reasons for removal of Council members.
Severino‘s textual argument relies entirely on Congress‘s provision that “[t]he term of each member” of the Council, “except the Chairman, is 3 years.”
Severino is incorrect. When used in federal appointment statutes, the word “term” has a long-settled meaning of limiting a person‘s tenure in office, not investing the person with a guaranteed minimum period of service. A “term,” in other words, is a ceiling, not a floor, on the length of service.
Of even greater relevance, the Supreme Court has long held that a fixed statutory term of service leaves untouched the President‘s presumptive removal power. In Parsons v. United States, 167 U.S. 324 (1897), the Supreme Court upheld the President‘s plenary power to remove United States Attorneys from office notwithstanding a statute providing that they “shall be appointed for a term of four years.” Id. at 327–328, 338–339. Reading that provision in light of the Constitution‘s investment of broad authority in the President as head of the Executive Branch, the Court held that Congress meant for the four-year term to “provid[e] absolutely for the expiration of the term of office at the end of four years,” and not to guarantee “a term that shall last at all events for that time[.]” Id. at 339.
The Supreme Court subsequently reaffirmed Parsons’ understanding of a defined term of office as a cap rather than an entitlement. In Myers v. United States, the Supreme Court endorsed and reapplied Parsons. Myers, 272 U.S. 52, 146–147 (1926). Relying on the President‘s inherent power of removal, the Court held that it was unconstitutional for Congress to require the President to seek “the advice and consent of the Senate” before firing a postmaster. See id. at 107, 116–117. A key step in the Court‘s reasoning was to show that the power of removal had long been viewed as vested
Even the dissenting opinions in Myers acknowledged that Parsons fixed the plain meaning of a set term of office under federal law. See Myers, 272 U.S at 241 (Brandeis, J., dissenting) (“It is settled that * * * [a] clause fixing the tenure will be construed as a limitation, not as a grant; and that, under such legislation, the President, acting alone, has the power of removal.“); id. at 226 (McReynolds, J., dissenting) (Parsons “regarded the specification of a definite term as not equivalent to the positive inhibition of removal by Congress.“).
That precedent is the backdrop against which Congress legislated the Conference into being and created a three-year term for Council members. When Congress uses words “which had at the time a well-known meaning * * * in the law of this country,” those words are to be understood “in that sense” absent strong contextual indicia to the contrary. Lorillard v. Pons, 434 U.S. 575, 583 (1978) (quoting Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 59 (1911)); see also United States v. Wilson, 290 F.3d 347, 357 (D.C. Cir. 2002) (“Congress is presumed to be aware of established practices and authoritative interpretations of the coordinate branches.“). Doubly so when a contrary interpretation of statutory language would create a separation of powers issue that hewing to settled meaning would not. We will not assume Congress picked a constitutional fight unless it makes that intent crystal clear. See Jennings, 138 S. Ct. at 842.
Severino‘s generic references to dictionaries and state supreme court decisions overlook that a fixed “term” of office has an established and specialized meaning in federal statutes because of background separation of powers principles. Indeed, in light of Parsons, the state supreme court decisions Severino cites fully recognized that, when it came to federal law, fixed-term appointments bore a distinctive meaning, whether or not that same meaning was carried over into state law. See, e.g., Holder v. Anderson, 128 S.E. 181, 184–185 (Ga. 1925) (Parsons “was predicated upon the federal Constitution and acts of Congress,” whereas “the Governor of this state has no inherent power to remove a public officer[.]“); State v. Rhame, 75 S.E. 881, 883 (S.C. 1912) (Parsons is inapposite because “the Constitution and statutes of the state strongly negative” “the power of removal as an incident of the power of appointment when the term of office is fixed by the statute[.]“); cf. Kearcher v. Members of Council of Borough of Mt. Oliver, 69 A.2d 394, 396 (Pa. 1949) (“An act that fixes the term of an office is merely an act designed to bring the terms of the officer named therein to an end after the expiration of the stipulated term. Its purpose clearly is not to grant an unconditional term of office.“). There certainly is no principle of statutory interpretation indicating that Congress in 1961 used the word “term” not in conformity with Supreme Court precedent, but instead in the sense it was sometimes used in some States as a matter of state law.
Severino is mistaken. Applying the three-year term as a cap but not a guarantee still gives
Ultimately, Severino offers no textual basis for holding that Congress intended to deviate from the longstanding meaning of a fixed-term provision laid out in Parsons and Myers: A defined term of office, standing alone, does not curtail the President‘s removal power during the officeholder‘s service.
Neither has Severino shown that the structure of the agency or the functions assigned to Council members clearly evidence Congress‘s intent to constrain the President‘s removal power.
In Humphrey‘s Executor, the Supreme Court held that Myers’ presumption of removability did not apply to members of the Federal Trade Commission because that agency exercises “no part of the executive power.” 295 U.S. at 628. Specifically, the Court determined that the Commission acts “as a legislative agency” in reporting to Congress and “as an agency of the judiciary” in holding administrative hearings, and that the “character” of both functions is inconsistent with allowing at-will removal by the President. Id. at 628–629. In addition, the statute expressly qualifies the President‘s removal power by confining the termination of Commissioners to the grounds of “inefficiency, neglect of duty, or malfeasance in office.” Id. at 620 (quoting Federal Trade Commission Act, Pub. L. No. 63–203, § 1, 38 Stat. 717, 717–718 (1914)). The Supreme Court ruled that, taken together, the structural character and function of the Commission as well as the express textual restraint on dismissals demonstrated Congress‘s intention to confine the President‘s removal authority. Id. at 625–626.
The Court again applied a functional analysis in Wiener v. United States. That case concerned the War Claims Commission, which Congress created to adjudicate Americans’ injury and property claims against Nazi Germany and its allies. See 357 U.S. at 350 (citing War Claims Act of 1948, Pub. L. No. 80–896, § 3, 62 Stat. 1240, 1241). Once more, the Court drew a sharp distinction between Myers’ presumption of removability—which remained good law as to
So under Humphrey‘s Executor‘s and Wiener‘s binding precedent, when Congress assigns to an agency quasi-judicial or quasi-legislative functions that are deemed to be operationally incompatible with at-will Presidential removal, that can be a relevant signal that Congress meant for members of that agency to be shielded from Presidential removal, even without an explicit textual statement to that effect. See Seila Law, 140 S. Ct. at 2206 (“[W]e do not revisit Humphrey‘s Executor or any other precedent today[.]“); see also Collins, 141 S. Ct. at 1783 n.18.
Those cases are of no help to Severino. The Council, as part of the Administrative Conference, is structurally housed squarely within the Executive Branch and serves to advise personnel in and components of the Executive Branch. Neither the Conference nor the Council has any quasi-legislative or quasi-judicial duties. Producing advice for the President and to his delegees is a quintessential example of a “purely executive” function. Wiener, 357 U.S. at 352 (quoting
Producing advice for the Executive Branch is the Conference‘s raison d‘être. The Conference was created specifically for the purpose of helping “[f]ederal agencies, assisted by outside experts” to “study mutual problems, exchange information, and develop recommendations[.]”
To be sure, a few other statutes require the Chairperson to submit informational reports to Congress on behalf of the Conference. See
Nor does the Conference exercise anything like the quasi-judicial functions that proved so determinative in Humphrey‘s Executor and Wiener. See Collins, 141 S. Ct. at 1783 n.18. The Court in Wiener assumed that Congress would not intend for those adjudicating individuals’ claims to funds held by the Secretary of the Treasury to be subject to a President‘s use of the removal power to “influence[] the Commission in passing on a particular claim.” See 357 U.S. at 355–356.
Likewise, the Court in Humphrey‘s Executor discerned Congress‘s intent that members of an agency charged with the quasi-judicial role of functionally “act[ing] as a master in chancery” under the Federal Trade Commission Act would need to “maintain an attitude of independence” for which removal protections were necessary. 295 U.S. at 628–629. That conclusion was bolstered by the agency‘s “quasi-legislative[]” duty of giving definition to the general prohibition on “unfair methods of competition” included in the Federal Trade Commission‘s organic statute. Id.
The Conference, though, does not exercise authority over anyone, much less adjudicate individual claims. Its work is meant to be integrated within the Executive Branch, not isolated from it. Cf. Wiener, 357 U.S. at 353. The only power Congress has conferred on the Conference is to collect data from federal agencies, and its central duty is to consult with and be consulted by those agencies. See, e.g.,
Presidential influence is completely consistent with the Conference‘s wholly advisory and consultatory mission. Congress certainly thought so. After all, it made roughly half of the Conference‘s membership, and up to half of the members of the Council, employees of the Executive Branch. See
Congress also, of course, designed aspects of the Conference and its Council to encourage independent thinking. For example, staggered terms promote “the independence, autonomy, and non-partisan nature” of an agency, and the Council‘s initial batch of members indeed served staggered terms. Wilson, 290 F.3d at 359. But Congress can hardly have expected those staggered terms to last, given that the Council‘s governmental members—perhaps half the Council—would frequently lose their seats between Presidential administrations. See
In short, Congress designed the Conference to be a forum inside the Executive Branch for shop talk and collaboration with external experts. It has no adjudicatory or legislative features that would clearly signal a need for some measure of independence from Presidential control. And nothing in the text of the legislation creating the Conference and Council hints at a congressional intent to limit the President‘s removal power, let alone overcomes the presumption of presidential control over Executive Branch officials. The statute, in other words, gives no indication that Congress intended to take the unusual and potentially constitutionally troublesome step of tying the President‘s hands when it comes to at-will removal of such a core Executive Branch officer as a member of the Administrative Conference‘s Council.
V
While precedent teaches that Congress sometimes has the power to contract the President‘s power to remove some agency officials at will, Congress, at the outset, must clearly express its intent to do so. Congress gave Severino a three-year term using language that, for more than a century, courts have interpreted as having no effect on the President‘s removal power. And Congress left no structural or contextual clues that protection from removal was integral, or even desirable, to the performance of Council members within an advisory organization housed squarely in the Executive Branch. The presumption of at-will removal remains at full force in this case.
So ordered.
As the majority explains, Congress did not restrict the President‘s power to remove members of the Council supervising the Administrative Conference of the United States. See
That result means that we need not decide whether a broad reading of Humphrey‘s Executor v. United States, 295 U.S. 602 (1935), and Wiener v. United States, 357 U.S. 349, 353 (1958), survives later decisions emphasizing the President‘s “authority to remove those who assist him in carrying out his duties.” Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183, 2198 (2020) (cleaned up); see also Collins v. Yellen, 141 S. Ct. 1761 (2021); Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010). Broad or narrow, Humphrey‘s and Wiener are of no help to Severino.
Though it is an issue for another day, it seems to me that only a very narrow reading of those cases is still good law. In Seila Law, the Court “repudiated almost every aspect of Humphrey‘s” — and by extension Wiener. 140 S. Ct. at 2212 (Thomas, J., concurring); see Wiener, 357 U.S. at 356 (applying the “philosophy of Humphrey‘s“). In particular, the Court “[b]ack[ed] away from” the reasoning in Humphrey‘s that removal restrictions may pass constitutional muster if an executive agency exercises “quasi-legislative and quasi-judicial power.” Seila Law, 140 S. Ct. at 2198 (cleaned up). Indeed, it has doubted Congress‘s ability to vest any judicial power (whether “quasi” or not) in an executive agency. Oil States Energy Services, LLC v. Greene‘s Energy Group, LLC, 138 S. Ct. 1365, 1372–73 (2018) (“Congress cannot confer the Government‘s ‘judicial Power’ on entities outside Article III”