[00:00:00] Speaker 00: Case number 22-5047, Roger Severino at balance versus Joseph R. Biden Jr. [00:00:08] Speaker 00: in his official capacity as President of the United States at L. Mr. Nails for the balance, Mr. Jed for the abilities. [00:00:16] Speaker 03: Thank you and may it please the court. [00:00:18] Speaker 03: Congress created an independent administrative conference and gave its council members terms to protect its role as a neutral advisor to Congress and all branches of government. [00:00:29] Speaker 03: Doing so, Congress acted in accord with the long American understanding of such terms as precluding at will removal during the term. [00:00:36] Speaker 03: That's the point of the council terms. [00:00:39] Speaker 03: The government's reading that a terminal office does nothing to protect office holder from removal, deprives the terms of all effect, eviscerate the intellectual independence that OLC said is inconsistent with presidential removal power, and is the same reading rejected just a few years before the statutes enacted by the Supreme Court of Wiener. [00:00:58] Speaker 03: If this court were to adopt the government's reading, it would end the independence of this office and many offices protected by equivalent term provisions that have always been understood to prevent at-law removal, including by the Supreme Court and Free Enterprise Fund, SEC, the Federal Reserve. [00:01:14] Speaker 05: Mr. Mills, let's start with what labels apply to Mr. Severino and the ACUS. [00:01:25] Speaker 05: First, [00:01:26] Speaker 05: Is he, was he an executive officer? [00:01:33] Speaker 03: The administrative conference is within the executive branch. [00:01:37] Speaker 03: It's an independent agency within the executive branch. [00:01:41] Speaker 05: And so the executive branch, as I understand it, has principal officers, inferior officers, and employees. [00:01:51] Speaker 05: What was he? [00:01:54] Speaker 03: Your Honor, I don't know that that [00:01:56] Speaker 03: the characterization under the Appointments Clause really matters here. [00:01:59] Speaker 03: I think it's likely that he would just be considered an employee under Aleutia. [00:02:04] Speaker 03: I don't think he had significant authority to be sure that, sorry. [00:02:10] Speaker 05: And then do you, and I know you don't think he was removable at will. [00:02:18] Speaker 05: Do you think he was removable for cause? [00:02:22] Speaker 03: Your honor, we don't have a position on that. [00:02:24] Speaker 05: It's hard to kind of [00:02:26] Speaker 05: stick with that. [00:02:27] Speaker 05: It's hard for me to go with you. [00:02:31] Speaker 05: You want us to interpret the statute, and then we interpret the statute one way. [00:02:36] Speaker 05: You want us to decide its constitutionality. [00:02:40] Speaker 05: But you don't have a theory for how to interpret the statute. [00:02:45] Speaker 05: If you don't have an answer to, was he removable for cost? [00:02:51] Speaker 03: Well, Your Honor, our complaint alleges, which must be assumed true here, that he was removed for no reason. [00:02:58] Speaker 03: And so all we have to show is the statute imposes some removal restriction. [00:03:03] Speaker 05: Assume I will be unable to understand the meaning of this statute unless I can answer for myself the question, was Severino removable for a cause? [00:03:16] Speaker 05: Then what would you answer? [00:03:18] Speaker 03: Your Honor, again, [00:03:20] Speaker 03: I don't think we need to take a position one way or the other on that. [00:03:23] Speaker 03: I think Judge Silverman and Swan said it is likely that a appointee with a term appointment has protection equivalent to that of someone protected by a for-cause provision. [00:03:35] Speaker 03: So, and we said. [00:03:36] Speaker 05: Okay, you don't take a firm position on whether Judge Silverman was right. [00:03:41] Speaker 05: You have not identified any case in which a term of office provision alone sufficed [00:03:48] Speaker 05: to limit presidential remove. [00:03:51] Speaker 05: Is that statement correct? [00:03:55] Speaker 03: I don't think that's entirely correct, Your Honor. [00:03:58] Speaker 03: I think both Wiener and Humphrey's executor qualify. [00:04:01] Speaker 05: I assume I've read those as closely as I can, and I don't think that it was the term of office provision alone that sufficed to limit presidential removal there. [00:04:12] Speaker 05: Do you have another case? [00:04:14] Speaker 03: Sure. [00:04:15] Speaker 03: I'll just go through a couple. [00:04:16] Speaker 03: And I acknowledge that I'm not going to be able to give you an exact quote that you're looking for. [00:04:23] Speaker 03: But Swan, at 987, says, it is beyond dispute that Congress generally may place restrictions such as term limits on the president's removal. [00:04:32] Speaker 05: They specifically reserved the question to not answer the question of whether he could be removed during the term. [00:04:39] Speaker 05: And it was just a question of afterwards. [00:04:40] Speaker 03: That's true, Your Honor. [00:04:41] Speaker 03: But they did not say, [00:04:43] Speaker 03: the opposite. [00:04:44] Speaker 05: One more case and then I got another question. [00:04:49] Speaker 03: Sure. [00:04:49] Speaker 03: So free enterprise fund, they're the Supreme court premise. [00:04:52] Speaker 03: It's constitutional holding that dual layer removal restrictions are invalid on the fact that sec workmen, sec commissioners are not removable at will. [00:05:02] Speaker 05: Wouldn't the remedy and free enterprise fund have been to not only refuse to apply the [00:05:12] Speaker 05: removal provision, but also to refuse to apply, not saying invalidate, you know, refuse to apply the term provision in order to completely remedy is again the wrong word, but in order for that statute to be able to be applied in a constitutional [00:05:32] Speaker 03: Well, Your Honor, that question of remedy was just not before the court. [00:05:35] Speaker 03: I think what the government is missing is that the entire premise of the free enterprise fund decision. [00:05:41] Speaker 05: What do you mean it wasn't before the court wasn't briefed? [00:05:44] Speaker 03: All parties, including the United States, understood the term provision, which is just like the one here to prohibit at-law removal. [00:05:50] Speaker 05: Your thought is that the court and free enterprise fund saw an unconstitutional, saw a constitutional problem. [00:05:59] Speaker 05: And rather than [00:06:03] Speaker 05: rendering the regime constitutional, they left it unconstitutional? [00:06:08] Speaker 03: That's right. [00:06:09] Speaker 03: That's exactly what I'm saying. [00:06:11] Speaker 03: I'm saying that if the government was right, they should have just said Parsons 130 years ago decided this. [00:06:16] Speaker 03: The SEC members can be removed at will. [00:06:18] Speaker 05: Let me ask one more question that I apologize to my colleagues for going on at length here. [00:06:24] Speaker 05: I'm going to read some quotes from recent cases, a lot more recent than the cases that I think somewhat dominate the brief. [00:06:34] Speaker 05: And they speak sometimes in dicta, speak specifically to the question of whether we read a statute that has a term provision to silently limit the president's removal. [00:06:52] Speaker 05: Collins says, we generally presume that the president holds the power to remove at will executive officers and that a statute must contain plain language to take that away. [00:07:05] Speaker 05: Selah said the removal provisions were severable from the other visions, including the term of service provision. [00:07:13] Speaker 05: Collins did the same thing as we were just discussing. [00:07:18] Speaker 05: Justice Kavanaugh dissenting on bonk in a case that the Supreme Court then went the other way on said quote, term of office provisions do not prevent the president from moving at will a director at any time during the directors tenure. [00:07:33] Speaker 05: So assume none of that is binding. [00:07:37] Speaker 05: None of that is holding. [00:07:38] Speaker 05: It's all dicta. [00:07:40] Speaker 05: Is there a way for you to win this case and for those [00:07:46] Speaker 05: judges. [00:07:47] Speaker 05: I think we covered Justice Alito and Chief Justice Roberts twice and Justice Kavanaugh. [00:07:52] Speaker 05: Is there a way for you to win without them being wrong? [00:07:56] Speaker 03: Yes, Your Honor. [00:07:57] Speaker 03: This statutory question was not before the court in those cases. [00:08:01] Speaker 03: All of those cases involve constitutional issues not presented here. [00:08:05] Speaker 03: Judge Kavanaugh's dissent, for example, specifically reserves this question. [00:08:09] Speaker 03: and mentions Parsons. [00:08:10] Speaker 03: But this court in Swan, both the majority and Judge Silverman, explains Swan as relevant to four executive officials. [00:08:19] Speaker 03: That's just not the case here. [00:08:21] Speaker 03: So that's why those cases are different than this one. [00:08:24] Speaker 03: And again, if you go back to Free Enterprise Fund, the Supreme Court issued a constitutional holding premise on our understanding being correct. [00:08:32] Speaker 03: And so this court, other than Swan, [00:08:37] Speaker 03: made the same assumption, FEC versus NRA in 1993, assume that FEC commissioners protected by equivalent term provision are not removable at will. [00:08:46] Speaker 03: This word in Colores, voting Reagan, which was just a couple of years after Parson, where the term of office is for a fixed period, the appointing power cannot remove a pleasure. [00:08:56] Speaker 03: And your honor's question sort of suggests a plain statement rule, but Wiener- Even if we were to accept that [00:09:05] Speaker 02: those statements were binding or an accurate description of the law, wouldn't it still depend on whether they were employees versus officers? [00:09:19] Speaker 02: I mean, why would we presume that any such tenure of protection would apply to mere employee [00:09:38] Speaker 03: Your Honor, because I think this, I don't think there's any case suggesting that employees can't be protected by term provisions. [00:09:48] Speaker 02: And so I think- Can you direct me to a statute where that is the case? [00:09:55] Speaker 03: I think the Civil Rights Commission at issue in Wilson, this course decision in Wilson is similar to this agency. [00:10:02] Speaker 03: It primarily gave advice [00:10:05] Speaker 03: report held that staggered terms ran with the calendar and emphasized the independent advice giving function of the agency. [00:10:13] Speaker 03: So I think it's plausible at least that those commissioners would also be considered employees, but, and they were also protected by fixed staggered terms, just like the council members here. [00:10:25] Speaker 06: On what basis do you say he was an employee? [00:10:28] Speaker 06: He had one of the private citizen slots on the council. [00:10:33] Speaker 06: He had not paid. [00:10:35] Speaker 06: On what basis are you asserting he's an employee for these purposes? [00:10:41] Speaker 03: Well, the two questions about inferior officer under the appointments clause, which again, we don't think is particularly relevant here, but the individual has to have a continuing office, which we say he does because he has a fixed term, and he has to exercise significant authority. [00:10:58] Speaker 03: That's the test the Supreme Court gave him. [00:11:00] Speaker 06: Yeah, and a single individual on a council that does purely advisory [00:11:06] Speaker 06: functions within the executive branch. [00:11:09] Speaker 06: What significant authority does a single private citizen on this council exercise? [00:11:15] Speaker 03: I don't think he does. [00:11:16] Speaker 03: That's why I think he's an employee. [00:11:18] Speaker 06: An employee of the government? [00:11:20] Speaker 06: No, I know there are statutes that define what it means to be an employee of the United States government. [00:11:28] Speaker 06: And so what [00:11:30] Speaker 06: What definition of employee of the United States government does private citizen on this council meet? [00:11:37] Speaker 06: There may be a statutory answer. [00:11:38] Speaker 06: I'm not aware of. [00:11:39] Speaker 06: I just, I'm not aware because there are employees who are on this council. [00:11:43] Speaker 03: Well, your honor, all I mean to say is he's not an inferior officer. [00:11:46] Speaker 06: He's not a principal officer. [00:11:47] Speaker 06: He's not an inferior officer. [00:11:49] Speaker 06: No, but you're being asked, you said he's an employee of the government about the ability. [00:11:58] Speaker 06: here is those petitions on the removal of private citizens on a purely advisory entity. [00:12:07] Speaker 03: Well, he has an appointment by the president. [00:12:09] Speaker 03: It's in the record. [00:12:10] Speaker 03: It's signed. [00:12:11] Speaker 03: You know, I think it's beyond dispute that he has a government position. [00:12:15] Speaker 03: There's a form 50 or some kind of position, but that's you. [00:12:20] Speaker 06: You labeled an employee and I was just probing that. [00:12:22] Speaker 06: So you're not, you're not sure what you're not sure what his status is. [00:12:25] Speaker 03: All I, all I'm saying is I don't think he'd be an inferior officer, but I really don't think it matters what you label him under the appointments for him to be protected by the fixed term. [00:12:34] Speaker 02: So, so there's a thing called the president's council on physical fitness, I think in private citizens, you know, um, you know, usually, you know, athletes or retired athletes, celebrities get appointed to that council. [00:12:52] Speaker 02: Um, um, [00:12:55] Speaker 02: and I believe those appointments are for a particular term. [00:12:58] Speaker 02: But let's assume that there's a statute that says that they are appointed for a particular term of years. [00:13:07] Speaker 02: Do you think that those private citizens have tenure protection? [00:13:13] Speaker 03: Your honor, I think you'd have to look at the statute both in context and in terms of the history at the time the statute was enacted. [00:13:21] Speaker 03: I think that if [00:13:22] Speaker 03: It's structured similar to here where the advice, all the council can do, all the conference can do here is give advice. [00:13:31] Speaker 03: And so that's why the chairman in JA-69 said, the only reason we have our recommendations have respect is because they're thought to carry expertise and political neutrality. [00:13:43] Speaker 03: And so if you take that away from the agency, [00:13:46] Speaker 03: There's nothing left. [00:13:47] Speaker 03: They can't make agencies adopt the recommendation. [00:13:50] Speaker 03: They can't make Congress adopt the recommendation. [00:13:53] Speaker 03: All they have is their expertise and neutrality. [00:13:56] Speaker 03: And if that goes away, then there's nothing else. [00:13:59] Speaker 02: So it makes sense that Congress would have said... Well, there are employees of the federal government who are on this council and the president can remove them, right, from their jobs and then that removes them from the council. [00:14:14] Speaker 03: That's true, your honor. [00:14:15] Speaker 03: And I think that only supports our point because the statute specifically limits the number of government employees. [00:14:20] Speaker 03: And Mr. Severino was appointed first as a government member, but later when his service ended as a non-governmental member. [00:14:27] Speaker 03: So I think that only supports the inference that Congress was trying to make there be some independence between the agency and the executive branch. [00:14:39] Speaker 06: That seems a little odd. [00:14:41] Speaker 06: What independence? [00:14:43] Speaker 06: is there between this entity and the executive branch when half of the council is members of the executive branch and the sole function of this entity is to advise the executive branch on the conduct of executive functions. [00:15:00] Speaker 06: That doesn't feel separate to me at all. [00:15:03] Speaker 03: Your honor, I don't think the sole function is to solely advise. [00:15:07] Speaker 06: The primary function [00:15:09] Speaker 03: Well, by statute, actually, your honor, it's supposed to advise all branches of government in the statute. [00:15:13] Speaker 06: No, no, it has to give a report to Congress and it may optionally. [00:15:21] Speaker 06: You provide information other than that report to Congress and the judiciary. [00:15:25] Speaker 06: That's optional. [00:15:26] Speaker 06: It's mandate. [00:15:28] Speaker 06: It's mandate other than that report to Congress is to advise the executive branch on the conduct of administrative functions, thus the name. [00:15:39] Speaker 03: Your honor, I respectfully disagree. [00:15:41] Speaker 06: I don't think... You think its main function is to advise Congress? [00:15:45] Speaker 03: I think its main function is to advise all branches of government with independence and neutrality. [00:15:49] Speaker 03: J846 Note 3, OLC emphasizes... No, no. [00:15:53] Speaker 06: Tell me in the statute where it says that. [00:15:57] Speaker 06: I don't want the OLC. [00:15:58] Speaker 06: I want to open the statute. [00:16:04] Speaker 03: I believe Section 594 is where it says, [00:16:08] Speaker 03: who the agency provides recommendations to. [00:16:14] Speaker 03: And I'd emphasize that it provides recommendations at its own option, not at the request of the executive branch. [00:16:21] Speaker 03: That's the point OLC makes the J846-03. [00:16:23] Speaker 06: Study the efficiency, adequately and fairness of the administrative procedures used by administrative agencies in carrying out administrative programs. [00:16:30] Speaker 06: That's number one. [00:16:32] Speaker 06: That sounds pretty executive to me. [00:16:34] Speaker 06: Make recommendations to administrative agencies, collectively or individually. [00:16:38] Speaker 06: Sounds pretty administrative. [00:16:39] Speaker 06: And to the president, still administrative. [00:16:41] Speaker 06: You can make recommendations to Congress or the courts, but you don't have to. [00:16:47] Speaker 06: Range for interchange among administrative agencies. [00:16:49] Speaker 06: Collect information statistics from administrative agencies. [00:16:53] Speaker 06: Enter into arrangements with any administrative agency. [00:16:56] Speaker 06: Provide assistance in response to requests for improvement of administrative procedure. [00:17:01] Speaker 06: That's not independent. [00:17:04] Speaker 06: It's working with them to help improve things. [00:17:09] Speaker 06: It's presumably a good calling, but that is not remotely independent in the way as Humphreys or Weiner was. [00:17:18] Speaker 03: Your honor, I disagree 594 subsection one, but you just read it's the exact same duty to give recommendations to Congress and the judiciary. [00:17:26] Speaker 06: If you read the whole darn thing, it's all, I mean, if you want to tell me that your view is that this is equally advising Congress, because I read you all the provisions, right? [00:17:39] Speaker 06: All of that section. [00:17:42] Speaker 06: I mean, I can read more of it if you want. [00:17:44] Speaker 06: But it's all about assisting administrative agencies. [00:17:47] Speaker 06: But if your position depends on us concluding that this entity is equally advising Congress and the judiciary, I will accept that as your position. [00:18:00] Speaker 03: I'm not going to say equally. [00:18:02] Speaker 06: No, primarily what is the function of this entity? [00:18:05] Speaker 03: It's to improve regulatory processes. [00:18:07] Speaker 03: Sometimes that's by providing... Sometimes? [00:18:11] Speaker 06: Do you have a sense of how often does this entity spend its time advising agencies or the president? [00:18:18] Speaker 06: What percentage of its time? [00:18:19] Speaker 03: I'm not aware of that. [00:18:20] Speaker 03: All I know is that the statute gives it authority to advise all branches of government. [00:18:26] Speaker 03: The fact that it's advising agencies, many of which are independent, like the FCC and the FDIC, doesn't change the fact that it's supposed to give independent advice. [00:18:34] Speaker 03: That's what the legislative history shows, that its advice must be independent because otherwise its recommendations are not respected. [00:18:42] Speaker 06: I have another question, too, and that is I really don't understand what this [00:18:48] Speaker 06: Conference is, the conference labels itself an independent agency. [00:18:54] Speaker 06: You talk about that, but then in your brief, you also describe it as a federal advisory committee. [00:19:00] Speaker 06: I don't know that it at all fits our case law on what it means to be an authority of the United States within the five USC 551 definition of an agency. [00:19:12] Speaker 06: You know, on the other hand, [00:19:15] Speaker 06: You've got a head that's appointed by the president confirmed by the Senate. [00:19:18] Speaker 06: That doesn't make you an agency necessarily, but pretty common for that gets the pay same pay as an independent agency. [00:19:27] Speaker 06: Um, but the assembly itself is listed as a federal advisory committee, a federal advisory committee. [00:19:34] Speaker 06: And so I just don't understand what the council is. [00:19:37] Speaker 06: Is it an agency or is it in, as you said in your brief and advisory committee? [00:19:44] Speaker 06: or something else, maybe there's another option I'm not aware of. [00:19:48] Speaker 03: The council in particular. [00:19:50] Speaker 03: Yeah. [00:19:51] Speaker 03: I mean, the record reflect that it reflects that it acts like a board of directors over the agency. [00:19:57] Speaker 03: I think the government concedes that the conference as a whole is an independent agency that once yet. [00:20:03] Speaker 06: You said it's an advisory committee subject to the advisory committee act on page five of your brief. [00:20:08] Speaker 03: That's right. [00:20:09] Speaker 06: And are you aware of any advisory committee that is also a five USC 551 agency? [00:20:16] Speaker 03: I'm not sure, Your Honor. [00:20:17] Speaker 06: I don't think there are, but I'm aware of maybe the government will know by their eyes. [00:20:20] Speaker 06: So, and it's, we've said that to be an agency, you have to exercise regulatory power. [00:20:27] Speaker 06: This doesn't have regulatory power. [00:20:29] Speaker 06: Hand out funds for projects. [00:20:33] Speaker 06: I don't think they can fund projects. [00:20:36] Speaker 06: Issue regulations or procedures. [00:20:41] Speaker 06: I don't think it can do that. [00:20:42] Speaker 06: I can make recommendations, but I can't issue them. [00:20:44] Speaker 06: regulations, and it can't direct executive branch officials. [00:20:51] Speaker 06: So I'm just trying to figure out why you think it's an agency. [00:20:55] Speaker 03: That's how the government has characterized it. [00:20:59] Speaker 03: I agree with all those characterizations. [00:21:01] Speaker 06: So maybe it's not an agency. [00:21:02] Speaker 06: Title V definition of agency. [00:21:07] Speaker 06: Maybe there's some common law definition or something. [00:21:10] Speaker 03: there might be your honor. [00:21:12] Speaker 03: I think those functions all the fact that it doesn't have those functions emphasize why Congress would have thought it needed to be independent. [00:21:19] Speaker 06: Um, and then to go to my colleagues, I actually had where I should have started a standing question under swan. [00:21:27] Speaker 06: So the theory in swan is that there's someone below the president who can simply treat [00:21:34] Speaker 06: In this instance, treat your client as a member of the council and sort of push off the person who took his place in this instance. [00:21:46] Speaker 06: So in this case, the council is limited to 10 members. [00:21:50] Speaker 06: It has 10 members already. [00:21:52] Speaker 06: And given that he was a private citizen position, I don't know, are you able to identify which council member would have to be [00:22:03] Speaker 06: set aside so that he could be treated as a council member? [00:22:08] Speaker 03: Unfortunately, I'm not. [00:22:09] Speaker 03: The government might be able to be. [00:22:11] Speaker 06: Well, you have to establish standing. [00:22:12] Speaker 06: So, I mean, so is your theory instead that we'll have an 11 member council? [00:22:18] Speaker 06: That's your relief? [00:22:19] Speaker 06: No, because the statute is limited to 10. [00:22:21] Speaker 03: That's right. [00:22:22] Speaker 06: So somebody has to go if he comes in. [00:22:24] Speaker 03: That's right. [00:22:24] Speaker 06: Who goes? [00:22:27] Speaker 03: At the motion to dismiss stage, I don't think we need to prove exactly which person to establish standing. [00:22:34] Speaker 03: We have just outstanding with the requisite proof required at the motion to dismiss stage. [00:22:39] Speaker 03: And the government concedes in footnote one of the red brief that we named as defendants officials who officials who can treat the plaintiff as a member of the council. [00:22:48] Speaker 06: You didn't address this issue though about the numbering, which I don't know was an issue in Swan. [00:22:53] Speaker 06: It didn't seem to come up there, but here it seems to me you've got sort of we're limited by the 10 member [00:23:02] Speaker 06: cap and then that this is like Swan again, a unusual position within a group body where it's sort of hard to identify where to slot your client in. [00:23:12] Speaker 06: I'm just not sure what to do. [00:23:13] Speaker 06: So your view is for pleading stage, there's enough and then they'll have to be proof as to who it was that took the particular private citizen slot that your client had. [00:23:28] Speaker 03: That's right. [00:23:28] Speaker 03: Your honor, someone is in my client's spot and under Swan, [00:23:32] Speaker 03: It's not a corollary of swan is that that person is not supposed to be in the seat. [00:23:38] Speaker 03: And the individual we have named as defendant, the chairman of the council has authority to instead treat Mr. Severino as a current council member instead of them. [00:23:53] Speaker 06: Okay. [00:23:53] Speaker 06: Thank you very much. [00:23:54] Speaker 06: We'll give you a couple more minutes on rebuttal. [00:24:04] Speaker 04: I'd like to begin, if I may, with the colloquy that my friend had with Judge Walker about what issue the plaintiff has actually put before the court today and how Supreme Court precedent applies to that issue. [00:24:19] Speaker 04: Because my friend struggled with answering the question of whether they're asking for for-cause removal. [00:24:23] Speaker 04: And I just want to point out, they've really gone out of their way not to ask for for-cause removal. [00:24:28] Speaker 04: If you look at page 11 of the Joint Appendix, their complaint, it says that the president has no statutory authority to remove the plaintiff. [00:24:36] Speaker 04: It doesn't say that there weren't necessary circumstances met. [00:24:39] Speaker 04: It doesn't say that certain procedures weren't followed. [00:24:41] Speaker 04: It just says he has no statutory authority. [00:24:44] Speaker 04: And throughout their opening brief, they say things like the plaintiff has a guaranteed term. [00:24:48] Speaker 04: His role is inviolable. [00:24:50] Speaker 04: Page 15 analogizes it to the senator's terms. [00:24:53] Speaker 04: I think the only issue that they've put before the court today [00:24:56] Speaker 04: is whether someone with a term of years appointment is categorically unremovable except for by impeachment. [00:25:02] Speaker 04: And Judge Walker, just to kind of get into, I think, some of the doctrinal questions that you were asking my friend, I'm not aware of any federal case said that that would be true. [00:25:10] Speaker 04: But I actually think even if they were arguing for four-cause removal, it would still have the same problems under existing precedent because [00:25:17] Speaker 04: I think particularly recent Supreme Court decisions have made clear that a term alone is not enough, not even for non-removability, but even for some form of court cause protection. [00:25:28] Speaker 04: And of course, because there's nothing in the statute, the court would then have to choose what that form is. [00:25:32] Speaker 04: And I'd like to just direct the court just to two cases, just to make sure that we're all on the same page about this. [00:25:37] Speaker 04: First, in Collins at page 1782 to 1783, [00:25:41] Speaker 04: The Supreme Court has a paragraph where they identify a number of agencies where they say the heads of those agencies are removable at will. [00:25:49] Speaker 04: And if you look through the list of, I think it's roughly 10 agencies that they identify, the vast majority of those have individuals who are appointed to serve a term of years. [00:25:58] Speaker 04: So in other words, the Supreme Court statement in Collins that those folks are removable at will would be wrong. [00:26:02] Speaker 05: Do you happen to have the list? [00:26:03] Speaker 04: I don't have that page of Collins in front of me. [00:26:06] Speaker 04: It's pages 1782 to 1783 in Collins. [00:26:08] Speaker 04: I think it's the bridge paragraph. [00:26:09] Speaker 04: I'm just wondering like what the agencies are. [00:26:14] Speaker 04: I apologize. [00:26:15] Speaker 04: What I can tell you sort of agency specific and I think concerns the severability analysis at issue before you get there. [00:26:24] Speaker 05: Thank you very much. [00:26:28] Speaker 05: Now, please, if you would, Mr. Jen, tell me again where this list is. [00:26:32] Speaker 06: Carryover. [00:26:34] Speaker 06: Yeah. [00:26:35] Speaker 06: Carryover. [00:26:36] Speaker 06: Bottom of 82. [00:26:37] Speaker 05: Okay. [00:26:38] Speaker 05: He score. [00:26:39] Speaker 05: So you think that all of those are removable? [00:26:59] Speaker 05: United States. [00:27:00] Speaker 04: You know, obviously I don't, I don't, I don't want to, this was dicta. [00:27:03] Speaker 04: So I think, so I don't on the fly want to start opining on the removable room, the removability provisions of various agencies. [00:27:10] Speaker 04: All that I'm saying is the intent of the Supreme court went out of its way to sort of point to a list of vacancy. [00:27:14] Speaker 05: And I, I understand that I would be cautious to just on the fly, making representations on behalf of the United States government. [00:27:24] Speaker 05: But your argument, your theory of the statute here, [00:27:30] Speaker 05: has implications that can't have been missed by the Department of Justice as it was preparing for this case. [00:27:39] Speaker 05: And I would think that your theory of this statute, where you are removable at will, even if there's a term in the statute for the length of service, I would think that that theory would likely sweep in the agencies that you've already mentioned [00:27:58] Speaker 05: And also, I'm going to list six more. [00:28:01] Speaker 05: The SEC, the FCC, the FEC, the FDIC, the ITC, and the EEOC. [00:28:10] Speaker 05: I could have my facts wrong on a couple of those, and maybe they have express for-cause removal protection provisions in them. [00:28:18] Speaker 05: But for the sake of this question, assume that they don't have an express for-cause removal protection term. [00:28:24] Speaker 05: They just have a length of years that the commissioners in those agencies serve. [00:28:30] Speaker 05: Are those commissioners removable at will? [00:28:33] Speaker 04: Mr. Walker, I'm certainly not in a position to take sort of agency by agency through the U.S. [00:28:37] Speaker 04: Code, but maybe I can answer your question in the following way, which is a plaintiff, if you were arguing for four-cause removal, which he is not, would nonetheless be basing that solely on the existence of a term. [00:28:49] Speaker 04: and isn't basing it on any of the other features that may arise for some of those various statutes. [00:28:54] Speaker 04: And I can certainly tell you that Collins and by the way the severability analysis in Collins and Celia Law and PCAOB all confirm that having a term of years appointment at least alone certainly doesn't confer for cause removal protection. [00:29:08] Speaker 04: I think my friend's only response to that in the reply brief is just to say maybe the Supreme Court didn't realize what was going on in the case or maybe [00:29:17] Speaker 04: And I should say, one, it was holding of the court. [00:29:20] Speaker 04: The court was explicitly saying, given this problem, here's how we are going to sever the statute. [00:29:24] Speaker 04: But two, I think it would be very strange to suggest the court wasn't aware of it, at least two of those three decisions. [00:29:30] Speaker 05: I'm with you. [00:29:32] Speaker 05: And I think I was pretty hard on your opposing counsel. [00:29:37] Speaker 05: I was trying to be fair as well. [00:29:38] Speaker 05: But what I saw was an incomplete theory of how to interpret the statute before we even get to any conclusions. [00:29:46] Speaker 05: Now I'm suggesting that I think there's something somewhat incomplete, maybe tactically incomplete, about the government's theory as well, because it can't be that the ACUS has one, we're going to interpret that statute in one way, in a way that means that the president can fire Severino. [00:30:12] Speaker 05: And we're going to interpret the SEC, the FCC, and the FEC [00:30:17] Speaker 05: in different ways. [00:30:18] Speaker 05: And I just don't understand why the government can't say it has to been a predictable question that it will be asked. [00:30:28] Speaker 05: Why can the government not say that the theory they're applying Mr Severino's former agency applies to the SEC, FCC and FEC in a way that would allow the president to remove those commissioners at will? [00:30:41] Speaker 04: I'm not sure if we're disagreeing about what I can say. [00:30:44] Speaker 04: Mr. Severino, again, if you were asking for a cross removal, and he is literally asking for the opposite of that in his complaint and in his opening brief, would at best be saying that a term of yours appointment alone is what confers for a cross removal? [00:30:56] Speaker 04: Again, an argument he's not making, but if theoretically he were to make that argument. [00:31:00] Speaker 04: And I can tell you that a term of yours appointment alone does not itself confer a cross removal. [00:31:06] Speaker 04: I don't know that I can stand up here and give you a sort of universal theory that would apply to every session in the US code. [00:31:11] Speaker 04: As Your Honor is obviously well aware, there have been some recent developments in Supreme Court doctrine, but developments on issues that aren't really necessary to resolve for the purposes of this. [00:31:21] Speaker 06: Can I ask if maybe you're able to admit a bit more because we're talking here about removal of private citizen from a collective organization. [00:31:35] Speaker 06: I'm assuming that there are no private citizens, [00:31:39] Speaker 06: and roles in the agencies listed in the Collins case, the ones that Judge Walker. [00:31:48] Speaker 06: So what seems different is the only issue before us is removal of a private citizen member of a council, which is not, I'm assuming that the folks projected by terms of office in the SEC and the assorted agencies that [00:32:07] Speaker 06: Judge Walker referenced in the Collins case references. [00:32:10] Speaker 06: That's what they were talking about. [00:32:13] Speaker 04: I mean, certainly the folks that Judge Walker was just referencing are our government officers. [00:32:20] Speaker 06: Right. [00:32:21] Speaker 06: So isn't the only question for us, removal power over a private citizen on an entity that has a purely advisory function. [00:32:33] Speaker 04: I think that might be right, but I actually probably need to hedge in two different ways and answering that question. [00:32:38] Speaker 04: The first is in terms of the formal status of these individuals, I think the OLC opinions about the emoluments clause that we cite, you sort of discussed that to the extent that they are [00:32:48] Speaker 04: serving on ACAS, they then do have a kind of government capacity. [00:32:52] Speaker 06: I believe- There may be special government employees for ethics purposes, but they're not paid. [00:32:56] Speaker 04: They're not paid, that's right. [00:32:58] Speaker 04: The chairman is paid, the council members are not, and I think your honor is right, I believe they are- It's just for ethics purposes. [00:33:03] Speaker 04: They are SGEs, obviously the governor is aware that doesn't necessarily trigger FACA. [00:33:09] Speaker 04: Obviously SGEs are a somewhat sui generis setup. [00:33:14] Speaker 04: Your honor is obviously right that most of what ACUS does is advisory. [00:33:17] Speaker 04: I think we have identified in our brief that at least kind of one example where agencies actually need to follow a set of guidelines that are set up by ACUS. [00:33:24] Speaker 06: Where is that? [00:33:25] Speaker 04: I believe there's a statute that when HHS engages in certain kinds of arbitration, it needs to follow those existing guidelines that were established by ACUS. [00:33:34] Speaker 04: It's kind of cited at the very bottom of the paragraph in our brief where we discuss ACUS's functions. [00:33:40] Speaker 04: Certainly the primary function that ACUS asserts is advisory. [00:33:43] Speaker 06: Is that in the HHS statute or is that in the ACAS statute? [00:33:46] Speaker 04: You know, I'm actually not. [00:33:47] Speaker 04: It's not in the original ACAS statute as we detail number of statutes that were created after ACAS. [00:33:53] Speaker 04: It's kind of assigned additional functions to ACAS. [00:33:56] Speaker 04: So I'm not sure if the statute I'm referring to, I believe it's entitled 25. [00:33:59] Speaker 04: I have not, if it's an HHS specific statute or there are various statutes related to arbitration that have in turn incorporated some HHS requirements. [00:34:07] Speaker 06: Are those guidelines issued by the council or by the conference as a whole? [00:34:10] Speaker 04: It's by the conference as a whole, but I'm not sure. [00:34:16] Speaker 05: Am I right that Severino, when he was on council, has to have been one of these four things, a principal officer, an inferior officer, [00:34:29] Speaker 05: federal employee or not in the case? [00:34:34] Speaker 04: You know I'm not aware of a case that sort of said that that would cover the universe. [00:34:39] Speaker 04: It seems plausible that it would but you know as I think first for example some of the colloquies with Judge Wilkins brought up there are a lot of these just kind of sui generis entities where it's a little unclear sort of what these folks are. [00:34:52] Speaker 04: You know obviously sort of for constitutional purposes or appointments clause purposes once you get outside outside of officer or [00:35:00] Speaker 04: It doesn't particularly matter for the most part designations like employee. [00:35:04] Speaker 05: So do you think that he's one of those four or some option? [00:35:10] Speaker 04: You know, I just don't want to take position on that. [00:35:12] Speaker 04: You know, as I said, he's he's he's an SP. [00:35:15] Speaker 04: It's a kind of somewhat sui generis. [00:35:17] Speaker 05: It seems important, though, to us. [00:35:19] Speaker 05: We're going to try to figure out whether he's removable at will or not. [00:35:26] Speaker 05: Seems very relevant to know [00:35:30] Speaker 05: what he is. [00:35:31] Speaker 04: Well, you know, the plaintiff hasn't made any argument that turns on whether he's an employee, interior officer, principal officer, or whatnot. [00:35:37] Speaker 04: In fact, he hasn't made, again, any argument about why there would be four-cause removal at all. [00:35:42] Speaker 04: So to the extent that the court is looking for a kind of minimal way to decide the case, it doesn't need to go any further than just to say he is not non. [00:35:48] Speaker 05: Is it in the record or, I guess, with the most dismissed stage, not much of record, or is it in the public record why he was fired [00:36:00] Speaker 05: Not that I'm aware of. [00:36:05] Speaker 05: And your position is that we can't know for sure which of those four or five categories he is. [00:36:11] Speaker 05: What about the conference itself? [00:36:12] Speaker 05: Is it in the executive branch? [00:36:14] Speaker 04: The conference is in the executive branch beside the relevant regulation. [00:36:19] Speaker 05: I'm wondering how often this happens. [00:36:22] Speaker 05: So I'm going to describe a group of people and then ask you a question. [00:36:27] Speaker 05: Great. [00:36:28] Speaker 05: Appointed by the previous president [00:36:30] Speaker 05: to a position with a statutorily fixed term under a statute that's silent on whether the president can remove the appointee. [00:36:41] Speaker 05: You know how many of those people this president has fired at will without clause? [00:36:48] Speaker 05: I don't know the answer to that question. [00:36:51] Speaker 05: You know some, right? [00:36:52] Speaker 05: Because some of them are cited in your brief. [00:36:55] Speaker 04: Well, you're referring to this president. [00:36:56] Speaker 04: Obviously, I know about the plaintiff in this case. [00:36:58] Speaker 04: There are, I believe, two parallel cases that are presenting the same issue and are currently open. [00:37:02] Speaker 05: And which ones are those? [00:37:03] Speaker 05: I'm sorry? [00:37:04] Speaker 05: Which ones are those? [00:37:05] Speaker 04: One of them was brought by Sean Spicer, who I believe is put on the Board of Overseers. [00:37:10] Speaker 04: Do you know if there's an instance of, I'm sorry, what was the other one? [00:37:14] Speaker 05: I actually don't recall that. [00:37:17] Speaker 05: Do you know how many times, if at all, someone has been fired [00:37:25] Speaker 05: will in the face of a for cause removal protection. [00:37:29] Speaker 05: I do not know the answer to that question. [00:37:31] Speaker 05: Just in the past few years. [00:37:33] Speaker 04: I just don't know the answer to the question. [00:37:34] Speaker 04: I mean, again, the plaintiffs aren't even arguing that we have a for cause removal protection here. [00:37:38] Speaker 04: And I don't know sort of historically how often that has occurred. [00:37:42] Speaker 05: Let me get to the second part of the Severino brief. [00:37:47] Speaker 05: And that is he argues that if we interpret the statute his way, [00:37:56] Speaker 05: the statute is constitutional. [00:38:00] Speaker 05: And it seems to me there's two ways that you could win this case. [00:38:05] Speaker 05: First on the statutory question, and second on the constitutional question. [00:38:11] Speaker 05: Now, for the sake of this question, assume you lose on the statutory question. [00:38:16] Speaker 05: Assume we decide the statute prohibited the president from firing Severino. [00:38:22] Speaker 05: Do you want us to move to the second question and say, [00:38:27] Speaker 05: protection is unconstitutional, so Severino still loses. [00:38:32] Speaker 04: So I think I need to push back on the premise of the question a little bit, which is I think if you look at the way that the Supreme Court has approached the statutory issue, it is obviously colored by background constitutional considerations. [00:38:46] Speaker 04: Myers discussing Parsons makes clear that it was both [00:38:48] Speaker 04: statutory and constitutional. [00:38:51] Speaker 04: So I think it's a little bit hard to kind of tease the issues apart quite as cleanly as the plaintiff's trying to in this case. [00:38:56] Speaker 05: I appreciate that and I do think this case raises some hard questions about when constitutional avoidance has so informed the interpretation of similar statutes in the past, how much of that avoidance do we just import, kind of copy and paste style into this, or how much do we have to do ourselves kind of [00:39:13] Speaker 05: fresh. [00:39:14] Speaker 05: But that's not my question. [00:39:15] Speaker 05: My question is a hypothetical. [00:39:16] Speaker 05: I don't want to sound like we heard a lot of this yesterday's Supreme Court argument, but it's just a hypothetical. [00:39:25] Speaker 05: I know you might not like the hypothetical, but in this hypothetical where we say the statute prohibits the president from firing Severino at will. [00:39:37] Speaker 05: Do you want to win by us then saying that statute is unconstitutional? [00:39:43] Speaker 04: You know, just walker, I think if the corporate to do that at that point, then I might want to remain so that we can. [00:39:49] Speaker 04: Figure out kind of how that parses out, you know, a remand for what. [00:39:54] Speaker 04: What would what would the benefit of the remain? [00:39:56] Speaker 04: Well, I understand the district court to have said this is governed by Supreme Court precedent and that we went on the statute. [00:40:01] Speaker 04: If this court were to say it's not governed by Supreme Court precedent and you lose on the statute and sometimes we remand on questions. [00:40:07] Speaker 05: The district court is not addressed, but quite frequently for a question of law. [00:40:09] Speaker 04: We don't sometimes sometimes they do. [00:40:12] Speaker 04: I'm just, I'm just wondering that the reason that I'm kind of struggling to answer the hypothetical is the kind of premise that I was given before. [00:40:18] Speaker 04: I think when the Supreme Court has approached these statutory questions, it's not just that they're engaging in kind of constitutional avoidance, as Your Honor suggested, but rather it seems that kind of background constitutional principles have colored the way that these statutes are understood. [00:40:31] Speaker 04: I think Parsons is saying that. [00:40:33] Speaker 04: And if you actually look at some of the historical examples that I'm, I'm, I'm so with you on that. [00:40:40] Speaker 05: You know, you had me at hello on how, [00:40:44] Speaker 05: the statute of interpretation questions in the past have been colored by this constitutional issue. [00:40:48] Speaker 05: But on occasion, from Fritz Exeggutor, Wiener, Morrison, the courts have said the best interpretation of the statute is that the president cannot fire the person at will. [00:41:04] Speaker 05: And it seems like this is a pure question of law. [00:41:07] Speaker 05: There's no need for any fact finding in the district court. [00:41:10] Speaker 05: It seems like the United States would say, [00:41:13] Speaker 05: We think in that case, the statute will be unconstitutional, or we don't. [00:41:16] Speaker 04: You know, Judge Walker, obviously figuring out how to approach a constitutional question, where on the one hand, the statute will be rendered unconstitutional, on the other hand, it sort of implicates, you know, presidential removal authorities, and particularly doing that in light of some of the very recent Supreme Court cases kind of shedding light on, for this executor of Myers, it's just not something that I would want to take a position on on my feet right now. [00:41:39] Speaker 05: Is that a reason for supplemental briefing? [00:41:41] Speaker 04: If the court were interested in supplemental briefing on that question, on the question of if the plaintiffs had made an argument for for cause removal, which they haven't, and if the statute meant that there was some either for cause or for that non-removability protection, then yes, potentially we could do supplemental briefing. [00:42:00] Speaker 04: And by the way, just to make sure that I am understanding your honest question, because I want to make sure I haven't misunderstood, I think if the [00:42:06] Speaker 04: the plaintiff were rendered entirely non-removable, which really is the only argument that they're making. [00:42:11] Speaker 04: I think that plainly would be, I mean, at least raise a constitutional question, very likely be unconstitutional. [00:42:17] Speaker 04: But if we're talking about the possibility that it's for cause removal, again, an argument that they haven't made, court wanted an answer to that, then yes, I think we would want supplemental briefing. [00:42:25] Speaker 05: I have one more question. [00:42:26] Speaker 05: It's a pretty friendly question. [00:42:30] Speaker 05: How do you think we should do [00:42:33] Speaker 05: constitutional avoid, not even necessarily we, but just courts in general. [00:42:38] Speaker 05: As I can imagine one version that says, you know, you interpret a statute a certain way because you want to avoid the slim possibility that the constitution might prohibit the alternative interpretation. [00:42:52] Speaker 05: Well, it has to be more than slim possibility to be probability. [00:42:57] Speaker 05: Well, it has to be more has to be almost certainly unconstitutional. [00:43:00] Speaker 05: has to be definitely unconstitutional. [00:43:02] Speaker 05: Where are you on that spectrum? [00:43:05] Speaker 04: Thank you. [00:43:06] Speaker 04: Judge Walker, obviously this court and the Supreme Court have probably varied at least a little bit. [00:43:11] Speaker 04: It's another understatement. [00:43:12] Speaker 04: The strength of that principle, I don't think it's something quite as clear as the rule of lenity where you would need grievous ambiguity or something to that effect. [00:43:19] Speaker 04: But actually thinking in this case, even if the court were interested in applying some form of constitutional avoidance, it would actually be a lot easier. [00:43:26] Speaker 04: Here what we're dealing with would be [00:43:28] Speaker 04: not just kind of a constitutional question generally, but one with respect to limiting the president's powers. [00:43:33] Speaker 04: There we have a sort of separate line of Supreme Court cases that we cite, as well as this court's case in Armstrong, which basically says Congress needs to be quite clear. [00:43:41] Speaker 04: So I don't know that the court would need to wade into that kind of broader, interesting statutory interpretation questions of the concept of constitutional. [00:43:48] Speaker 06: Thanks for your patience with me. [00:43:50] Speaker 06: Can I just clarify that answer, and that is, do you believe there's any role [00:43:57] Speaker 06: Does constitutional avoidance play any role in the disposition of the statutory construction argument presented by plaintiff in this case? [00:44:09] Speaker 04: No, Judge Muller, or at least it certainly does not have to. [00:44:11] Speaker 04: We point out that if you agree with a number of their statutory arguments, constitutional avoidance might start to factor in. [00:44:18] Speaker 04: But no, it does not. [00:44:19] Speaker 06: And I think the answer is... So you don't think there's any constitutional question implicated by a holding that a term provision [00:44:28] Speaker 06: require, forbids anything, uh, forbids, uh, dismissal at will, um, by a president. [00:44:37] Speaker 04: Oh, I'm sorry. [00:44:37] Speaker 04: Maybe, maybe I misunderstood the question. [00:44:39] Speaker 04: If holding said that a term provision in and of itself, if some kind of forecast removal would obviously, or maybe not even that, right. [00:44:48] Speaker 04: Depending on their theory, um, would, would obviously raise some constitutional [00:44:52] Speaker 04: And I think in response to that, I was sort of saying to Judge Walker, I'm not sure that I'm prepared to take a definitive position on that, but- I'm not asking for definitive, do you think it's a substantial constitutional question? [00:45:03] Speaker 04: I think it's a constitutional avoidance. [00:45:04] Speaker 04: There would certainly be a real constitutional question. [00:45:07] Speaker 04: Okay. [00:45:07] Speaker 04: And I should point out, by the way, I mean, to the extent that my friend's statutory argument depends on this idea, that every time you see an appointment for a term of years, you actually have no idea what it means, that it's kind of varying based on [00:45:19] Speaker 04: whether it be constitutional avoidance or I think is the way that he's constructed really just sort of as applied unconstitutionality. [00:45:25] Speaker 04: And then we just direct the court to what Celia Law said in the face of a pretty similar argument about what to do with they are in actual statutory for cause removal provision. [00:45:34] Speaker 04: They said, look, we're not gonna start interpreting this thing to mean different things or be unconstitutional in some places or not others. [00:45:40] Speaker 04: It's got a meaning, we have to go with that meaning. [00:45:42] Speaker 04: And here, I mean, certainly by 1966 when this statute was passed, a well-established meaning from a year's provision [00:45:49] Speaker 04: is that it was a limit on the length of the term, but it was not a guarantee that the office holder continued to hold the office. [00:45:54] Speaker 05: Do you know how many people are on the council today? [00:46:00] Speaker 04: Um, you know, I'm not, I'm not certain of that. [00:46:02] Speaker 05: If it were, uh, if it were less than 10, would that solve the problem of where to put Severino if he were, um, you know, the rule in his favor? [00:46:16] Speaker 04: I mean, we have not disputed standing in the Court of Appeals. [00:46:21] Speaker 04: Our understanding is the logic of the swan. [00:46:23] Speaker 04: It's a somewhat unusual opinion. [00:46:24] Speaker 04: But our understanding is the logic of the swan would apply. [00:46:27] Speaker 04: At least if the court were interested in more on that, we could also submit supplemental briefing on that question. [00:46:31] Speaker 05: If there were 10, would this is not just your understanding of how the conference works? [00:46:37] Speaker 05: Like on a court, there's a spot. [00:46:41] Speaker 05: And when that spot comes open, it [00:46:44] Speaker 05: There's a person who used to have that spot, and then there's a successor to that person. [00:46:48] Speaker 05: Does it work that way on the council? [00:46:50] Speaker 05: So say there were 10. [00:46:51] Speaker 05: Would it be easy or hard to identify who is Severino's successor? [00:46:57] Speaker 04: In all candor, I'm actually not 100% certain that as a statutory matter, that's even true on a court. [00:47:02] Speaker 04: That may just be how folks tend to talk about it. [00:47:05] Speaker 04: And I'm not sure exactly how that would work. [00:47:08] Speaker 04: Again, I guess to engage more directly with Judge Millett's question, [00:47:12] Speaker 04: If ultimately the court held that Mr. Severino needed to be treated as a member of the council, presumably there would end up being some form of equitable order. [00:47:23] Speaker 04: And then the question would be, how is that equitable order applied with? [00:47:26] Speaker 04: And I should point out that I think in the Swan decision, when there was some discussion of how possible the remedy would be, the court did also shrug its shoulders a little bit and say, well, at least if we could get him something, then that would be partial redress. [00:47:40] Speaker 04: So I'm not certain that he would necessarily need an official counsel seat, but the question of kind of who's seat he gets, none of that, you know, obviously it has been briefed and that would be something that would just happen at the remedy stage with whatever sort of word ultimately issued. [00:47:55] Speaker 06: Well, just for standing purposes. [00:47:57] Speaker 06: I'm relying only on their website, which for whatever that's worth, it's a government website. [00:48:02] Speaker 06: You tell me whether it's updated. [00:48:04] Speaker 06: It lists 10 members in a chair, so 11 members actually, including the chair. [00:48:08] Speaker 06: And so there doesn't appear to be a vacancy unless website is not updated. [00:48:12] Speaker 06: So if we assume that it's full and the statute limits it, what is, do you think that he still has standing under a swan [00:48:23] Speaker 06: because we can't identify sort of whom to, because Swan not only gave authority, but pushed someone else out. [00:48:31] Speaker 06: And I don't know how we would do that in this case. [00:48:34] Speaker 06: Is that something, is it, what does Swan require with the motion to dismiss stage? [00:48:39] Speaker 04: I mean, obviously the issue in Swan was just redress. [00:48:42] Speaker 04: You know, look, is it, is it possible to give a person their job back when you can't issue an equitable order to the president? [00:48:48] Speaker 04: And this board in Swan said, well, look, the plaintiff in Swan [00:48:53] Speaker 04: could theoretically get some form of redress, you know, to get the motion to dismiss you. [00:48:57] Speaker 06: He could be treated as a member there and treated as having the position at issue there. [00:49:03] Speaker 06: And the person who took his seat, I forget the name of that person, would no longer have that authority. [00:49:10] Speaker 06: It was more, it was just that it was going to be done by someone lower than the president. [00:49:15] Speaker 06: It wasn't just that, well, you know, we'll give you an office with a name plaque. [00:49:19] Speaker 06: and a phone and a chair. [00:49:21] Speaker 06: It was that he was actually going to take this position. [00:49:26] Speaker 06: And so are you saying in this case, I just want to understand what your standing theory is in this case. [00:49:31] Speaker 06: Maybe y'all don't like Swan, but you haven't challenged it here. [00:49:34] Speaker 06: So what is the standing theory here if there isn't, as far as anyone can tell, a way to put him in because it's already full and it's statutorily limited to 10 people? [00:49:49] Speaker 04: And for purposes of standing, all that would have to happen would be, it would be theoretically possible at the motion to dismiss stage. [00:49:55] Speaker 04: For some lower level person, presumably the chair, to be able to provide some benefit to the plaintiff. [00:50:01] Speaker 04: Now, potentially that benefit could be an office in a chair, as your honor suggested. [00:50:06] Speaker 04: I mean, that itself would still be some benefit, but I'm not- Wait, so the motion to dismiss, we don't even have to, we have to go- [00:50:11] Speaker 06: maybe something could happen, that's enough for jurisdiction? [00:50:14] Speaker 04: Well, it's not maybe something, it's that something can happen. [00:50:17] Speaker 06: And whether the something... Are you assuring me that something can happen? [00:50:20] Speaker 04: We have not contested that something could happen. [00:50:23] Speaker 04: If the court were concerned about whether the plaintiff can be given, if it's an officer or a chair, or be given a position... I think he wants to be on the council. [00:50:31] Speaker 06: I can ask him, his client, his attorney can tell me. [00:50:34] Speaker 06: I thought the relief he wanted was to have his position on the council, not to be, you know, the paper boy for the conference. [00:50:41] Speaker 04: Well, you know, again, I don't necessarily want to embrace every broader statement in swan, but we're bound by swan and swan does actually suggest that kind of any benefit would nonetheless redress an injury. [00:50:52] Speaker 04: But I'm not trying to push back on the premise of your question. [00:50:55] Speaker 04: I mean, we haven't disputed. [00:50:57] Speaker 04: I mean, we basically say in our brief, he could be treated as a member of the council. [00:51:00] Speaker 04: And I understood your questions to Mr. Mills to ask kind of, well, who's seat is he getting? [00:51:04] Speaker 06: Like who's getting- Okay, so your position is he could be treated as a member of the council, even if that made him, I guess, member 12, if you counted the chair. [00:51:13] Speaker 04: We haven't disputed that. [00:51:15] Speaker 04: Obviously, you know, I don't know exactly the logistics. [00:51:17] Speaker 06: The government's position is that it could happen. [00:51:19] Speaker 06: He could be treated as a member of the council, even if that would make the council larger than the statute allows. [00:51:24] Speaker 04: I don't know whether the consequences seem [00:51:26] Speaker 04: that council ends up being larger or he gets some benefits of being a council member or in effect, someone who's on a council ends up getting treated as if they're not a council member. [00:51:35] Speaker 04: Those just aren't issues that we've confronted given the way that this was set up. [00:51:38] Speaker 06: If the court wanted something- Okay, if his attorney says, well, see, he says that what he wants is to be a member of the council, not less. [00:51:46] Speaker 04: Obviously, sometimes plaintiffs still have standing, even if they only get less. [00:51:49] Speaker 04: But if the court wanted supplemental briefing on the effect of SWAN on this case, given the particular current facts about the operation of the council, because that's not an issue that has been briefed in any detail, we can submit supplemental briefing. [00:52:04] Speaker 06: Thank you very much. [00:52:05] Speaker 06: Thank you. [00:52:11] Speaker 06: Well, Mr. Mills, what does your client want? [00:52:13] Speaker 03: To be a member of the council. [00:52:15] Speaker 03: And I think since Marbury, it's been settled that if that means a person who is unlawfully substituted for him needs to go, then that's what it is. [00:52:22] Speaker 06: What if we can't figure it out? [00:52:24] Speaker 03: I think the government, I think the government can figure it out. [00:52:27] Speaker 06: If they can't, my hypothetical is assume they can't because we just sort of, this isn't [00:52:33] Speaker 06: It's not as always taking the position of an agency head. [00:52:35] Speaker 06: That would be easy. [00:52:36] Speaker 06: This is a mass of public citizens that are put on here. [00:52:38] Speaker 06: Five of them are put on at once. [00:52:41] Speaker 06: If we can't identify one, [00:52:44] Speaker 03: It sounded like some relief was still possible and that's enough. [00:52:46] Speaker 06: I know, but so some relief. [00:52:48] Speaker 06: So less than being a member of the council is sufficient for your client. [00:52:51] Speaker 03: It would be sufficient for standing. [00:52:52] Speaker 03: Yes. [00:52:53] Speaker 06: No, for your client's redress that your client wants. [00:52:56] Speaker 06: I don't want a theoretical view of standing. [00:52:59] Speaker 06: Your client decides what redress they want and asserting standing. [00:53:03] Speaker 06: You just answered that they wants to be a member of the council. [00:53:06] Speaker 06: period full stop. [00:53:08] Speaker 06: And so would anything less than being a member of the council period full stop provide redress to your client? [00:53:16] Speaker 03: Your honor, I think there's two different questions. [00:53:18] Speaker 03: One would be, what would my client ideally like to be a member of the council? [00:53:22] Speaker 03: The second is what minimum is required for standing? [00:53:24] Speaker 06: No, no, there's one question. [00:53:27] Speaker 06: There is one question before you and that is what [00:53:31] Speaker 06: would your client accept as your client accept as redress on this complaint to be a member of the council? [00:53:40] Speaker 06: Full stop. [00:53:40] Speaker 06: That's right. [00:53:41] Speaker 06: Okay. [00:53:42] Speaker 06: Then I don't need to hear about theoretical things in other cases where something less could provide standing. [00:53:46] Speaker 06: That's the only redress that he seeks and the only redress that he wants on his complaint. [00:53:52] Speaker 03: That is the redress the complaint seeks. [00:53:54] Speaker 03: Yes. [00:53:54] Speaker 06: And that's the only thing he wants. [00:53:56] Speaker 03: The government started its presentation here, misquoting our complaint. [00:54:07] Speaker 03: It's the JA11 the president had no authority to remove at will. [00:54:11] Speaker 03: It is the government's motion to dismiss and the decision below that never draw this distinction. [00:54:17] Speaker 03: They're drawing for the first time here between four cause [00:54:20] Speaker 03: and other removal restrictions. [00:54:23] Speaker 03: Our only position is that the president lacks authority to remove for no reason at all, which is what happened here. [00:54:28] Speaker 03: That's all we need to prove to when the government never provided any explanation of what effect this term would have on their reading. [00:54:35] Speaker 03: The president could remove it one years, three years, five years, 30 years. [00:54:39] Speaker 03: The term here would be entirely superfluous under their reading. [00:54:43] Speaker 03: Last, the government says there's no other features that support reading the term in accord with our reading. [00:54:50] Speaker 03: I've jotted down at least 10 elements that support our reading. [00:54:53] Speaker 03: First is the term of office and the history of similar provisions and the grammar. [00:54:57] Speaker 03: If you look at Humphrey's executor, there's a fixed term, a few other sentences, and then any commissioner can be removed for certain causes. [00:55:03] Speaker 03: Shortlifts says that last clause isn't enough. [00:55:06] Speaker 03: So what's doing the work of precluding removal? [00:55:09] Speaker 03: It's the fixed term. [00:55:10] Speaker 03: It has to be the fixed term because shortlifts said that you can remove them for certain. [00:55:16] Speaker 05: I'm going to try it one more time on the [00:55:19] Speaker 05: Is your theory that he gets for cause removal or he gets something even more protective? [00:55:25] Speaker 05: And here's why I think it has to be for cause that you're saying, even though you don't, you don't want to say it out loud. [00:55:35] Speaker 05: If it's something even more protective than for cause remove, then the only way I guess to remove, I mean, let's say a serial killer, [00:55:48] Speaker 05: from the council would be either something like impeachment or, or even worse, no, no way to remove a serial killer in the council. [00:55:59] Speaker 05: It's not your position that in whatever the worst case scenario is for someone on this council, it's not your position that they cannot be removed at all. [00:56:10] Speaker 05: Right. [00:56:13] Speaker 05: Okay. [00:56:13] Speaker 05: And so then I guess the thing that's in between for cause removal, [00:56:19] Speaker 05: that wild extreme is impeachment, in which case someone on the not even the chair council member on the administrative conference, the United States has the same tenure protections during their tenure as Article three judges as the president as the president for his four years. [00:56:46] Speaker 05: I mean, with so many other people who is that so your position is that a list of people who attacks impeachment to remove would be the president. [00:56:57] Speaker 05: It will be article three judges and it would be the administrative council members of the Administrative Congress. [00:57:05] Speaker 03: No, your honor. [00:57:06] Speaker 03: That's not our position. [00:57:07] Speaker 03: We're saying you don't have to decide. [00:57:08] Speaker 03: It's the government that wants to force you. [00:57:10] Speaker 03: What's your theory? [00:57:11] Speaker 03: What's your theory? [00:57:13] Speaker 03: It is that they cannot be removed for no reason. [00:57:17] Speaker 05: Okay, thank you. [00:57:18] Speaker 05: That means they can be removed. [00:57:21] Speaker 05: Let's clarify. [00:57:22] Speaker 03: So the other nine elements, just to run through them very quickly, the original staggered nature of the term, the government said nothing about that, but it's a multi-member body. [00:57:30] Speaker 03: The Congress rejected making the agency part of the President's staff, made it an independent agency, that it makes recommendations at its own discretion and directly to other branches of government, that it makes recommendations about changing administrative processes [00:57:43] Speaker 03: that it limits the number of government members on the council, that it has historical neutrality that was considered, this is throughout the legislative history, 19 to 22, vital for its mission to succeed, its larger conference composition emphasizing balance and expertise, and the lack of core executive power. [00:58:00] Speaker 03: All these factors confirmed that the council's independence is central to its mission of providing expert advice no matter who might be in power. [00:58:10] Speaker 03: holding otherwise within the independence of not just this agency, but the SEC, the Federal Reserve Care, the FDIC, and many other agencies. [00:58:19] Speaker 03: The score should reverse. [00:58:30] Speaker 01: Thank you very much. [00:58:30] Speaker 01: The case is submitted.