Spicer v. Biden
| Decision Date | 04 December 2021 |
| Docket Number | 21-cv-2493 (DLF) |
| Citation | 575 F.Supp.3d 93 |
| Parties | Sean M. SPICER et al., Plaintiffs, v. Joseph R. BIDEN, Jr., President of the United States, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Reed Darrow Rubinstein, America First Legal Foundation, Washington, DC, Christopher Ernest Mills, Spero Law LLC, Charleston, SC, for Plaintiffs.
Christopher D. Dodge, U.S. Department of Justice, Washington, DC, for Defendants.
DABNEY L. FRIEDRICH, United States District Judge 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.
Congress created the Board of Visitors to advise the President on the 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.
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, 129 S.Ct. 365, 172 L.Ed.2d 249 (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, 129 S.Ct. 365 ; 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, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).
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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 112 S.Ct. 2130 (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, 112 S.Ct. 2130. Accordingly, in moving for 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. (4 Wall.) 475, 501, 18 L.Ed. 437 (1866) ; see also Franklin v. Massachusetts , 505 U.S. 788, 827, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (Scalia, J., concurring) ().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, 112 S.Ct. 2130. 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 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 (). 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 (), 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 [ ] Board member[s]," Swan favors reading the plaintiffs’ complaint to...
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