Roger Severino v. Joseph Biden, Jr.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 1, 2022 Decided June 27, 2023

No. 22-5047

ROGER SEVERINO,

APPELLANT

v.

JOSEPH R. BIDEN, JR., IN HIS OFFICIAL CAPACITY AS PRESIDENT

OF THE UNITED STATES, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-00314)

Christopher Mills argued the cause for appellant. With

him on the briefs was Jonathan Mitchell.

Adam C. Jed, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were

Brian M. Boynton, Principal Deputy Assistant Attorney

General, and Mark B. Stern and Joshua M. Salzman, Attorneys.

Before: MILLETT, WILKINS, and WALKER, Circuit Judges.

Opinion for the Court by Circuit Judge MILLETT.

2

Concurring opinion filed by Circuit Judge WALKER.

MILLETT, Circuit Judge: The Administrative Conference

of the United States is a governmental entity that produces

research, recommendations, and guidance on how to improve

the operation of Executive Branch agencies. The Conference

has no power to enforce its suggestions; its only power is to

persuade.

A Council of ten members, appointed by the President,

supervises the work of the Conference. The question in this

case is whether an appointee to the Council is removable at will

by the President. Because removal at will is the presumption

under the Constitution, and because nothing in the text of the

Council’s organic statute or about the Council’s function

within the Executive Branch indicates that Congress

constrained the President’s presumptive removal authority, we

affirm the judgment of the district court dismissing the

complaint for failure to state a claim.

I

A

Congress created the Administrative Conference of the

United States in 1964 to provide a forum for Executive Branch

agencies to “cooperatively study mutual problems, exchange

information, and develop recommendations for action[.]” 5

U.S.C. § 591(1). Congress’s goals included, among other

things, developing an administrative system in which (i)

“private rights may be fully protected[,]” (ii) regulatory actions

“may be carried out expeditiously in the public interest[,]” and

(iii) there is “more effective public participation and efficiency

in the rulemaking process[.]” Id. § 591(1)–(2).

3

The Conference consists of a Chairperson appointed by the

President and confirmed by the Senate, and 75 to 101 members

who reflect a mix of governmental and outside experts. 5

U.S.C. § 593(a)–(b). From within the government, the

Conference includes a representative from each independent

agency and Executive department. Id. § 593(b)(2)–(4).

From outside the government, the Chairperson appoints up to

40 experts who “provide broad representation of the views of

private citizens[.]” Id. § 593(b)(6). Other than the

Chairperson, members of the Conference are not paid for their

service. Id. § 593(c).

The Conference’s principal task is to “study the efficiency,

adequacy, and fairness” of administrative procedures, in part

by “collect[ing] information and statistics” from agencies and

using that data to produce research on the Executive Branch.

See 5 U.S.C. § 594(1), (3). In so doing, the Conference must

“arrange for interchange” among agencies with potentially

valuable knowledge. See id. § 594(2). On the basis of its

research, the Conference as a whole may “adopt such

recommendations as it considers appropriate for improving

administrative procedure[,]” which become the official

positions of the Conference. Id. § 595(a)(1).

In short, the Conference studies administrative procedure

and makes recommendations on “how it could be improved” to

better “serve the public interest.” Antonin Scalia & Stephen

G. Breyer, Reflections on the Administrative Conference, 83

GEO. WASH. L. REV. 1205, 1207 (2014) (quoting Lyndon B.

Johnson, Remarks at the Swearing In of Jerre S. Williams as

Chairman, Admin. Conf. of the U.S., 1 Pub. Papers 68 (Jan. 25,

1968)).

The Conference’s functions are strictly advisory. It has

“no power whatever to enforce its own recommendations.”

4

H.R. REP. NO. 1565, 88th Cong., 2d Sess. 4 (1964); see

generally 5 U.S.C. § 594 (authorizing the Conference to

“study,” “make recommendations,” “arrange for interchange,”

“collect information,” and “provide assistance”). Rather, to

encourage the adoption of its proposals, the Conference relies

on the “tact and diplomacy” of its staff and on the content of its

ideas. Scalia & Breyer, supra, at 1207.

Congress also created a Council to oversee the

Conference. The Council consists of the Chairperson of the

Conference and ten other members appointed by the President.

No more than five of the members can be employees of the

federal government. 5 U.S.C. § 595(b). The Council’s

“functions resemble those of a corporate board of directors.”

Scalia & Breyer, supra, at 1208. Among other duties, the

Council sets the agenda and schedule for meetings of the

Conference, proposes bylaws and regulations for the

Conference’s consideration, and approves the Chairperson’s

budget for the Conference. See 5 U.S.C. § 595(b)(1)–(8).

Each Council Member (except the Chairperson) is appointed

for a three-year term. Id. § 595(b).

B

Roger Severino was first appointed to the Council on July

24, 2020. Because Severino was then serving as Director of

the Office of Civil Rights in the Department of Health and

Human Services, he occupied one of the five seats available for

government employees. Although he was appointed for a

standard three-year term, when Severino resigned his

government employment on January 15, 2021, he lost his seat

on the Council. See 5 U.S.C. § 595(b) (“[T]he service of any

member ends when a change in his employment status would

make him ineligible for Council membership under the

conditions of his original appointment.”). The next day, then-

5

President Trump reappointed him to a new three-year term, this

time as a non-governmental member of the Council.

President Biden took office four days later. On February

2, 2021, the Deputy Director of the Presidential Personnel

Office emailed Severino “on behalf of President Biden” to

request Severino’s “resignation from the Administrative

Conference of the United States Council by 5:00 p.m. ET

tomorrow.” Am. Compl., Ex. D, J.A. 25. Shortly after 5:00

the next evening, the Deputy Director emailed Severino to

inform him that his appointment had been terminated.

C

Severino filed suit the same day he was fired, naming as

defendants President Biden, the Director and Deputy Director

of the Presidential Personnel Office, the Conference’s then-

Vice Chairperson, who also served in the role of Executive

Director, and the United States of America. Severino’s

amended complaint, filed a few months later, alleged that the

statute creating the Council precluded his removal from the

Council without cause. Severino requested that the court issue

an injunction requiring that the President “restore[]” him to his

position on the Council. Am Compl. ¶ 32, J.A. 12. He also

sought a declaration that his termination was void.

The district court dismissed the amended complaint for

failure to state a claim. Severino v. Biden, 581 F. Supp. 3d

110, 112 (D.D.C. 2022); see FED. R. CIV. P. 12(b)(6). The

court first ruled that Severino’s injuries were redressable for

purposes of Article III standing. The court explained that,

even if an injunction ordering the President to reinstate an

individual is not available, a government official challenging

his removal from office can obtain relief by enjoining inferior

officials to treat the appointee as occupying his claimed job.

6

Severino, 581 F. Supp. 3d at 116 (citing Swan v. Clinton, 100

F.3d 973, 979–980 (D.C. Cir. 1996)). On the merits, the court

held that the “plain meaning” of the Conference’s organic

statute “imposes no removal restriction” on the President

because a statutorily prescribed term of office imposes only a

ceiling on an appointee’s length of service, not a guaranteed

tenure. Id. at 118.

Severino timely appealed.

II

The district court’s jurisdiction arose under 28 U.S.C.

§ 1331. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo both the district court’s dismissal of the

complaint for failure to state a claim and that court’s

interpretation of the Conference’s organic statute. Orozco v.

Garland, 60 F.4th 684, 688 (D.C. Cir. 2023).

III

We start, as we must, by ensuring our power to resolve this

case. See United States v. Philip Morris USA, Inc., 840 F.3d

844, 848 (D.C. Cir. 2016). Under Article III of the

Constitution, a plaintiff must prove standing to sue “for each

claim” and for “each form of relief that is sought.” Town of

Chester, N.Y. v. Laroe Estates, Inc., 581 U.S. 433, 439 (2017).

A plaintiff will have standing if he shows that he has “(1)

suffered an injury in fact, (2) that is fairly traceable to the

challenged conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.” Spokeo, Inc. v.

Robins, 578 U.S. 330, 338 (2016). It is indisputable that

Severino has satisfied the first two elements of standing:

Assuming the merits of his argument, his termination from the

7

Council was a cognizable injury directly traceable to the

defendants.

The difficulty lies in determining whether that injury is

redressable by the court. See Western Coal Traffic League v.

Surface Transp. Bd., 998 F.3d 945, 950–951 (D.C. Cir. 2021).

Severino seeks a judicial order that would “restore[] [his]

appointment to the Council[.]” Am. Compl. ¶ 32(c), J.A. 12.

President Biden is the only person with the power to reappoint

Severino to the Council. See 5 U.S.C. § 595(b). But

enjoining the President to make a formal appointment would

be a constitutionally exceptional step. A court generally may

not “enjoin the President in the performance of his official

duties.” Franklin v. Massachusetts, 505 U.S. 788, 802 (1992)

(plurality opinion) (quoting Mississippi v. Johnson, 71 U.S. (4

Wall.) 475, 501 (1866)); see id. at 826 (Scalia, J., concurring in

part and concurring in the judgment). Franklin left open a

narrow potential exception for injunctions that require the

President to perform a “purely ‘ministerial’ duty” over which

he has no discretion. See id. at 802 (plurality opinion)

(quoting Johnson, 71 U.S. (4 Wall.) at 498); Swan, 100 F.3d at

977. It is unclear, under our precedent, whether the injunction

Severino requests could qualify as ministerial in nature. See

Swan, 100 F.3d at 977–978.

We need not confront that difficult question because our

jurisdiction does not depend on deciding whether an injunction

ordering a presidential appointment would be available or

appropriate. The redressability prong of standing requires

only that we be able to offer Severino “at least some of the

relief” he seeks. Collins v. Yellen, 141 S. Ct. 1761, 1779

(2021). And we have held it sufficient for Article III standing

if we can enjoin “subordinate executive officials” to reinstate a

wrongly terminated official “de facto,” even without a formal

presidential reappointment. Swan, 100 F.3d at 980 (Inferior

8

officials could not “officially” reinstate a member of the

National Credit Union Administration board and remove his

predecessor, but could “accomplish these deeds de facto by

treating [plaintiff] as a member of the NCUA Board and

allowing him to exercise the privileges of that office[.]”).1

The complaint sufficiently alleges that a similar form of

relief is available in this case. Our power to enjoin the

Conference’s Chairperson is undisputed, and, at least in

principle, the Chairperson may “includ[e] [Severino] in Board

meetings,” “giv[e] him access to his former office,” and permit

him to cast votes as if he were a Council member, just the same

forms of relief we held sufficient in Swan. See 100 F.3d at

980.

There is another potential wrinkle though. Congress has,

by statute, limited the Council to ten members, and it is

currently fully staffed. See 5 U.S.C. § 595(b); Administrative

Conference of the United States, Council (May 31, 2023),

https://perma.cc/2DJV-BPBP. That could mean that, at the

end of the litigation, there would be no seat available for which

Severino could serve as even the de facto occupant.

But this case arises at the motion to dismiss stage, in which

Severino need only plausibly allege that relief could be

afforded on his claim. See Bennett v. Spear, 520 U.S. 154,

170–171 (1997) (A plaintiff’s burden to show that his injury

will “likely be redressed” is “relatively modest” at the motion

to dismiss stage.) (internal quotation marks omitted). Here,

1

Under Swan, we need only analyze the redressability of each of

Severino’s claims and requests for relief against at least one

defendant, even if that claim is addressed to several defendants. So

we need not separately address Severino’s standing to sue President

Biden specifically because appropriate relief could be awarded

against other defendants. See Swan, 100 F.3d at 979.

9

the government has conceded that, were Severino to prevail on

the merits, the Conference would be prepared either to identify

for removal a specific member of the Council occupying

Severino’s seat or to comply with other equitable relief

granting Severino at least some of the privileges of his office.

See Oral Arg. Tr. 47:9–24. At the motion to dismiss stage,

that is sufficient to demonstrate that Severino’s asserted injury

is judicially redressable, even though greater specificity as to

the availability of relief might be required at later stages in the

litigation. See Lujan v. Defenders of Wildlife, 504 U.S. 555,

561 (1992) (Each element of standing must be supported “with

the manner and degree of evidence required at the successive

stages of litigation.”).

IV

Although we have jurisdiction to hear Severino’s lawsuit,

we agree with the district court that his complaint does not state

a legally viable claim on the merits. President Biden had full

statutory and constitutional authority to terminate Severino

without cause.

Under the Constitution, the “President’s removal power is

the rule, not the exception.” Seila Law LLC v. Consumer Fin.

Prot. Bureau, 140 S. Ct. 2183, 2206 (2020); see also Free

Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S.

477, 492–493 (2010); Kalaris v. Donovan, 697 F.2d 376, 389

(D.C. Cir. 1983). That is because Article II of the Constitution

gives the President the sole responsibility to “take Care that the

Laws be faithfully executed.” U.S. CONST., Art. II, § 1, cl. 1;

id. § 3. To fulfill that duty, the President generally must be

able to “control[] those who execute the laws” on his behalf.

Seila Law, 140 S. Ct. at 2197 (quoting 1 Annals of Cong. 463

(1789)). Presidential control, in turn, requires “the ability to

remove executive officials, for it is ‘only the authority that can

10

remove’ such officials that they ‘must fear and, in the

performance of [their] functions, obey.’” Id. (quoting

Bowsher v. Synar, 478 U.S. 714, 726 (1986)). In addition,

without the power of removal, “the President could not be held

fully accountable for discharging his own responsibilities; the

buck would stop somewhere else.” Free Enter. Fund, 561

U.S. at 514.

Because of the background presumption that the President

may remove anyone he appoints, Congress must make it clear

in a statute if it wishes to restrict the President’s removal

power. See Carlucci v. Doe, 488 U.S. 93, 99 (1988)

(“[A]bsent a ‘specific provision to the contrary, the power of

removal from office is incident to the power of appointment.’”)

(quoting Keim v. United States, 177 U.S. 290, 293 (1900)).

Courts will not assume Congress legislated a potential

separation of powers problem unless the statutory text makes

Congress’s intent to test constitutional lines apparent. See

Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018); Watkins v.

United States, 354 U.S. 178, 204 (1957) (“[E]very reasonable

indulgence of legality must be accorded to the actions of a

coordinate branch of our Government.”).

In construing statutes, the Supreme Court has recognized

only two ways Congress can send such a clear signal. First,

Congress may impose a removal restriction in the plain text of

a statute. See Seila Law, 140 S. Ct. at 2206–2207; Carlucci,

488 U.S. at 99. Second, Congress may clearly indicate its

intent to restrict removals through the statutory structure and

function of an office. See Seila Law, 140 S. Ct. at 2206 (citing

Humphrey’s Executor v. United States, 295 U.S. 602 (1935));

11

Wiener v. United States, 357 U.S. 349, 353 (1958). Congress

did neither when it created the Council.2

A

Nothing in the text of the statute creating the Council

clearly expresses a congressional intent to trim the President’s

removal power. The statutory text nowhere imposes

conditions or constraints on either the timing of or reasons for

removal of Council members.

Severino’s textual argument relies entirely on Congress’s

provision that “[t]he term of each member” of the Council,

“except the Chairman, is 3 years.” 5 U.S.C. § 595(b).

Severino reasons that the word “term” means “the time for

which something lasts,” so that a term of three years implies

that earlier removals are off the table. See Severino Opening

Br. 11 (citing Term, WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 2358 (1966) (def. 2(a)).

Severino is incorrect. When used in federal appointment

statutes, the word “term” has a long-settled meaning of limiting

a person’s tenure in office, not investing the person with a

guaranteed minimum period of service. A “term,” in other

words, is a ceiling, not a floor, on the length of service.

2

These two tests ask only whether a statute should be read as

limiting the President’s removal power. If a statute does so, the

question of the constitutionality of that restriction would still need to

be decided. See, e.g., Free Enter. Fund, 561 U.S. at 486–487 (first

construing the Public Company Accounting Oversight Board’s

statutory scheme to verify that members are protected by for-cause

removal and then, “with that understanding,” proceeding to the

constitutional analysis).

12

For that understanding, we need look no further than the

very sources Severino cites. See Term, WEBSTER’S THIRD

NEW INTERNATIONAL DICTIONARY 2358 (1966) (def. 2a) (“[A]

limited or definite extent of time: the time for which

something lasts”) (emphasis added); id. (def. 3a) (“[A] time or

date fixed or agreed upon for an action or as a boundary

between periods”); Term, WEBSTER’S NEW WORLD

COLLEGIATE DICTIONARY 1503 (1st ed. 1968) (def. 3) (“[A]

period of time having definite limits; * * * a stipulated length

of time that a person may hold office.”) (emphasis added).

Of even greater relevance, the Supreme Court has long

held that a fixed statutory term of service leaves untouched the

President’s presumptive removal power. In Parsons v. United

States, 167 U.S. 324 (1897), the Supreme Court upheld the

President’s plenary power to remove United States Attorneys

from office notwithstanding a statute providing that they “shall

be appointed for a term of four years.” Id. at 327–328, 338–

339. Reading that provision in light of the Constitution’s

investment of broad authority in the President as head of the

Executive Branch, the Court held that Congress meant for the

four-year term to “provid[e] absolutely for the expiration of the

term of office at the end of four years,” and not to guarantee “a

term that shall last at all events for that time[.]” Id. at 339.

The Supreme Court subsequently reaffirmed Parsons’

understanding of a defined term of office as a cap rather than

an entitlement. In Myers v. United States, the Supreme Court

endorsed and reapplied Parsons. Myers, 272 U.S. 52, 146–

147 (1926). Relying on the President’s inherent power of

removal, the Court held that it was unconstitutional for

Congress to require the President to seek “the advice and

consent of the Senate” before firing a postmaster. See id. at

107, 116–117. A key step in the Court’s reasoning was to

show that the power of removal had long been viewed as vested

13

in the office of the President. Id. at 146. That proposition,

the Court explained, was “authoritatively settled” by Parsons,

which determined that a statute “providing that district

attorneys should be appointed for a term of four years

* * * included the power of removal by the President[.]” Id.

at 146–147.

Even the dissenting opinions in Myers acknowledged that

Parsons fixed the plain meaning of a set term of office under

federal law. See Myers, 272 U.S at 241 (Brandeis, J.,

dissenting) (“It is settled that * * * [a] clause fixing the tenure

will be construed as a limitation, not as a grant; and that, under

such legislation, the President, acting alone, has the power of

removal.”); id. at 226 (McReynolds, J., dissenting) (Parsons

“regarded the specification of a definite term as not equivalent

to the positive inhibition of removal by Congress.”).

That precedent is the backdrop against which Congress

legislated the Conference into being and created a three-year

term for Council members. When Congress uses words

“which had at the time a well-known meaning * * * in the law

of this country,” those words are to be understood “in that

sense” absent strong contextual indicia to the contrary.

Lorillard v. Pons, 434 U.S. 575, 583 (1978) (quoting Standard

Oil Co. of New Jersey v. United States, 221 U.S. 1, 59 (1911));

see also United States v. Wilson, 290 F.3d 347, 357 (D.C. Cir.

2002) (“Congress is presumed to be aware of established

practices and authoritative interpretations of the coordinate

branches.”). Doubly so when a contrary interpretation of

statutory language would create a separation of powers issue

that hewing to settled meaning would not. We will not assume

Congress picked a constitutional fight unless it makes that

intent crystal clear. See Jennings, 138 S. Ct. at 842.

14

Severino identifies no strong contextual indicia indicating

that “term” has a different meaning in the organic statute

creating the Administrative Conference and Council. As a

result, when Congress provided for a three-year term of office,

it did so with the settled understanding that its fixed term of

service in no way limited the President’s removal power.

Severino’s generic references to dictionaries and state

supreme court decisions overlook that a fixed “term” of office

has an established and specialized meaning in federal statutes

because of background separation of powers principles.

Indeed, in light of Parsons, the state supreme court decisions

Severino cites fully recognized that, when it came to federal

law, fixed-term appointments bore a distinctive meaning,

whether or not that same meaning was carried over into state

law. See, e.g., Holder v. Anderson, 128 S.E. 181, 184–185

(Ga. 1925) (Parsons “was predicated upon the federal

Constitution and acts of Congress, ” whereas “the Governor of

this state has no inherent power to remove a public officer[.]”);

State v. Rhame, 75 S.E. 881, 883 (S.C. 1912) (Parsons is

inapposite because “the Constitution and statutes of the state

strongly negative” “the power of removal as an incident of the

power of appointment when the term of office is fixed by the

statute[.]”); cf. Kearcher v. Members of Council of Borough of

Mt. Oliver, 69 A.2d 394, 396 (Pa. 1949) (“An act that fixes the

term of an office is merely an act designed to bring the terms

of the officer named therein to an end after the expiration of the

stipulated term. Its purpose clearly is not to grant an

unconditional term of office.”). There certainly is no principle

of statutory interpretation indicating that Congress in 1961

used the word “term” not in conformity with Supreme Court

precedent, but instead in the sense it was sometimes used in

some States as a matter of state law.

15

Invoking the canon against reading statutory language as

surplusage, Severino points to the statutory provision stating

that appointees are permitted to continue their service in office

pending the appointment of a successor, see 5 U.S.C. § 595(b).

Severino argues that reading the word “term” to permit at-will

dismissal would make the continuance-in-office provision little

more than a suggestion to the President. Severino Opening

Br. 26–27.

Severino is mistaken. Applying the three-year term as a

cap but not a guarantee still gives Section 595(b)’s creation of

that term work to do—specifically, to mark the point in time

when a fresh presidential appointment is due. See Nielsen v.

Preap, 139 S. Ct. 954, 969 (2019) (surplusage canon applies

when the reading of a statutory provision would make it

“entirely redundant” or of “no consequence”) (internal

quotations omitted). As for the part of Section 595(b) that

allows members to serve past the expiration of their terms, that

permission simply reflects Congress’s interest in ensuring the

continuity of the Conference’s operations by keeping

unremoved Council members on board until a successor is

sworn in. Nothing about those provisions even hints at a

congressional intent to displace the President’s settled removal

power.

Ultimately, Severino offers no textual basis for holding

that Congress intended to deviate from the longstanding

meaning of a fixed-term provision laid out in Parsons and

Myers: A defined term of office, standing alone, does not

curtail the President’s removal power during the office-

holder’s service.

16

B

Neither has Severino shown that the structure of the

agency or the functions assigned to Council members clearly

evidence Congress’s intent to constrain the President’s removal

power.

In Humphrey’s Executor, the Supreme Court held that

Myers’ presumption of removability did not apply to members

of the Federal Trade Commission because that agency

exercises “no part of the executive power.” 295 U.S. at 628.

Specifically, the Court determined that the Commission acts

“as a legislative agency” in reporting to Congress and “as an

agency of the judiciary” in holding administrative hearings,

and that the “character” of both functions is inconsistent with

allowing at-will removal by the President. Id. at 628–629. In

addition, the statute expressly qualifies the President’s removal

power by confining the termination of Commissioners to the

grounds of “inefficiency, neglect of duty, or malfeasance in

office.” Id. at 620 (quoting Federal Trade Commission Act,

Pub. L. No. 63–203, § 1, 38 Stat. 717, 717–718 (1914)). The

Supreme Court ruled that, taken together, the structural

character and function of the Commission as well as the

express textual restraint on dismissals demonstrated

Congress’s intention to confine the President’s removal

authority. Id. at 625–626.

The Court again applied a functional analysis in Wiener v.

United States. That case concerned the War Claims

Commission, which Congress created to adjudicate

Americans’ injury and property claims against Nazi Germany

and its allies. See 357 U.S. at 350 (citing War Claims Act of

1948, Pub. L. No. 80–896, § 3, 62 Stat. 1240, 1241). Once

more, the Court drew a sharp distinction between Myers’

presumption of removability—which remained good law as to

17

“all purely executive officers,” id. at 352—and the quasi-

judicial functions of the War Claims Commission. The

Commission, the Court reasoned, could not fulfill its duty to

fairly apply “evidence and governing legal considerations” to

resolve “the merits of each claim,” without some removal

protections. Id. at 355–356. As a result, although Congress

nowhere mentioned removals in the Commission’s organic

statute, the Court inferred from the Commission’s judicial

functions that Congress meant to sheath “the Damocles’ sword

of removal by the President” during the Commissioners’ terms.

Id. at 356; see also Collins, 141 S. Ct. at 1783 n.18 (Wiener

was decided “on the rationale that the War Claims Commission

was an adjudicatory body, and as such, it had a unique need for

‘absolute freedom from Executive interference.’”) (quoting

Wiener, 357 U.S. at 353).

So under Humphrey’s Executor’s and Wiener’s binding

precedent, when Congress assigns to an agency quasi-judicial

or quasi-legislative functions that are deemed to be

operationally incompatible with at-will Presidential removal,

that can be a relevant signal that Congress meant for members

of that agency to be shielded from Presidential removal, even

without an explicit textual statement to that effect. See Seila

Law, 140 S. Ct. at 2206 (“[W]e do not revisit Humphrey’s

Executor or any other precedent today[.]”); see also Collins,

141 S. Ct. at 1783 n.18.

Those cases are of no help to Severino. The Council, as

part of the Administrative Conference, is structurally housed

squarely within the Executive Branch and serves to advise

personnel in and components of the Executive Branch.

Neither the Conference nor the Council has any quasi-

legislative or quasi-judicial duties. Producing advice for the

President and to his delegees is a quintessential example of a

“purely executive” function. Wiener, 357 U.S. at 352 (quoting

18

Humphrey’s Executor, 295 U.S. at 628). Indeed, the

Constitution gives pride of place in Article II to the President’s

power to seek advice from principal officers. U.S. CONST.,

Art. II, § 2, cl. 1 (“The President * * * may require the Opinion,

in writing, of the principal Officer in each of the executive

Departments[.]”). We, too, have recognized that gathering

trusted advice is a core executive function. See Association of

American Physicians & Surgeons, Inc. v. Clinton, 997 F.2d

898, 909 (D.C. Cir. 1993) (“Article II * * * gives the President

* * * the flexibility to organize his advisers and seek advice

from them as he wishes.”).3

Producing advice for the Executive Branch is the

Conference’s raison d’être. The Conference was created

specifically for the purpose of helping “[f]ederal agencies,

assisted by outside experts” to “study mutual problems,

exchange information, and develop recommendations[.]” 5

U.S.C. § 591(1). The Executive Branch is the planet around

which all of the Conference’s responsibilities revolve. The

Conference studies administrative agencies, arranges for

discussion about them, collects data about them, and makes

recommendations about and to them. See generally id. § 594.

To be sure, a few other statutes require the Chairperson to

submit informational reports to Congress on behalf of the

Conference. See 5 U.S.C. § 595(c); id. § 504(e)(1) (annual

report under the Equal Access to Justice Act). Similarly,

given that executive agencies are ultimately subject to

3

While the provision of advice to the President is an executive

function, the Executive Branch has long recognized Congress’s

authority to regulate appointments to advisory committees, at least

to the extent they are funded by appropriations. See

Constitutionality of the Federal Advisory Committee Act, 1 Op.

O.L.C. Supp. 502, 504–506 (1974). That question is not before us

in this case.

19

legislation and judicial oversight, the Conference is

unsurprisingly permitted to inform the legislative and judicial

branches about aspects of administrative procedure. Id.

§ 594(1). But the overwhelming majority of the Conference’s

work focuses on and contributes to the internal workings of the

Executive Branch. The occasional assistance it provides to

the other Branches is a byproduct of that mission.

Nor does the Conference exercise anything like the quasi-

judicial functions that proved so determinative in Humphrey’s

Executor and Wiener. See Collins, 141 S. Ct. at 1783 n.18.

The Court in Wiener assumed that Congress would not intend

for those adjudicating individuals’ claims to funds held by the

Secretary of the Treasury to be subject to a President’s use of

the removal power to “influence[] the Commission in passing

on a particular claim.” See 357 U.S. at 355–356.

Likewise, the Court in Humphrey’s Executor discerned

Congress’s intent that members of an agency charged with the

quasi-judicial role of functionally “act[ing] as a master in

chancery” under the Federal Trade Commission Act would

need to “maintain an attitude of independence” for which

removal protections were necessary. 295 U.S. at 628–629.

That conclusion was bolstered by the agency’s “quasi-

legislative[]” duty of giving definition to the general

prohibition on “unfair methods of competition” included in the

Federal Trade Commission’s organic statute. Id.

The Conference, though, does not exercise authority over

anyone, much less adjudicate individual claims. Its work is

meant to be integrated within the Executive Branch, not

isolated from it. Cf. Wiener, 357 U.S. at 353. The only

power Congress has conferred on the Conference is to collect

data from federal agencies, and its central duty is to consult

with and be consulted by those agencies. See, e.g., 5 U.S.C.

20

§ 504(e)(1); Negotiated Rulemaking Act of 1990, Pub. L. No.

101–648, § 3(a), 104 Stat. 4969, 4975 (“An agency may

consult with the Administrative Conference of the United

States[.]”); Administrative Dispute Resolution Act of 1990,

Pub. L. No. 101–552, § 3(a)(1), 104 Stat. 2736, 2736 (similar).

Presidential influence is completely consistent with the

Conference’s wholly advisory and consultatory mission.

Congress certainly thought so. After all, it made roughly half

of the Conference’s membership, and up to half of the members

of the Council, employees of the Executive Branch. See 5

U.S.C. §§ 593(b), 595(b). These members naturally represent

their home agencies and, by proxy, the President—and most

will be subject to at-will removal in their day jobs. At the

same time, Congress gave all members of the Council only

three-year terms, ensuring that no member could outlast a

President. See id. § 595(b). Far from the “absolute freedom

from Executive interference” deemed so mission-critical in

Humphrey’s Executor and Wiener, see Weiner, 357 U.S. at 353,

the Council’s design and function reflect the opposite:

Integration and cooperation with the Executive Branch is vital

to the successful accomplishment of the Conference’s

consultative role.

Congress also, of course, designed aspects of the

Conference and its Council to encourage independent thinking.

For example, staggered terms promote “the independence,

autonomy, and non-partisan nature” of an agency, and the

Council’s initial batch of members indeed served staggered

terms. Wilson, 290 F.3d at 359. But Congress can hardly

have expected those staggered terms to last, given that the

Council’s governmental members—perhaps half the

Council—would frequently lose their seats between

Presidential administrations. See 5 U.S.C. § 595(b).

Likewise, the fact that non-governmental members are unpaid,

21

see id. § 593(c), gives them a certain independence from the

President and Congress. The members’ volunteer service,

though, only underscores how diametrically opposed their role

is to the weighty quasi-judicial jobs at issue in Wiener and

Humphrey’s Executor.

In short, Congress designed the Conference to be a forum

inside the Executive Branch for shop talk and collaboration

with external experts. It has no adjudicatory or legislative

features that would clearly signal a need for some measure of

independence from Presidential control. And nothing in the

text of the legislation creating the Conference and Council

hints at a congressional intent to limit the President’s removal

power, let alone overcomes the presumption of presidential

control over Executive Branch officials. The statute, in other

words, gives no indication that Congress intended to take the

unusual and potentially constitutionally troublesome step of

tying the President’s hands when it comes to at-will removal of

such a core Executive Branch officer as a member of the

Administrative Conference’s Council.

V

While precedent teaches that Congress sometimes has the

power to contract the President’s power to remove some

agency officials at will, Congress, at the outset, must clearly

express its intent to do so. Congress gave Severino a three-

year term using language that, for more than a century, courts

have interpreted as having no effect on the President’s removal

power. And Congress left no structural or contextual clues

that protection from removal was integral, or even desirable, to

the performance of Council members within an advisory

organization housed squarely in the Executive Branch. The

presumption of at-will removal remains at full force in this

case.

22

For the foregoing reasons, we affirm the judgment of the

district court.

So ordered.

WALKER, Circuit Judge, concurring:

As the majority explains, Congress did not restrict the

President’s power to remove members of the Council

supervising the Administrative Conference of the United

States. See 5 U.S.C. § 595(b) (giving members a three-year

term, but not mentioning removal). So President Biden was

free to fire Roger Severino.

That result means that we need not decide whether a broad

reading of Humphrey’s Executor v. United States, 295 U.S. 602

(1935), and Wiener v. United States, 357 U.S. 349, 353 (1958),

survives later decisions emphasizing the President’s “authority

to remove those who assist him in carrying out his duties.”

Seila Law LLC v. Consumer Financial Protection Bureau, 140

S. Ct. 2183, 2198 (2020) (cleaned up); see also Collins v.

Yellen, 141 S. Ct. 1761 (2021); Free Enterprise Fund v. Public

Company Accounting Oversight Board, 561 U.S. 477 (2010).

Broad or narrow, Humphrey’s and Wiener are of no help to

Severino.

Though it is an issue for another day, it seems to me that

only a very narrow reading of those cases is still good law. In

Seila Law, the Court “repudiated almost every aspect of

Humphrey’s” — and by extension Wiener. 140 S. Ct. at 2212

(Thomas, J., concurring); see Wiener, 357 U.S. at 356

(applying the “philosophy of Humphrey’s”). In particular, the

Court “[b]ack[ed] away from” the reasoning in Humphrey’s

that removal restrictions may pass constitutional muster if an

executive agency exercises “quasi-legislative and quasi-

judicial power.” Seila Law, 140 S. Ct. at 2198 (cleaned up).

Indeed, it has doubted Congress’s ability to vest any judicial

power (whether “quasi” or not) in an executive agency. Oil

States Energy Services, LLC v. Greene’s Energy Group, LLC,

138 S. Ct. 1365, 1372-73 (2018) (“Congress cannot confer the

Government’s ‘judicial Power’ on entities outside Article III”

2

(cleaned up)). And if Congress may not vest any nonexecutive

power in an executive agency, it might be that little to nothing

is left of the Humphrey’s exception to the general rule that the

President may freely remove his subordinates.