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 the 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.”
Mem. Op. & Order of Dec. 4, 2021 at 1, Dkt. 9. This Court denied the plaintiffs’ motion for a
preliminary injunction because “no statute insulate[d] [them] from removal.” Id. at 10. The
defendants now move to dismiss the plaintiffs’ complaint on substantially the same ground. See
Dkt. 12. For the reasons below, the Court will grant the motion.
Congress created the Board of Visitors to advise the President on the “state of morale and
discipline” at the Naval 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. Along with 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 President removed the plaintiffs from their positions on the
Board. See Mem. Op. at 2. The plaintiffs then brought a civil action against the President, the
Chairman of the Board, its Designated Federal Officer (DFO), and two other government
officials. See id. (identifying the particular officials). They also moved for a preliminary
injunction that would have required “some or all [of the] defendants to treat [them] as present
Board members.” Pls.’ Mot. For a Prelim. Injunction at 8, Dkt. 3-1. This Court denied that
motion on December 4, 2021, see Mem. Op. at 11, and the defendants subsequently moved to
dismiss the plaintiffs’ complaint, see Dkt. 12.
This Court previously held that the plaintiffs had established a “substantial likelihood” of
standing to seek injunctive relief. See Mem. Op. at 6 (quoting EPIC v. Presidential Advisory
Comm’n on Election Integrity, 878 F.3d 371, 377 (D.C. Cir. 2017)). First, the Court held that
removal from federal office is an injury in fact. See id. at 4 (citing Swan v. Clinton, 100 F.3d
973, 976 (D.C. Cir. 1996)). Second, it held that the plaintiffs’ removal from the Board was
traceable to the defendants. See id. And third, it read Swan to hold that the plaintiffs’ injuries
were redressable through an order requiring the Board’s Chairman and DFO to treat them “as
full members of the Board.” Id. at 4–5. The same reasoning explains why the plaintiffs’
allegations on standing are sufficient to survive a motion to dismiss. 1 See EPIC, 878 F.3d at 377
1 Because Vought’s original term on the Board was scheduled to run through December 31, 2023, see Compl. ¶ 3, this Court need not consider whether the expiration of Spicer’s term alters its subject-matter jurisdiction. See In re Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012) (noting that “only one plaintiff must have standing”).
2 (holding that plaintiffs’ burden to show standing is lower at the motion to dismiss stage than it is
at the preliminary injunction stage).
On the merits, this Court previously held that no provision of § 8468 prevented the
plaintiffs’ removal. See Mem. Op. at 7. First, the Court noted that “the power of removal from
office is incident to the power of appointment” “absent a specific provision to the contrary.” Id.
at 6 (quoting Carlucci v. Doe, 488 U.S. 93, 95 (1988) (citation omitted)). Second, the Court held
that the plain text of § 8468(b), which provides only that Board members “serve for three years
each” on staggered terms, does not meet that standard. Id. at 7. Third, the Court read Parsons v.
United States, 167 U.S. 324 (1897), and Myers v. United States, 272 U.S. 52 (1926), to hold that
term-of-office provisions, standing alone, do not confer removal protection. See id. at 7–8
(citing Parsons, 167 U.S. at 344; Myers, 272 U.S. at 47). Fourth, the Court noted that its reading
of Parsons and Myers is consistent with the Supreme Court’s recent removal cases. See id. at 8–
9. Fifth, the Court distinguished the defendants’ authorities, including Humphrey’s Executor v.
United States, 295 U.S. 602 (1935). See id. at 9–10. And finally, the Court explained that
interpreting § 8468(b) to insulate the plaintiffs from removal would raise serious constitutional
issues, as Board members are executive officials whose “only role . . . is to advise the President
on the performance of a quintessentially executive function.” Id. at 10.
The plaintiffs’ new arguments on the merits do not persuade.
First, the phrase “shall continue” in § 8468(b) does not support the plaintiffs’ claim to
removal protection. See Pls.’ Opp’n to Mot. Dismiss at 13, Dkt. 13. “[I]t is generally clear that
‘shall’ imposes a mandatory duty.” Kingdomware Techs., Inc. v. United States, 579 U.S. 162,
172 (2016) (citation omitted). But here, the phrase “shall continue” falls outside the portion of
§ 8468(b) that describes Board members’ terms of service. See 10 U.S.C. § 8468(b). Section
3 8468(b) provides, first, that members “designated by the President serve for three years each”
and, second, that “any member whose term of office has expired shall continue to serve until his
successor is appointed by the President.” Id. The phrase “shall continue” falls within the second
clause. See id. And because that clause concerns what happens at the conclusion of members’
terms, as opposed to the length of those terms themselves, the phrase has no bearing on
members’ tenure.
Second, this Court properly declined to apply the surplusage canon. See Pls.’ Opp’n at
13–14. It is well-settled that “the power of removal from office is incident to the power of
appointment” “absent a specific provision to the contrary.” Carlucci, 488 U.S. at 95 (emphasis
added) (citation omitted). The plaintiffs have not identified a specific removal protection in
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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 the 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.”
Mem. Op. & Order of Dec. 4, 2021 at 1, Dkt. 9. This Court denied the plaintiffs’ motion for a
preliminary injunction because “no statute insulate[d] [them] from removal.” Id. at 10. The
defendants now move to dismiss the plaintiffs’ complaint on substantially the same ground. See
Dkt. 12. For the reasons below, the Court will grant the motion.
Congress created the Board of Visitors to advise the President on the “state of morale and
discipline” at the Naval 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. Along with 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 President removed the plaintiffs from their positions on the
Board. See Mem. Op. at 2. The plaintiffs then brought a civil action against the President, the
Chairman of the Board, its Designated Federal Officer (DFO), and two other government
officials. See id. (identifying the particular officials). They also moved for a preliminary
injunction that would have required “some or all [of the] defendants to treat [them] as present
Board members.” Pls.’ Mot. For a Prelim. Injunction at 8, Dkt. 3-1. This Court denied that
motion on December 4, 2021, see Mem. Op. at 11, and the defendants subsequently moved to
dismiss the plaintiffs’ complaint, see Dkt. 12.
This Court previously held that the plaintiffs had established a “substantial likelihood” of
standing to seek injunctive relief. See Mem. Op. at 6 (quoting EPIC v. Presidential Advisory
Comm’n on Election Integrity, 878 F.3d 371, 377 (D.C. Cir. 2017)). First, the Court held that
removal from federal office is an injury in fact. See id. at 4 (citing Swan v. Clinton, 100 F.3d
973, 976 (D.C. Cir. 1996)). Second, it held that the plaintiffs’ removal from the Board was
traceable to the defendants. See id. And third, it read Swan to hold that the plaintiffs’ injuries
were redressable through an order requiring the Board’s Chairman and DFO to treat them “as
full members of the Board.” Id. at 4–5. The same reasoning explains why the plaintiffs’
allegations on standing are sufficient to survive a motion to dismiss. 1 See EPIC, 878 F.3d at 377
1 Because Vought’s original term on the Board was scheduled to run through December 31, 2023, see Compl. ¶ 3, this Court need not consider whether the expiration of Spicer’s term alters its subject-matter jurisdiction. See In re Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012) (noting that “only one plaintiff must have standing”).
2 (holding that plaintiffs’ burden to show standing is lower at the motion to dismiss stage than it is
at the preliminary injunction stage).
On the merits, this Court previously held that no provision of § 8468 prevented the
plaintiffs’ removal. See Mem. Op. at 7. First, the Court noted that “the power of removal from
office is incident to the power of appointment” “absent a specific provision to the contrary.” Id.
at 6 (quoting Carlucci v. Doe, 488 U.S. 93, 95 (1988) (citation omitted)). Second, the Court held
that the plain text of § 8468(b), which provides only that Board members “serve for three years
each” on staggered terms, does not meet that standard. Id. at 7. Third, the Court read Parsons v.
United States, 167 U.S. 324 (1897), and Myers v. United States, 272 U.S. 52 (1926), to hold that
term-of-office provisions, standing alone, do not confer removal protection. See id. at 7–8
(citing Parsons, 167 U.S. at 344; Myers, 272 U.S. at 47). Fourth, the Court noted that its reading
of Parsons and Myers is consistent with the Supreme Court’s recent removal cases. See id. at 8–
9. Fifth, the Court distinguished the defendants’ authorities, including Humphrey’s Executor v.
United States, 295 U.S. 602 (1935). See id. at 9–10. And finally, the Court explained that
interpreting § 8468(b) to insulate the plaintiffs from removal would raise serious constitutional
issues, as Board members are executive officials whose “only role . . . is to advise the President
on the performance of a quintessentially executive function.” Id. at 10.
The plaintiffs’ new arguments on the merits do not persuade.
First, the phrase “shall continue” in § 8468(b) does not support the plaintiffs’ claim to
removal protection. See Pls.’ Opp’n to Mot. Dismiss at 13, Dkt. 13. “[I]t is generally clear that
‘shall’ imposes a mandatory duty.” Kingdomware Techs., Inc. v. United States, 579 U.S. 162,
172 (2016) (citation omitted). But here, the phrase “shall continue” falls outside the portion of
§ 8468(b) that describes Board members’ terms of service. See 10 U.S.C. § 8468(b). Section
3 8468(b) provides, first, that members “designated by the President serve for three years each”
and, second, that “any member whose term of office has expired shall continue to serve until his
successor is appointed by the President.” Id. The phrase “shall continue” falls within the second
clause. See id. And because that clause concerns what happens at the conclusion of members’
terms, as opposed to the length of those terms themselves, the phrase has no bearing on
members’ tenure.
Second, this Court properly declined to apply the surplusage canon. See Pls.’ Opp’n at
13–14. It is well-settled that “the power of removal from office is incident to the power of
appointment” “absent a specific provision to the contrary.” Carlucci, 488 U.S. at 95 (emphasis
added) (citation omitted). The plaintiffs have not identified a specific removal protection in
§ 8468(b). See Mem. Op. at 6–7. And to the extent that the surplusage canon did render any
language in that statute ambiguous, see Pls.’ Opp’n at 13–14, Carlucci would require resolving
that ambiguity in the President’s favor. Moreover, that statute’s term-of-office clause is not
superfluous. As then-Professor Rao explained, a “statutory term may reinforce a culture of
independence and imply a sort of presumption against removal during the term, raising the
political costs of removal for the President.” Neomi Rao, Removal: Necessary and Sufficient for
Presidential Control, 65 Ala. L. Rev. 1205, 1252–53 (2014). Interpreting § 8468(b) to have that
effect is consistent with the “cardinal rule . . . that no provision should be construed to be entirely
redundant.” Nielsen v. Preap, 139 S. Ct. 954, 969 (2019) (citation omitted). The surplusage
canon thus has no application here.
Third, the plaintiffs have failed to distinguish Myers. See Pls.’ Opp’n. at 20–21. In
addition to the arguments in their initial briefing, the plaintiffs now suggest that even if Myers
once governed the interpretation of terms-of-office provisions, “any change in the original public
4 meaning of [those provisions] would change the result.” Id. But to the extent that the plaintiffs
argue that Humphrey’s Executor overruled Myers on this issue, the argument fails for the reasons
discussed in this Court’s previous opinion. See Mem. Op. at 9. And to the extent they argue that
a change in ordinary meaning otherwise rendered Myers obsolete, they neglect the presumption
that Congress legislates with a knowledge of “relevant judicial precedent[s].” Ryan v. Gonzales,
568 U.S. 57, 66 (2013). Those precedents provide that term-of-office provisions do not
independently insulate executive officials from presidential removal. See Mem. Op. at 7–10.
And because Congress legislated against that backdrop, there is no occasion to speculate about
how ordinary meaning may have shifted between Myers and the passage of § 8468(b).
Fourth, the Court’s holding at the preliminary injunction stage did not imply that the
President may remove the members of Congress that sit on the Board pursuant to § 8468(a)(1)–
(4). See Pls.’ Opp’n at 26. To the contrary, that holding rests on the text of § 8468(b), which
applies only to the Board members “designated by the President” pursuant to § 8468(a)(5). 10
U.S.C. § 8468(b). And because this case presents no occasion to address the status of the other
Board members, the reference to those members is a red herring.
Finally, the plaintiffs’ remaining arguments lack merit. The Court may not consider the
plaintiffs’ additional historical materials, which include a bevy of early state court decisions, see
Pls.’ Opp’n at 10–11, because those materials “cannot trump a controlling decision of the
Supreme Court,” Mem. Op. at 10. Likewise, the Court may not consider amendments to § 8468
that postdate September 8, 2021, see Pls.’ Opp’n at 18–19, as this case turns on whether the
President lawfully removed the plaintiffs on that date. And Wilson v. United States, 290 F.3d
347 (D.C. Cir. 2002), is inapposite, as it concerned only whether an official’s term had expired
and did not address the distinct issue of removal. See id. at 361 (holding that “mid-term
5 vacancies [on the United States Commission on Civil Rights] are to be filled only for the
remainder of the unexpired term”); see Pls.’ Opp’n at 18–19.
For all of the above reasons, as well as the reasons discussed in this Court’s previous
opinion, § 8468(b) did not insulate the plaintiffs from the President’s removal. The plaintiffs
have thus failed to state a claim for which relief can be granted.
CONCLUSION
Accordingly, it is
ORDERED that the defendants’ Motion to Dismiss, Dkt. 12, is GRANTED. It is further
ORDERED that the case is DISMISSED WITH PREJUDICE.
SO ORDERED.
________________________ DABNEY L. FRIEDRICH Date: July 11, 2022 United States District Judge