D.C. Circuit Affirms Biden Power to Fire Former Health Aide (1)

A federal appeals court on Tuesday affirmed a district court’s dismissal of a lawsuit a former health department official brought against President Joe Biden.

Judge Patricia Ann Millett of the US Court of Appeals for the District of Columbia Circuit wrote in a 24-page opinion that the appellate court agreed with the district court dismissing Roger Severino’s suit and that “President Biden had full statutory and constitutional authority to terminate Severino without cause.”

Severino, director of the Health and Human Services Department’s Office for Civil Rights during the Trump administration, sued Biden after the president terminated his appointment to the Council of the Administrative Conference of the United States. Trump had appointed Severino to the post shortly before Biden took office. Severino argued that Biden didn’t have the authority to remove him from the council.

Millett wrote in her opinion: “Because removal at will is the presumption under the Constitution, and because nothing in the text of the Council’s organic statute or about the Council’s function within the Executive Branch indicates that Congress constrained the President’s presumptive removal authority, we affirm the judgment of the district court dismissing the complaint for failure to state a claim.”

The US District Court for the District of Columbia dismissed Severino’s lawsuit Jan. 19, 2022, stating that the council’s organic statute “imposes no removal restriction” on the president. It explained that the specified term of office only sets a maximum time limit for how long an appointee can serve, but it does not guarantee a fixed tenure.

Ten president-appointed and Senate-confirmed council members oversee the ACUS, which is an advisory agency that provides recommendations to enhance agency decision-making. Severino was initially appointed to the council on July 24, 2020, for a standard three-year term; however, he lost his seat on the council when he resigned from his government employment on Jan. 15, 2021.

Severino was reappointed as a non-government official and received his commission for the council Jan. 16, 2021. On Feb. 2, 2021, he was asked to resign in an email sent by Gautam Raghavan, deputy director of the White House Presidential Personnel Office, and told he would be terminated the next day if he did not.

“Congress gave Severino a three-year term using language that, for more than a century, courts have interpreted as having no effect on the President’s removal power. And Congress left no structural or contextual clues that protection from removal was integral, or even desirable, to the performance of Council members within an advisory organization housed squarely in the Executive Branch,” Millett wrote in the opinion. “The presumption of at-will removal remains at full force in this case.”

Severino said Wednesday that he is satisfied with the decision because it provides needed clarity, and that he will not appeal to the Supreme Court.

“It’s clear that for a whole slew of commissions and boards, the president is fully empowered to clean house at Day One, regardless of a statutory term limit,” Severino said in an interview. “The statutory term limit is not an impediment or restriction on the president’s discretion. This means there’s a possibility that I might be reappointed by a subsequent president, and under the same circumstances, but the mirror image of how I was removed.”

Severino said he appreciated Circuit Judge Justin Reed Walker’s concurring opinion signaling that the Supreme Court should provide final clarity on presidential authority.

The case is Severino v. Biden, D.C. Cir. App., No. 22-5047, 6/27/23.