Spicer v. Biden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SEAN M. SPICER et al.,

Plaintiffs,

v.
No. 21-cv-2493 (DLF)
JOSEPH R. BIDEN, JR.,
President of the United States, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

On September 8, 2021, President Joseph Biden removed plaintiffs Sean Spicer and

Russell Vought from the Board of Visitors to the United States Naval Academy. See Compl.

¶¶ 28–30, Dkt. 1. In this action, the plaintiffs challenge their removals and seek an injunction

requiring the President and other federal officials to treat them “as present Board members.”

Pls.’ Mot. for a Prelim. Injunction at 8, Dkt. 3-1. Before the Court is the plaintiffs’ Motion for a

Preliminary Injunction, Dkt. 3. For the following reasons, the Court will deny the motion.

I. BACKGROUND

Congress created the Board of Visitors to advise the President on the “state of morale and

discipline” at the Academy, as well as its “curriculum, instruction, physical equipment, fiscal

affairs, [and] academic methods.” 10 U.S.C. § 8468(e). To that end, Congress directed the

Board to “visit the Academy annually” and prepare a “written report” for the President on both

the above matters and “other matters relating to the academy that [it] decides to consider.” Id.

§ 8468(d)–(f). Congress also specified the Board’s membership. In addition to several Senators

and Representatives, see id. § 8468(a)(1)–(4), the Board includes “six persons designated by the
President,” id. § 8468(a)(5). Those persons “serve for three years each” in staggered terms

“except that any member whose term of office has expired shall continue to serve until his

successor is appointed.” Id. § 8468(b).

On September 8, 2021, the plaintiffs received materially identical emails from Katherine

Petrelius, a Special Assistant to the President. See Compl. ¶ 28. The emails requested the

plaintiffs’ resignations from the Board and stated that, “[i]f [the President does] not receive your

resignation by end of day today, you will be terminated.” Id. The emails also attached formal

letters from Catherine Russell, the Director of the White House Presidential Personnel Office.

See id. ¶ 29. Those letters similarly requested the plaintiffs’ resignations “by the close of

business today” and added that, “[s]hould [the President] not receive your resignation[s], your

position[s] with the Board will be terminated effective 6:00 pm tonight.” Compl. Ex. 3 (Letter

from Russell to Spicer), Dkt. 1-3; accord Compl. Ex. 4 (Letter from Russell to Vought), Dkt. 1-

4. Because the plaintiffs did not resign from the Board by that deadline, see Compl. ¶ 30, their

positions on the Board were terminated.

On September 23, 2021, the plaintiffs filed this civil action against the President,

Petrelius, Russell, and two other government officials—Charles Ruppersberger, in his official

capacity as the Chairman of the Board, and Raphael Thalakottur, in his official capacity as the

Board’s Designated Federal Officer (DFO). See Compl. ¶¶ 10–14. The plaintiffs’ complaint

noted that the Board had “meetings scheduled on September 27, 2021, and December 6, 2021,”

id. ¶ 23, and expressed an interest in seeking emergency relief, see id. ¶ 5. The plaintiffs

ultimately filed their motion for a preliminary injunction on November 3, 2021. Dkt. 3. That

motion is now ripe for review.

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 II. LEGAL STANDARD

A preliminary injunction is “an extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 22 (2008). To obtain the remedy, a plaintiff must show “that he is likely to succeed

on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that

the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20;

see also League of Women Voters of United States v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016).

The plaintiff “bear[s] the burdens of production and persuasion” with respect to each of these

factors. Qualls v. Rumsfeld, 357 F. Supp. 2d 274, 281 (D.D.C. 2005) (citing Cobell v. Norton,

391 F.3d 251, 258 (D.C. Cir. 2004)). The last two factors “merge when the Government is the

opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009).

III. ANALYSIS

A. The Plaintiffs Have Article III Standing

Before reaching the merits of the plaintiffs’ motion, the Court must determine whether

the plaintiffs have Article III standing. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

94–95 (1998). To establish standing, the plaintiffs must demonstrate that they have suffered an

“injury in fact” that is “concrete and particularized” and “actual or imminent, not conjectural or

hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks and

citations omitted). They must also establish that there is “a causal connection between the injury

and the conduct complained of” and that it is “likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.” Id. at 560–61 (internal quotation marks and

citation omitted). Each of these elements “must be supported in the same way as any other

matter on which the plaintiff bears the burden of proof.” Id. at 561. Accordingly, in moving for

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a preliminary injunction, the plaintiffs must show a “substantial likelihood of standing” under the

same “heightened standard” that applies when “evaluating a motion for summary judgment.”

EPIC v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 377 (D.C. Cir. 2017)

(citation omitted).

Here, it is undisputed that the removal from a federal office is an actual and concrete

injury. See Swan v. Clinton, 100 F.3d 973, 976 (D.C. Cir. 1996). Likewise, all agree that the

defendants either removed or purported to remove the plaintiffs from the Board of Visitors. See

Letter from Russell to Spicer; Letter from Russell to Vought. Whether the plaintiffs’ injuries are

redressable, however, is a closer question. As a general matter, federal courts lack jurisdiction to

“enjoin the President in the performance of his official duties.” Mississippi v. Johnson, 71 U.S.

475, 501 (1866); see also Franklin v. Massachusetts, 505 U.S. 788, 827 (1992) (Scalia, J.,

concurring) (concluding that “the President and the Congress . . . may not be ordered to perform

particular executive or legislative acts at the behest of the Judiciary”). 1 In addition, because

Petrelius and Russell lack authority over both appointments to the Board and the Board’s

operations, there is no order this Court could issue against them that would redress the plaintiffs’

injuries. See Lujan, 504 U.S. at 560–61. Accordingly, the key redressability issue in this case is

whether the plaintiffs can obtain effective relief against Ruppersberger or Thalakottur.

The Court reads Swan v. Clinton, 100 F.3d 973, to allow relief against those officials. In

Swan, the D.C. Circuit held that a former member of the National Credit Union Administration

had standing to challenge his removal from the agency. See id. at 976–81. In doing so, the

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The Supreme Court in Jackson “left open the question whether the President might be subject
to a judicial injunction requiring the performance of a purely ‘ministerial’ duty.” Franklin, 505
U.S. at 802 (quoting Jackson 71 U.S. at 498–99). For the reasons discussed below, this Court
need not address whether this case concerns a ministerial duty.

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Circuit did not decide whether it could require the President to reinstate the plaintiff, see id. at

977–79, but instead concluded that relief against “subordinate officials” in the agency would

“substantially redress [the plaintiff’s] injury,” id. at 980. On that point, the Circuit noted that the

plaintiff sought relief against the agency’s Executive Director, who was responsible for

coordinating its senior staff. See id. at 979. The Circuit also read the complaint’s request “for

such additional relief as the court shall deem just and proper” to “encompass relief against

subordinate branch officials not named as parties.” Id. at 980 (citation omitted). Finally, it

found that those subordinate officials were subject to suit under the “Larson–Dugan exception,”

which provides that “sovereign immunity does not apply as a bar to suits alleging that an

officer’s actions were unconstitutional or beyond statutory authority.” Id. at 981 (citing Larson

v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689 (1949), and Dugan v. Rank, 372

U.S. 609, 621–23 (1963)). Accordingly, the Circuit concluded that it could grant effective relief

to the plaintiff by requiring the agency’s subordinate officials to “treat[] [him] as a member of

the NCUA Board and allowing him to exercise the privileges of that office.” Id. at 980.

Following Swan, the Court could grant effective relief in this case by ordering

Ruppersberger and Thalakottur, in their capacities as the Board’s Chairman and DFO, to treat the

plaintiffs as full members of the Board. Like the Executive Director in Swan, Ruppersberger and

Thalakottur have specific duties with respect to their agency. As Chairman, Ruppersberger

prepares the tentative agenda for each Board meeting and is principally responsible for preparing

the Board’s annual report to the President. See Defs.’ Resp. to Pls.’ Mot. Ex. 2 (Bylaws of the

Board of Visitors), at 3–4, Dkt. 6-2. And as DFO, Thalakottur must “approve[] the call of each

meeting, approve[] the meeting agenda, and attend[] each meeting.” Id. at 2. To the degree that

those officials lack the “authority to order the other Board members to treat [the plaintiffs] as []

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Board member[s],” Swan favors reading the plaintiffs’ complaint to encompass “subordinate

branch officials not named as parties,” 100 F.3d at 980. All those officials fall under the Larson-

Dugan exception for the same reasons that controlled in Swan. See id. at 981. And separation-

of-powers concerns do not warrant departing from Swan here because, although Ruppersberger

is a member of Congress, any injunction in this case would apply only in his capacity as a Board

member. See Defs.’ Resp. at 42, Dkt. 6. Finally, the Court need not address whether the

plaintiffs have a cause of action because that issue does not go to Article III standing, see

Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 n.4 (2014), and

because the Court will deny the plaintiffs’ motion on other non-jurisdictional grounds.

For those reasons, the Court holds that granting injunctive relief against Ruppersberger

and Thalakottur would “substantially redress” the plaintiffs’ injuries. Swan, 100 F.3d at 980.

The plaintiffs accordingly have a substantial likelihood of Article III standing, and the Court may

reach Winter’s four-factor test for the granting of preliminary injunctions.

B. The Plaintiffs Are Not Entitled to a Preliminary Injunction

Starting with Winter’s first factor, the Court concludes the plaintiffs are unlikely to

succeed on the challenge to their removals. The Supreme Court has consistently held that “the

power of removal from office is incident to the power of appointment” “absent a specific

provision to the contrary.” Carlucci v. Doe, 488 U.S. 93, 95 (1988) (citation omitted); see also

Collins v. Yellen, 141 S. Ct. 1761, 1783 (2021); Keim v. United States, 177 U.S. 290, 293 (1900).

Here, no provision specifically insulates Board members from removal. See 10 U.S.C. § 8468.

In that respect, the Board’s organic statute is unlike both Article III of the Constitution, which

provides that federal judges “shall hold their offices during good behavior,” U.S. Const. art. III,

§ 1, and the many federal statutes that allow only removal for cause, see, e.g., 12 U.S.C. § 242

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(allowing removal “for cause by the President”); 15 U.S.C. § 41 (allowing removal “for

inefficiency, neglect of duty, or malfeasance in office”). Moreover, although Congress directed

that Board members “serve for three years each” on staggered terms, 10 U.S.C. § 8468(b), such

term-of-office provisions do not constrain the President’s removal power, see Parsons v. United

States, 167 U.S. 324, 342–43 (1897). To the contrary, they serve only to limit the length of an

officeholder’s term, subject to other conditions that a statute may impose. See id. Accordingly,

because no statute insulates Board members from removal, the President had the power to

remove the plaintiffs in this case.

The Supreme Court squarely held in Parsons that term-of-office provisions do not

independently limit the President’s removal power. By way of background, the statute in

Parsons provided that district attorneys “shall be appointed for a term of four years.” 167 U.S. at

327–28 (citation omitted). At issue in the case was whether that statute insulated district

attorneys from removal within their terms, or else provided only that their terms “shall not last

longer than four years, subject to the right of the President to sooner remove.” Id. at 328. After

considering “the president’s power of removal, and the debates which have taken place in

congress in regard to it,” id. at 328, the Court took the latter view, see id. at 342–43.

Specifically, it gave the statute “a construction of limitation, and not of grant; a construction by

which no more than a period of four years is permissible, subject, in the meantime, to the power

of the president to remove.” Id. at 342. For that reason, the Court held that the President had the

authority to remove district attorneys at will. See id. at 344.

Myers v. United States, 272 U.S. 52 (1926), confirms Parsons’ holding. In that case, the

Supreme Court addressed the statement in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),

that a justice of the peace’s “appointment was not revocable” because “the law creating the

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office gave [him] a right to hold it for five years.” Myers, 272 U.S. at 141 (quoting Marbury, 5

U.S. at 162). Recognizing the tension between that statement and Parsons, Myers held that, if

the statement “was more than a dictum,” Parsons “overrule[d] it.” 272 U.S. at 143. Myers thus

clarified that Parsons governs the construction of all term-of-office provisions, not only the

provision that was directly before the Parsons Court. See also id. at 241 (Brandeis, J.,

dissenting) (agreeing that “in the absence of a provision expressly providing for the consent of

the Senate to a removal, the clause fixing the tenure will be construed as a limitation, not as a

grant”). And in that respect, it forecloses the plaintiffs’ effort in this case to confine Parsons to

the “unusual drafting history of the relevant provision,” Pls.’ Mot. at 19.

The Supreme Court’s recent removal cases are also consistent with a broad reading of

Parsons. When Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020), held that the CFRB Director’s

“removal protections” were both unconstitutional and “severable from the other provisions of

Dodd-Frank,” id. at 2211, no Justice suggested that the decision invalidated the provision of

Dodd-Frank that assigned the Director “a term of 5 years,” 12 U.S.C. § 5491(c)(1). To the

contrary, the decision made clear that the “removal protection” at issue was the affirmative

restriction on the Director’s removal, as distinct from the length of the Director’s term. See Seila

Law, 140 S. Ct. at 2204 (listing the length of his term among the “other features of the CFPB

[that] combine to make the Director’s removal protection even more problematic”). Likewise,

Collins v. Yellen, 141 S. Ct. 1761, 1771 (2021), held unconstitutional the “statutory restriction on

the President’s power to remove the FHFA Director,” without modifying the default length of

the Director’s term. Id. at 1778. And Free Enterprise Fund v. PCAOB, 561 U.S. 477, 501

(2010), concerned only the “unusual situation . . . of two layers of for-cause tenure,” not the

length of those individual tenures. Id. at 501. In sum, because the above cases did not strike

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down their respective term-of-office provisions, they reinforce the most natural reading of

Parsons: that such provisions are not standalone restrictions on the President’s removal power.

Several courts of appeals have also read Parsons to hold that term-of-office provisions do

not themselves limit the removal power. The Third Circuit has held that “a fixed term merely

provides a time for the term to end.” Pievsky v. Ridge, 98 F.3d 730, 734 (3d Cir. 1996). The

D.C. Circuit has agreed that “term limits do not always provide removal protection, at least when

traditional executive branch officials are involved.” Swan, 100 F.3d at 982; see also PHH Corp.

v. CFPB, 881 F.3d 75, 200 n.20 (D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting) (“[term-

of-office] provisions do not prevent the President from removing at will a Director at any time

during the Director’s tenure”). And although the D.C. Circuit has recognized “fixed terms of

office” as one indicia of removal protection, Kalaris v. Donovan, 697 F.2d 376, 396 n.77 (D.C.

Cir. 1983) (listing five indicia in total), the plaintiffs have not identified any case in which a

term-of-office provision alone sufficed to limit the President’s removal power.

On that point, each of the plaintiffs’ authorities is distinguishable. Humphrey’s Executor

v. United States, 295 U.S. 602 (1935), concerned a statute that combined a “definite term” of

office with an express allowance of removal only “for cause.” Id. at 623. Wiener v. United

States, 357 U.S. 349 (1958), found a removal restriction “on the rationale that the [relevant

agency] was an adjudicatory body,” not due to any term-of-office provision. Collins, 141 S. Ct.

at 1783 n.18 (citing Weiner, 357 U.S. at 353, 355–56). The agency officials in Reagan v. United

States, 182 U.S. 419 (1901), “[held] office neither for life nor for any specified time,” which

meant that the Court had no cause to interpret any term-of-office provision. Id. at 426.

Marbury’s statement on term-of-office provisions is either “dictum” or “overrule[d]” in Parsons.

Myers, 272 U.S. at 143 (citing Marbury, 5 U.S. at 162). In re Hennen, 38 U.S. 230 (1839), is

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inapposite both because the statute at issue contained “no express limitation . . . upon the tenure

of the [relevant] office,” id. at 258–59, and because the case preceded Parsons. And although

the plaintiffs discuss a wide array of historical materials, see Pls.’ Mot. at 19–24, those materials

cannot trump a controlling decision of the Supreme Court. For those reasons, this Court agrees

with the government that term-of-office provisions do not themselves limit the removal power

Moreover, nothing in the Board’s organic statute warrants treating it as a special case. To

start, the only role of Board is to advise the president on the performance of a quintessentially

executive function: the command and supervision of the Armed Forces. See 10 U.S.C.

§ 8468(d)–(f). Because Board members lack any non-advisory authority, Congress had little

cause to insulate them from removal. See Wiener, 357 U.S. at 353 (holding that the “nature of

the [agency’s] function” can be a “reliable factor for drawing an inference regarding the

President’s power of removal”). Further, because Board members are plainly executive officials,

barring their removal would raise “serious constitutional concerns,” see Edward J. DeBartolo

Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 577 (1988), given the

President’s “power of appointment and removal of executive officers,” Myers, 272 U.S. at 163–

164. Finally, although the plaintiffs argue that allowing the removal of Board members would

render the relevant term-of-office provision superfluous, see Pls.’ Mot. at 25–26, the surplusage

canon applies only when statutory language is ambiguous, see Conn. Nat’l Bank v. Germain, 503

U.S. 249, 253–54 (1992); Begay v. United States, 553 U.S. 137, 153 (2008) (Scalia, J.,

concurring). It accordingly has no application in this context, where the President’s removal

power persists “absent a specific provision to the contrary,” Carlucci, 488 U.S. at 95 (emphasis

added). The Court thus concludes that the Board’s organic statute does not insulate Board

members from the President’s removal power.

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 The “failure to show a likelihood of success on the merits alone is sufficient” to deny a

preliminary injunction. Hudson v. Am. Fed’n of Gov’t Emps., 308 F. Supp. 3d 121, 127 (D.D.C.

2018) (citing Ark. Dairy Co-op Ass’n, Inc. v. USDA, 573 F.3d 815, 832 (D.C. Cir. 2009)). But

even if the merits of this case were closer, the plaintiffs have not met their burden of showing

either that they face an irreparable injury or that the public interest favors a preliminary

injunction. See Winter, 555 U.S. at 20. Although the plaintiffs express an interest in attending a

Board meeting on December 6, 2021, they give no account of why missing that meeting would

be personally injurious. See Compl. ¶ 23; Pls.’ Mot. at 36; Pls.’ Reply at 24–25, Dkt. 7; see also

Newby, 838 F.3d at 8 (noting that irreparable harm must be “certain and great”). And although

the plaintiffs argue that their removal from the Board would “silence dissenting views,” Pls.’

Reply at 25, they give no indication that their views on the governance of the Naval Academy

actually differ from the other Board members’. Nor do they explain how it would serve the

public interest to present advice to the President—the primary function of the Board, see 10

U.S.C. § 8468(f)—that the President does not intend to consider. For the foregoing reasons, the

Court concludes that the plaintiffs are not entitled to the “extraordinary remedy” of a preliminary

injunction. Winter, 555 U.S. at 22.

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 CONCLUSION

Accordingly, it is

ORDERED that the plaintiffs’ Motion for a Preliminary Injunction, Dkt. 3, is DENIED.

It is further

ORDERED, upon consideration of the parties’ Consent Motion to Hold Defendants’

Deadline in Abeyance, Dkt. 8, that the parties shall submit a proposed schedule for further

proceedings on or before December 17, 2021.

SO ORDERED.

________________________
DABNEY L. FRIEDRICH
United States District Judge
December 4, 2021

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