Severino v. Biden
| Decision Date | 19 January 2022 |
| Docket Number | Civil Action No. 21-0314 (CKK) |
| Citation | 581 F.Supp.3d 110 |
| Parties | Roger SEVERINO, Plaintiff, v. Joseph R. BIDEN, Jr., et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Christopher Ernest Mills, Spero Law LLC, Charleston, SC, Jonathan F. Mitchell, Mitchell Law PLLC, Austin, TX, for Plaintiff.
Christopher D. Dodge, U.S. Department of Justice, Washington, DC, for Defendants.
COLLEEN KOLLAR-KOTELLY, United States District Judge In this case, Plaintiff Roger Severino seeks injunctive and declaratory relief holding unlawful his removal by President Joseph R. Biden, Jr. from the Council of the Administrative Conference of the United States ("ACUS"). Plaintiff, an appointee of former President Donald J. Trump, argues that President Biden had no authority to remove him from the Council because ACUS’ enabling statute provides for a term of office for three years. See 5 U.S.C. § 595(b). Defendants,1 on the other hand, insist that Plaintiff's injury cannot be redressed by this Court, maintaining that the Judiciary lacks the power to issue an order enjoining the President or any other order granting Plaintiff favorable relief. In the alternative, Defendants argue that the statute places no such restriction on the President's removal power, either as a matter of statutory interpretation or as a matter of constitutional law. Because the Court agrees that ACUS’ enabling statute does not, by its plain meaning, restrict the President's authority to remove members of the Council, and upon consideration of the pleadings,2 the relevant legal authorities, the documents themselves, and the record as a whole, the Court shall GRANT Defendants’ [15] Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim and DISMISS Plaintiff's [12] Amended Complaint.
ACUS is an independent agency created to "study the efficiency, adequacy, and fairness of the administrative procedure used by administrative agencies in carrying out administrative programs." 5 U.S.C. § 594(1). It may advise, "collectively or individually, ... the President, Congress, or the Judicial Conference of the United States." Id. Congress has delegated the agency no rulemaking, investigatory, enforcement, or adjudicatory authority; as such, it has no power beyond its advisory role. See id. § 594(1) - (5).
ACUS consists of a managing "Council" and a broader "Assembly." § 593. The Council is comprised of the Chairman plus ten other members who are "appointed by the President" but not subject to Senate confirmation. Id. § 595(b). "[N]ot more than one-half [of the Council] shall be employees of Federal regulatory agencies or Executive departments." Id. "The term of each member, except the Chairman, is 3 years." Id. Council membership is part-time and members of the Council are not compensated for their service. See id. The Council's powers over ACUS are purely administrative and include, among other things, the power to set the time and place of meetings and approve or revise budgetary proposals. See id. The Assembly, when in "plenary session" may "adopt such recommendations as it considers appropriate for improving administrative procedure." Id. § 595(a)(1). It is comprised of "not more than 101 nor less than 75 members," including the eleven members of the Council. Id. § 593(a). Some members are government officials automatically designated as such by statute, and other non-governmental members may be appointed by the Chairman. Id. § 593(b)(2)-(3). Members of the Assembly serve for two-year terms and are also uncompensated. See id.
In March 2017, then-President Trump appointed Plaintiff to serve as Director of the Office of Civil Rights in the Department of Health and Human Services. ECF No. 9-3, Declaration of Christopher D. Dodge ("Dodge Decl."), Ex. A, at 2. On July 24, 2020, then-President Trump appointed Plaintiff to the Council. See President Trump Appoints Three New Members to the Council of the Administrative Conference of the United States (July 24, 2020), available at https://www.acus.gov/newsroom/news/president-trump-appoints-three-new-members-council-administrative-conference-united (last accessed January 12, 2020 12:44 PM).3 Five days before President Biden assumed the Presidency, Plaintiff resigned his government service. Dodge Decl. at 2. The next day, on January 16, 2021, then-President Trump reappointed Plaintiff to the Council, this time as a private, nongovernmental member. Am. Compl. at ¶ 22. Defendants maintain, and Plaintiff does not contest, that Plaintiff's second appointment was executed through an appointment affidavit provided by the White House Presidential Personnel Office. See Dodge Decl., Ex. B.
On February 2, 2021, Defendant Gautam Raghavan, Deputy Director of the White House Presidential Personnel Office, emailed Plaintiff the following:
I am writing on behalf of President Biden to request your resignation from the Administrative Conference of the United States Council by 5:00 p.m. ET tomorrow, Wednesday February 3, 2021. If you do not resign by that time, your appointment to the Council will be terminated.
Dodge Decl., Ex. B. When Plaintiff refused to resign, Defendant Raghavan emailed Plaintiff the following day, stating "[a]s indicated in my prior message, effective 5:00 p.m. ET today, your appointment to the ACUS council is terminated." Id. On February 4, 2021, acting Executive Director Wiener informed ACUS staff that "the President [had] terminated the appointment[ ] of ... Roger Severino" and that Plaintiff had "filed suit against the President in the U.S. District Court for the District of Columbia." Dodge Decl., Ex. C. Plaintiff pleads that his appointment was, in fact, "terminated" on February 3, 2021. Am. Compl. at ¶ 27.
Plaintiff filed the instant suit on February 3, 2021 and the operative, Amended Complaint on June 8, 2021. The complaint alleges one claim, unlawful removal by the President, and relies on three sources of authority to state that claim: the Administrative Procedure Act ("APA"), 5 U.S.C. § 500 et seq. ; the Declaratory Judgment Act, 28 U.S.C. § 2201 ; and Larson v. Domestic & Foreign Commerce Corp. , 337 U.S. 682, 689-91, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). See Am. Compl. at ¶ 31. Defendants moved to dismiss Plaintiff's Amended Complaint on July 8, 2021. With that motion now fully briefed, the Court turns to its resolution.
On a Rule 12(b)(1) motion, the plaintiff "bears the burden of establishing jurisdiction by a preponderance of the evidence." Bagherian v. Pompeo , 442 F. Supp. 3d 87, 91-92 (D.D.C. 2020) ; see also Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In determining whether there is jurisdiction, the court may " ‘consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.’ " Coal. For Underground Expansion v. Mineta , 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted) (quoting Herbert v. Nat'l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir. 1992) ). Courts must accept as true all factual allegations in the complaint and construe the complaint liberally, granting the plaintiff the benefit of all inferences that can be drawn from the facts alleged. Settles v. U.S. Parole Comm'n , 429 F.3d 1098, 1106 (D.C. Cir. 2005) ; Koutny v. Martin , 530 F. Supp. 2d 84, 87 (D.D.C. 2007).
However, "the factual allegations in the complaint "will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." " Grand Lodge of Fraternal Order of Police v. Ashcroft , 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001). A court need not accept as true " ‘a legal conclusion couched as a factual allegation’ " or an inference " ‘unsupported by the facts set out in the complaint.’ " Trudeau v. FTC , 456 F.3d 178, 193 (D.C. Cir. 2006) (internal quotation marks omitted) (quoting Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint on the grounds that it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, "state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Courts "do not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged." Ralls Corp. v. Comm. on Foreign Inv. in U.S. , 758 F.3d 296, 315 (D.C. Cir. 2014).
When evaluating a Rule 12(b)(6) motion, a court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [a court] may take judicial notice." EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997) (citation omitted). "[W]here a document is referred to in the complaint and is central to the plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment." Strumsky v. Wash. Post Co. , 842 F. Supp. 2d 215, 217 (D.D.C. 2012) ...
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