Petition for Writ of Certiorari — Heidi Stirrup, Individually and in Her Official Capacity as a Member of the Board of Visitors for the Air Force Academy, et al., Petitioners v. Department of Defense, et al.

Supreme Court briefSep 5, 2024

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No. 24IN THE

Supreme Court of the United States

HEIDI STIRRUP, PERSONALLY AND IN HER

CAPACITY AS A MEMBER OF THE UNITED STATES

AIR FORCE ACADEMY BOARD OF VISITORS, et al.,

Petitioners,

U.S. DEPARTMENT OF DEFENSE, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF A PPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

TIMOTHY SANDEFUR

MICHAEL T. ROSE

MIKE ROSE LAW FIRM, PC

Counsel of Record

409 Central Avenue

SCHARF-NORTON CENTER FOR

CONSTITUTIONAL LITIGATION

Summerville, SC 29483

AT THE GOLDWATER INSTITUTE

500 East Coronado Road

RICHARD A. EPSTEIN

16 Thomas Place

Phoenix, AZ 85004

Norwalk, CT 06853

(602) 462-5000

litigation@goldwaterinstitute.org

JEFFREY E. MCFADDEN

LAW OFFICES OF

JEFFREY E. MCFADDEN, LLC

312 Prospect Bay Drive East

Grasonville, MD 21638

Counsel for Petitioners

117063

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

Petitioners were appointed to the Boards of Visitors of

the three United States military academies. These Boards

are advisory groups subject to the Federal Advisory

Committees Act, and are not Executive Branch agencies.

To ensure that the Boards exercise their “independent

judgment,” are not “inappropriately inf luenced by

the appointing authority,” the terms of presidentially

appointed Board members are statutorily set at three

years. The statutes do not authorize the President to

remove Board members.

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suspended the operations of the Boards for seven months,

then removed Petitioners from their respective Boards,

and authorized the creation of “subcommittees” of the

Boards—“subcommittees” staffed by persons who are

not members of the Boards.

Petitioners sued, but the Court of Appeals, held that

because the three-year terms had expired by the time it

ruled, the case was moot. The questions presented are:

1. Whether Petitioners may seek injunctive and

declaratory relief given that the issues raised here

are “capable of repetition, yet evading review.”

2. Whether the President may remove at will any

presidentially appointed members of these

independent advisory Boards, whose three-year

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no executive authority; suspend the operation

of the Boards; and establish alternative entities

staffed by people who are not Board members.

PARTIES TO THE PROCEEDINGS AND

RULE 29.6 STATEMENT

Petitioners, who were Plaintiffs-Appellants in the

courts below, are Heidi Stirrup, Douglass Lengenfelder,

and Robert A. Gleason—all members of the United States

Air Force Academy Board of Visitors—Mark Edward

Green, a member of the Board of Visitors of the United

States Military Academy at West Point, and Sean Spicer,1

a member of the United States Naval Academy Board of

Visitors, all of whom sued both in their personal capacities

and in their capacities as members of their Boards—as

well as Ralph Warren Norman, Jr., who is a Member of

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capacity as a Member of Congress.

Respondents are the United States Departments

of Defense, Air Force, Army, and Navy; the United

States Military Academy, Naval Academy, and Air Force

Academy; Secretary of Defense Lloyd Austin; Sean Buck,

Superintendent of the U.S. Naval Academy; Richard M.

Clark, Superintendent of the U.S. Air Force Academy;

Secretary of the Navy Carlos Del Toro; Deandra K.

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Academy; Secretary of the Air Force Frank Kendall,

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of the U.S. Naval Academy Board of Visitors; Anthony

Ryan McDonald, Designated Federal Officer of the

1. Petitioner Spicer challenges the suspension of the

Boards and the creation of the “subcommittees,” as detailed

herein, but not his termination from the Board of Visitors,

which was the subject of a separate lawsuit. Spicer v. Biden,

575 F.Supp.3d 93 (D.C. 2021).

iii

U.S. Air Force Academy Board of Visitors; Darryl A.

Williams, Superintendent of the U.S. Military Academy;

and Secretary of the Army Christine E. Wormuth. All

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capacities.

Because no Petitioner is a corporation, a corporate

disclosure statement is not required under Rule 29.6.

RELATED PROCEEDINGS

There are no proceedings in state or federal trial

courts, or in this Court, related to this case under Rule

14.1(b)(iii).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS AND

RULE 29.6 STATEMENT. . . . . . . . . . . . . . . . . . . . . ii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . .v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . viii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . ix

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . .1

STATEMENT OF THE CASE AND SUMMARY

OF REA SONS FOR GR A NTING THE

PETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

REASONS FOR GRANTING THE PETITION. . . . . .9

Members of the Boards cannot be removed

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A. T he Boa rds of Visit ors a re not

executive agencies, but advisory

boards established by Cong ress

serving statutorily limited terms . . . . . . . . .9

Table of Contents

Page

B. T he u n l aw f u l su sp en s ion s a nd

terminations. . . . . . . . . . . . . . . . . . . . . . . . . .12

II. T he C ou r t of A pp e a l s ’ e r r on e ou s

application of the mootness doctrine

bars the courts from reviewing a vitally

important question relating to authority

over the military academies. . . . . . . . . . . . . . . . .13

A. The Cou r t of Appeals’ muddled

“capable of repetition” analysis . . . . . . . . . .14

B. The Court of Appeals confused the

ripeness requirement in relation to

“future injury” analysis . . . . . . . . . . . . . . . .20

III. The illegality of the Board members’

remova l and the creation of the

subcommittees are important issues that

this Court should resolve . . . . . . . . . . . . . . . . . . .25

A. The removal of Board members is

carefully cabined by statutes which

the Respondents ignored . . . . . . . . . . . . . . .25

B. Certiorari is warranted to clarify the

limits of the Carlucci rule . . . . . . . . . . . . . .27

vii

Table of Contents

Page

C. Certiorari is warranted because the

courts below failed to address the

Appointment Clause limitation on the

structure of the Boards . . . . . . . . . . . . . . . .32

D. Certiorari is needed to clarify the

nature of FACA entities and their work. . .33

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

viii

TABLE OF APPENDICES

Page

A PPENDI X A — J U DGMEN T OF THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLU M BI A

CIRCUIT, FILED JUNE 7, 2024 . . . . . . . . . . . . . . .1a

APPENDIX B — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBI A ,

FILED MARCH 21, 2023 . . . . . . . . . . . . . . . . . . . . . .9a

A PPEN DI X C — OR DER OF T H E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBI A ,

FILED MARCH 21, 2023 . . . . . . . . . . . . . . . . . . . . .41a

APPENDIX D — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43a

APPENDIX E — LETTERS . . . . . . . . . . . . . . . . . . . .57a

TABLE OF CITED AUTHORITIES

Page

CASES

Abbott Labs v. Gardner,

387 U.S. 136 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . .21

American Party of Texas v. White,

415 U.S. 767 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Ass’n of Am. Physicians & Surgeons, Inc. v.

Clinton,

997 F.2d 898 (D.C. Cir. 1993) . . . . . . . . . . . . . . . . . . .35

Braidwood Mgmt., Inc. v. EEOC,

70 F.4th 914 (5th Cir. 2023) . . . . . . . . . . . . . . . . . . . . .21

Buckley v. Valeo,

424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . . . . . 32, 33, 35

Carlucci v. Doe,

488 U.S. 93 (1988). . . . . . . . . . . . . . . . . . . . . . .27, 29, 33

Coleman v. Miller,

307 U.S. 433 (1939). . . . . . . . . . . . . . . . . . . . . . . . . . . .18

Ctr. for Individual Freedom v. Carmouche,

449 F.3d 655 (5th Cir. 2006) . . . . . . . . . . . . . . . . .16, 18

Del Monte Fresh Produce Co. v. United States,

570 F.3d 316 (D.C. Cir. 2009). . . . . . . . . . . . . . . . . . . .19

Cited Authorities

Page

Dunn v. Blumstein,

405 U.S. 330 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Goldwater v. Carter,

617 F.2d 697 (D.C. Cir. 1979), vacated,

444 U.S. 996 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . .18

Honig v. Doe,

484 U.S. 305 (1988). . . . . . . . . . . . . . . . . . . . . . . . . 17, 24

Humphrey’s Executor v. United States,

295 U.S. 602 (1935). . . . . . . . . . . . . . . . . . . . . . . . .26, 31

Hurtado v. Barr,

817 F. App’x 310 (9th Cir. 2020) . . . . . . . . . . . . . . . . .29

Kingdomware Technologies v. United States,

579 U.S. 162 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) . . . . . . . . . . . . . . . . . . . . . . .7, 20

Mistretta v. United States,

488 U.S. 361 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Moore v. Ogilvie,

394 U.S. 814 (1969) . . . . . . . . . . . . . . . . . . . . . . 15, 16, 19

Morrison v. Olson,

487 U.S. 654 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . .33

Cited Authorities

Page

Nat’l Nutritional Foods Ass’n v. Califano,

603 F.2d 327 (2d Cir. 1979) . . . . . . . . . . . . . . . . . .34, 35

Nw. Forest Res. Council v. Espy,

846 F. Supp. 1009 (D.D.C. 1994) . . . . . . . . . . . . . .34, 35

Parsons v. United States,

167 U.S. 324 (1897) . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

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724 F.2d 1247 (7th Cir. 1983). . . . . . . . . . . . . . . . . . . .24

Pennsylvania Fam. Inst., Inc. v. Black,

489 F.3d 156 (3d Cir. 2007) . . . . . . . . . . . . . . . . . . . . .23

Pennsylvania v. W. Va.,

262 U.S. 553 (1923). . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Pub. Citizen v. Nat’l Advisory Comm. on

Microbiological Criteria for Foods,

886 F.2d 419 (D.C. Cir. 1989). . . . . . . . . . . . . . . . . . . .34

Pub. Citizen v. U.S. Dep’t of Just.,

491 U.S. 440 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

Regional Rail Reorganization Act Cases,

419 U.S. 102 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Richman v. Straley,

48 F.3d 1139 (10th Cir. 1995). . . . . . . . . . . . . . . . .29, 30

xii

Cited Authorities

Page

Roe v. Wade,

410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . 8, 15, 17, 24

Rosario v. Rockefeller,

410 U.S. 752 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

S. Pac. Transp. Co. v. City of L.A.,

922 F.2d 498 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . .23

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Severino v. Biden,

71 F.4th 1038 (D.C. Cir. 2023) . . . . . . . . . . . . . . . . . . .30

Storer v. Brown,

415 U.S. 724 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

Swan v. Clinton,

100 F.3d 973 (D.C. Cir. 1996). . . . . . . . . . . . . . . . . . . .19

Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Plan. Agency,

535 U.S. 302 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Trump v. United States,

144 S. Ct. 2312 (2024). . . . . . . . . . . . . . . . . . . . . . . . . .25

xiii

Cited Authorities

Page

Washington Legal Found. v.

U.S. Sentencing Comm’n,

17 F.3d 1446 (D.C. Cir. 1994). . . . . . . . . . . . . . . . . . . .34

Wiener v. United States,

357 U.S. 349 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

U.S. Const. art. II, § 2, cl. 2 . . . . . . . . . . . . . . . . . . . . . . .32

STATUTES, REGULATIONS AND

OTHER AUTHORITIES

5 U.S.C. § 1004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

5 U.S.C. § 1004(b)(2) . . . . . . . . . . . . . . . . . . . . . . . .5, 11, 29

5 U.S.C. § 1004(b)(3) . . . . . . . . . . . . . . . . . . . . . . . .5, 11, 28

10 U.S.C. § 7455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

10 U.S.C. § 7455(a)(1-5) . . . . . . . . . . . . . . . . . . . . . . . . . . .10

10 U.S.C. § 7455(b). . . . . . . . . . . . . . . . . . . . . .10, 25, 26, 28

10 U.S.C. § 7455(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 26

xiv

Cited Authorities

Page

10 U.S.C. § 7455(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

10 U.S.C. § 8468 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

10 U.S.C. § 8468(a)(1-5) . . . . . . . . . . . . . . . . . . . . . . . . . . .10

10 U.S.C. § 8468(b) . . . . . . . . . . . . . . . . . . . . .10, 25, 26, 28

10 U.S.C. § 8468(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 26

10 U.S.C. § 8468(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

10 U.S.C. § 9455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 27

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

29 C.F.R. § 1430.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

41 C.F.R. § 102-3.105(i) . . . . . . . . . . . . . . . . . . . . . .5, 11, 29

Bybee, Advising the President: Separation

of Po w e r s a n d th e Fe d e r a l Adv i s o r y

Committee Act, 104 Yale L.J. 51 (1994) . . . . . . . 32, 34

Cited Authorities

Page

Caralle & Crilly, “They Stood Silent While Their

Boss Supported an Insurrection”: Psaki Insists

It’s Biden’s Right to Purge Trump Picks from

Military Boards, Daily Mail (Sep. 8, 2021), https://

www.dailymail.co.uk/news/article-9973659/

Jen-Psaki-insists-Joe-Biden-right-kick-Trumppicks-military-academy-advisory-boards.html . . . . .6

Ch a r t er, U. S . M i l it a r y A c a demy Bd . of

Visitors at 3, https://s3.amazonaws.com /

usma-media /inline-images/about / board_

of_visitors/board_of_visitors_charter.pdf . . . . . . . .11

McGlone, Biden Removes Trump Appointees from

Boards That Shape the District, Wash. Post

(Feb. 10, 2021), https://www.washingtonpost.

c om /ent e r t a i n ment / biden - r e move s tr ump -appointees/2021/02 /10/6b4 49a9 0 6ba9-11eb-9f80-3d7646ce1bc0_story.html . . . . . . . . .4

Public Papers of the Presidents: Dwight D.

Eisenhower 1960-61 (1999) . . . . . . . . . . . . . . . . . . . . . .5

Vermeule, Conventions of Agency Independence,

113 Colum. L. Rev. 1163 (2013) . . . . . . . . . . . . . . . . . .27

OPINIONS BELOW

The March 21, 2023, opinion of the District Court

is reported at 662 F. Supp. 3d 12 (D.D.C. Mar. 21, 2023),

and is set out in the Appendix at App. 9a–40a. The June

7, 2024, opinion of the District of Columbia Circuit Court

of Appeals is unreported, and can be found at 2024 WL

2873780 (D.C. Cir. June 7, 2024). It is set out in App. 1a–8a.

JURISDICTION

The decision of the Court of Appeals was entered

on June 7, 2024. This Court has jurisdiction pursuant to

28 U.S.C. § 1254(1). The District Court had jurisdiction

pursuant to 28 U.S.C. § 1331.

STATUTORY PROVISIONS INVOLVED

10 U.S.C. § 9455, which is essentially identical to other

relevant statutory sections involved in this case, states in

relevant part:

(a) A Board of Visitors to the Academy is

constituted annually. The Board consists of the

following members:

(1) Six persons designated by the President.

(2) The chairman of the Committee on Armed

Services of the House of Representatives,

or his designee.

(3) Four persons designated by the Speaker

of the House of Representatives, three of

whom shall be members of the House of

Representatives and the fourth of whom

may not be a member of the House of

Representatives.

(4) The chairman of the Committee on

A rmed Services of the Senate, or his

designee.

(5) Three other members of the Senate

designated by the Vice President or the

President pro tempore of the Senate, two

of whom are members of the Committee on

Appropriations of the Senate.

(b)(1) The persons designated by the President

serve for three years each except that any

member whose term of office has expired

shall continue to serve until his successor is

designated by the President. The President

shall designate persons each year to succeed

the members designated by the President

whose terms expire that year. . . .

(c)(1) If a member of the Board dies or resigns or

is terminated as a member of the Board under

paragraph (2), a successor shall be designated

for the unexpired portion of the term by the

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(2)(A) If a member of the Board fails to attend

two successive Board meetings, except in a case

in which an absence is approved in advance,

for good cause, by the Board chairman, such

failure shall be grounds for termination from

membership on the Board. A person designated

for membership on the Board shall be provided

notice of the provisions of this paragraph at the

time of such designation.

The statutes that are identical in most relevant

respects are set out in the Appendix at App. 48a–50a and

51a–54a, respectively.

The Federal Advisory Committees Act, 5 U.S.C.

§ 1004, set out in App. 43a–44a, states in relevant part:

[L]egislation establishing, or authorizing the

establishment of any advisory committee . . .

shall:

(2) require the membership of the advisory

committee to be fairly balanced in terms of the

points of view represented and the functions to

be performed by the advisory committee;

(3) contain appropriate provisions to assure

that the advice and recommendations of the

advisory committee will not be inappropriately

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any special interest, but will instead be the

result of the advisory committee’s independent

judgment.

STATEMENT OF THE CASE AND SUMMARY OF

REASONS FOR GRANTING THE PETITION

On September 8, 2021, President Biden purported

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Boards of Visitors of the three United States military

service academies who had been appointed to threeyear terms by President Trump. President Biden is the

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members from advisory boards—not just these Boards of

Visitors, but advisory boards that function in many other

contexts. 2 His stated reason—to staff them with people

who share his values—compromises their independence by

undermining the statutory system of checks and balances

that has always governed their operation. By taking these

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important, well-established practices and exceeded the

bounds of the law.

The function of the Boards is to advise about the

proper operations of the military academies, and help

preserve civilian, non-partisan control over the military.

In 1961, President Eisenhower famously urged the country

WRÀQGZD\VWR´PROG . . , balance, and . . . integrate” the

2. He removed appointees from many other advisory

boards, as well, including the National Capital Planning

Commission, the Commission on Fine Arts, and the Advisory

Council on Historic Preservation, among perhaps 50 others.

See McGlone, Biden Removes Trump Appointees from Boards

That Shape the District, Wash. Post (Feb. 10, 2021), https://

www.washingtonpost.com/entertainment/biden-removestrump-appointees/2021/02/10/6b449a90-6ba9-11eb-9f803d7646ce1bc0_story.html.

post-World War II military “within the principles of our

democratic system,” so as to ensure that the military did

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Public Papers of the Presidents: Dwight D. Eisenhower

1960-61 at 1039 (1999). The Board of Visitors system is

designed to help accomplish that. For decades, the Boards

have been known for their independence, excellence, and

diversity of views.

Thus the Boards’ presidential appointees serve

VWDWXWRULO\VSHFLÀHGWKUHH\HDUWHUPVZLWKQRSURYLVLRQ

for removal (except for one not applicable here). This

independence is not unique to these Boards, however; it

is well-nigh universal for federal advisory entities, thanks

to the Federal Advisory Committees Act (FACA), which

requires that members of these Boards, and of countless

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judgment,” 5 U.S.C. § 1004(b)(3), and that they not be

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41 C.F.R. § 102-3.105(i). Further, these Boards are

required to be “fairly balanced in terms of the points of

view represented,” 5 U.S.C. § 1004(b)(2), and their terms

are staggered in such a way that two members’ terms

expire each year. This structure is devised to ensure

that while the Boards are publicly accountable, they are

nonetheless non-partisan, politically balanced, and not

FRQÀQHGZLWKLQWKH([HFXWLYHRU/HJLVODWLYH%UDQFK7KH\

provide advice and recommendations to both.

To emphasize: the Boards are not Executive (or

Legislative) Branch entities. They exercise no enforcement

or rulemaking power. Their job is to visit the service

academies and to prepare written recommendations and

reports to Congress, the President, and the Defense

Department, regarding their functioning and ways they

could improve.

Yet the Biden Administration has shown no respect

for this independence. On February 4, 2021, Petitioners

Stirrup, Lengenfelder, and Gleason, as well as other

Presidential (but not congressional) appointees to the Air

Force Academy Board learned by email that the Secretary

of Defense had suspended the operations of all Defense

Department advisory committees pending a “Zero-Based

Review”—meaning a total review of their operations—to

be completed by April 30, 2021. App. 13a. The Secretary

cited no statutory authority for doing this, because none

exists.

Then on September 8, President Biden fired the

Petitioners (who had been appointed by President Trump

between 2018 and 2020) without notice, explanation, or

statutory authority, for the express purpose of purging

WKRVH%RDUGVRIGLVWLQJXLVKHGKLJKO\TXDOLÀHG$PHULFDQV

whom the previous Administration had appointed. A

White House spokesman explained that this action

was taken because they were not “aligned” with the

President’s views, and had allegedly “stood by silently”

while the former President who appointed them led an

insurrection against the Capitol. 3 Yet there is not and has

never been any suggestion that these removals were due

to malfeasance, incompetence, fraud, or other good cause.

3. Caralle & Crilly, “They Stood Silent While Their Boss

Supported an Insurrection”: Psaki Insists It’s Biden’s Right

to Purge Trump Picks from Military Boards, Daily Mail (Sep.

8, 2021), https://www.dailymail.co.uk/news/article-9973659/

Jen-Psaki-insists-Joe-Biden-right-kick-Trump-picks-militaryacademy-advisory-boards.html.

In addition, on September 17, 2021, the Secretary

of Defense authorized the establishment of so-called

“subcommittees”—which are not true subcommittees,

because their members are not members of the Boards—

who would be vested with such authority as to dilute or

even effectively supersede the existing Board structure.

App. 57a–59a. Again, no statutory authority exists for

these “subcommittees.” Yet the Secretary issued an

internal memorandum authorizing establishment of

“subcommittees” with personnel “separate and distinct”

from those of the Boards, id. 58a—in other words, a

group of outsiders who can and likely will be given power

to effectively displace all functions assigned to Board

members by statute. See id.

This Court recently warned of the dangers of the

“instability” of administrative law, which enables the

government to “change positions as much as it likes”—

particularly with every change of the Presidency—leaving

citizens “in an eternal fog of uncertainty” about what

the law actually is. Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244, 2272 (2024). Those fears are fully

realized here, for the consequence of the unauthorized

suspension of Board activities, the unauthorized removal

of Petitioners from the Boards, and the unauthorized

green-light to create and appoint non-Board members

to the “subcommittees,” have all radically changed the

structure of the nation’s military academies. These

actions transform the position of Board member from (a)

independent advisor to the White House and Congress

into (b) at-will employee of the President.

Yet when Petitioners brought suit, the Court of

Appeals held that the fact that the terms of the Trumpappointed Board members had expired meant their case

was moot; the court therefore never reached the merits,

but dismissed. In so doing, it brushed aside the longstanding rule that a case rendered moot by incidents

occurring “before the usual appellate process is complete”

will not be dismissed when the injury is “capable of

repetition, yet evading review.” Roe v. Wade, 410 U.S. 113,

125 (1973) (citation omitted).

The Court of Appeals said that the “capable of

repetition” rule did not apply because these specific

Petitioners are not likely to be appointed to the Boards

again. This limitation, however, misreads the “capable

of repetition” rule, which does not require that level

of particularity. What’s more, the Petitioners were

VXLQJ QRW RQO\ RQ WKHLU RZQ EHKDOI EXW LQ WKHLU RIÀFLDO

capacities—that is, on behalf of those Board seats which

the Respondents claim are subject to at-will removal.

Absent their participation, the lawsuit will die for want

of a champion. And that’s precisely what the “capable

of repetition” exception was created for: situations in

which crucially important legal issues could escape the

attention of the courts due to delays inherent in litigation,

rather than through any genuine change in the factual

circumstances or legal issues.

Given the extraordinary importance of the questions

presented here, the Court should grant certiorari to

address the lower courts’ confusion regarding the “capable

of repetition” rule, and to resolve the important merits

questions relating to the distinction between employees

DQGLQGHSHQGHQWRIÀFLDOVRQWKHRQHKDQGDQGWKHVFRSH

of the Appointments Clause on the other.

REASONS FOR GRANTING THE PETITION

Members of the Boards cannot be removed during

WKHLUSHULRGRIRIÀFH

The Boards of Visitors are not executive

agencies, but advisory boards established by

Congress serving statutorily limited terms.

By Congressional mandate, the Boards of Visitors of

the Army, Navy, and Air Force academies act as oversight

advisory committees, whose mandate is to investigate how

they are operating and make recommendations about how

they could improve. The Boards wield no executive power

(nor any “quasi-legislative” or “quasi-judicial” powers4).

They simply “inquire into the morale and discipline, the

FXUULFXOXPLQVWUXFWLRQSK\VLFDOHTXLSPHQWÀVFDODIIDLUV

academic methods,” of the academies, “and other matters.”

10 U.S.C. §§ 7455(e), 8468(e), 9455(e)(1). 5 Then they

prepare and submit reports to the Senate Armed Services

Committee, the House Armed Services Committee, the

President, and the Secretaries of Defense, the Air Force,

the Army, and the Navy, regarding how the academies

could be improved.

4. What branch are they in? They are “branchless.” See

Mistretta v. United States, 488 U.S. 361, 423 (1989) (Scalia, J.,

dissenting) (“Where no governmental power is at issue, there

is no strict constitutional impediment to a ‘branchless’ agency,

since it is only ‘[a]ll legislative Powers,’ ‘[t]he executive Power,’

and ‘[t]he judicial Power,’ which the Constitution divides into

three departments.” (internal citations omitted)).

5. The language of these sections contains some slight

GL൵HUHQFHVLQZRUGLQJQRWVLJQL¿FDQWKHUH

Each of the three Boards has 15 members, six

appointed by the President, the rest by members of

Congress.6 The length of the Presidential appointees’

terms is set by statute at three years. 10 U.S.C. §§ 7455(b),

8468(b), 9455(b)(1). These statutes make no provision for

the removal of any Board members—with one exception:

members of the Air Force Academy Board of Visitors who

are not members of Congress can be removed by the Chair

if they fail to attend two meetings in a row without good

cause. Id. § 9455(c)(2)(A). The statutes do contemplate and

provide for the possibility of the death or resignation of

members, see id. §§ 9455(c)(1), 8468(c), § 7455(c), but not

for their removal—and in fact, they specify that if the

3UHVLGHQW IDLOV WR GHVLJQDWH D VXFFHVVRU WR ÀOO D %RDUG

seat when the three-year term ends, the holder of that

VHDWVKDOOUHPDLQLQRIÀFHXQWLOWKH3UHVLGHQWQRPLQDWHV

a successor. Id. §§ 9455(b)(1), 8468(b), 7455(b).

Because these Boards are subject to FACA, each

Board member is expected—in the words of the Charter

of the U.S. Military Academy Board of Visitors—“to

provide advice on the basis of his or her best judgment

on behalf of the Government without representing any

particular point of view and in a manner that is free from

6. )RXUPHPEHUVIURPWKH6HQDWHDQG¿YHIURPWKH+RXVH

the Chairman of the Senate Armed Services Committee or

his/her designee, the Chairman of the House Armed Services

Committee or his/her designee, four other Members of the

House designated by the Speaker of the House, and three other

Members of the Senate designated by the Vice President or

President Pro Tempore of the Senate. 10 U.S.C. §§ 9455(a)(15); 7455(a)(1-5); 8468(a)(1-5).

FRQÁLFWRILQWHUHVWµ 76SHFLÀFDOO\)$&$UHTXLUHVWKDWWKH

Boards’ membership “be fairly balanced in terms of the

points of view represented,” 5 U.S.C. § 1004(b)(2), and

that any legislation relating to the Boards be designed

to ensure “that the advice and recommendations of the

DGYLVRU\FRPPLWWHHZLOOQRWEHLQDSSURSULDWHO\LQÁXHQFHG

by the appointing authority or by any special interest,

but will instead be the result of the advisory committee’s

independent judgment.” Id. § 1004(b)(3) (emphasis added).

FACA’s implementing regulations echo these precise

requirements. 29 C.F.R. § 1430.3(a)(3), (4). The Secretary

of Defense, as agency head of the Department of Defense,

must also “[d]evelop procedures to assure that the advice

or recommendations of advisory committees will not be

LQDSSURSULDWHO\LQÁXHQFHGby the appointing authority

or by any special interest, but will instead be the result

of the advisory committee’s independent judgment.” 41

C.F.R. § 102-3.105(i) (emphasis added).

No President has ever attempted to remove a Board

member. Nor does anything in the statutes or regulations

contemplate “subcommittees” of the Boards—or authorize

the Secretary of Defense or any deputy of the Secretary

to appoint anyone to a Board committee or sub-committee.

On the contrary, the Department previously determined

that no such subcommittees exercised lawful authority,

as Defendant Austin acknowledged in three memoranda

issued in September 2021. 8

7. Charter, U.S. Military Academy Bd. of Visitors at 3,

https://s3.amazonaws.com/usma-media/inline-images/about/

board_of_visitors/board_of_visitors_charter.pdf.

8. In these memoranda (one sent to each of the three

Boards on September 17, 2021, see App. 57a–63a), the Secretary

B. The unlawful suspensions and terminations.

On February 4, 2021, the Secretary of Defense

informed Petitioners that he was “suspending” the

Boards’ operations pending a “Zero-Base Review” by the

Department. App. 3a–4a. That announcement provided

no statutory authorization for these suspensions, and no

statute or regulation provides for suspensions. Nor did

that announcement explain why the Boards could not

remain in operation during the review; presumably, they

could be helpful in such a review. The Boards, however,

ceased to meet at that point.

Then, in September 2021, Petitioners Stirrup,

L e n g e n f e l d e r, S p i c e r, a n d G l e a s o n r e c e i v e d

communications from the White House requesting that

they resign from their positions within a day or face

termination. App. 4a, 14a. They all received materially

identical e-mails from Catherine M. Russell, Director

RI WKH :KLWH +RXVH 3UHVLGHQWLDO 3HUVRQQHO 2IÀFH WKDW

concluded, “Should we not receive your resignation, your

position with the Board will be terminated effective 6:00

p.m. tonight. Thank you.”

Petitioners refused in writing to resign, noting that

the President has no statutory authority to terminate

Board members from their memberships. In reply, they

wrote: “[the Department of Defense] previously determined

that subcommittees are not authorized for the [Air Force

Academy] [Board]. . . . I support this earlier decision.” App.

58a. Yet the Secretary went on to state “you are delegated

authority to establish . . . subcommittees” and to require that

the membership of these subcommittees be “separate and

distinct” from membership on the Boards. Id.

were informed that they were no longer members of

the Boards. Days afterward, the Defense Department

and Secretary Austin wrote to the Secretaries of the

Air Force, Army, and Navy, purporting to reinstate the

Boards and subsequently asserting power unilaterally

to create “subcommittees” of the Boards—which could

be staffed by non-members of the Boards. App. 57a–63a.

Again, no statutory authority was provided.

The Petitioners sued, seeking declaratory and

injunctive relief holding the suspensions of the Boards,

their terminations as members, and the authorization of

these “subcommittees,” to be unlawful.

II. The Court of Appeals’ erroneous application of the

mootness doctrine bars the courts from reviewing

a vitally important question relating to authority

over the military academies.

This case presents an important opportunity for

this Court to correct a major, and persistent, confusion

regarding the requirements of standing and mootness,

by offering a coherent account of “capable of repetition”

SULQFLSOHV7KHSRLQWRIFRQÁLFWEHORZUHODWHVWRWKHGHJUHH

to which a plaintiff must prove that VKHVSHFLÀFDOO\will

experience the injury again, as the Court of Appeals held,

or whether, as this Court has held, she only need prove a

likely recurrence of the same kind of injury—as well as of

ripeness, addressing the key question of whether a court

should move now or wait until later (or, as when mootness

is applied to this case, never).

The Court of Appeals’ muddled “capable of

repetition” analysis.

The Court of Appeals concluded that the case was

PRRWEHFDXVHWKHWKUHH\HDUWHUPRI3HWLWLRQHUV·RIÀFHV

had expired by the time it ruled on the case. App. 6a.

Although Petitioners argued that the “capable of repetition

but evading review” exception applies, the court rejected

that argument on the grounds that these particular

Petitioners were unlikely to be appointed to a Board again,

and therefore could not claim a likely future injury. Id.

Not only was that an erroneous application of the rule,

but it was one that, if left unresolved by this Court, will

block virtually any review of the unlawful actions taken

by Respondents here—actions that will have troubling

implications for the future.

The “capable of repetition” exception was established

because there are some claims that are inherently

transitory, such that courts cannot adjudicate them in

time. The classic examples are pregnancy, as in Roe,

supra, or election cycles, as in Dunn v. Blumstein,

405 U.S. 330, 333 n.2 (1972). Given the short period of

%RDUG PHPEHUV· VWDWXWRULO\ VSHFLÀHG WHUPV WKH VDPH

exception should easily have applied here. Yet the Court

of Appeals held otherwise on the theory that a party can

claim this exception only if KHRUVKHVSHFLÀFDOO\ is likely

to experience the same injury again in the future. App.

7a. That was wrong. No such limitation appears in Roe

itself, and in practice the rule has never been that strict.

Moreover, the Petitioners here sued not just in their own

personal capacities, but also in their capacities as Board

members—that is, asserting the rights of any holder of

WKHRIÀFH³DQGLWLVREYLRXVO\OLNHO\WKDWKROGHUVRIWKRVH

Board seats will experience the same harm in the future.

If left uncorrected by this Court, the D.C. Circuit’s

miserly application of the “capable of repetition” rule

will block virtually any review of any unlawful and

dangerously precedent-setting actions that parallel those

taken by these Respondents, not only with respect to the

military academy oversight advisors, but in connection

with the many other advisory boards whose members

were also illegally dismissed. Such arbitrary behavior

will invite similar actions of retaliation against future

DGYLVRU\ERDUGPHPEHUVJLYHQWKDWWKHVROHMXVWLÀFDWLRQ

offered by the Biden administration for its action was a

partisan one. And that will obliterate the independence

that FACA was designed to secure for these entities.

Every incoming administration will enjoy power to replace

WKHLUPHPEHUV³EXWEHFDXVHWKHVWDWXWRU\WHUPVRIRIÀFH

will lapse “before the usual appellate process is complete,”

Roe, 410 U.S. at 125, no redress will be available.

That should not be the law. It never has been the

law. In Dunn, this Court reviewed the constitutionality

of certain Tennessee statutes requiring a duration of

residency before voting. The election had already been

held by the time the Court reviewed the case—and the

petitioner had been allowed to vote in that election—

yet the Court found that the case was subject to the

“capable of repetition” exception because “[a]lthough

appellee now can vote, the problem to voters posed by

the Tennessee residence requirements is ‘capable of

repetition, yet evading review.’” 405 U.S. at 333 n.2

(emphasis added). Similarly, in Moore v. Ogilvie, 394 U.S.

814 (1969), the Court allowed a case challenging Illinois

election restrictions to proceed despite the fact that the

election had passed, because “the burden which [the law]

allowed to be placed on the nomination of candidates for

VWDWHZLGHRIÀFHVUHPDLQVDQGFRQWUROVIXWXUHHOHFWLRQVµ

and consequently “[t]he need for [the issue’s] resolution

WKXV UHÁHFWV D FRQWLQXLQJ FRQWURYHUV\µ Id. at 816. And

Storer v. Brown, 415 U.S. 724 (1974), allowed an election

challenge to proceed although the election was “long

over, and no effective relief [could] be provided,” because

“the issues properly presented . . . will persist as the

[challenged] statutes are applied in future elections.” Id.

at 737 n.8. Storer made no reference to the possibility

RI WKRVH VWDWXWHV EHLQJ DSSOLHG DJDLQVW WKRVH VSHFLÀF

plaintiffs again, but said that the “capable of repetition”

exception was applicable because “[t]he construction of the

statute, an understanding of its operation, and possible

constitutional limits on its application, will have the

effect of simplifying future challenges, thus increasing

WKHOLNHOLKRRGWKDWWLPHO\ÀOHGFDVHVFDQEHDGMXGLFDWHG

before an election is held.” Id. The same rule applied in

Rosario v. Rockefeller, 410 U.S. 752, 756 n.5 (1973), and

American Party of Texas v. White, 415 U.S. 767, 770 n.1

(1974), neither of which inquired whether the particular

plaintiffs would suffer the identical harm again. See also

Ctr. for Individual Freedom v. Carmouche, 449 F.3d

655, 662 (5th Cir. 2006) (“even if it were doubtful that

the [plaintiff] would again attempt to engage in [actions

prohibited by the challenged law] . . . this case is not moot,

because other individuals certainly will be affected by the

continuing existence of [that law].”).

In none of those cases was the “capable of repetition”

rule limited to those situations in which the particular

plaintiff FDQ SURYH WKDW VKH VSHFLÀFDOO\ ZLOO VXIIHU WKH

same exact harm again.

Nor does such a constricted version of the rule

appear even in non-election law cases. In Honig v. Doe,

484 U.S. 305 (1988), the Court reviewed a challenge to

a state law regarding the education of children below

a certain age, even though they had exceeded that age

by the time the Court ruled. It held that the “capable of

repetition” exception applied, id. at 318, and Chief Justice

Rehnquist explained why in a concurrence: “[the Court’s]

unwillingness to decide moot cases . . . may be overridden

where there are strong reasons to override it. The ‘capable

of repetition, yet evading review’ exception is an example.”

Id. at 331 (Rehnquist, C.J., concurring).

It was for that reason that the Court invoked the rule

in Roe, saying “pregnancy litigation seldom will survive

much beyond the trial stage, and appellate review will

be effectively denied,” unless the mootness exception

applies—and that “[o]ur law should not be that rigid.”

410 U.S. at 125. The Court made no serious inquiry

into whether Roe herself would become pregnant again,

mentioning only that “[p]regnancy often comes more than

once to the same woman.” Id. Notably, the Roe Court

declined to review the case involving Petitioner Hallford,

who had been prosecuted for performing abortions,

because it found that he could raise his constitutional

arguments as part of “his defenses in the state criminal

proceedings against him.” Id. at 127. In other words,

the “capable of repetition” rule works as Chief Justice

Rehnquist said in Honig: the reluctance to address moot

controversies “may be overridden where there are strong

reasons to override it.” 484 U.S. at 331 (Rehnquist, C.J.,

concurring).

Moreover, Petitioners brought this case not only in

their individual capacities, but also in their capacities

as holders of the seats on the Boards. Cf. Coleman v.

Miller, 307 U.S. 433, 438 (1939) (legislators had standing

WR FKDOOHQJH DEURJDWLRQ RI WKHLU RIÀFLDO YRWLQJ ULJKWV

Goldwater v. Carter, 617 F.2d 697, 702 (D.C. Cir. 1979),

vacated, 444 U.S. 996 (1979) (Senator challenging

executive action depriving Senate of opportunity to vote).

Absent this Court’s intervention, the action below sets a

precedent that these Board seats will be subject in the

future to the challenged power of removal. Cf. Carmouche,

449 F.3d at 662. That’s all the “capable of repetition” rule

requires—not proof that the exact same plaintiff will

suffer the same harm again.

In addition, once the time for reinstatement passed,

Petitioners insisted that the case continue in a second

phase, in order to protect future holders of these seats

who aren’t yet known, but who will be subject to the

challenged power of removal. That systemic risk is all

the “capable of repetition” rule requires—not proof that

the exact same person will suffer exactly the same harm

in the future. In Kingdomware Technologies v. United

States, 579 U.S. 162 (2016), for example, the Court let a

challenge to certain procurement procedures proceed

even though the procurements generating the litigation

had been completed. It said that the “capable of repetition”

exception applied because “it [was] reasonable to expect

that the [defendant] will refuse to apply the [rules] in a

future procurement for the kind of services provided by

Kingdomware.” Id. at 170 (emphasis added). In short,

the “capable of repetition” exception depends “[not] on

whether the precise historical facts that spawned the

plaintiff’s claims are likely to recur, [but on] whether the

legal wrong complained of by the plaintiff is reasonably

likely to recur.” Del Monte Fresh Produce Co. v. United

States, 570 F.3d 316, 324 (D.C. Cir. 2009).

Thus the Court of Appeals’ ruling that Petitioners

were required to prove “that they themselves are likely

to be subjected to the same action again” App. 7a, went

beyond well-established mootness principles,9 and in a

manner that would render it effectively impossible for

a Board member in Petitioners’ place to challenge the

legality of the asserted removal power, or similar power

of interference with the Boards. To require a member of

a Board or another federal advisory committee to meet

that high standard would effectively bar such people from

raising the crucially important legal issues at stake in a

case like this, through the mere delay of adjudication. That

was the concern giving rise to the “capable of repetition”

UXOHLQWKHÀUVWSODFHOgilvie, 394 U.S. at 816.

The inability of the next generation of appointees to

defend themselves, in turn, raises the type of concerns

9. 7KHUH¶V DOVR QR GRXEW WKDW UHOLHI FDQ EH D൵RUGHG WR

Petitioners, because even where a court cannot command that

DSHUVRQEHUHLQVWDWHGWRR൶FHLWFDQRUGHUWKHJRYHUQPHQWWR

H[WHQGWRWKHZURQJO\UHPRYHGR൶FLDOWKHVXEVWDQWLYHSRZHUV

of her position. Thus in Swan v. Clinton, 100 F.3d 973 (D.C.

&LU LQZKLFKWKHSODLQWL൵DOOHJHGWKDW3UHVLGHQW&OLQWRQ

wrongly replaced him (Swan) with another person (Wheat) on

a board overseeing credit unions, the court acknowledged that

³WKHVHR൶FLDOVFDQQRWR൶FLDOO\UHPRYH:KHDWDQGUHLQVWDWH

Swan, [but] they can accomplish these deeds de facto by

treating Swan as a member of the . . . Board and allowing him

WRH[HUFLVHWKHSULYLOHJHVRIWKDWR൶FH . . and by denying any

such treatment to Wheat.” Id. at 980.

regarding “readily foreseeable outcomes and the stability

that comes with them” that were at issue in Loper Bright,

144 S. Ct. at 2272. The whole point of the independence

of these Boards is to render them relatively immune to

political trends, thus to ensure a degree of autonomy,

objectivity, and stability. To forestall the resolution of this

case due to the passage of time is to fall prey to precisely

the instability that the statutory structure was designed to

prevent. In other words, it rewards the Executive Branch

for violating the statute, as long as it takes its illegal

actions quickly enough. It was that risk that motivated

creation of the “capable of repetition” rule.

That points up the importance of reviewing this case

and setting the “capable of repetition” doctrine straight.

B. The Court of Appeals confused the ripeness

requirement in relation to “future injury”

analysis.

The Court of Appeals’ ripeness analysis was, if

anything, even more confused, and calls out even more

VWURQJO\IRUWKLV&RXUW·VUHYLHZDQGFODULÀFDWLRQ,WKHOG

that because the Secretary had not yet established the

“subcommittees,” the case challenging their legality is

unripe. But all the information necessary to resolve the

legality of these “subcommittees” is already available, and

all that remains is the resolution of a pure question of law.

This case presents a clean opportunity for the Court to

correct widespread confusion regarding whether a court

should move now or wait until later.

Ripeness deals with the timing of judicial intervention,

and thus asks whether there is any reason to delay legal

proceedings: it asks, for example, whether during the

interim, the court will acquire new information that will

improve its grasp of a contested case. Abbott Labs v.

Gardner, 387 U.S. 136, 149 (1967). Thus in takings cases,

ZKHUH ULSHQHVV KDV H[HUWHG FRQVLGHUDEOH LQÁXHQFH WKH

Court has explained that “it is the interest in informed

decision-making that underlies our decisions imposing

a strict ripeness requirement on landowners asserting

regulatory takings claims.” Tahoe-Sierra Pres. Council,

Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 339

(2002). Given that the takings analysis, on the merits, “is

characterized by ‘essentially ad hoc, factual inquiries,’

designed to allow ‘careful examination and weighing of all

the relevant circumstances,’” id. at 322 (internal citations

omitted), it makes sense to require a plaintiff to wait until

the injury of a potential taking has concretized in some

measurable way. That prudent delay allows a court to

grasp “all the relevant circumstances.” Id.

But there’s no comparable reason to delay deciding a

pure question of law where all relevant legal information

is already known from the outset—as is true here. There

are no contingencies lurking in the future that could

complicate the analysis of the purely legal dispute. In

such a situation, delay supplies no new information, but

RQO\FUHDWHVDGGLWLRQDOXQFHUWDLQW\ZKLFKEHQHÀWVQRERG\

The doctrine of ripeness thus has no application. Abbott

Labs, 387 U.S. at 149; see also Braidwood Mgmt., Inc. v.

EEOC)WK WK&LU ´DFODLPLV¶ÀWIRU

judicial decision’ if it presents a pure question of law that

needs no further factual development”).

Here, the relevant legal materials all establish the

Petitioners’ illegal removal, the illegality of the suspension

of the Boards, and the illegal authorization of the ersatz

subcommittees containing no Board members. There’s

no reason to wait; the Secretary has clearly authorized

WKHFUHDWLRQRIWKHVH´VXEFRPPLWWHHVµDQGVSHFLÀHGWKDW

their membership is “separate and distinct” from the

membership on the Boards. Thus the question is simply

whether this decision is lawful.

There is no need to await the actual formation of these

“subcommittees,” because nothing about this lawsuit

hinges on any particular facts or circumstances relating

to their operation, or time of creation, etc. Rather, this

lawsuit challenges the legality of the authorization, which

has already happened. As this Court said in the Regional

Rail Reorganization Act Cases, 419 U.S. 102, 143 (1974),

“[w]here the inevitability of the operation of a statute

against certain individuals is patent, it is irrelevant to the

existence of a justiciable controversy that there will be a

time delay before the disputed provisions will come into

effect.” See also Pennsylvania v. W. Va., 262 U.S. 553, 593

(1923) (“One does not have to await the consummation of

threatened injury to obtain preventive relief.”).

Indeed, in Seila Law LLC v. CFPB, 591 U.S. 197 (2020),

which, like this case, concerned the president’s removal

power, the Court said the plaintiffs could challenge the

OHJDOLW\ RI DQ RIÀFLDO·V DFWLRQV RQ WKH JURXQGV WKDW WKH

presidential removal authority (or lack thereof) rendered

WKHRIÀFLDO·VDFWLRQVYRLGHYHQDEVHQWDQXQODZIXOUHPRYDO

IURPRIÀFH´ZHKDYHH[SUHVVO\¶UHMHFW>HG@·WKH¶DUJXPHQW

that consideration of the effect of a removal provision is not

“ripe” until that provision is actually used,’ because when

VXFKDSURYLVLRQYLRODWHVWKHVHSDUDWLRQRISRZHUVLWLQÁLFWV

a ‘here-and-now’ injury.” Id. at 212 (citation omitted).

Nevertheless, confusion regarding ripeness persists.

See, e.g., Pennsylvania Fam. Inst., Inc. v. Black, 489 F.3d

156, 165 (3d Cir. 2007) (“Few doctrines of constitutional

law have engendered as much discussion, and confusion,

as those of standing and ripeness.”); S. Pac. Transp. Co. v.

City of L.A., 922 F.2d 498, 505 (9th Cir. 1990) (remarking

on “the ample confusion” in the law of ripeness). In fact, it

bears asking whether ripeness is merely a restatement of

standing, and thus adds nothing helpful, while contributing

only delay and confusion. In Susan B. Anthony List v.

Driehaus, 573 U.S. 149 (2014), the plaintiffs brought a

pre-enforcement challenge to a restriction on campaign

speech. The Court of Appeals found the case unripe,

)$SS·[² WK&LU ÀQGLQJDPRQJ

other things that future injury was unlikely. Id. at 420,

7KLV&RXUWUHYHUVHGKRZHYHUÀQGLQJWKHFDVHULSH

because “the Article III standing and ripeness issues in

this case ‘boil down to the same question.’” 573 U.S. at 157

n.5 (citation omitted).10 Rather than requiring the plaintiff

WRZDLWWREHLQMXUHGWRHVWDEOLVKWKHVSHFLÀFVWKLV&RXUW

said that all that was required was that she be prepared

to act in a proscribed way, and faced a “credible threat”

of punishment for doing so. Id. at 159.

What’s more, ripeness has long been “in some tension

ZLWKRXUUHFHQWUHDIÀUPDWLRQRIWKHSULQFLSOHWKDW¶DIHGHUDO

court’s obligation to hear and decide’ cases within its

MXULVGLFWLRQ¶LVYLUWXDOO\XQÁDJJLQJ·µId. at 167 (citations

omitted). And that’s certainly true in the courts of appeals

that have been confused by the ripeness doctrine. As the

Seventh Circuit once remarked, “[i]t is unclear to what

10. In fact, the Court used the single term “standing” to

cover both. Id.

extent the ripeness doctrine is derived from the ‘case or

controversy’ requirement of Article III and to what extent

it is a judicially created tool for avoiding decisions in cases

which a particular court may feel lack an ‘optimal’ factual

setting.” 3HLFNY3HQVLRQ%HQHÀW*XDU&RUS, 724 F.2d

1247, 1261 n.15 (7th Cir. 1983).

Forty years later, that question resurfaces here.

By holding that although the challenged removal and

challenged authorization of “subcommittees” have already

occurred, Petitioners cannot sue until full implementation

or manifestation of that authorization, the lower court

doubled down on the “prudential ripeness” doctrine

upon which Driehaus cast so much doubt. And it did so

unnecessarily, because the question here is simply whether

the removal from the Boards, the suspension of their

operations, and the authorization of the subcommittees

whose members aren’t Board members—all of which

have already occurred—are lawful. The questions are

therefore wholly legal.

In light of these circumstances, the decisive inquiry is

only whether the full set of threats posed by Respondents’

actions should be remedied in a single order issued

immediately, or whether two or more orders should be

required later. The former approach dominates existing

doctrine. But, as with Roe, Honig, and other cases, it’s

LPSHUDWLYHWKDWJRYHUQPHQWRIÀFLDOVQRWEHDEOHWRDYRLG

answering in court for their actions by running out the

clock.

III. The illegality of the Board members’ removal and

the creation of the subcommittees are important

issues that this Court should resolve.

The question of whether the President and his deputies

can ignore statutory limits on the removal of Board

members is important not just because of the inherent

VLJQLÀFDQFHRIWKHTXHVWLRQRIZKHWKHUWKH3UHVLGHQWLV

“above the law,” Trump v. United States, 144 S. Ct. 2312,

2346 (2024), but because of the role these Boards play in

ensuring the politically balanced, democratic oversight

of the military.

The removal of Board members is carefully

cabined by statutes which the Respondents

ignored.

As noted above, the statutes creating the Boards

VSHFLI\DWKUHH\HDUWHUPRIRIÀFH7KHUH·VQRVWDWXWRU\

ambiguity; Petitioners’ terms run for three years, and no

language, express or implied, in the statutes or elsewhere,

gives the President power to cut those terms short.

It was therefore astonishing that the District Court

claimed the statute so clearly called for at-will appointment

that it refused to examine the history and structure of the

provision. App. 37a. “Plaintiffs,” it said, “must point to a

VSHFLÀFVWDWXWRU\SURYLVLRQWKDWSUHYHQWHGWKHLUÀULQJµ

Id. 32a. Yet Sections 9455(b)(1), 7455(b), 8468(b), expressly

establish a VSHFLÀFWHUPRIRIÀFHDQGOLPLWWKH3UHVLGHQW·V

replacement authority to certain specific instances.

Nevertheless, the court read the text which speaks of a

three-year term as calling for at-will appointment at the

pleasure of the President—the opposite of what it says.

In fact, the statutes implicitly say the opposite. First,

WKH VWDWXWH JRYHUQLQJ WKH $LU )RUFH·V %RDUG VSHFLÀHV

that members who aren’t members of Congress can be

removed for cause—but only by the Board chair. Id.

§ F $ 6HFRQG WKH VWDWXWH VSHFLÀHV WKDW WKH

President can only name a successor to a member whose

term has expired by passage of time—and even that

D PHPEHU ZKRVH WHUP H[SLUHV UHPDLQV LQ RIÀFH LI WKH

President does not name a successor. Id. §§ 9455 (b)(1);

7455(b); 8468(b). Third, the statutes specify what happens

if a member dies or resigns, but make no provision for

presidential removal. Id. § 7455(c), 9455(c)(1), 8468(c). By

an exclusio alterius reading, all of this militates against

the proposition that the President can remove members,

let alone at will. Perhaps most importantly, Board

members are not administrative or Executive Branch

RIÀFHUVZLHOGLQJHQIRUFHPHQWDXWKRULW\VXERUGLQDWHWRWKH

President. They’re federal advisory committees subject to

FACA, with its statutory mandates of independence and

balanced membership. These mandates are designed to

HQVXUHLQGHSHQGHQFH³DQGWKDWUHTXLUHVWKHÀ[HGWHUPV

established by the statutes.

When Congress wants to reserve a removal power,

it knows how to. Thus in Humphrey’s Executor v. United

States, 295 U.S. 602, 620 (1935), Congress gave the

President power to remove FTC commissioners for

´LQHIÀFLHQF\ QHJOHFW RI GXW\ RU PDOIHDVDQFH LQ RIÀFHµ

No such language appears here, however, and certainly

none that allows for the removal without cause. Nor have

Petitioners been accused of any neglect, malfeasance, etc.

Historical practice is to the same effect: no previous

3UHVLGHQWKDVDWWHPSWHGWRÀUH%RDUGPHPEHUVLQVWHDG

there’s been a bi-partisan consensus that it’s best for the

Boards to remain apolitical as Congress intended. As

Professor Vermeule observes in Conventions of Agency

Independence, 113 Colum. L. Rev. 1163 (2013), historical

practice regarding boards, agencies, and commissions is

a helpful indicator of their intended autonomy. Thus, for

example, President Reagan sought to remove members of

the Civil Rights Commission, without success; the holdover

members refused to resign, and the Senate refused to

FRQÀUP 5HDJDQ·V QHZ DSSRLQWHHV ´7KH ORQJUXQ HIIHFW

of [that] episode was to cause Congress to transform the

convention of Commission independence into a formal

legal rule.” Id. at 1201.

It’s therefore unsurprising that no similar effort has

ever been attempted with an entity governed by FACA,

which shows that at-will removal is contrary not only to

the text and purpose, but also the unbroken history of

Sections 9455, 7455, and 8468.

B. Certiorari is warranted to clarify the limits of

the Carlucci rule.

The District Court cited the presumption that the

SRZHUWRUHPRYHIURPRIÀFHLVLQFLGHQWWRWKHSRZHUWR

appoint, a proposition derived from Carlucci v. Doe, 488

U.S. 93 (1988). App. 31a. But this case is entirely different,

because the Boards are not ([HFXWLYH %UDQFK RIÀFHUV

or employees, as the plaintiff in Carlucci was.11 Unlike

RIÀFHUV DQG HPSOR\HHV ZKR DUH VXEMHFW WR WKH Carlucci

presumption, Board members like Petitioners do not serve

11. He was cryptographic control technician employed by

the National Security Agency. Id. at 95.

as presidential employees, deputies, or under executive

branch employment contracts, any more than do federal

MXGJHV7KH\DUHQRWLQIHULRURIÀFHUV

The District Court sought to justify the contrary

conclusion by insisting that the phrase “[the] President

shall designate persons each year to succeed the

members designated by the President whose terms

expire that year,” 10 U.S.C. § 9455(b)(1),12 is “consistent

with unfettered presidential removal power.” App. 33a.

It also rejected reliance on historical practice by citing

the Uniform Commercial Code for the proposition that

“express terms” in a contract take precedence over the

course of dealing. Id. 37a–38a. But the express terms of

Board membership are spelled out in the statutes and

regulations, and they establish that the members do not

serve under employment contracts, any more than judicial

appointees do. Obviously, this case involves no request for

VSHFLÀFSHUIRUPDQFHRIWKHVRUWDGGUHVVHGE\WKH8&&

which is irrelevant to the question of whether the Boards

are independent of the President. That’s a statutoryinterpretation question.

And the answer to that question is yes. Not only do the

Boards’ empowering statutes give members three-year

terms, provide only for death and resignation (but not

replacement), and give the President appointment power

only after expiration of the three-year term, but FACA

intentionally places the Boards outside the President’s

authority. It does so precisely so they will exercise

“independent judgment,” 5 U.S.C. § 1004(b)(3), and not be

´LQDSSURSULDWHO\LQÁXHQFHGE\WKHDSSRLQWLQJDXWKRULW\µ

12. Sections 7455(b) and 8468(b) contain the same phrase.

41 C.F.R. § 102-3.105(i). Moreover, these positions are

statutorily designed to be as immune as reasonably

SRVVLEOHIURPSDUWLVDQLQÁXHQFHEHFDXVH)$&$UHTXLUHV

that the Boards be “fairly balanced in terms of the points

of view represented,” 5 U.S.C. § 1004(b)(2), something

that is incompatible with the at-will employee status the

Respondents contemplate.

It’s perverse to say the President has “plenary”

power to remove people whose advice he doesn’t like,

App. 35a, when balanced, independent advice is meant

to force the President, Congress, cabinet members, and

others, to consider opinions and respond to comments—

including those they may not want to hear—from members

exercising their “independent judgment.” The President

(and Congress and others) may certainly disregard the

Boards’ advice, and seek advice outside the Board of

9LVLWRUV· VWUXFWXUH %XW WKH 3UHVLGHQW FDQQRW ÀUH WKH

Board because he dislikes the public advice they give.

The District Court’s reliance on Carlucci demonstrates

the need for this Court to clarify the so-called Carlucci

presumption. Carlucci is limited to employment contracts;

it doesn’t extend to members of independent boards

governed by FACA. Cf. Hurtado v. Barr, 817 F. App’x

WK &LU -XVWLFH 'HSDUWPHQW RIÀFLDOV

were subject to removal under Carlucci). Thus Richman

v. Straley, 48 F.3d 1139 (10th Cir. 1995), paraphrased

the Carlucci presumption as holding that “the power of

removal is implicit in the power of appointment unless the

DSSRLQWPHQWFDUULHVZLWKLWDGHÀQLWHWHUPRIRIÀFH or

a constitutional or statutory provision limits the removal

power.” Id. at 1143 (emphasis added).

The presidential removal power for Executive Branch

employees was addressed in Parsons v. United States,

167 U.S. 324 (1897), which held that the President could

ÀUH DW ZLOO GLVWULFW DWWRUQH\V DSSRLQWHG E\ KLP RU KLV

SUHGHFHVVRU³HPSOR\HHVZLWKVSHFLÀFGXWLHV³XQGHUDQ

unexpired three-year term contract. These attorneys

XQDPELJXRXVO\ ZRUN DV RIÀFHUV within the Executive

Branch, and the only way the President can effectively

control subordinates, here or in Carlucci, is to have

SRZHUWRÀUHDQ\WKHPZLWKLQWKHLUWHUPV/LNHZLVHLQ

Severino v. Biden, 71 F.4th 1038 (D.C. Cir. 2023), the court

said members of the Administrative Conference of the

United States were removable by the President because

the Conference exists “within the Executive Branch,” and

works “to produce research on the Executive Branch.”

Id. at 1040.

But the Boards of Visitors are entirely different. Their

members are not in the Executive Branch, and that is for

a reason: they can only discharge their functions if they

enjoy the kind of independence to which FACA entitles

WKHP7KDW·VZK\WKH\DUHJLYHQD´GHÀQLWHWHUPRIRIÀFHµ

Richman, 48 F.3d at 1143, and why the President is given

no power to remove them. They are not chosen by the

President, as in Severino, but by both the President and

Congress, and they advise, not just the Executive Branch,

as in Severino, but both the President and Congress—in

order to enable CongressWRIXOÀOOits constitutional duty

to “make Rules for the Government and Regulation of the

land and naval Forces,” U.S. Const. art. I, § 8, as much

as to enable the President to exercise his commander-inchief responsibilities.

The service academies must receive Board input

to better govern their internal operations. They can

discharge none of these functions if the President can

sack the appointments of his predecessor on a whim. Their

constellation of duties makes Board members more like

the commissioners in Humphrey’s Executor, supra, and

the claims tribunal members in Wiener v. United States,

357 U.S. 349 (1958), who were vested with independent

powers that insulated them from presidential removal.

In Humphrey’s Executor, members of the Federal

Trade Commission were purposely established with

a degree of independence such that they could not

be removed by the President at will. They exercised

powers that were “neither political nor executive, but

predominantly quasi judicial and quasi legislative,” and

thus did not belong subject to the Chief Executive. 295

U.S. at 624. Consequently, “illimitable power of removal

[was] not possessed by the President.” Id. at 629 (emphasis

added).

Wiener is even more on point. There, the Court held

that President Eisenhower could not remove President

Truman’s appointees to a War Claims Tribunal. It said

Humphrey’s Executor “drew a sharp line . . . between

RIÀFLDOV ZKR >DUH@ SDUW RI WKH ([HFXWLYH HVWDEOLVKPHQW

and [are] thus removable by virtue of the President’s

constitutional powers, and those who are members of

a body ‘to exercise its judgment without the leave or

KLQGUDQFHRIDQ\RWKHURIÀFLDO or any department of the

government,’ as to whom a power of removal exists only

if Congress may fairly be said to have conferred it.” 357

U.S. at 353 (emphasis added, citation omitted). The Boards

here fall within this second category; the italicized phrase

describes them to a “T.”

Certiorari is warranted because the courts

below failed to address the Appointment Clause

limitation on the structure of the Boards.

It has been hornbook law since Buckley v. Valeo, 424

86 WKDWDQ\RIÀFHURIWKH8QLWHG6WDWHV LHDQ\

´DSSRLQWHHH[HUFLVLQJVLJQLÀFDQWDXWKRULW\SXUVXDQWWRWKH

laws of the United States,” id. at 126) must, pursuant to

the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, be

SODFHGLQRIÀFHE\DPHPEHURIWKH([HFXWLYH%UDQFK³WKH

President, the heads of departments or members of the

judiciary.

That constraint does not apply here, because these

Boards aren’t Executive Branch agencies. They exercise

QR´DXWKRULW\µDQGKHQFHFDQQRWEHRIÀFHUVRIWKH8QLWHG

States, cf. id. at 126; like other FACA entities, they are

not the President’s personal advisors; they advise not

just the Executive but also the Legislative Branch. FACA

entities, in fact, “are not part of the formal structure of

our government”—and thus “have no authority to bind the

government.” Bybee, Advising the President: Separation

of Powers and the Federal Advisory Committee Act, 104

Yale L.J. 51, 56 (1994). They usually aren’t entitled even

WRRIÀFHVSDFHLQJRYHUQPHQWEXLOGLQJVId.

But if the President does have “inherent removal

authority” over FACA entities (as the District Court

claimed, App. 30a), then not only the Boards but all FACA

advisory committees would be Executive Branch entities.

And that would mean that they’re per se unconstitutional,

because their mode of appointment would be invalid. After

all, the appointment methods set out in the Appointments

Clause are “exclusive,” Buckley, 424 U.S. at 188, which in

Buckley meant that the members of the FEC, some of whom

were appointed by the President Pro Tem of the Senate

and the Speaker of the House (just as Board members

are) could not hold their positions. Id. at 127. The same

result must follow if the President has unilateral removal

power over these Boards pursuant to Carlucci. See also

Morrison v. Olson, 487 U.S. 654, 704 (1988) (Scalia, J.,

dissenting) (“it is the principle of separation of powers, and

the inseparable corollary that each department’s ‘defense

must . . . be made commensurate to the danger of attack,’

which gives comprehensible content to the Appointments

Clause, and determines the appropriate scope of the

removal power.” (citation omitted)).

Yet this argument was ignored by the District Court,

and the Court of Appeals never reached it, because it

erroneously dismissed the case on standing grounds. By

waving away the distinction between Executive Branch

entities subject to the Carlucci rule, and FACA entities

that are outside its purview, the lower courts established

precedent that dangerously undermines the principles

by which advisory entities operate—and that raises the

specter that a scheme that has worked well for 70 years

is now unconstitutional.

Certiorari is needed to clarify the nature of

FACA entities and their work.

Unless corrected by this Court, the decisions below

ZLOOKDYHXQIRUWXQDWHUDPLÀFDWLRQVIDUEH\RQGHYHQWKH

important consequences of this case.

For example, FACA and the Freedom of Information

and Sunshine Acts interact in a carefully orchestrated way:

while FACA incorporates the transparency requirements

of those other two statutes, it does so “in such a way that

the protections afforded the executive [in FOIA] do not

survive.” Bybee, supra at 112.

Specifically, while intra-agency and interagency

communications fall within exemption 5 of FOIA, that

exemption does not apply to FACA advisory committees

because they are not “agencies.” See, e.g., Washington

Legal Found. v. U.S. Sentencing Comm’n, 17 F.3d 1446

(D.C. Cir. 1994). Likewise, advisory committees cannot

rely on exemption 9(B) of the Sunshine Act, again

because they are not “agencies.” Bybee, supra at 112.

But if members of advisory entities such as the Board

are subordinate to the President, and removable by him

at will, that would affect and perhaps eliminate these

transparency requirements, by enabling these entities

to lay claim to such exemptions on the grounds that they

are Executive Branch agencies.

Their status is important because much litigation takes

place regarding whether purported government-advisory

entities are subject to FACA—and consequently to FOIA

and the Sunshine Act—or whether they are Executive

Branch entities that can assert various exemptions to

those laws. See, e.g., Pub. Citizen v. U.S. Dep’t of Just.,

491 U.S. 440 (1989); Pub. Citizen v. Nat’l Advisory Comm.

on Microbiological Criteria for Foods, 886 F.2d 419 (D.C.

Cir. 1989); Nat’l Nutritional Foods Ass’n v. Califano, 603

F.2d 327 (2d Cir. 1979); Nw. Forest Res. Council v. Espy,

846 F. Supp. 1009 (D.D.C. 1994). Many of these cases

have held that advisory entities are subject to FACA and

consequently must open their meetings and records to

the public. See, e.g., Califano, supra; Espy, supra. But

if the President can remove members of these entities

at will, on the theory of his inherent executive power,

then they are not independent advisory entities, but are

actually subordinate, Executive Branch agencies, and

their records and meetings should be kept private in order

not “to suppress the ‘candid, objective, and even blunt or

harsh opinions,’ that [he] [is] entitled to receive from [his]

advisors.” Ass’n of Am. Physicians & Surgeons, Inc. v.

Clinton, 997 F.2d 898, 925 (D.C. Cir. 1993) (Buckley, J.,

concurring) (internal citation omitted).

This structural question is crucial to the substantive

law. FACA was designed out of a recognition that advisory

boards cannot perform their functions unless they enjoy

a degree of independence. They aren’t the President’s

personal advisors; they also advise the Legislative Branch.

$QGWKH\FDQQRWEHRIÀFHUVRIWKH8QLWHG6WDWHVOHWDORQH

([HFXWLYHRIÀFHUVEHFDXVHWKH\H[HUFLVHQR´DXWKRULW\µ

at all. Cf. Buckley86DW GHÀQLQJRIÀFHUDVDQ

´DSSRLQWHH H[HUFLVLQJ VLJQLÀFDQW DXWKRULW\ SXUVXDQW WR

the laws of the United States.”).

In short, if the President has unilateral removal

power over FACA entities, that must make them

Executive Branch agencies, not independent advisory

entities—and that, in turn, would mean they are not only

unconstitutional because their members are not chosen in

compliance with the Appointments Clause, but that their

meetings and records may be exempted from statutory

transparency requirements in a way never contemplated

by their creators.

CONCLUSION

%HFDXVH3HWLWLRQHUV·FDVHLVULSHDQGTXDOLÀHVIRUWKH

properly understood exception to the mootness doctrine,

the petition should be granted so this Court can address

the legality of these actions.

Respectfully submitted:

TIMOTHY SANDEFUR

MICHAEL T. ROSE

MIKE ROSE LAW FIRM, PC

Counsel of Record

409 Central Avenue

SCHARF-NORTON CENTER FOR

CONSTITUTIONAL LITIGATION

Summerville, SC 29483

AT THE GOLDWATER INSTITUTE

500 East Coronado Road

RICHARD A. EPSTEIN

16 Thomas Place

Phoenix, AZ 85004

Norwalk, CT 06853

(602) 462-5000

litigation@goldwaterinstitute.org

JEFFREY E. MCFADDEN

LAW OFFICES OF

JEFFREY E. MCFADDEN, LLC

312 Prospect Bay Drive East

Grasonville, MD 21638

Counsel for Petitioners

September, 2024

APPENDIX

TABLE OF APPENDICES

Page

A PPENDI X A — J U DGMEN T OF THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLU M BI A

CIRCUIT, FILED JUNE 7, 2024 . . . . . . . . . . . . . . .1a

APPENDIX B — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBI A ,

FILED MARCH 21, 2023 . . . . . . . . . . . . . . . . . . . . . .9a

A PPEN DI X C — OR DER OF T H E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBI A ,

FILED MARCH 21, 2023 . . . . . . . . . . . . . . . . . . . . .41a

APPENDIX D — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43a

APPENDIX E — LETTERS . . . . . . . . . . . . . . . . . . . .57a

APPENDIX AAppendix

— JUDGMENT

OF THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT,

FILED JUNE 7, 2024

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 23-5094

HEIDI STIRRUP, PERSONALLY AND

IN HER CAPACITY AS A MEMBER OF

THE UNITED STATES AIR FORCE

ACADEMY BOARD OF VISITORS, et al.,

Appellants,

UNITED STATES DEPARTMENT

OF DEFENSE, et al.,

Appellees.

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-01893)

June 7, 2024, Filed

Before: PILLARD, K ATSAS, and GARCIA, Circuit Judges.

Appendix A

JUDGMENT

This case was considered on the record from the

United States District Court for the District of Columbia

and on the briefs and oral arguments of the parties. The

Court has afforded the issues full consideration and has

determined that they do not warrant a published opinion.

See D.C. CIR. R. 36(d). It is

ORDERED and ADJUDGED that the judgment of

the District Court be AFFIRMED in part and VACATED

in part.

***

The United States Military Academy, Naval Academy,

and Air Force Academy each has a Board of Visitors

staffed with appointees selected by Congress for some

seats and the President for others. 10 U.S.C. §§ 7455(a),

8468(a), 9455(a). A Board performs advisory functions

by visiting its respective academy, evaluating its

functioning, and producing recommendations and reports.

Id. §§ 7455(d)-(f ), 8468(d)-(f ), 9455(d)-(f ). The Military

Academy and Naval Academy Boards submit reports to

the President, id. §§ 7455(f ), 8468(f ); the Air Force Board

VXEPLWVUHSRUWVWR'HSDUWPHQWRI'HIHQVHRIÀFLDOVDQG

Congress, id. § 9455(f ).

Appellants a re si x indiv iduals w ith a range

of connections to the Boards. They claim that the

Biden Administration violated the Constitution, the

Administrative Procedure Act (“APA”), and contracts by

Appendix A

suspending the Boards’ operations for several months

in 2021, issuing memoranda authorizing the creation of

subcommittees, and removing certain of the appellants

from their Board positions before their terms of service

expired.

We do not reach the merits of these claims. The

district court properly determined that appellants lack

standing to challenge the temporary suspension and the

subcommittee authorization. And appellants’ removal

claims—which request reinstatement to now-expired

terms—are moot.

Per the operative complaint, three appellants are

former members of the Air Force Academy’s Board,

appointed by President Trump and removed by President

Biden. One appellant is a member of Congress who

presently sits on the Military Academy’s Board. Another

appellant is a member of Congress who does not claim

to sit on any service academy advisory board. And one

appellant is a former member of the Naval Academy’s

Board, whose removal is not challenged in this appeal.

$SSHOOHHVDUHQLQHWHHQJRYHUQPHQWHQWLWLHVDQGRIÀFLDOV

including President Biden, Secretary of Defense Lloyd

-$XVWLQ,,,DQGWKHGHVLJQDWHGIHGHUDORIÀFHUVIRUWKH

Boards.

Appellants’ claims focus on three Biden Administration

actions concerning the Boards in 2021. First, in early

February 2021, Secretary Austin suspended the Boards’

Appendix A

operations to perform a “‘zero-based review’ grounded

in a ‘cost study.’” Fourth Am. Compl. ¶ 17 (J.A. 71). That

suspension ended on September 17, 2021, and the Boards

resumed operations.

Second, also on September 17, 2021, Secretary Austin

issued memoranda authorizing the “Army, Navy, and

Air Force service secretaries to create ‘subcommittees’

to the [Boards].” Fourth Am. Compl. ¶ 5 (J.A. 68). The

announcement stated that the subcommittees would be

staffed through a “separate and distinct” appointment

process at the discretion of the Secretary or his deputy. Id.

Importantly, however, the complaint does not allege that

any such subcommittee has ever been created or staffed.

Third, in September 2021, President Biden removed

three appellants from their appointments to the Air Force

Board after they refused his request that they resign. By

the end of 2023, all of the terms of service to which those

appellants were originally appointed had expired.

Appellants claim that these actions violate the

Constitution, the APA, and contracts. As described by

the district court, they sought three forms of relief: “a

judgment declaring the ‘suspensions’ illegal and enjoining

[appellees] from ‘further suspending or otherwise

interfering with’ the Boards”; “a similar judgment

directed at the authorization of subcommittees”; and a

“judgment that would restore three [appellants] to their

positions on the Air Force Board.” Stirrup v. Biden, 662

F. Supp. 3d 12, 18 (D.D.C. 2023) (quoting Fourth Am.

Compl. ¶ 4 (J.A. 68)) (internal citations omitted).

Appendix A

On March 21, 2023, the district court concluded that

appellants lack standing to bring claims based on the

temporary suspension and authorization of subcommittees

“because they identify no concrete harm that the relief

would redress.” Id. The district court held that the

appellants challenging their removal had standing

because, even though the court held that it likely could not

enjoin the President to restore those appellants to their

prior appointments, the court could, in theory, order the

non-President defendants to treat those appellants as if

they had been restored to the Board. Id. at 21-22 (citing

Swan v. Clinton, 100 F.3d 973, 978, 321 U.S. App. D.C. 359

(D.C. Cir. 1996)). But the court rejected those claims on

the merits “because the President has statutory power to

ÀUHSUHVLGHQWLDOO\DSSRLQWHG%RDUGPHPEHUVµDQGEHFDXVH

DSSHOODQWV KDG QRW VXIÀFLHQWO\ SOHG ´WKH HOHPHQWV RI D

breach-of-contract or First Amendment claim.” Id. at 18.

The district court correctly concluded that appellants

lack standing for their claims related to the temporary

suspension and the subcommittee authorization. As

explained above, appellants seek prospective relief

that would enjoin appellees from carrying out future

suspensions or creating subcommittees. But appellants

IDLOWRPHHWWKHLUEXUGHQWRVKRZD´VXIÀFLHQWOLNHOLKRRG

of future injury” to support their standing to seek

prospective relief as to either set of claims. Dearth v.

Holder, 641 F.3d 499, 502, 395 U.S. App. D.C. 133 (D.C.

Cir. 2011) (quotation omitted).

Appendix A

Appellants have failed to show any likelihood that they

will suffer a future injury stemming from a suspension

similar to the temporary suspension of Board activities,

which ended in 2021. As the district court observed,

appellants make no concrete allegations to show that a

similar suspension of Board activities is likely to occur in

the future. Indeed, appellants concede that “[t]here is, of

course, as the District Court noted, no imminent danger

of a repetition of this precise event.” Appellants’ Brief 28.

Appellants likewise fail to allege any threatened

injury resulting from Secretary Austin’s decision to

permit the creation of subcommittees. The memoranda

merely authorize the military secretaries to create

subcommittees. Appellants do not allege that any

subcommittees were ever staffed or convened in any form.

Nor do they plead facts showing that subcommittees are

VXIÀFLHQWO\OLNHO\WREHFUHDWHGLQWKHIXWXUH

III

Appellants’ removal claims have become moot since

the district court ruled. The terminated appellants

concede that the relief that supported their standing

below—the possibility of reinstatement—is no longer

available because the three-year terms to which they were

appointed have now “expired.” Appellants’ Brief 19. As

they put it, “[i]ndividual redress is beyond the power of

this Court,” id. at 54, because “the time for restoration

RIWKHVH>DSSHOODQWV@WRWKHLUSURSHURIÀFHVKDVSDVVHGµ

Reply Brief 11. The government agrees. Appellees’ Brief

23-27.

Appendix A

Even though personal relief is not available, appellants

urge us to conclude that their claims are not moot because

they target harms that are “capable of repetition, yet

evading review.” Appellants’ Brief 29, 53. That exception

to mootness applies if two conditions are met: “(1) [T]he

challenged action is too short to be fully litigated prior to

its cessation or expiration; and (2) there is a reasonable

expectation that the same complaining party would be

subjected to the same action again.” In re Sealed Case,

77 F.4th 815, 826 (D.C. Cir. 2023) (emphasis added)

(alterations, ellipses, and quotations omitted); see Murphy

v. Hunt, 455 U.S. 478, 482, 102 S. Ct. 1181, 71 L. Ed. 2d

353 (1982).

Appellants cannot show that the second condition is

PHW KHUH DQG ZH WKHUHIRUH QHHG QRW DGGUHVV WKH ÀUVW

See Honeywell Int’l, Inc. v. Nuclear Regul. Comm’n, 628

F.3d 568, 576, 393 U.S. App. D.C. 340 (D.C. Cir. 2010)

(party opposing mootness bears the burden of showing an

exception applies). They do not establish any expectation

that they themselves are likely to be subjected to the same

action again because, as explained, there is no indication

that these appellants are likely to serve on a Board again,

much less be removed during their hypothetical term of

appointment.

Finally, appellants do not save their removal claims

by seeking “a permanent injunction that bars all future

SUHVLGHQWV IURP ÀULQJ VLWWLQJ PHPEHUV RI WKH %RDUGV

during the term of appointment.” Appellants’ Brief

52. That relief, even if available, would not redress

appellants’ individual past injuries, nor would it have

Appendix A

any non-speculative chance of preventing a future injury

to appellants. Again, the terminated appellants do not

contend that they are likely to again serve on the Air Force

Board. As a result, a permanent injunction preventing all

future presidents from removing the appellants during

the term of a hypothetical future appointment would not

affect them in any non-speculative way.

***

)RUWKHIRUHJRLQJUHDVRQVZHDIÀUPWKHGLVWULFWFRXUW·V

dismissal of the temporary suspension and subcommittee

claims for lack of subject-matter jurisdiction. We dismiss

as moot the portion of the appeal seeking review of the

district court’s merits-based dismissal of the removal

claims, vacate that portion of the district court’s judgment,

and remand for the claims to be dismissed as moot.

Pursuant to D.C. Circuit Rule 36, this disposition

will not be published. The Clerk is directed to withhold

issuance of the mandate until seven days after resolution

of any timely petition for rehearing or rehearing en banc.

See FED. R. A PP. P. 41(b); D.C. CIR. R. 41(a)(1).

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

Appendix B

APPENDIX B — MEMORANDUM

OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA,

FILED MARCH 21, 2023

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 21-1893 (TJK)

HEIDI STIRRUP et al.,

Plaintiffs,

JOSEPH R. BIDEN, JR.,

IN HIS OFFICIAL CAPACITY AS PRESIDENT

OF THE UNITED STATES, et al.,

Defendants.

MEMORANDUM OPINION

This case challenges the Biden administration’s

management of advisory committees to the United States

service academies. Four Plaintiffs were presidential

DSSRLQWHHVWRWKRVHFRPPLWWHHVWKDW3UHVLGHQW%LGHQÀUHG

DIWHUWDNLQJRIÀFH$OO3ODLQWLIIVGLVOLNHRWKHUGHFLVLRQV

made by the President and the Defense Department. But

Plaintiffs identify no concrete harms caused by the other

decisions. And Plaintiffs have not stated claims based on

WKHÀULQJVEHFDXVHWKH3UHVLGHQWKDVVWDWXWRU\DXWKRULW\

10a

Appendix B

WRÀUHSUHVLGHQWLDODSSRLQWHHV6RWKH&RXUWZLOOGLVPLVV

the case in part for lack of standing, and in part for failure

to state a claim.

Background

Central to this dispute are the Boards of Visitors for

the United States Military Academy, Naval Academy, and

Air Force Academy.1 Each of the Boards is authorized

by statute and governed by levels of regulation, so the

Court begins with a brief explanation of that framework.

Because this case is at the pleading stage, the Court

assumes Plaintiffs’ allegations are true and draws all

reasonable inferences in their favor.

Legal Background

Congress created each of the Boards in the 1950s.

Each has substantially similar structure and authority.

7KH\HDFKKDYHÀIWHHQPHPEHUVVL[RIZKRPDUHDSSRLQWHG

by the President. 10 U.S.C. §§ 7455(a), 8468(a), 9455(a). The

remaining nine members come from Congress, whether

by appointment or by membership on armed-services

committees. Id. §§ 7455(a)(1)-(4), 8468(a)(1)-(4), 9455(a)

(2)-(5). 2 The Boards’ duties are to visit their respective

academies, evaluate their functioning, and produce

recommendations and reports to Defense Department

1. The Court refers to them as the Army Board, the Navy

Board, and the Air Force Board.

2. One congressionally appointed member of the Air Force

Board cannot be a “member of the House of Representatives.” 10

U.S.C. § 9455(a)(3).

11a

Appendix B

RIÀFLDOVDQGWKH3UHVLGHQWSee id. §§ 7455(d)-(f ), 8468(d)(f ), 9455(d)-(f ).

Presidentially appointed Board members “serve for

three years.” 10 U.S.C. §§ 7455(b), 8468(b), 9455(b)(1).

They may exceed that term, however, if the President

has not yet designated a successor. Id. §§ 7455(b),

8468(b), 9455(b)(1). Their terms are staggered so that

two members’ terms expire each year. See id. §§ 7455(b),

8468(b). With one exception that the Court will address

momentarily, the statutes contain no explicit instructions

DERXWÀULQJPHPEHUV

Three differences between the Boards are relevant to

Plaintiffs’ arguments. First, Air Force Board members

who are not members of Congress can be removed by

the Board’s chair for failing “to attend two successive

Board meetings” without good cause. Compare 10 U.S.C.

§ 9455(c)(2) with id. §§ 7455(c), 8468(c). Second, the Air

Force Board prepares more reports and sends those to

more recipients. Compare id. § 9455(f ) with id. §§ 7455(f ),

8468(f ). Third, the provision providing for presidential

appointment to the Air Force Board contains slightly

different language, the thrust of which is that there is no

explicit number of appointments that the “President shall

designate” in a given year. Compare id. § 9455(b)(1) with

id. §§ 7455(b), 8468(b). 3

3. Presidentially appointed Board members serve beyond

their three-year terms if no successor has yet been designated.

See 10 U.S.C. §§ 7455(b), 8468(b), 9455(b)(1). Because their terms

are staggered, the Army and Navy Boards’ statutes direct the

President to “designate two persons each year to succeed the

12a

Appendix B

The Boards are subject to the Federal Advisory

Committee Act (“FACA”). See generally 5 U.S.C. app. 2

§§ 4(a), 3(2) (“The term ‘advisory committee’ means any

. . . board” that is “established by statute. . . .”). FACA

establishes guidelines that require, among other things,

the Boards’ membership to be “fairly balanced in terms

of the points of view represented and the functions to

be performed by the advisory committee,” id. § 5(b)(2),

and that their “advice and recommendations” will “be

the result of [their] independent judgment,” id. § 5(b)(3).

5HJXODWLRQVLPSOHPHQWLQJ)$&$DUHFRGLÀHGDW&)5

§ 102-3.5 et seq.

One of those regulations instructs agency heads to

“assure that the advice or recommendations of advisory

FRPPLWWHHVZLOOQRWEHLQDSSURSULDWHO\LQÁXHQFHGE\WKH

appointing authority or by any special interest.” 41 C.F.R.

§ 102-3.105(g). Thus, the Secretary of Defense has issued

an “[i]nstruction” that governs, among other committees,

these Boards. See ECF No. 42-6 at 1-2. Moreover, each

of the Boards has established its own charter. See ECF

Nos. 42-3-42-5.

B. Factual Background

Shortly after Defendant Austin, the Secretary of

'HIHQVHWRRNRIÀFHKHEHJDQD´]HUREDVHGUHYLHZµRI

Defense Department advisory committees. ECF No. 37

members whose terms expire that year.” Id. §§ 7455(b), 8468(b).

The Air Force Board’s statute says simply that the President

“shall designate persons each year” without specifying a number.

Id. § 9455(b)(1).

13a

Appendix B

(“Compl.”) at 63-64. In other words, the review would

require each committee to justify its existence from

scratch. During that review, Defendant Austin directed

“the immediate suspension of all advisory committee

operations.” Id. at 63. That suspension included the

Boards. See id. at 65-72.

Four plaintiffs were then presidentially appointed

Board members.4 They learned that Defendant Austin

had suspended the Boards’ operations a few days later

E\HPDLOIURPWKHLU%RDUGV·GHVLJQDWHGIHGHUDORIÀFHUV

See Compl. ¶ 53; id. at 57-60. 5 That email explained that

the Boards would “not hold any meetings . . . or otherwise

XQGHUWDNHRIÀFLDOERDUGEXVLQHVVµGXULQJWKHUHYLHZId.

at 57. It claimed, however, that Plaintiffs’ “membership

[would] not be impacted.” Id.

The review lasted over seven months. See Compl. at

44-46. During that time, none of the Boards met. Compl.

¶¶ 56, 99-100, 117. After the review, Defendant Austin

authorized the Boards to “resume operations.” Compl.

at 44-46.

4. Plaintiffs Stirrup, Lengenfelder, and Gleason were

presidential appointees to the Air Force Board. Compl. ¶¶ 14-16.

Plaintiff Spicer was a presidential appointee to the Navy Board.

Compl. ¶ 33. Plaintiff Green was a non-presidential appointee to

the Army Board, and Plaintiff Norman was not a member of any

Board. See Compl. ¶¶ 31-32.

5. Under FACA, each federal advisory committee must have

DGHVLJQDWHGIHGHUDORIÀFHU´WRFKDLURUDWWHQGHDFKPHHWLQJµ

U.S.C. app. 2 § H 7KDWRIÀFHUFDQDGMRXUQDQ\PHHWLQJDQGWKH

FRPPLWWHHFDQKROGQRPHHWLQJ´LQWKHDEVHQFHRIWKDWRIÀFHUµId.

14a

Appendix B

But that resumption came with two changes relevant

here. First, President Biden demanded resignations

from the four presidentially appointed plaintiffs. See

Compl. ¶¶ 7KH\UHIXVHGVRKHÀUHGWKHP

Compl. ¶ 63. Second, Defendant Austin explained that he

ZRXOGDXWKRUL]HIRUWKHÀUVWWLPHVXEFRPPLWWHHVRIWKH

Boards. Compl. at 44-46. His announcement described

subcommittees with membership “separate and distinct”

from that of the Boards. Id. Plaintiffs have not alleged,

however, that any such subcommittees have been created.

Procedural History

This case began when Plaintiff Heidi Stirrup sued

to challenge the suspension before it was lifted—and

EHIRUH VKH KDG EHHQ ÀUHG See generally ECF No. 1.

Shortly after that, she amended her complaint to add more

plaintiffs, including Plaintiff Mark Green and Plaintiff

Ralph Norman. See generally ECF No. 5. Those plaintiffs

amended the complaint a second time to add Plaintiff

Sean Spicer. See ECF Nos. 11-12. That group amended

the complaint a third time, settling on the current six

plaintiffs and asserting claims based on their removals

from the Boards. See generally ECF No. 16.

Defendants moved to dismiss, both for lack of subjectmatter jurisdiction and for failure to state a claim. See

generally ECF No. 29. Plaintiffs opposed that motion,

ECF No. 31, but they also asked for leave to amend a

fourth time, ECF No. 32. Plaintiffs wished to add as

GHIHQGDQWV WKH GHVLJQDWHG IHGHUDO RIÀFHUV IRU HDFK RI

the Boards. ECF No. 32 at 1. The Court granted leave

15a

Appendix B

to amend, Minute Order of Apr. 7, 2022, and Plaintiffs’

fourth-amended complaint became operative, ECF No.

37. Defendants then reasserted their motion to dismiss.

ECF No. 39.

II. Legal Standards

Under Rule 12(b)(1), Plaintiffs have the burden to

establish standing. Little v. Fenty, 689 F. Supp. 2d 163,

166-67 (D.D.C. 2010). That burden “grows heavier at

each stage of the litigation.” Osborn v. Visa Inc., 797 F.3d

1057, 1063, 418 U.S. App. D.C. 193 (D.C. Cir. 2015). To

survive a motion to dismiss, Plaintiffs need only allege a

qualifying “injury resulting from [Defendants’] conduct.”

Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561,

112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). The Court must

“assume the truth of all material factual allegations in

the complaint and . . . JUDQW>@ >3ODLQWLIIV@ WKH EHQHÀW RI

all inferences that can be derived from the facts alleged.”

Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139, 395 U.S.

App. D.C. 316 (D.C. Cir. 2011) (quotation omitted).

Under Rule 12(b)(6), Plaintiffs’ complaint must

´FRQWDLQVXIÀFLHQWIDFWXDOPDWWHU . . to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)

(quotation omitted). A claim is plausible if “it contains

factual allegations that, if proved, would allow the court to

draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Hurd v. District of Columbia,

864 F.3d 671, 678, 431 U.S. App. D.C. 83 (D.C. Cir. 2017)

(quotation omitted). Again, the Court must “accept all the

16a

Appendix B

well-pleaded factual allegations of the complaint as true

and draw all reasonable inferences from those allegations

in [Plaintiffs’] favor.” Id. (quotation omitted). But it

must disregard “a legal conclusion couched as a factual

allegation.” Cason v. NFL Players Ass’n, 538 F. Supp. 3d

100, 109 (D.D.C. 2021) (quotation omitted).

III. Analysis

3ODLQWLIIVEULQJIRXUFODLPV7KHÀUVWLVIRUEUHDFKRI

contract. Compl. ¶¶ 132-35. The second is for violating the

Administrative Procedure Act (“APA”). Compl. ¶¶ 13640. The third is for viewpoint discrimination. Compl.

¶¶ 7KH IRXUWK DQG ÀQDO FODLP LV IRU RIIHQGLQJ

“the Separation of Powers Doctrine,” a claim given its

PRVWVSHFLÀFFRQWHQW6 by reference to Article I, Section

8, Clause 14 of the Constitution. See Compl. ¶¶ 145-50.7

They ask the Court for “three distinct forms of

relief.” Compl. ¶ 7KHÀUVWLVDMXGJPHQWGHFODULQJWKH

“suspensions” illegal and enjoining Defendants from

“further suspending or other-wise interfering with” the

Boards. Compl. ¶ 4. The second is a similar judgment

6. There is no “separation of powers clause” in the

Constitution, so a claim that a branch of government has exercised

a power that belongs to another branch must be “evident from

the Constitution’s vesting of certain powers in certain bodies.”

See Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2205, 207 L. Ed. 2d

494 (2020).

7. “The Congress shall have Power . . . To make Rules for the

Government and Regulation of the land and naval Forces.” U.S.

Const. art. I, § 8, cl. 14.

17a

Appendix B

directed at the authorization of subcommittees. Compl.

¶ 5. The third is another similar judgment that would

restore three plaintiffs to their positions on the Air Force

Board. Compl. ¶ 6. 8

3ODLQWLIIVGRQRWKDYHVWDQGLQJWRVHHNWKHÀUVWWZR

forms of relief because they identify no concrete harm that

the relief would redress. So the Court will dismiss their

complaint for lack of subject-matter jurisdiction in those

respects. The Court has the power to order the third form

of relief, and it would substantially redress a concrete

harm, so Plaintiffs have standing in that respect. But they

have not stated claims entitling them to that relief because

WKH3UHVLGHQWKDVVWDWXWRU\SRZHUWRÀUHSUHVLGHQWLDOO\

appointed Board members and because Plaintiffs have

not stated the elements of a breach-of-contract or First

Amendment claim. Thus, the Court will dismiss their

complaint in remaining part for failure to state a claim.

Plaintiffs Have Standing to Challenge Only

Their Removals from the Boards

Before the Court can address Plaintiff ’s claims, it

must ensure Plaintiffs have standing. See Freedom Watch,

Inc. v. McAleenan, 442 F. Supp. 3d 180, 186 (D.D.C. 2020);

see also Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 94, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998). That is,

it must ensure that Plaintiffs have “clearly allege[d] facts

demonstrating” they have “(1) suffered an injury in fact,

8. Plaintiffs seeking reinstatement to other Boards have

elected to do so via other lawsuits. See Compl. at 7 n.5.

18a

Appendix B

(2) that is fairly traceable to the challenged conduct of

the defendant[s], and (3) that is likely to be redressed by

a favorable judicial decision.” Spokeo, Inc. v. Robins, 578

U.S. 330, 338, 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016)

(alteration adopted). The alleged injury must be particular

to Plaintiffs; they may not raise a “generally available

grievance.” Lance v. Coffman, 549 U.S. 437, 439, 127 S. Ct.

1194, 167 L. Ed. 2d 29 (2007) (per curiam). And Plaintiffs

“must demonstrate standing for each claim that they press

and for each form of relief that they seek.” TransUnion

LLC v. Ramirez, 141 S. Ct. 2190, 2208, 210 L. Ed. 2d 568

(2021).

At the outset of their response to Defendants’ motion,

Plaintiffs suggest that standing doctrine is somehow

inapposite to this case. ECF No. 42 at 20-21. They express

concern that “[t]he rule of law cannot long survive if there

is no redress from any quarter for deliberate breaches of

the President’s constitutional and statutory duties.” Id.

at 20. “[S]omeone must have standing” to sue, they say,

or else the President will “be placed beyond the law.” Id.

(emphasis deleted).

Plaintiffs are mistaken. Standing doctrine is not an

exception to the rule of law—it is the law. The federal

judicial power extends only to the cases and controversies

listed in Article III. In other words, the Constitution

“limits federal courts to resolving concrete disputes

between adverse parties.” Sweeney v. Raoul, 990 F.3d

555, 559 (7th Cir. 2021). One court’s inability to provide a

GHVLUHGIRUPRIUHOLHILQRQHFDVHVKRXOGQRWEHFRQÁDWHG

with an abdication of the responsibility to “say what

19a

Appendix B

the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137,

177, 2 L. Ed. 60 (1803). The President has “independent

obligation to get the law right,” Common Cause v. Trump,

506 F. Supp. 3d 39, 46 n.4 (D.D.C. 2020) (three-judge court),

because the Constitution charges him to “take Care that

the Laws be faithfully executed,” U.S. Const. art. II, § 3.

,QWHUEUDQFKFRQÁLFWLVEHVWDYRLGHGcf. Trump v. Mazars

USA, LLP, 140 S. Ct. 2019, 2036, 207 L. Ed. 2d 951 (2020),

and so courts will not risk a contrary interpretation unless

doing so is necessary to vindicate the rights of individuals

concretely interested in the dispute more than the general

public, see Valley Forge Christian College v. Americans

United for Separation of Church & State, Inc., 454 U.S.

464, 471-76, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982).

As for whether someone must—or does—have

standing to seek the relief Plaintiffs request, the Court

cannot say. “[A] federal court cannot adjudicate the rights

of [those] who are not parties before it.” Tardan v. Cal.

Oil Co., 323 F.2d 717, 722 (5th Cir. 1963). Plaintiffs here,

however, have standing only to contest their own removals.

Plaintiffs Have Not Alleged Facts Implying

that Another Suspension of the Boards is

Certainly Impending

Plaintiffs ask the Court to declare the Boards’

“suspensions” during the zero-based review illegal and to

enjoin Defendants from “further suspending or otherwise

interfering with” the Boards. Compl. ¶ 4. For standing

purpose, those requests are indistinct. Federal courts do

not have independent jurisdiction to render declaratory

20a

Appendix B

judgments; those require the same showing to overcome

“Article III’s case-or-controversy requirement” as “every

other type of remedy.” California v. Texas, 141 S. Ct. 2104,

2115, 210 L. Ed. 2d 230 (2021). Plaintiffs seek prospective

relief, so they must allege “ongoing or imminent future

injury.” Silver v. IRS, 569 F. Supp. 3d 5, 9 (D.D.C. 2021).

Defendants point out that the Boards’ suspension

has ended. ECF No. 39 at 48. So, they say, any injuries

“occurred in the past.” Id. And “past wrongs do not in

themselves amount to . . . real and immediate threat of

injury necessary to make out a case or controversy.” Id.

at 49 (quoting Los Angeles v. Lyons, 461 U.S. 95, 103, 103

S. Ct. 1660, 75 L. Ed. 2d 675 (1983)). Alternatively, they

assert that the dispute is now moot for similar reasons.

Id. at 50-53.9

Plaintiffs say the dispute is not moot because it falls

under the mootness exception called “capable of repetition,

yet evading review.” ECF No. 42 at 48-49. This issue is

“sure to occur in future cases,” they explain. Id. at 49. They

also point to their request for a declaratory judgment,

which they characterize as “live.” Id. at 48.

9. Although standing and mootness are similar doctrines,

they are not identical. See generally Friends of the Earth v.

Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190-92, 120 S. Ct.

693, 145 L. Ed. 2d 610 (2000). Because the suspensions had been

OLIWHGZKHQ3ODLQWLIIVÀOHGWKHLURSHUDWLYHFRPSODLQWWKLVLVVXHZDV

present at the “outset” of this litigation, which makes standing

the correct lens through which to analyze the cognizability of

relief. See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796, 209

L. Ed. 2d 94 (2021).

21a

Appendix B

Plaintiffs’ framing of the issue effectively concedes

that they lack standing. Anyway, the Court agrees with

Defendants. Harms that have yet to materialize are

cognizable only when the “threatened injury” is “certainly

impending,” rather than merely “possible.” Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 409, 133 S. Ct. 1138, 185

L. Ed. 2d 264 (2013) (quotations and emphasis omitted).

Based solely on the prior suspension, Plaintiffs surmise

“what is now shown to be a real and present danger that,

at any time, Defendants . . . will again illegally suspend,

terminate or dilute the operations of the [Boards].” Compl.

¶ 144. That is a prototypical “threadbare recital[ ] of [an]

element[ ] of standing, supported by mere conclusory

statements.” Kareem v. Haspel, 986 F.3d 859, 865-66, 451

U.S. App. D.C. 1 (D.C. Cir. 2021) (quotation omitted and

alterations adopted). Without “facts to make plausible

. . . an allegation that such harm is certainly impending,”

Plaintiffs lack standing to challenge the suspensions.

In re Sci. Applications Int’l Corp. (SAIC) Backup Tape

Data Theft Litig., 45 F. Supp. 3d 14, 28 (D.D.C. 2014)

(quotations omitted).

Plaintiffs Have Alleged No Injury Caused

by the Authorization of Subcommittees

Plaintiffs’ second request fares no better. They “ask the

Court to [declare] that Defendant Austin’s authorization

of subcommittees to the Boards was “unlawful” and to

HQMRLQ'HIHQGDQWVIURP´FUHDWLQJRUVWDIÀQJµDQ\VXFK

subcommittees. Compl. ¶ 5. That request again seeks

prospective relief, so Plaintiffs again must allege “ongoing

or imminent future injury.” Silver, 569 F. Supp. 3d at 9.

22a

Appendix B

Defendants say Plaintiffs have not been harmed by

the authorization of subcommittees. ECF No. 39 at 57-58.

They observe that Plaintiffs have not alleged that any

subcommittees have actually been brought into being.

ECF No. 39 at 58; see also Compl. at 44-46. They argue

that any future creation is “speculative.” ECF No. 39 at

58 And even if it happens, they contend, it will not affect

Plaintiffs, who “do not . . . currently serve on any Board.”

Id. Finally, they explain that the size of each Board is

´À[HGE\VWDWXWHµZKLFKWKH\WKLQNGLVSHOVDQ\LQIHUHQFH

that the Secretary of Defense effectively “pack[ed]” the

Boards. Id. (quoting Compl. ¶ 23).

Plaintiffs again resist identifying an injury. They

say Defendants misunderstand the nature of the harm

because “the suspensions, the terminations,” and the

creation of subcommittees, “are all of a piece.” ECF No.

42 at 53. To the extent they acknowledge the need for an

injury from the authorization of subcommittees, it is in

their comparing this case to Elrod v. Burns, 427 U.S. 347,

96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), a case in which, by

Plaintiffs’ description, state “noncivil service employees

. . . ZHUH ÀUHG RU WKUHDWHQHG ZLWK GLVPLVVDOµ (&) 1R

42 at 53. They also state that Boards will be “stripped at

the very least of a substantial fraction of their statutory

duties.” Id. at 55.

Plaintiffs’ resistance is unavailing. No characterization

of their claims can absolve them of the need to show

standing for each form of relief they seek. See TransUnion,

141 S. Ct. at 2208. So they must allege a certainly

impending future injury attributable to the authorization

23a

Appendix B

of subcommittees. See Owner-Operator Indep. Drivers

Ass’n v. U.S. Dep’t of Transp., 879 F.3d 339, 346, 434 U.S.

App. D.C. 1 (D.C. Cir. 2018). And Elrod—by their own

characterization—has nothing to do with this claim for

relief. Its relevance, if any, concerns their removals from

the Boards.

Defendants, though, miss the mark by pointing out

that Plaintiffs do not now serve on the Boards. Three

plaintiffs seek an ordering restoring their terms of service

to the Air Force Board. See Compl. ¶ 6 & n.5. Without

adjudicating that request, the Court cannot assume it will

be denied, and so it will treat Plaintiffs as Board members

for purposes of this form of relief.10

But even assuming subcommittees will eventually

be created, Plaintiffs allege no facts to suggest that

subcommittees would harm Board members. Their

statement that subcommittees will “strip[ ]” Boards of

statutory duties is unsupported by factual allegations.

ECF No. 42 at 53. And their characterization of the

subcommittees as constituting Board “packing” are hard

to square with the pleaded facts. Id. at 53. Given that

any subcommittees will be “separate and distinct” from

the Boards, Compl. at 44-46, there appears to be no risk

WKDW%RDUGPHPEHUV·LQÁXHQFHRYHUZRUNSURGXFWZLOOEH

diluted. As Defendants point out, the Boards’ sizes are

10. Standing requires only that at least one plaintiff may seek

each form of relief, not that all plaintiffs must be able to seek each

form of relief. See J.D. v. Azar, 925 F.3d 1291, 1323-24, 441 U.S.

App. D.C. 224 (D.C. Cir. 2019). Thus, it does not matter that some

plaintiffs have not requested reinstatement.

24a

Appendix B

À[HG E\ VWDWXWH 86& §§ 7455(a), 8468(a), 9455(a).

If Plaintiffs’ conclusions about the potential impact

of subcommittees are based on anything more than

speculation, the basis has not been shared with the Court.

If a court “can only speculate” about whether and how an

injury will occur, that is “ordinarily fatal to standing.” See

Elec. Priv. Info. Ctr. v. Presidential Advisory Comm’n on

Election Integrity, 878 F.3d 371, 379, 433 U.S. App. D.C.

394 (D.C. Cir. 2017).

Moreover, the Boards’ duties are nonrivalrous—

another person’s performing them need not prevent the

Board from performing them too. Congress has tasked

the Board with visiting the academies, writing reports,

making recommendations, and speaking with advisers. See

generally 10 U.S.C. §§ 7455(d)-(g), 8468(d)-(g), 9455(d)-(g).

So even if the Court were to assume that subcommittees

will be created and that those subcommittees will be given

roles that overlap with the Boards, there still appears

to be no harm to the Boards’ members. They could still

perform their statutory duties.

Because Plaintiffs’ assertion of injury relies on

speculation, and because even that speculation fails to

reveal concrete harm, Plaintiffs lack standing to challenge

Defendant Austin’s authorization of subcommittees.

The Court Could Redress Plaintiffs’

Removals by Ordering Defendants Austin

and McDonald to Treat Them As Board

Members

That leaves Plaintiffs’ request for reinstatement to the

Air Force Board. Compl. ¶ 6 & n.5. Here, they have alleged

25a

Appendix B

KDUP1RGRXEW´UHPRYDOIURPDIHGHUDORIÀFHLVDQDFWXDO

and concrete injury.” Spicer v. Biden, 575 F. Supp. 3d 93,

96 (D.D.C. 2021); accord Severino v. Biden, 581 F. Supp.

3d 110, 115-16 (D.D.C. 2022).

But Defendants, for their part, challenge the

redressability of these injuries. ECF No. 39 at 25-33. They

contend that reinstating Plaintiffs to their positions would

require the Court to enjoin the President, relief they argue

is outside the bounds of this Court’s power. Id. at 26-29.

Plaintiffs reply that courts in this circuit have

confronted this problem before and found solutions. See

ECF No. 42 at 21-24. In other cases, they say, courts have

ordered non-president defendants to treat the injured

party as having been restored to her position without

ordering the president formally to reinstate her. Id. at

21. Whether or not they have named each potentially

relevant party as a defendant is irrelevant, they argue,

because the Court can construe Plaintiffs’ naming of

KLJKOHYHOQRQSUHVLGHQWLDOH[HFXWLYHEUDQFKRIÀFLDOVWR

´HQFRPSDVV VXERUGLQDWH EUDQFK RIÀFLDOVµ WRR Id. at 23

(quoting Spicer, 575 F. Supp. 3d at 97) (emphasis deleted).

And they point out that the Secretary of Defense and

WKHGHVLJQDWHGIHGHUDORIÀFHURIWKH$LU)RUFH%RDUGDUH

named defendants. Id. at 23-24; see also Compl. ¶¶ 37, 51.

Defendants say an injunction against non-presidential

defendants will not do. ECF No. 39 at 29-33. The Secretary

RI'HIHQVHWKH\FODLPKDVQR´VSHFLÀFRYHUVLJKWGXWLHV

as to the Board, such as responsibility for coordinating

its activities.” ECF No. 44 at 13 (quotation omitted and

26a

Appendix B

alteration adopted). And the Board’s designated federal

RIÀFHULQWKHLUYLHZLVDPHUHO\´DGPLQLVWUDWLYHµRIÀFLDO

whose role “primarily involves calling and attending each

meeting.” ECF No. 39 at 32. Thus, they think enjoining

those defendants would not give Plaintiffs relief.

Defendants likely are right that the Court cannot

enjoin the President or subject him to declaratory relief.

See Newdow v. Roberts, 603 F.3d 1002, 1013, 390 U.S.

App. D.C. 273 (D.C. Cir. 2010). But the D.C. Circuit has

H[SODLQHG WKDW DQ\ GLIÀFXOWLHV FUHDWHG E\ WKDW YRLG FDQ

often be “bypassed[ ] because the injury at issue can be

UHFWLÀHGE\LQMXQFWLYHUHOLHIDJDLQVWVXERUGLQDWHRIÀFLDOVµ

Swan v. Clinton, 100 F.3d 973, 978, 321 U.S. App. D.C.

359 (1996). And even if the named defendants could not

alone provide all the desired relief, courts may construe

WKHFRPSODLQWWRLQFOXGHRWKHURIÀFLDOVZKRFROOHFWLYHO\FDQ

“substantially redress” the injury. See id. at 979-80. To

do otherwise would be to “elevate form over substance.”

Id. at 980. Applying those principles, two courts in this

district have held that similar injuries—including Plaintiff

Spicer’s injury in having been removed from the Navy

Board—were redressable. See Spicer, 575 F. Supp. 3d at

97; Severino, 581 F. Supp. 3d at 115-16.

The Court agrees with the holdings of the Spicer and

Severino courts. Defendants try to distinguish Spicer

by pointing out that the chair of the Navy Board was a

defendant in that case, not just the designated federal

RIÀFHU(&)1RDW%XWWKDWPDNHVQRGLIIHUHQFH

,IWKHGHVLJQDWHGIHGHUDORIÀFHUKDVEHHQRUGHUHGWRWUHDW

some plaintiffs as members of the Air Force Board, he can

27a

Appendix B

ensure that the Board holds no meetings without them.

See 5 U.S.C. app. 2 § 10(3); supra note 5. That relief plus

a declaratory judgment establishing that some plaintiffs

are members of the Air Force Board can “substantially

redress [Plaintiffs’] injury.” Swan, 100 F.3d at 980.

Besides, under Swan, the Court can construe Plaintiffs’

complaint to include the chair and other Board members

LQWKHLURIÀFLDOFDSDFLWLHVDQ\ZD\See id. at 980 & n.3.

At bottom, even if the Court cannot provide Plaintiffs

with “as complete a remedy” as conceivably possible, it can

provide substantial enough relief “for standing purposes.”

Swan, 100 F.3d at 980-81. Thus, Plaintiffs have alleged

facts that establish standing to challenge their removals

from the Air Force Board.

B. Plaintiffs Have Not Stated a Claim for Their

Removal from the Air Force Board

Plaintiffs’ four claims related to their removals from

the Air Force Board each present reasons why those

removals might entitle them to relief. Understood that

way, Count II11 and Count IV12 amount to the same thing.

The APA directs courts to “hold unlawful and set aside

agency action” that is “not in accordance with law” or

“contrary to constitutional . . . power.” 5 U.S.C. § 706. In

doing so, it “supplies a generic cause of action” to bring

11. Plaintiffs’ second claim is that the removals violated the

APA. Compl. ¶¶ 136-40.

12. Plaintiffs’ fourth claim is that the removals violated the

“the Separation of Powers Doctrine.” See Compl. ¶¶ 145-50.

28a

Appendix B

claims based on substantive law found elsewhere. See

Trudeau v. FTC, 456 F.3d 178, 188-89, 372 U.S. App. D.C.

335 (D.C. Cir. 2006) (quotation omitted and alteration

adopted). Thus, to state a claim under the APA—for

contravention of the separation of powers or for any other

reason—Plaintiffs must establish that the action they

challenge was illegal. See Rempfer v. Dep’t of the Air

Force, 538 F. Supp. 2d 200, 207-08 (D.D.C. 2008). That is

a “question of law,” and so it is reviewable on a motion to

dismiss under Rule 12(b)(6). Marshall Cnty. Health Care

Auth. v. Shalala, 988 F.2d 1221, 1226, 300 U.S. App. D.C.

263 (D.C. Cir. 1993). Counts I and III purport to assert

breach-of-contract and viewpoint-discrimination First

Amendment claims, respectively.

So the Court must address three questions to

determine whether Plaintiffs have stated claims for their

removals from the Air Force Board. First, with respect

to Counts II and IV, did the President violate the law

E\ ÀULQJ WKHP" 6HFRQG ZLWK UHVSHFW WR &RXQW , KDYH

Plaintiffs plausibly alleged the elements of a breach-ofFRQWUDFW FODLP" 7KLUG ZLWK UHVSHFW WR &RXQW ,,, KDYH

Plaintiffs plausibly alleged the elements of a viewpointGLVFULPLQDWLRQ )LUVW $PHQGPHQW FODLP" 7KH DQVZHU WR

all three questions is no.

The Statute Permitted the President to

Fire Plaintiffs

Defendants claim that the President enjoys complete

discretion to remove presidentially appointed Board

members. ECF No. 39 at 33-44. They construe the

29a

Appendix B

VWDWXWRU\ WHUPV RI RIÀFH DV OLPLWDWLRQV QRW LUUHYRFDEOH

grants. Id. at 34. Accordingly, they contend that the

statute contains no explicit removal protection. Id. at

36-42. They conclude that the President has removal

power incident to his appointment power. Id. at 34-36.

They also argue that, even if ambiguity were present in

the statute, the Court should choose their construction

to avoid constitutional questions about the scope of the

President’s removal power. Id. at 42-44.

Plaintiffs say Defendants have omitted a crucial

aspect of the statute. The six presidential appointments,

they observe, are staggered such that a president can

make only “two appointments in each particular year.”

ECF No. 42 at 26 (citing 10 U.S.C. §§ 9455(b), 7455(b),

E ,IWKH3UHVLGHQWFRXOGÀUHDOOVL[SUHVLGHQWLDOO\

appointed Board members at will, they reason, it would

create an untenable “hole in the[ir] membership.” Id. They

DOVR VXJJHVW WKDW DWZLOO SUHVLGHQWLDO UHPRYDO FRQÁLFWV

with the Boards’ purpose to “provide independent advice

and recommendations.” Id. (quotation omitted). And

they point out that, although the statute contains no

explicit removal protections, neither does it contain an

explicit grant of presidential removal authority. Id. at

27. By contrast, the Air Force Board’s chair is explicitly

HPSRZHUHGWRÀUH%RDUGPHPEHUVIRUWUXDQF\Id. (citing

10 U.S.C. § 9455(c)(2)).

More broadly, Plaintiffs argue that the many cases

about inherent presidential removal authority are

LQDSSRVLWHKHUHEHFDXVH%RDUGPHPEHUVDUHQRWRIÀFHUVRI

the United States. ECF No. 42 at 27-32. That is, Plaintiffs

30a

Appendix B

say Board members have an advisory function only and

VRGRQRWKROG´VLJQLÀFDQWDXWKRULW\SXUVXDQWWRWKHODZ

of the United States.” Id. at 27 (quoting Buckley v. Valeo,

424 U.S. 1, 126, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976)). That

must be true, they explain, or else the statute’s provision

of congressional appointments to the Boards would violate

the Appointments Clause of Article II, Section 2. Id. at

28-29; see also Buckley, 424 U.S. at 136. Implicit in that

contention is the idea that a President’s inherent removal

DXWKRULW\GRHVQRWH[WHQGEH\RQGRIÀFHUVRIWKH8QLWHG

States. See generally ECF No. 42 at 32-38. And Plaintiffs

REVHUYHWKDWQRSULRUSUHVLGHQWKDVWULHGWRÀUHD%RDUG

member. Id. at 32.

Plaintiffs’ mélange of constitutional and statutory

arguments lacks analytical rigor. The Court cannot

leap to decide the scope of the President’s constitutional

UHPRYDODXWKRULW\ZLWKRXWÀUVWDVNLQJ´ZKHWKHUWKHUHLV

a nonconstitutional ground for deciding the case.” Kalka

v. Hawk, 215 F.3d 90, 97, 342 U.S. App. D.C. 90 (D.C. Cir.

&RXUWV PXVW GHÀQH WKDW VFRSH LI IRU H[DPSOH D

statute provides that an individual “cannot be removed

by the President unless certain statutory criteria are

met.” Seila Law, 140 S. Ct. at 2192. But that formulation

presupposes a statutory interpretation.

To follow the principle that courts should decide cases

on statutory grounds whenever possible, the Court must

ÀUVWDGGUHVVZKHWKHUWKHVWDWXWHDXWKRUL]HGWKH3UHVLGHQW

to remove Plaintiffs. If it did, the inquiry is over; there is

no separation-of-powers problem because Congress and

the President effectively agree on whether the individual

31a

Appendix B

can be removed.13 If it did not, then—and only then—

must the Court consider whether the President still

has constitutional removal authority over Plaintiffs. As

explained below, the statute creating the Air Force Board

HPSRZHUHGWKH3UHVLGHQWWRÀUHSUHVLGHQWLDODSSRLQWHHV

so this inquiry ends at part one.

Plaintiffs inadequately grapple with a key principle:

´DEVHQW D VSHFLÀF SURYLVLRQ WR WKH FRQWUDU\ WKH SRZHU

of removal from office is incident to the power of

appointment.” Carlucci v. Doe, 488 U.S. 93, 99, 109 S. Ct.

407, 102 L. Ed. 2d 395 (1988) (quotation omitted). That

is not a constitutional rule, but a “matter of statutory

interpretation.” Id. And it has a long pedigree. See In re

Hennen, 38 U.S. (13 Pet.) 230, 259, 10 L. Ed. 138 (1839).

7KDWUXOHDQGLWVSHGLJUHHDUHHVSHFLDOO\VLJQLÀFDQWKHUH

because courts “assume that, when Congress enacts

statutes, it is aware of relevant judicial precedent.” Ryan

v. Valencia Gonzales, 568 U.S. 57, 66, 133 S. Ct. 696, 184

L. Ed. 2d 528 (2013).

13. The Court does not suggest that agreements between

the executive and legislative branches can never contravene

the separation of powers. But violations in that context require

an independent constitutional limitation, for example, the

Presentment Clause. See Clinton v. City of New York, 524 U.S.

417, 442-447, 118 S. Ct. 2091, 141 L. Ed. 2d 393 (1998) (holding

unconstitutional a statute that gave the President power to cancel

VSHQGLQJ DXWKRUL]HG E\ ODZ 7KH RQO\ VSHFLÀF FRQVWLWXWLRQDO

provision Plaintiffs identify is Congress’s authority to make rules

regulating the armed forces. See Compl. ¶¶ 145-50; U.S. Const. art.

1, § 8, cl. 14. Even assuming that congressional power is relevant

KHUHLIDVWDWXWHSHUPLWVWKH3UHVLGHQWWRÀUHDQLQGLYLGXDODQG

the President does so, he has complied with Congress’s rule, so

no constitutional problem exists.

32a

Appendix B

Under that rule, Plaintiffs, former presidential

DSSRLQWHHV PXVW SRLQW WR D VSHFLÀF VWDWXWRU\ SURYLVLRQ

WKDWSUHYHQWHGWKHLUÀULQJ7KH\FDQQRW7KH\SRLQWRQO\

WRWKUHHFROODWHUDOVWDWXWRU\IHDWXUHV³WKHWHUPRIRIÀFH

limitations on the presidential appointment power, and the

ability for the chair to remove absentee members—and

their perception of the statute’s purpose. But Congress

knows how to codify an explicit removal protection.

For instance, when it created the Consumer Financial

Protection Bureau, it provided that the agency’s director

ZDV UHPRYDEOH RQO\ IRU ´LQHIÀFLHQF\ QHJOHFW RI GXW\

RU PDOIHDVDQFH LQ RIÀFHµ Seila Law, 140 S. Ct. at 2193

(quoting 12 U.S.C. § 5491(c)(3)). Its decision to say almost

nothing about removal in the Air Force Board’s statute

is strong evidence that it did not wish for the statute to

foreclose presidential at-will presidential removal. Cf.

Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 826,

200 L. Ed. 2d 58 (2018). Thus, it is doubtful that anything

less than an explicit removal protection could constitute a

´VSHFLÀFSURYLVLRQµXQGHUCarlucci, 488 U.S. at 99. Still,

the Court will explain why each of the attributes Plaintiffs

identify do not advance their position.

6WDUWZLWKWKHWHUPRIRIÀFHSURYLVLRQ,WVD\VWKDW

presidential appointees “serve for three years each except

WKDWDQ\PHPEHUZKRVHWHUPRIRIÀFHKDVH[SLUHGVKDOO

continue to serve until his successor is designated by the

President.” 10 U.S.C. § 9455(b)(1). For one thing, courts

have rejected the suggestion that a fixed term limit

alone implies a limit on removal authority. See Spicer,

575 F. Supp. 3d at 99; Pievsky v. Ridge, 98 F.3d 730, 734

G&LU ´>$@À[HGWHUPPHUHO\SURYLGHVDWLPHIRU

33a

Appendix B

the term to end.”). But this statute helps Plaintiffs even

OHVVWKDQDJHQHULFWHUPRIRIÀFHSURYLVLRQ,WH[SOLFLWO\

recognizes that the President has a role in deciding when

a Board member’s term ends. Plaintiffs fail to explain

ZK\DPHPEHU·V´WHUPRIRIÀFHµKDVQRW´H[SLUHGµLIWKH

3UHVLGHQW ÀUHV KHU See 10 U.S.C. § 9455(b)(1). Even if

that is not the most natural reading of “expired,” that

SRVVLELOLW\PHDQVWKDWWKHWHUPRIRIÀFHSURYLVLRQFDQQRW

defeat the longstanding presumption recognized by

Carlucci.

As for limits on the President’s appointment power,

it is Plaintiffs who omit a crucial aspect of the statute,

not Defendants. Plaintiffs say the President can appoint

only two members in any year, ECF No. 42 at 26, but

that limitation is not found in the text of the Air Force

Board’s statute. See supra note 3. It is found in the other

two Boards’ statutes, id., but Plaintiffs have not pressed

an unlawful-removal claim over those Boards, Compl. ¶ 6

& n.5. The relevant statute says only that the “President

shall designate persons each year to succeed the members

designated by the President whose terms expire that

year.” 10 U.S.C. § 9455(b)(1). That language is consistent

with unfettered presidential removal power, so it cannot

defeat the Carlucci presumption.

The termination-by-chair provision is ultimately no

different. It allows the chair to remove a member—any

member who is not also a member of Congress, not just

presidential appointees—if she “fails to attend two

successive Board meetings, except in a case in which an

absence is approved in advance, for good cause, by the

34a

Appendix B

Board chairman.” 10 U.S.C. § 9455(c)(2)(A). In construing

that provision to imply that the President may not also

remove Board members, Plaintiffs invoke the negativeimplication canon. 14 But “the force of any negative

implication . . . depends on context.” Marx v. Gen. Revenue

Corp., 568 U.S. 371, 381, 133 S. Ct. 1166, 185 L. Ed. 2d 242

(2013). So the negative-implication canon is “overcome by

contrary indications that adopting a particular rule or

statute was probably not meant to signal any exclusion,”

id. (quotation omitted), and any interpretation based on

the canon must be “sensible,” see NLRB v. Sw. General,

Inc., 580 U.S. 288, 302, 137 S. Ct. 929, 197 L. Ed. 2d 263

(2017) (quotation omitted).

Plaintiffs’ interpretation is insensible, so context

defeats the negative implication. If empowering the chair

WRÀUHPHPEHUVLVFRQVWUXHGDVDQLPSOLFLWH[FOXVLRQRIDQ\

other means or grounds for removing Board members, the

UHVXOWLVWKDWPHPEHUVFRXOGEHÀUHGRQO\IRUWUXDQF\DQG

not for, say, corruption or crimes of moral turpitude. That

would be a strange result. Oddity is no reason to avoid

applying a statute as-written, see Cochise Consultancy,

Inc v. United States ex rel. Hunt, 139 S. Ct. 1507, 1513,

203 L. Ed. 2d 791 (2019), but it counsels against the use of

an interpretive canon that is highly sensitive to context,

see United States v. Polanco, 451 F.3d 308, 311, 47 V.I.

762 (3d Cir. 2006). Because it is unlikely that Congress

intended to protect Board members from removal for

14. Another name for that canon is expressio unius est

exclusio alterius. It holds that things not mentioned are excluded.

See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 80, 122 S. Ct.

2045, 153 L. Ed. 2d 82 (2002).

35a

Appendix B

DOODIIURQWVH[FHSWDEVHQWHHLVPWKH&RXUWÀQGVWKDWWKH

termination-by-chair provision is just an addition to the

removal-by-appointer background rule. And even if that

were not the best interpretation of the statute’s text, the

question is at least close enough that any uncertainty on

that score does not outweigh the Carlucci presumption.

Finally, Plaintiffs’ assertion that the statute’s purpose

is to provide “independent advice and recommendations”

lacks support. ECF No. 42 at 26. They cite only the

requirements of FACA, which apply to all advisory

committees. See id. at 26-27. But “vague notions of a

statute’s basic purpose” are entitled to little weight in

statutory interpretation. See Stovic v. R.R. Ret. Bd., 826

F.3d 500, 505, 423 U.S. App. D.C. 336 (D.C. Cir. 2016)

(quotation omitted and alteration adopted). And even

if Plaintiffs are right about the statute’s purpose, their

interpretation does not follow. The Board’s job is to provide

advice, and advice is only as useful as its recipient believes

LWWREH2QHFRXOGMXVWDVHDVLO\SRVLWWKDWIXOÀOOLQJWKH

statute’s purpose requires plenary presidential removal

power so that the President is guaranteed to have

FRQÀGHQFHLQWKRVHGLVSHQVLQJUHFRPPHQGDWLRQVPDNLQJ

him more likely to heed their advice. In any event, an

XQVXSSRUWHG LOOGHÀQHG QRWLRQ RI WKH VWDWXWH·V SXUSRVH

that does not necessarily support Plaintiffs’ interpretation

cannot defeat the Carlucci presumption any more than

the three textual arguments.

For those reasons, the Court reaches the same

conclusion as the Spicer and Severino courts. See Spicer,

575 F. Supp. 3d at 98-100; Severino, 581 F. Supp. 3d

36a

Appendix B

DW 7KH VWDWXWH HPSRZHUV WKH 3UHVLGHQW WR ÀUH

presidentially appointed Air Force Board members, so

there is no reason to consider the scope of his constitutional

removal authority. Thus, the Court will dismiss Count II

and Count IV.

Plaintiffs Fail to Allege that Any Contract’s

Terms Prevented Removal

On Plaintiffs’ breach-of-contract claim, Defendants

argue that Plaintiffs have failed to allege the basic

elements of a contract. ECF No. 39 at 44-45. In their view,

the operative complaint contains no “facts supporting the

existence of a contract,” and merely repackages the fact

that Plaintiffs were appointed to the Air Force Board. See

id. And even if there were contracts, they contend that no

pleaded facts would entitle Plaintiffs to the extraordinary

UHPHG\RIVSHFLÀFSHUIRUPDQFHId. at 45.

Plaintiffs reply that an appointment to a Board

“has to be a contract.” ECF No. 42 at 38. To support

that conclusion, they say an appointment is offered and

accepted for consideration—the promise to serve and the

EHQHÀWV RI WKH RIÀFH³DQG WKDW 3ODLQWLIIV ZHUH KDUPHG

ZKHQWKHSUHVLGHQWÀUHGWKHPId. And they state without

further explanation that the contract was “breached when

the President summarily removed the Plaintiffs.” Id.

(emphasis deleted). They respond to Defendants’ assertion

WKDWVSHFLÀFSHUIRUPDQFHLVXQDYDLODEOHE\DUJXLQJWKDW

the “statutory independence” of the Boards makes this

VLWXDWLRQ VXLWDEOH IRU VSHFLÀF SHUIRUPDQFH FRQWUDU\ WR

the general rule. Id. at 39-43.

37a

Appendix B

Even assuming Plaintiffs had employment contracts,

they say little about their terms. But under federal law,

Plaintiffs must allege “an obligation or duty arising out

of the contract[s]” and “a breach of that duty.” Red Lake

Band of Chippewa Indians v. U.S. Dep’t of the Interior,

624 F. Supp. 2d 1, 12 (D.D.C. 2009).15 Implicitly, they argue

that the government had a duty to allow them to serve

three-year terms, no matter the President’s wishes. Yet

the only two candidates for having supplied that term are

the statute and the fact that no president had ever before

ÀUHG %RDUG PHPEHUV See ECF No. 42 at 41 (arguing

that “long-term convention and the statutes point to the

inability of the President to remove [Board] members”).

Neither of those candidates can help Plaintiffs.

The Court agrees that, if Plaintiffs’ appointments were

protected by a contract, the contracts’ terms must have

come from the statute. Cf. Roedler v. Dep’t of Energy, 255

F.3d 1347, 1352 (Fed. Cir. 2001) (“[W]hen . . . the contract

implements a statutory enactment, it is appropriate to

inquire into the governing statute and its purpose.”).

But the statute cannot have guaranteed them threeyear terms because, as the Court has already held, it

SHUPLWV WKH 3UHVLGHQW WR ÀUH SUHVLGHQWLDOO\ DSSRLQWHG

Board members at will. For the same reason, no amount

of historical practice can compel a contrary conclusion.

Cf. U.C.C. § 2-208 (Unif. L. Comm’n 1977) (“[E]xpress

terms shall control course of performance and course

15. The Court applies federal common law to this claim

EHFDXVH3ODLQWLIIVFODLPWREHWKHEHQHÀFLDU\RI´REOLJDWLRQV. . .

of the United States under its contracts.” Boyle v. United Techs.

Corp., 487 U.S. 500, 504, 108 S. Ct. 2510, 101 L. Ed. 2d 442 (1988).

38a

Appendix B

of performance shall control both course of dealing and

usage of trade.”).16

Thus, Plaintiffs have not stated a breach-of-contract

claim even if there were a contract to breach. So the Court

will dismiss Count I.

Plaintiffs Allege Neither Speech Nor

Regulation of Speech

On Plaintiffs’ First Amendment claim, Defendants

VD\ 3ODLQWLIIV KDYH LGHQWLÀHG QR ´VSHFLÀF LQVWDQFHVµ RI

protected speech. ECF No. 39 at 46. And even if they

had, Defendants argue, it would not be protected speech

because the only conceivably relevant statements would

EH WKRVH PDGH LQ 3ODLQWLIIV· RIÀFLDO FDSDFLWLHV Id. In

Defendants’ view, the President may remove political

appointees because of policy disagreements without

violating the First Amendment. Id. at 47-48. For good

measure, they point out that Plaintiffs have not pleaded

a First Amendment retaliation claim. Id. at 46 n.13.

Plaintiffs acknowledge that they have neither

LGHQWLÀHGQRU´PDGHDQ\VWDWHPHQWVµ(&)1RDW

Instead, they claim to have been “attacked for what is

presumed to be their unexpressed views.” Id. Based on

the comments of President Biden’s then press secretary,

Plaintiffs explain that this claim is based on an “improper

16. “The Uniform Commercial Code is a source of federal

common law and may be relied upon in interpreting a contract to

which the federal government is a party.” O’Neill v. United States,

50 F.3d 677, 684 (9th Cir. 1995).

39a

Appendix B

PRWLYHµEHKLQGWKHLUÀULQJWKHGHVLUHWRSXUJHWKRVHZKR

are not “aligned” with the president’s “values.” Id. at 4546 (quotation omitted).

V iew poi nt d iscr i m i nat ion i s “ presu mpt ively

unconstitutional.” Reed v. Town of Gilbert, 576 U.S. 155,

163, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015). But that is

because it is “an egregious form of content discrimination,”

a “regulation of speech.” Rosenberger v. Rector & Visitors

of the Univ. of Va., 515 U.S. 819, 829, 115 S. Ct. 2510, 132

L. Ed. 2d 700 (1995). Thus, a viewpoint-discrimination

claim requires that the government “has impermissibly

interfered with the free exchange of ideas by imposing

trade barriers on certain viewpoints but not on others.”

See Connection Distrib. Co. v. Holder, 557 F.3d 321, 329

(6th Cir. 2009).

Plaintiffs allege neither speech nor regulation. Their

complaint contains no suggestion that they have faced

impediments to saying anything they wish, and it concedes

that they have not tried to speak on any particular topic.

So they have not stated a viewpoint-discrimination claim.

Moreover, although Defendants are right that

Plaintiffs have not pleaded a First Amendment retaliation

FODLPLWZRXOGQRWPDWWHULIWKH\KDG7KHÀUVWHOHPHQW

of such a claim is that a plaintiff has “engaged in conduct

protected under the First Amendment.” Black Lives

Matter D.C. v. Trump, 544 F. Supp. 3d 15, 46 (D.D.C.

TXRWDWLRQRPLWWHG 3ODLQWLIIVKDYHQRWVDWLVÀHGWKDW

element for the same reason: They have not “made any

statements.” ECF No. 42 at 43.

40a

Appendix B

Given that Plaintiffs seek to vindicate the “freedom

of speech,” U.S. Const. amend. I, it should come as no

VXUSULVHWKDWWKH\PXVWDOOHJHDWOHDVWDVSHFLÀFGHVLUHWR

speak. Because they have not, they have failed to state a

claim. So the Court will dismiss Count III.

***

Thus, none of Plaintiffs’ claims can survive Defendants’

motion to dismiss. That conclusion depends mostly on

statutory interpretation and the nature of Plaintiffs’

claims, so further allegations consistent with those

DOUHDG\SOHGFRXOGQRWFXUHWKHGHÀFLHQF\See Firestone v.

Firestone, 76 F.3d 1205, 1209, 316 U.S. App. D.C. 152 (D.C.

Cir. 1996) (per curiam). Moreover, Plaintiffs have already

amended their complaint four times, and the Court has

explained that, “absent extraordinary circumstances, [it

would] not grant Plaintiffs further leave to amend the

complaint.” Min. Order of Apr. 7, 2022. So the Court will

dismiss Plaintiffs’ claims with prejudice.

IV. Conclusion

For all the above reasons, the Court will grant

Defendants’ motion to dismiss. A separate order will issue.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY

United States District Judge

Date: March 21, 2023

41a

C THE UNITED

APPENDIX C —Appendix

ORDER OF

STATES DISTRICT COURT FOR THE DISTRICT

OF COLUMBIA, FILED MARCH 21, 2023

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 21-1893 (TJK)

HEIDI STIRRUP et al.,

Plaintiffs,

JOSEPH R. BIDEN, JR.,

IN HIS OFFICIAL CAPACITY AS PRESIDENT

OF THE UNITED STATES, et al.,

Defendants.

ORDER

For the reasons set forth in the Court’s accompanying

Memorandum Opinion, it is hereby ORDERED that

Defendants’ Motion to Dismiss, ECF No. 39, is GRANTED.

This case is DISMISSED IN PART for lack of subjectmatter jurisdiction and DISMISSED IN PART for failure

WR VWDWH D FODLP 7KLV LV D ÀQDO DSSHDODEOH 2UGHU 7KH

Clerk of Court is directed to close the case.

42a

Appendix C

SO ORDERED.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY

United States District Judge

Date: March 21, 2023

43a

Appendix D —

APPENDIX

RELEVANT STATUTORY PROVISIONS

5 U.S.C. § 1004. Responsibilities of

congressional committees

Effective: December 27, 2022

(a) Review of activities.--In the exercise of its legislative

review function, each standing committee of the Senate

and the House of Representatives shall make a continuing

review of the activities of each advisory committee under

its jurisdiction to determine whether such advisory

committee should be abolished or merged with any other

advisory committee, whether the responsibilities of such

advisory committee should be revised, and whether such

advisory committee performs a necessary function not

already being performed. Each such standing committee

shall take appropriate action to obtain the enactment of

legislation necessary to carry out the purpose of this

subsection.

(b) Consideration of legislation.--In considering

legislation establishing, or authorizing the establishment

of any advisory committee, each standing committee of

the Senate and of the House of Representatives shall

determine, and report such determination to the Senate

or to the House of Representatives, as the case may be,

whether the functions of the proposed advisory committee

are being or could be performed by one or more agencies

or by an advisory committee already in existence, or by

enlarging the mandate of an existing advisory committee.

Any such legislation shall--

44a

Appendix D

(1 FRQWDLQDFOHDUO\GHÀQHGSXUSRVHIRUWKHDGYLVRU\

committee;

(2) requi re the membership of the adv isor y

committee to be fairly balanced in terms of the

points of view represented and the functions to

be performed by the advisory committee;

(3) contain appropriate provisions to assure that

the advice and recommendations of the advisory

FRPPLWWHHZLOOQRWEHLQDSSURSULDWHO\LQÁXHQFHG

by the appointing authority or by any special

interest, but will instead be the result of the

advisory committee’s independent judgment;

(4) contain provisions dealing with authorization

of appropriations, the date for submission of

reports (if any), the duration of the advisory

committee, and the publication of reports and

other materials, to the extent that the standing

committee determines the provisions of section

1009 of this chapter to be inadequate; and

(5) contain provisions which will assure that the

advisory committee will have adequate staff

(either supplied by an agency or employed by

it), will be provided adequate quarters, and will

have funds available to meet its other necessary

expenses.

applicable, the guidelines set out in subsection (b) shall be

followed by the President, agency heads, or other Federal

RIÀFLDOVLQFUHDWLQJDQDGYLVRU\FRPPLWWHH

45a

Appendix D

10 U.S.C. § 7455. Board of Visitors

Effective: December 27, 2021

(a) A Board of Visitors to the Academy is constituted

annually of-(1) the chairman of the Committee on Armed Services

of the Senate, or his designee;

(2) three other members of the Senate designated by

the Vice President or the President pro tempore

of the Senate, two of whom are members of the

Committee on Appropriations of the Senate;

(3) the chairman of the Committee on Armed Services

of the House of Representatives, or his designee;

(4) four other members of the House of Representatives

designated by the Speaker of the House of

Representatives, two of whom are members of

the Committee on Appropriations of the House

of Representatives; and

(5) six persons designated by the President.

(b) The persons designated by the President serve for

three years each except that any member whose term

RI RIÀFH KDV H[SLUHG VKDOO FRQWLQXH WR VHUYH XQWLO KLV

successor is appointed by the President. The President

shall designate two persons each year to succeed the

members whose terms expire that year.

46a

Appendix D

shall be designated for the unexpired portion of the term

E\WKHRIÀFLDOZKRGHVLJQDWHGWKHPHPEHU

(d) The Board shall visit the Academy annually. With

the approval of the Secretary of the Army, the Board or

its members may make other visits to the Academy in

connection with the duties of the Board or to consult with

the Superintendent of the Academy.

(e) The Board shall inquire into the morale and discipline,

WKH FXUULFXOXP LQVWUXFWLRQ SK\VLFDO HTXLSPHQW ÀVFDO

affairs, academic methods and other matters relating to

the Academy that the Board decides to consider.

(f) Within 60 days after its annual visit, the Board shall

submit a written report to the President of its action,

and of its views and recommendations pertaining to the

Academy. Any report of a visit, other than the annual

visit, shall, if approved by a majority of the members of

the Board, be submitted to the President within 60 days

after the approval.

(g) Upon approval by the Secretary, the Board may call

in advisers for consultation.

(h) While performing his duties, each member of the

Board and each adviser shall be reimbursed under

Government travel regulations for his travel expenses.

47a

Appendix D

(i)(1) A majority of the members of the Board may call an

RIÀFLDOPHHWLQJRIWKH%RDUGRQFHSHU\HDU

(2) A member may attend such meeting-(A) in person, at the Academy; or

(B) remotely, at the election of such member.

48a

Appendix D

10 U.S.C. § 8468. Board of Visitors

Effective: December 27, 2021

(a) A Board of Visitors to the Naval Academy is constituted

annually of-(1) the chairman of the Committee on Armed Services

of the Senate, or his designee;

(2) three other members of the Senate designated by

the Vice President or the President pro tempore

of the Senate, two of whom are members of the

Committee on Appropriations of the Senate;

(3) the chairman of the Committee on Armed Services

of the House of Representatives, or his designee;

(4) four other members of the House of Representatives

designated by the Speaker of the House of

Representatives, two of whom are members of

the Committee on Appropriations of the House

of Representatives; and

(5) six persons designated by the President.

(b) The persons designated by the President serve for

three years each except that any member whose term

RI RIÀFH KDV H[SLUHG VKDOO FRQWLQXH WR VHUYH XQWLO KLV

successor is appointed by the President. The President

shall designate two persons each year to succeed the

members whose terms expire that year.

49a

Appendix D

shall be designated for the unexpired portion of the term

E\WKHRIÀFLDOZKRGHVLJQDWHGWKHPHPEHU

(d) The Board shall visit the Academy annually. With

the approval of the Secretary of the Navy, the Board or

its members may make other visits to the Academy in

connection with the duties of the Board or to consult with

the Superintendent of the Academy.

(e) The Board shall inquire into the state of morale

and discipline, the curriculum, instruction, physical

HTXLSPHQW ÀVFDO DIIDLUV DFDGHPLF PHWKRGV DQG RWKHU

matters relating to the Academy that the Board decides

to consider.

(f) Within 60 days after its annual visit, the Board shall

submit a written report to the President of its action

and of its views and recommendations pertaining to the

Academy. Any report of a visit, other than the annual

visit, shall, if approved by a majority of the members of

the Board, be submitted to the President within 60 days

after the approval.

(g) Upon approval by the Secretary, the Board may call

in advisers for consultation.

(h) While performing his duties, each member of the

Board and each adviser shall be reimbursed under

Government travel regulations for his travel expenses.

50a

Appendix D

(i)(1) A majority of the members of the Board may call an

RIÀFLDOPHHWLQJRIWKH%RDUGRQFHSHU\HDU

(2) A member may attend such meeting-(A) in person, at the Academy; or

(B) remotely, at the election of such member.

51a

Appendix D

10 U.S.C. § 9455. Board of Visitors

Effective: December 27, 2021

(a) A Board of Visitors to the Academy is constituted

annually. The Board consists of the following members:

(1) Six persons designated by the President.

(2) The chairman of the Committee on A rmed

Services of the House of Representatives, or his

designee.

(3) Four persons designated by the Speaker of the

House of Representatives, three of whom shall

be members of the House of Representatives and

the fourth of whom may not be a member of the

House of Representatives.

(4) The chairman of the Committee on A rmed

Services of the Senate, or his designee.

(5) Three other members of the Senate designated by

the Vice President or the President pro tempore

of the Senate, two of whom are members of the

Committee on Appropriations of the Senate.

(b)(1) The persons designated by the President serve for

three years each except that any member whose term

RI RIÀFH KDV H[SLUHG VKDOO FRQWLQXH WR VHUYH XQWLO KLV

successor is designated by the President. The President

52a

Appendix D

shall designate persons each year to succeed the members

designated by the President whose terms expire that year.

(2) At least two of the members designated by the

President shall be graduates of the Academy.

(c)(1) If a member of the Board dies or resigns or is

terminated as a member of the Board under paragraph (2),

a successor shall be designated for the unexpired portion

RIWKHWHUPE\WKHRIÀFLDOZKRGHVLJQDWHGWKHPHPEHU

(2)(A) If a member of the Board fails to attend two

successive Board meetings, except in a case in which

an absence is approved in advance, for good cause, by

the Board chairman, such failure shall be grounds for

termination from membership on the Board. A person

designated for membership on the Board shall be provided

notice of the provisions of this paragraph at the time of

such designation.

(B) Termination of membership on the Board under

subparagraph (A)-(i) in the case of a member of the Board who is not a

member of Congress, may be made by the Board

chairman; and

(ii) in the case of a member of the Board who is a

member of Congress, may be made only by the

RIÀFLDOZKRGHVLJQDWHGWKHPHPEHU

53a

Appendix D

from membership on the Board under subparagraph

$ WKH %RDUG FKDLUPDQ VKDOO QRWLI\ WKH RIÀFLDO ZKR

GHVLJQDWHGWKHPHPEHU8SRQUHFHLSWRIVXFKDQRWLÀFDWLRQ

with respect to a member of the Board who is a member

RI&RQJUHVVWKHRIÀFLDOZKRGHVLJQDWHGWKHPHPEHUVKDOO

WDNHVXFKDFWLRQDVWKDWRIÀFLDOFRQVLGHUVDSSURSULDWH

(d) The Board shall visit the Academy annually. With the

approval of the Secretary of the Air Force, the Board

or its members may make other visits to the Academy

in connection with the duties of the Board or to consult

with the Superintendent of the Academy. Board members

shall have access to the Academy grounds and the cadets,

faculty, staff, and other personnel of the Academy for the

purposes of the duties of the Board.

(e)(1) The Board shall inquire into the morale, discipline,

and social climate, the curriculum, instruction, physical

HTXLSPHQW ÀVFDO DIIDLUV DFDGHPLF PHWKRGV DQG RWKHU

matters relating to the Academy that the Board decides

to consider.

(2) The Secretary of the Air Force and the Superintendent

of the Academy shall provide the Board candid and

complete disclosure, consistent with applicable laws

concerning disclosure of information, with respect to

institutional problems.

(3) The Board shall recommend appropriate action.

54a

Appendix D

(f) The Board shall prepare a semiannual report

containing its views and recommendations pertaining

to the Academy, based on its meeting since the last such

report and any other considerations it determines relevant.

Each such report shall be submitted concurrently to the

Secretary of Defense, through the Secretary of the Air

Force, and to the Committee on Armed Services of the

Senate and the Committee on Armed Services of the

House of Representatives.

(g) Upon approval by the Secretary, the Board may call

in advisers for consultation.

(h) While performing duties as a member of the Board,

each member of the Board and each adviser shall be

reimbursed under Government travel regulations for

travel expenses.

(i)(1) A majority of the members of the Board may call an

RIÀFLDOPHHWLQJRIWKH%RDUGRQFHSHU\HDU

(2) A member may attend such meeting-(A) in person, at the Academy; or

(B) remotely, at the election of such member.

55a

Appendix D

41 CFR 102-3.105

(Aug. 7, 2024)

§ 102-3.105 What are the responsibilities of an agency

head?

When a committee is utilized by or established by an

agency, the agency head must:

(a) Comply with the Act, this part, and other applicable

laws and regulations;

(b) Issue administrative guidelines and management

controls providing the details that advisory committee

staff need to implement during the creation,

operation, and termination of their Federal advisory

committees;

(d) Designate a DFO for each advisory committee and

its subcommittees;

(e) Approve the advisory committee charters for

establishments, renewals, re-establishments, or

mergers;

(f) Provide a written determination stating the reasons

for closing any advisory committee meeting to

the public, in whole or in part, in accordance with

the exemptions set forth in the Government in the

Sunshine Act, 5 U.S.C. 552b(c);

56a

Appendix D

(g) Review, at least annually, the need to continue each

existing advisory committee, consistent with the

public interest and the purpose or functions of each

advisory committee;

(h) Determine that rates of compensation for members

(if they are paid for their services) and staff of, and

experts and consultants to advisory committees

DUH MXVWLÀHG DQG WKDW OHYHOV RI DJHQF\ VXSSRUW DUH

adequate;

(i) Develop procedures to assure that the advice or

recommendations of advisory committees will not

be inappropriately influenced by the appointing

authority or by any special interest, but will instead

be the result of the advisory committee’s independent

judgment;

(j) $VVXUHWKDWWKHLQWHUHVWVDQGDIÀOLDWLRQVRIFRPPLWWHH

members are reviewed for confor mance w ith

DSSOLFDEOH FRQÁLFW RI LQWHUHVW VWDWXWHV UHJXODWLRQV

issued by the U.S. Office of Government Ethics

including any supplemental agency requirements,

and other Federal ethics rules;

(k) Appoint or invite individuals to serve on committees,

XQOHVVRWKHUZLVHSURYLGHGIRUE\DVSHFLÀFVWDWXWHRU

Presidential directive; and

(l) Provide the opportunity for reasonable participation,

including accessibility considerations, by the public in

advisory committee activities, subject to § 102-3.140

and the agency’s guidelines.

57a

Appendix

APPENDIX

E — LETTERS

SECRETARY OF DEFENSE

1000 DEFENSE PENTAGON

WASHINGTON, DC 20301-1000

SEP 17 2021

MEMORANDUM FOR SECRETARY OF THE AIR

FORCE

SUBJECT: Board of Visitors of the U.S. Air Force

Academy

I appreciate your personal support of the 2021 ZeroBased Review of DoD advisory committees. Based on

the recommendations of the Zero-Based Review Board

chaired by the then-Interim Director of Administration

and Management, I authorize the Board of Visitors of the

U.S. Air Force Academy (USAFA BoV) to immediately

resume operations. The USAFA BoV will comply with

Deputy Secretary of Defense Memorandum, “Advisory

Committee Management,” November 26, 2018, or,

if updated in the future, the current version. Key

requirements of this memorandum are summarized below.

As a Federal advisory committee, the USAFA BoV is

subject to the Federal Advisory Committee Act (5 U.S.C.,

Appendix) and other Federal statutes and regulations,

including DoD policy and procedures. The Designated

)HGHUDO2IÀFHUIRUWKH86$)$%R9ZKRLVGHVLJQDWHG

by the Secretary of the Air Force, serves as DoD’s

58a

Appendix E

representative to the USAFA BoV and is responsible for

ensuring it complies with Federal statutes and regulations,

including DoD policy and procedures.

Although membership size for DoD Federal advisory

committees is prescribed by Secretary of Defense

established policy, membership size and appointment

authority for the USAFA BoV is set forth in statute.

DoD previously determined that subcommittees are not

authorized for the USAFA BoV. While I support this

earlier decision, you are delegated authority to establish

USAFA BoV subcommittees if you determine such action

is essential to USAFA BoV operations. However, parent

and subcommittee member appointments are separate

and distinct. Therefore, authority to invite or appoint

USAFA BoV subcommittee members rests solely with

the Secretary of Defense or the Deputy Secretary of

Defense. Subcommittee members are appointed for a term

of service of one-to-four years, with annual renewals, and

subcommittee leadership terms of service are limited to

one-to-two years, with annual renewal.

Written terms of references (ToR) are not required

for USAFA BoV parent level work. However, if you

approve the establishment and utilization of a USAFA

BoV subcommittee, then that work will be in response

to written ToR approved by you, and the work cannot

proceed until the subcommittee members are appointed

in accordance with DoD policy and procedures. All

59a

Appendix E

subcommittee ToR must be continuously reviewed,

updated as priorities change, and coordinated with the

appropriate Department of the Air Force counsel.

/s/ Lloyd J. Austin

60a

Appendix E

SECRETARY OF DEFENSE

1000 DEFENSE PENTAGON

WASHINGTON, DC 20301-1000

SEP 17 2021

MEMORANDUM FOR SECRETARY OF THE ARMY

SUBJECT: U.S. Military Academy Board of Visitors

I appreciate your personal support of the 2021 ZeroBased Review of DoD advisory committees. Based on

the recommendations of the Zero-Based Review Board

chaired by the then-Interim Director of Administration

and Management, I authorize the U.S. Military Academy

Board of Visitors (USMA BoV) to immediately resume

operations. The USMA BoV will comply with Deputy

Secretary of Defense Memorandum, “Advisory Committee

Management,” November 26, 2018, or, if updated in the

future, the current version. Key requirements of this

memorandum are summarized below.

As a Federal advisory committee, the USMA BoV is

subject to the Federal Advisory Committee Act (5 U.S.C.,

Appendix) and other Federal statutes and regulations,

including DoD policy and procedures. The Designated

)HGHUDO2IÀFHUIRUWKH860$%R9ZKRLVGHVLJQDWHGE\

the Secretary of the Army, serves as DoD’s representative

to the USMA BoV and is responsible for ensuring it

complies with Federal statutes and regulations, including

DoD policy and procedures.

61a

Appendix E

Although membership size for DoD Federal advisory

committees is prescribed by Secretary of Defense

established policy, membership size and appointment

authority for the USMA BoV is set forth in statute.

DoD previously determined that subcommittees are

not authorized for the USMA BoV. While I support this

earlier decision, you are delegated authority to establish

USMA BoV subcommittees if you determine such action

is essential to USMA BoV operations. However, parent

and subcommittee member appointments are separate

and distinct. Therefore, authority to invite or appoint

USMA BoV subcommittee members rests solely with the

Secretary of Defense or the Deputy Secretary of Defense.

Subcommittee members are appointed for a term of

service of one-to-four years, with annual renewals, and

subcommittee leadership terms of service are limited to

one-to-two years, with annual renewal.

Written terms of references (ToR) are not required

for USMA BoV parent level work. However, if you

approve the establishment and utilization of a USMA

BoV subcommittee, then that work will be in response

to written ToR approved by you, and the work cannot

proceed until the subcommittee members are appointed

in accordance with DoD policy and procedures. All

subcommittee ToR must be continuously reviewed,

updated as priorities change, and coordinated with the

appropriate Department of the Army counsel.

/s/ Lloyd J. Austin

62a

Appendix E

SECRETARY OF DEFENSE

1000 DEFENSE PENTAGON

WASHINGTON, DC 20301-1000

SEP 17 2021

MEMORANDUM FOR SECRETARY OF THE NAVY

SUBJECT: U.S. Naval Academy Board of Visitors

I appreciate your personal support of the 2021 ZeroBased Review of DoD advisory committees. Based on

the recommendations of the Zero-Based Review Board

chaired by the then-Interim Director of Administration

and Management, I authorize the U.S. Naval Academy

Board of Visitors (USNA BoV) to immediately resume

operations. The USNA BoV will comply with Deputy

Secretary of Defense Memorandum, “Advisory Committee

Management,” November 26, 2018, or, if updated in the

future, the current version. Key requirements of this

memorandum are summarized below.

As a Federal advisory committee, the USNA BoV is

subject to the Federal Advisory Committee Act (5 U.S.C.,

Appendix) and other Federal statutes and regulations,

including DoD policy and procedures. The Designated

)HGHUDO2IÀFHUIRUWKH861$%R9ZKRLVGHVLJQDWHGE\

the Secretary of the Navy, serves as DoD’s representative

to the USNA BoV and is responsible for ensuring it

complies with Federal statutes and regulations, including

DoD policy and procedures.

63a

Appendix E

Although membership size for DoD Federal advisory

committees is prescribed by Secretary of Defense

established policy, membership size and appointment

authority for the USNA BoV is set forth in statute.

DoD previously determined that subcommittees are

not authorized for the USNA BoV. While I support this

earlier decision, you are delegated authority to establish

USNA BoV subcommittees if you determine such action

is essential to USNA BoV operations. However, parent

and subcommittee member appointments are separate

and distinct. Therefore, authority to invite or appoint

USNA BoV subcommittee members rests solely with the

Secretary of Defense or the Deputy Secretary of Defense.

Subcommittee members are appointed for a term of

service of one-to-four years, with annual renewals, and

subcommittee leadership terms of service are limited to

one-to-two years, with annual renewal.

Written terms of references (ToR) are not required

for USNA BoV parent level work. However, if you

approve the establishment and utilization of a USNA

BoV subcommittee, then that work will be in response

to written ToR approved by you, and the work cannot

proceed until the subcommittee members are appointed

in accordance with DoD policy and procedures. All

subcommittee ToR must be continuously reviewed,

updated as priorities change, and coordinated with the

appropriate Department of the Navy counsel.

/s/ Lloyd J. Austin

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.