Roger Severino v. Joseph Biden, Jr. ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 1, 2022 Decided June 27, 2023
No. 22-5047
ROGER SEVERINO,
APPELLANT
v.
JOSEPH R. BIDEN, JR., IN HIS OFFICIAL CAPACITY AS PRESIDENT
OF THE UNITED STATES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-00314)
Christopher Mills argued the cause for appellant. With
him on the briefs was Jonathan Mitchell.
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.
2
Concurring opinion filed by Circuit Judge WALKER.
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[.]” 5
U.S.C. § 591(1). Congress’s goals included, among other
things, developing an administrative system in which (i)
“private rights may be fully protected[,]” (ii) regulatory actions
“may be carried out expeditiously in the public interest[,]” and
(iii) there is “more effective public participation and efficiency
in the rulemaking process[.]” Id. § 591(1)–(2).
3
The Conference consists of a Chairperson appointed by the
President and confirmed by the Senate, and 75 to 101 members
who reflect a mix of governmental and outside experts. 5
U.S.C. § 593(a)–(b). From within the government, the
Conference includes a representative from each independent
agency and Executive department. Id. § 593(b)(2)–(4).
From outside the government, the Chairperson appoints up to
40 experts who “provide broad representation of the views of
private citizens[.]” Id. § 593(b)(6). Other than the
Chairperson, members of the Conference are not paid for their
service. Id. § 593(c).
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 5 U.S.C. § 594(1), (3). In so doing, the Conference must
“arrange for interchange” among agencies with potentially
valuable knowledge. See id. § 594(2). On the basis of its
research, the Conference as a whole may “adopt such
recommendations as it considers appropriate for improving
administrative procedure[,]” which become the official
positions of the Conference. Id. § 595(a)(1).
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.”
4
H.R. REP. NO. 1565, 88th Cong., 2d Sess. 4 (1964); see
generally 5 U.S.C. § 594 (authorizing the Conference to
“study,” “make recommendations,” “arrange for interchange,”
“collect information,” and “provide assistance”). Rather, to
encourage the adoption of its proposals, the Conference relies
on the “tact and diplomacy” of its staff and on the content of its
ideas. Scalia & Breyer, supra, at 1207.
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. 5 U.S.C. § 595(b). The Council’s
“functions resemble those of a corporate board of directors.”
Scalia & Breyer, supra, at 1208. Among other duties, the
Council sets the agenda and schedule for meetings of the
Conference, proposes bylaws and regulations for the
Conference’s consideration, and approves the Chairperson’s
budget for the Conference. See 5 U.S.C. § 595(b)(1)–(8).
Each Council Member (except the Chairperson) is appointed
for a three-year term. Id. § 595(b).
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 5 U.S.C. § 595(b) (“[T]he service of any
member ends when a change in his employment status would
make him ineligible for Council membership under the
conditions of his original appointment.”). The next day, then-
5
President Trump reappointed him to a new three-year term, this
time as a non-governmental member of the Council.
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 FED. R. CIV. P. 12(b)(6). The
court first ruled that Severino’s injuries were redressable for
purposes of Article III standing. The court explained that,
even if an injunction ordering the President to reinstate an
individual is not available, a government official challenging
his removal from office can obtain relief by enjoining inferior
officials to treat the appointee as occupying his claimed job.
6
Severino, 581 F. Supp. 3d at 116 (citing Swan v. Clinton, 100
F.3d 973, 979–980 (D.C. Cir. 1996)). On the merits, the court
held that the “plain meaning” of the Conference’s organic
statute “imposes no removal restriction” on the President
because a statutorily prescribed term of office imposes only a
ceiling on an appointee’s length of service, not a guaranteed
tenure. Id. at 118.
Severino timely appealed.
II
The district court’s jurisdiction arose under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo both the district court’s dismissal of the
complaint for failure to state a claim and that court’s
interpretation of the Conference’s organic statute. Orozco v.
Garland, 60 F.4th 684, 688 (D.C. Cir. 2023).
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 Article III of the
Constitution, a plaintiff must prove standing to sue “for each
claim” and for “each form of relief that is sought.” Town of
Chester, N.Y. v. Laroe Estates, Inc., 581 U.S. 433, 439 (2017).
A plaintiff will have standing if he shows that he has “(1)
suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016). It is indisputable that
Severino has satisfied the first two elements of standing:
Assuming the merits of his argument, his termination from the
7
Council was a cognizable injury directly traceable to the
defendants.
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 5 U.S.C. § 595(b). But
enjoining the President to make a formal appointment would
be a constitutionally exceptional step. A court generally may
not “enjoin the President in the performance of his official
duties.” Franklin v. Massachusetts, 505 U.S. 788, 802 (1992)
(plurality opinion) (quoting Mississippi v. Johnson, 71 U.S. (4
Wall.) 475, 501 (1866)); see id. at 826 (Scalia, J., concurring in
part and concurring in the judgment). Franklin left open a
narrow potential exception for injunctions that require the
President to perform a “purely ‘ministerial’ duty” over which
he has no discretion. See id. at 802 (plurality opinion)
(quoting Johnson, 71 U.S. (4 Wall.) at 498); Swan, 100 F.3d at
977. It is unclear, under our precedent, whether the injunction
Severino requests could qualify as ministerial in nature. See
Swan, 100 F.3d at 977–978.
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
8
officials could not “officially” reinstate a member of the
National Credit Union Administration board and remove his
predecessor, but could “accomplish these deeds de facto by
treating [plaintiff] as a member of the NCUA Board and
allowing him to exercise the privileges of that office[.]”).1
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 5 U.S.C. § 595(b); Administrative
Conference of the United States, Council (May 31, 2023),
https://perma.cc/2DJV-BPBP. That could mean that, at the
end of the litigation, there would be no seat available for which
Severino could serve as even the de facto occupant.
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,
1
Under Swan, we need only analyze the redressability of each of
Severino’s claims and requests for relief against at least one
defendant, even if that claim is addressed to several defendants. So
we need not separately address Severino’s standing to sue President
Biden specifically because appropriate relief could be awarded
against other defendants. See Swan, 100 F.3d at 979.
9
the government has conceded that, were Severino to prevail on
the merits, the Conference would be prepared either to identify
for removal a specific member of the Council occupying
Severino’s seat or to comply with other equitable relief
granting Severino at least some of the privileges of his office.
See Oral Arg. Tr. 47:9–24. At the motion to dismiss stage,
that is sufficient to demonstrate that Severino’s asserted injury
is judicially redressable, even though greater specificity as to
the availability of relief might be required at later stages in the
litigation. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
561 (1992) (Each element of standing must be supported “with
the manner and degree of evidence required at the successive
stages of litigation.”).
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 Article II of the Constitution
gives the President the sole responsibility to “take Care that the
Laws be faithfully executed.” U.S. CONST., Art. II, § 1, cl. 1;
id. § 3. To fulfill that duty, the President generally must be
able to “control[] those who execute the laws” on his behalf.
Seila Law, 140 S. Ct. at 2197 (quoting 1 Annals of Cong. 463
(1789)). Presidential control, in turn, requires “the ability to
remove executive officials, for it is ‘only the authority that can
10
remove’ such officials that they ‘must fear and, in the
performance of [their] functions, obey.’” Id. (quoting
Bowsher v. Synar, 478 U.S. 714, 726 (1986)). In addition,
without the power of removal, “the President could not be held
fully accountable for discharging his own responsibilities; the
buck would stop somewhere else.” Free Enter. Fund, 561
U.S. at 514.
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));
11
Wiener v. United States, 357 U.S. 349, 353 (1958). Congress
did neither when it created the Council.2
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.” 5 U.S.C. § 595(b).
Severino reasons that the word “term” means “the time for
which something lasts,” so that a term of three years implies
that earlier removals are off the table. See Severino Opening
Br. 11 (citing Term, WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 2358 (1966) (def. 2(a)).
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.
2
These two tests ask only whether a statute should be read as
limiting the President’s removal power. If a statute does so, the
question of the constitutionality of that restriction would still need to
be decided. See, e.g., Free Enter. Fund, 561 U.S. at 486–487 (first
construing the Public Company Accounting Oversight Board’s
statutory scheme to verify that members are protected by for-cause
removal and then, “with that understanding,” proceeding to the
constitutional analysis).
12
For that understanding, we need look no further than the
very sources Severino cites. See Term, WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 2358 (1966) (def. 2a) (“[A]
limited or definite extent of time: the time for which
something lasts”) (emphasis added); id. (def. 3a) (“[A] time or
date fixed or agreed upon for an action or as a boundary
between periods”); Term, WEBSTER’S NEW WORLD
COLLEGIATE DICTIONARY 1503 (1st ed. 1968) (def. 3) (“[A]
period of time having definite limits; * * * a stipulated length
of time that a person may hold office.”) (emphasis added).
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
13
in the office of the President. Id. at 146. That proposition,
the Court explained, was “authoritatively settled” by Parsons,
which determined that a statute “providing that district
attorneys should be appointed for a term of four years
* * * included the power of removal by the President[.]” Id.at 146–147.
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.
14
Severino identifies no strong contextual indicia indicating
that “term” has a different meaning in the organic statute
creating the Administrative Conference and Council. As a
result, when Congress provided for a three-year term of office,
it did so with the settled understanding that its fixed term of
service in no way limited the President’s removal power.
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.
15
Invoking the canon against reading statutory language as
surplusage, Severino points to the statutory provision stating
that appointees are permitted to continue their service in office
pending the appointment of a successor, see 5 U.S.C. § 595(b).
Severino argues that reading the word “term” to permit at-will
dismissal would make the continuance-in-office provision little
more than a suggestion to the President. Severino Opening
Br. 26–27.
Severino is mistaken. Applying the three-year term as a
cap but not a guarantee still gives Section 595(b)’s creation of
that term work to do—specifically, to mark the point in time
when a fresh presidential appointment is due. See Nielsen v.
Preap, 139 S. Ct. 954, 969 (2019) (surplusage canon applies
when the reading of a statutory provision would make it
“entirely redundant” or of “no consequence”) (internal
quotations omitted). As for the part of Section 595(b) that
allows members to serve past the expiration of their terms, that
permission simply reflects Congress’s interest in ensuring the
continuity of the Conference’s operations by keeping
unremoved Council members on board until a successor is
sworn in. Nothing about those provisions even hints at a
congressional intent to displace the President’s settled removal
power.
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 office-
holder’s service.
16
B
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
17
“all purely executive officers,” id. at 352—and the quasi-
judicial functions of the War Claims Commission. The
Commission, the Court reasoned, could not fulfill its duty to
fairly apply “evidence and governing legal considerations” to
resolve “the merits of each claim,” without some removal
protections. Id. at 355–356. As a result, although Congress
nowhere mentioned removals in the Commission’s organic
statute, the Court inferred from the Commission’s judicial
functions that Congress meant to sheath “the Damocles’ sword
of removal by the President” during the Commissioners’ terms.
Id. at 356; see also Collins, 141 S. Ct. at 1783 n.18 (Wiener
was decided “on the rationale that the War Claims Commission
was an adjudicatory body, and as such, it had a unique need for
‘absolute freedom from Executive interference.’”) (quoting
Wiener, 357 U.S. at 353).
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
18
Humphrey’s Executor, 295 U.S. at 628). Indeed, the
Constitution gives pride of place in Article II to the President’s
power to seek advice from principal officers. U.S. CONST.,
Art. II, § 2, cl. 1 (“The President * * * may require the Opinion,
in writing, of the principal Officer in each of the executive
Departments[.]”). We, too, have recognized that gathering
trusted advice is a core executive function. See Association of
American Physicians & Surgeons, Inc. v. Clinton, 997 F.2d
898, 909 (D.C. Cir. 1993) (“Article II * * * gives the President
* * * the flexibility to organize his advisers and seek advice
from them as he wishes.”).3
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[.]” 5
U.S.C. § 591(1). The Executive Branch is the planet around
which all of the Conference’s responsibilities revolve. The
Conference studies administrative agencies, arranges for
discussion about them, collects data about them, and makes
recommendations about and to them. See generally id. § 594.
To be sure, a few other statutes require the Chairperson to
submit informational reports to Congress on behalf of the
Conference. See 5 U.S.C. § 595(c); id. § 504(e)(1) (annual
report under the Equal Access to Justice Act). Similarly,
given that executive agencies are ultimately subject to
3
While the provision of advice to the President is an executive
function, the Executive Branch has long recognized Congress’s
authority to regulate appointments to advisory committees, at least
to the extent they are funded by appropriations. See
Constitutionality of the Federal Advisory Committee Act, 1 Op.
O.L.C. Supp. 502, 504–506 (1974). That question is not before us
in this case.
19
legislation and judicial oversight, the Conference is
unsurprisingly permitted to inform the legislative and judicial
branches about aspects of administrative procedure. Id.
§ 594(1). But the overwhelming majority of the Conference’s
work focuses on and contributes to the internal workings of the
Executive Branch. The occasional assistance it provides to
the other Branches is a byproduct of that mission.
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., 5 U.S.C.
20
§ 504(e)(1); Negotiated Rulemaking Act of 1990, Pub. L. No.
101–648, § 3(a), 104 Stat. 4969, 4975 (“An agency may
consult with the Administrative Conference of the United
States[.]”); Administrative Dispute Resolution Act of 1990,
Pub. L. No. 101–552, § 3(a)(1), 104 Stat. 2736, 2736 (similar).
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 5
U.S.C. §§ 593(b), 595(b). These members naturally represent
their home agencies and, by proxy, the President—and most
will be subject to at-will removal in their day jobs. At the
same time, Congress gave all members of the Council only
three-year terms, ensuring that no member could outlast a
President. See id. § 595(b). Far from the “absolute freedom
from Executive interference” deemed so mission-critical in
Humphrey’s Executor and Wiener, see Weiner, 357 U.S. at 353,
the Council’s design and function reflect the opposite:
Integration and cooperation with the Executive Branch is vital
to the successful accomplishment of the Conference’s
consultative role.
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 5 U.S.C. § 595(b).
Likewise, the fact that non-governmental members are unpaid,
21
see id. § 593(c), gives them a certain independence from the
President and Congress. The members’ volunteer service,
though, only underscores how diametrically opposed their role
is to the weighty quasi-judicial jobs at issue in Wiener and
Humphrey’s Executor.
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.
22
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.
WALKER, Circuit Judge, concurring:
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 5 U.S.C. § 595(b) (giving members a three-year
term, but not mentioning removal). So President Biden was
free to fire Roger Severino.
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”
2
(cleaned up)). And if Congress may not vest any nonexecutive
power in an executive agency, it might be that little to nothing
is left of the Humphrey’s exception to the general rule that the
President may freely remove his subordinates.