UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ROGER SEVERINO, Plaintiff, v. Civil Action No. 21-0314 (CKK) JOSEPH R. BIDEN, JR., et al., Defendants.
MEMORANDUM OPINION (January 19, 2022)
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
1 Defendants are: (1) Joseph R. Biden, Jr., in his official capacity as President of the United States; (2) Catherine M. Russell, in her official capacity as director of the White House Presidential Personnel Office; (3) Gautam Raghavan, in his official capacity as deputy director of the White House Presidential Personnel Office; (4) Matthew L. Wiener, in his official capacity as acting Chairman, Vice-Chairman, and Executive Director of the Administrative Conference of the United States; and (5) the United States of America. 1 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.
I. BACKGROUND
A. The Administrative Conference of the United States
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
2 The Court’s consideration has focused on the following documents: • Plaintiff’s Amended Complaint, ECF No. 12 (“Am. Compl.”); • Defendants' Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim, ECF No. 15 (“Defs.’ Mot.”); • Plaintiff’s Opposition to Motion to Dismiss, ECF No. 17 (“Opp.”); and • Defendants’ Reply Brief in Support of their Motion to Dismiss the Amended Complaint, ECF No. 18 (“Defs.’ Repl.”). In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f). 2 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.
B. Plaintiff’s Removal and Procedural Background
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
3 The Court takes judicial notice of this publication by ACUS itself. Plaintiff does not contest the circumstances of his initial appointment. 3 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 (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.
4 II. LEGAL STANDARDS
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 (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
(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.
5 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 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (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. “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. 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. 2015).
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) (citation omitted). Moreover, a court
may judicially notice a fact that is not subject to “reasonable dispute because it (1) is generally
known within the trial court's territorial jurisdiction; or (2) can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.” Detroit Int'l Bridge
Co. v. Gov’t of Can., 133 F. Supp. 3d 70, 84 (D.D.C. 2015) (quoting Fed. R. Evid. 201(b)).
6 III. DISCUSSION
A. Standing
Before addressing whether the complaint states a claim, the Court must first resolve
whether Plaintiff has Article III standing. See Steel Co. v. Citizens for Better Env’t, 523 U.S. 83,
94-95 (1998). To establish standing, Plaintiff must show an “injury in fact” that is “actual or
imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (cleaned up). Plaintiff must
also demonstrate that there is “a causal connection between the injury and the conduct
complained of” and that the Court can issue relief that would likely redress that injury. Id. at
560-61. The parties agree that Plaintiff alleges an actual injury, the termination of his
appointment, and that the individual Defendants’ conduct caused that injury by initiating,
conveying, or ratifying the termination. See Defs.’ Mot. at 9-10. The parties contest only
whether this Court can fashion a remedy that would redress Plaintiff’s alleged injury.
Defendants argue that the Court cannot issue any relief as to the President because
“courts cannot directly enjoin or issue declaratory relief against the President.” Defs.’ Mot. at 9.
Similarly, Defendants maintain that the Court cannot fashion any relief as against the other
individual defendants because they “lack any independent authority to restore [Plaintiff] to the
ACUS Council.” Id. at 9-10. Citing Swan v. Clinton, 100 F.3d 973, 976 (D.C. Cir. 1996),
Plaintiff argues that the Court can, at the very least, “direct the[] defendants [not including the
President] to treat Mr. Severino as a current member of the Council, which would likely redress
his injury.” Opp. at 2.
In Swan, the Court of Appeals confronted the President’s removal of a former member of
the National Credit Union Administration. 100 F.3d at 976-81. Without holding that it could
order the President to formally reinstate the plaintiff, the court concluded that it could redress the
7 plaintiff’s allegedly unlawful removal by ordering the agency’s subordinate officials to “treat[]
[him] as a member of the NCUA Board and allow[] him to exercise the privileges of that office.”
Id. at 980. The Swan court further held that sovereign immunity was no barrier to relief,
because, pursuant to the “Larson-Dugan exception, . . . 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 (1949) and
Dugan v. Rank, 372 U.S. 609, 621-23 (1963)). Recently, the court in Spicer v. Biden, No. 21-cv-
2493, 2021 WL 5769458 (D.D.C. Dec. 4, 2021) (DLF) held Swan controlled in circumstances
strikingly similar to those here. Id. at 4.
In Spicer, the plaintiffs moved for a preliminary injunction restoring them to their
positions on the Board of Visitors to the United States Naval Academy, from which President
Biden had removed them on September 8, 2021. Id. at *1. Similar to ACUS, the Board of
Advisors exercises no executive power; it merely advises the President on the Naval Academy’s
“curriculum, instruction, physical equipment, fiscal affairs, academic methods, and [any] other
matters relating to the academy that [the Board] decides to consider.” Id. (cleaned up). The
court held that it could fashion Swan-like relief because the named defendants other than the
President “to treat the plaintiffs as full members of the Board.” Id. at *3. As such, the Spicer
court concluded that it had Article III jurisdiction to address the merits of the plaintiffs’ removal
claim. Id at *5.
The Court agrees with the Spicer court that Swan controls in circumstances such as these.
As in Spicer, Plaintiff was appointed to an independent agency that advises, among others, the
President. Moreover, as in Spicer, Plaintiff has named as a defendant an agency executive who
can “treat [Plaintiff] as [a] full member[] of the [Council].” See id.; Swan, 100 F.3d at 979.
8 Defendant Wiener, as acting Chairman of ACUS, has the power to, among other things, “be the
official spokesman for the Conference,” “appoint, with approval of the Council, members of
committees,” and “preside at meetings of the Council and at each plenary session of the
Conference.’ 5 U.S.C. § 595(c). Although Defendant objects that the Court cannot order such
relief because the Amended Complaint does not request “what specific relief is available from
which subordinate officials,” Defs.’ Repl. at 5, Swan holds that, in removal cases, the Court is to
broadly construe the Amended Complaint’s request for any “other and further relief that the
Court may deem just, proper, or equitable,” Am. Compl. at 8.
As Swan explains, “the critical question in determining redressability is not whether
subordinate officials have the legal power to remove or reinstate [agency board] members[, but] .
. . rather whether injunctive relief could provide [the plaintiff] with an adequate remedy.” 100
F.3d at 979. In that regard, Swan holds that, even if the head of the agency as a named defendant
cannot alone “treat the plaintiff[] as [a] full member[]” of the relevant agency board, the removed
plaintiff may nevertheless have standing if “subordinate branch officials not named as parties”
would have such power. Id. at 980. Because the Swan court considers de facto, if not de jure,
reinstatement to be “adequate,” the Court must consider such a remedy against Defendant
Wiener, in his official capacity as acting Chairman of the Council of the Administrative
Conference of the United States, as “adequate.”
Swan held that it did not need to reach the jurisdictional question of whether it could
enjoin the President, i.e., whether the plaintiff had standing as against the President, before
advancing to the merits, in order to avoid “delv[ing] into complicated and exceptionally difficult
questions regarding the constitutional relationship between the judiciary and the executive
branch.” Id. at 981. As such, although Swan’s jurisdictional approach is binding on the Court,
9 see Steel Co., 118 S. Ct. at 1011, the Court should note that there is some tension between
Swan’s jurisdictional approach and the Supreme Court’s consistent remonstrance that, to advance
the merits for a particular form of relief, “a plaintiff must demonstrate standing separately for
each form of relief sought,” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (citing
Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)). Because an injunction against the President
could be considered a different “form of relief” from an injunction against subordinate officials
to treat the plaintiff as if he still occupied the office at question, the Court shall, out of an
abundance of caution, address whether it might have the power to enjoin the President as to
removal without making any holding to that effect.
Whether and under what circumstances the judicial power extends to an order enjoining
the President is unsettled. More than a century ago, the Supreme Court held that it did not have
jurisdiction to enjoin President Andrew Johnson’s administration of the Reconstruction Acts in
the wake of the Civil War because the judicial power did not extend to “a bill to enjoin the
President in the performance of his official duties.” Mississippi v. Johnson, 71 U.S. (4 Wall.)
475, 499-501 (1866). Notwithstanding the term “official duties,” the Court explicitly left open
whether the judicial power permits an injunction to perform a “mere ministerial duty.” Id. at
499. A century later, the Court of Appeals concluded that it had the power to enforce a statute
requiring him to grant federal employees a pay adjustment or propose an alternative to Congress.
Nat’l Treas. Empls. Union v. Nixon, 492 F.2d 587, 591-92 (D.C. Cir. 1974). The Court of
Appeals subsequently reaffirmed that “[m]andamus is not precluded” as to a ministerial duty
simply “because the federal official at issue is the President of the United States.” Nat’l Wildlife
Federation v. United States, 626 F.2d 917, 923 (D.C. Cir. 1980). The Supreme Court continued
to leave open this question in Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992) (plurality
10 op.) (“We have left open the question whether the President might be subject to a judicial
injunction requiring the performance of a purely ‘ministerial duty’ . . . but in general ‘this court
has no jurisdiction of a bill to enjoin the President in the performance of his official duties.”
(quoting Johnson, 4 Wall. at 501)). Nevertheless, the Court of Appeals in Swan and in Newdow
v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010) acknowledged that Franklin, particularly Justice
Antonin Scalia’s concurrence, called into question whether Nat’l Wildlife remained good law.
100 F.3d at 978; 603 F.3d at 1013 (citing Franklin, 505 U.S. at 827-28 (Scalia, J., concurring in
part and concurring in the judgment)).
As a result, this Court in Lovitky v. Trump, No. 19-cv-1454, 2019 WL 3068344 (July 12,
2019) vacated in irrelevant part 949 F.3d 753 (D.C. Cir. 2020) concluded that Circuit precedent
required a holding that the judicial power does not extend to any injunction as to the President
themself. Id. at *10; accord. Subsequently, other judges of this court have disagreed. See, e.g.,
Citizens for Responsibility and Ethics in Wash. v. Trump, 438 F. Supp. 3d 54, 67 (D.D.C. 2020)
(ABJ) (determining that the question “remain[s] unsettled”); Ctr. for Democracy & Tech v.
Trump, 507 F. Supp. 3d 213, 225 (D.D.C. 2020) (TNM) appeal docketed No. 21-5062 (D.C. Cir.
Mar. 15, 2021) (agreeing that “no Circuit precedent bars the issuance of a declaratory judgment
against the President” (emphasis and brackets omitted)); Spicer, 2021 WL 5769458 at *2 n.1
(“The Supreme Court ‘left open the question whether the President might be subject to a judicial
injunction requiring the performance of a purely ministerial duty.’” (quoting Franklin, 505 U.S.
at 802) (internal quotation marks removed)). The Court need not resolve the question of whether
a court may enjoin the President here because the Court concludes below that ACUS’ organic
statute imposes no duty on the President––ministerial or discretionary. Rather, the statute leaves
the President’s removal power untouched.
11 Moreover, and to be clear, whether the court has jurisdiction to order the President to
restore an unlawfully removed official is a separate question from whether a court should issue
such an injunction. As Justice Scalia observed, enjoining the President “would produce [a]
needless head-on confrontation[] between [a] district judge[] and the Chief Executive.” See
Franklin, 505 U.S. at 827 (Scalia, J., concurring in part and concurring in the judgment). The
concurrence in Swan was even more pointed––should a court ever find it necessary to enjoin the
President himself rather than subordinate officers, the Judiciary “would be headed, in accordance
with our temperament, either to the basement or the barricades.” 100 F.3d at 989 (Silberman, J.,
concurring). Because, as the Court next explains, Plaintiff loses on the merits of his removal
claim, this case poses no such grave circumstances.
B. Merits
Because the plain meaning of ACUS’ enabling statute imposes no removal restriction,
Plaintiff loses his removal claim on the merits. As a starting point, the dearth of specific
language as to removal is telling. As in Spicer ACUS’ organic statute does not “insulate
[Council] members from removal,” it is, “in that respect, . . . unlike both Article III of the
Constitution, which provides that federal judges ‘shall hold their offices during good behavior,’
and the many federal statutes that allow only removal for cause.” 2021 WL 5769458 at *3
(citations omitted). Supreme Court precedent teaches that, “as a matter of statutory
interpretation, . . . absent [such] a ‘specific provision to the contrary, the power of removal from
office is incident to the power of appointment.’” Carlucci v. Doe, 488 U.S. 93, 95 (1988)
(quoting Keim v. United States, 177 U.S. 290, 293 (1900)); see also Collins v. Yellen, 141 S. Ct.
1761, 1783 (2021). This rule of statutory interpretation is longstanding.
12 In Parsons v. United States, 167 U.S. 324 (1897), for example, the Supreme Court
squarely held that, as a matter of statutory interpretation, term-of-office provisions are to be read
only as a “limitation [on the duration of an appointment], and not of grant” of immunity from
removal. Id. at 342. In that case, the Court confronted a statute that provided United States
Attorneys “shall be appointed for a term of four years,” and concluded that the clause must be
“constru[ed] [to mean] . . . no more than a period of four years is permissible, subject, in the
meantime, to the power of the [P]resident to remove.” Id. Similarly, the Court in Myers v.
United States, 272 U.S. 52 (1926) held that “Parsons governs the construction of all term-of-
office provisions, not only the provision that was directly before the Parsons Court.” Spicer,
2021 WL 5769458 at *4 (citing Myers, 272 U.S. at 143); see also Myers, 272 U.S. at 241
(Brandeis, J., dissenting) (agreeing that “in 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 a grant”). Consistent with this binding precedent, the Court therefore holds that the provision
applicable to Plaintiff, “[t]he term of each member, except the Chairman, is 3 years,” does not, as
a matter of statutory interpretation, impose a restriction on the President’s removal power. 4
Plaintiff’s authority does not support his position. Contrary to Plaintiff’s reading of
Humphrey’s Executor v. United States, 295 U.S. 602 (1935), the Court held in that case that both
a term-of-office provision and a for-cause provision “is enough to establish the legislative intent
that the term is not to be curtailed in the absence of such cause.” 295 U.S. at 623. Kalaris v.
4 The Court notes that such a holding is in good company. See, e.g., Pievsky v. Ridge, 98 F.3d 730, 734 (3d Cir. 1996) (“It is a long-standing rule in the federal courts that a fixed term merely provides a time for the term to end.”); Stanley v. Gonzales, 476 F.3d 653, 660 (9th Cir. 2007) (explaining that “appointment to a position for a fixed term does not in itself require that [the appointee] be allowed to serve the term, absent removal for cause”); Stanley v. Dep’t of Just., 423 F.3d 1271, 1274 (Fed. Cir. 2005) (“inferior officers may be removed before the end of their statutorily defined term”). 13 Donovan, 697 F.2d 376 (D.C. Cir. 1983) confirms the converse of that holding: “where
Congress has neither created an Article III court nor established by legislation the terms for
tenure and removal, the Constitution leaves the tenure of those officers to the discretion of the
appointment officer.” Id. at 398 (emphasis added). United States v. Wilson, 290 F.3d 347 (D.C.
Cir. 2002) concerns the length of a term-of-office provision, not the removal of an appointee to a
particular office. See id. at 361. In Wiener v. United States, 357 U.S. 349 (1958), the Court
found a removal restriction in a statutory scheme “on the rationale that the [agency] was an
adjudicatory body,” not due to a term-of-office provision. Collins v. Yellen, 141 S. Ct. 1761,
1783 n.12 (2021). Finally, as the Spicer court concluded, the “wide array of historical materials”
on which Plaintiff relies “cannot trump [] controlling decision[s] of the Supreme Court.” 2021
WL 5769458 at *5.
To be clear, the Court’s holding here turns on statutory interpretation, not constitutional
law. The Supreme Court has consistently held that Congress may “provide tenure protections to
certain inferior officers with narrowly defined duties.” Selia Law LLC v. CFPB, 140 S. Ct. 2183,
2192 (2020) (emphasis removed) (citing Morrison v. Olsen, 487 U.S. 654 (1988)). Per Supreme
Court and Court of Appeals precedent, however, Congress did not do so here. Therefore,
Plaintiff’s complaint fails to state a claim upon which relief may be granted.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ [15] Motion to Dismiss for
Lack of Jurisdiction and for Failure to State a Claim and DISMISSES Plaintiff’s [12] Amended
Complaint. An appropriate Order accompanies this Memorandum Opinion.
Dated: January 19, 2022 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge