Swan v. Clinton, 96-5193

• Decision Date: 22 November 1996
• Docket Number: No. 96-5193,96-5193
• Citation: 100 F.3d 973
• Parties: Page 973 100 F.3d 973 Robert H. Swan, Appellant v. William J. Clinton, in his official capacity as President of the United States of America, et al., Appellees United States Court of Appeals, District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 973

100 F.3d 973

Robert H. Swan, Appellant v William J. Clinton, in his official capacity as President of the United States of America, et al., Appellees

No. 96-5193

United States Court of Appeals District of Columbia Circuit

Argued September 13, 1996

Decided November 22, 1996

Appeal from the United States District Court for the District of Columbia, (No. 96cv00763) Richard K. Willard, Washington DC, argued the cause for appellant, with whom Brian J. Leske was on the briefs.

Douglas N. Letter, Litigation Counsel, United States Department of Justice, Washington, DC, argued the cause for appellees, with whom Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., United States Attorney, and Stephen W. Preston, Deputy Assistant Attorney General, were on the brief.

Before: Wald, Silberman and Sentelle, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Concurring opinion filed by Circuit Judge Silberman.

Wald, Circuit Judge:

On April 9, 1996, President Clinton removed appellant Robert H. Swan ("Swan") from his position as a member of the Board of the National Credit Union Administration ("NCUA") and, using his recess appointment clause powers, appointed Yolanda T. Wheat ("Wheat") to take Swan's place. Swan seeks to have his removal and Wheat's appointment declared unlawful and to be reinstated as a Board member. The district court granted summary judgment in favor of the government, and we affirm.

I. Background

The NCUA is entrusted with the responsibility of overseeing federally chartered credit unions and administering the credit union insurance and liquidity funds. 12 U.S.C. Section(s) 1752a et seq. (1994). The task of credit union oversight traveled the agency circuit for many years after the passage of federal credit union legislation in 1934. It was first lodged with the Farm Credit Administration, moved to the Federal Deposit Insurance Corporation ("FDIC") in 1941, then to the Federal Security Agency in 1948 and was assigned to a bureau within the Department of Health, Education, and Welfare in 1949 when the Federal Security Agency was absorbed into that department. Finally, in 1970 Congress created the NCUA via amendments to the Federal Credit Union Act ("NCUA statute" or "Act") and made credit union supervision its sole responsibility. See 12 U.S.C. Section(s) 1752a (Prior Provisions); Restructuring the National Credit Union Administration: Hearings Before the Subcomm. on Financial Insts. of the Senate Comm. on Banking, Housing and Urban Affairs, 94th Cong., 2d Sess. 18 (1976) (statement of the Credit Union National Association, Inc.).

The NCUA was denominated an independent agency in the executive branch, and in its initial form was led by a single Administrator with assistance from an advisory board composed of a Chairman and one member from each of the federal credit union regions. The Administrator and all of the advisory board members were to be appointed by the President, by and with the advice and consent of the Senate. The Administrator and the Chairman of the advisory board were also described as serving "at the pleasure of the President." Act of March 10, 1970, Pub. L. No. 91-206, 84 Stat. 49, 49-50 (1970) (establishing the NCUA); see also H.R. Rep. No. 1383, 95th Cong., 2d Sess. 138 (1978) (setting out text of NCUA statute prior to amendment). The term of office for advisory board members other than the Chairman was six years, and the Act further provided that "[a]ny member of the board may continue to serve as such after the expiration of his term of office until his successor has been appointed and has qualified." Id.

In 1978, Congress enacted the Financial Institutions Regulatory and Interest Rate Control Act of 1978 ("FIRIRCA"), Title V of which again amended the NCUA statute and created the NCUA organizational structure that remains in force today. The 1978 amendments replaced the NCUA Administrator and advisory board with a new NCUA Board that was given authority to manage the agency. The NCUA Board consists of three members, each appointed by the President, by and with the consent of the Senate, for a term of six years. The President designates who shall serve as NCUA Chairman when he appoints members to the Board. The regional representation requirement of the earlier advisory board was dropped; instead NCUA Board members must simply be broadly representative of the public interest and no more than two members can belong to the same political party. Congress staggered the terms so that every two years a member's term expires, and only Board members who were appointed to finish unexpired terms or were initially appointed for less than a full six year term can be reappointed. In addition, a holdover clause provides that Board members can continue to serve after their terms have expired until their successors have "qualified." 12 U.S.C. Section(s) 1752a(c).

At the same time as it restructured the NCUA, Congress also expanded its responsibilities. In 1970, soon after the NCUA was established, Congress created the National Credit Union Share Insurance Fund, which insures the accounts of federally chartered credit unions and of many state chartered credit unions, and made the NCUA responsible for its administration. 12 U.S.C. Section(s) 1781-1790(c). In 1978, as Title XVIII of FIRIRCA, Congress established the National Credit Union Central Liquidity Facility, which advances funds to member credit unions so that they are able to meet their liquidity needs, and again gave the NCUA the responsibility of managing the new facility. 12 U.S.C. Section(s) 1795-1795k. Overseeing federally chartered credit unions and administering the Insurance Fund and the Liquidity Facility are currently the three functions of the NCUA.

On April 5, 1990, President Bush appointed and the Senate confirmed Swan to serve as a Democratic member of the NCUA Board. Swan's term expired in August, 1995 and he continued to serve as a holdover member. By letter dated April 8, 1996, defendant Robert J. Nash ("Nash"), an Assistant to the President of the United States, informed Swan that President Clinton had decided to remove Swan from his position as a member of the NCUA Board, effective at close of business on April 9, 1996. Swan protested that he intended to remain in office, whereupon defendant Karl T. Hoyle ("Hoyle"), the Executive Director of the NCUA, ordered Swan to vacate his office. The Senate was out of session from March 29 until April 15, 1996. On April 12, 1996, President Clinton exercised his recess appointment clause power and appointed Wheat to fill Swan's seat on the NCUA Board. President Clinton had previously nominated Wheat to replace Swan in November, 1995 but the Senate had not yet acted on the nomination, nor has the Senate done so since.

On April 23, Swan sued President Clinton, Nash and Hoyle, seeking to have his removal and Wheat's appointment declared unlawful and to obtain injunctive relief ordering his reinstatement as a member of the NCUA Board. Swan argued that the NCUA statute prohibits the President from removing a Board member without cause, either during the member's term of office or when the member is serving in a holdover capacity. After Swan's motion for a preliminary injunction was consolidated with trial on the merits, the government and Swan cross-moved for summary judgment. On June 21, 1996, the district court granted summary judgment in favor of the government, holding that the NCUA statute did not restrict the President's authority to remove members of the NCUA Board. We review the district court's grant of summary judgment de novo as it was based on a pure question of law. American Legion v. Derwinski, 54 F.3d 789, 795 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 697 (1996).

II. Jurisdiction

Before turning to an analysis of the NCUA statute to determine whether it restricts the President's removal powers, we first take up the even more basic and troubling question of whether this court has jurisdiction to hear Swan's appeal. In order for there to be an Article III case or controversy over which this court can exercise jurisdiction, Swan must have standing. As the Supreme Court has stated,

[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact"-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (footnote, citations, and internal quotations omitted); see also Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) (plurality opinion) ("To invoke the constitutional power of the federal courts to adjudicate a case or controversy under Article III, appellees here must allege and prove an injury "fairly traceable to the [appellants'] allegedly unlawful conduct and likely to be redressed by the requested relief.' ") (alterations in original) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). For the purposes of determining standing, we "assume the validity of a plaintiff's substantive claim." Catholic Social Serv. v. Shalala, 12 F.3d 1123, 1126 (D.C. Cir. 1994); see also Warth v. Seldin, 422 U.S. 490, 500-01 (1975).

In this case, it is the third "redressability" element of standing that initially causes some concern; assuming that Swan is correct and the NCUA statute prohibited his removal, there is no doubt that this removal caused Swan to suffer a concrete and actual injury. A question exists, however, as to whether a federal court has the power to grant injunctive relief against the President of the United States in the exercise of his official duties.¹ The Supreme Court has...