Welcome

Former HHS Official Sues Biden to Keep Post on Advisory Board

Feb. 4, 2021, 10:00 PM

Roger Severino was appointed to an advisory committee just days before former President Donald Trump left office. Now he’s suing President Joe Biden to keep that job.

The former director of the Health and Human Services Department’s civil rights office filed a lawsuit Wednesday after receiving an email from the new administration that asked him to resign from the Council of the Administrative Conference of the United States (ACUS).

ACUS, which Severino received his commission for on Jan. 16, is a permanent advisory agency that makes recommendations on ways to reform administrative procedure. Biden doesn’t have the statutory or constitutional authority to terminate his appointment before his three-year term is up, Severino argued in a complaint filed in the U.S. District Court for the District of Columbia.

“The statute governing ACUS provides that Mr. Severino’s term on the Council lasts for three years, and the statute makes no provision or allowance for at-will Presidential removal,” Severino’s attorney Jonathan Mitchell said in the complaint.

The lawsuit is unusual, but Severino’s appointment was too.

Jeffrey Lubbers, a special counsel to ACUS, doesn’t think an incoming administration has ever asked council members to resign. On the other hand, he said he doesn’t think there’s ever been midnight appointments to the council made by an outgoing president.

“It’s pretty unusual for anybody who’s been dismissed by the president to challenge that,” he said, especially since it’s an unpaid position that doesn’t require Senate confirmation and has no statutory protection from removal.

Ironic Argument

Severino received an email on Feb. 2 from Gautam Raghavan, deputy director of the White House Presidential Personnel Office, on behalf of President Biden that asked him to resign from the council by 5 pm. Raghavan warned him that his appointment would be terminated if he didn’t resign by that time, the lawsuit said.

ACUS Council members Jennifer Dickey, Andrew Kloster, and Daniel Epstein received similar emails on Feb. 2, according to the complaint.

“I don’t think he has much of a chance to prevail in his lawsuit because even the chairperson at ACUS, which has a five-year term and is a Senate confirmed position, doesn’t have removal protection in the statute,” said Lubbers, who is also an administrative law professor at the Washington College of Law at American University.

Lubbers noted the irony in Severino filing a lawsuit to contest the president’s ability to fill positions with his own appointees.

“Conservatives, of whom Mr. Severino is one, have always advocated for strong presidential appointment powers, so it’s a little ironic he would be challenging the president’s appointment and removal powers,” he said.

Severino is married to Carrie Severino, a stalwart in the conservative legal movement. Carrie Severino is president of the Judicial Crisis Network, a conservative advocacy organization that spent millions of dollars in advertising campaigns to get Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett confirmed to the Supreme Court.

Under Severino’s leadership, the HHS Office for Civil Rights issued a proposed rule the Friday before Biden’s inauguration to protect premature infants, including those in “live-birth abortions,” from discrimination.

Severino is asking the federal district court in the district to issue a temporary restraining order and preliminary injunction to prevent his removal.

The case is Severino v. Biden, D.D.C., No. 1:21-cv-00314, complaint filed 2/3/21.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Alexis Kramer at akramer@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

To read more articles log in.

Learn more about a Bloomberg Law subscription.