Stirrup v. Biden

662 F.Supp.3d 12

Heidi STIRRUP, et al., Plaintiffs, v. Joseph R. BIDEN, Jr., in his official capacity as President of the United States, et al., Defendants.

Civil Action No. 21-1893 (TJK)

United States District Court, District of Columbia

Signed March 21, 2023

Michael T. Rose, Pro Hac Vice, Mike Rose Law Firm, Summerville, SC, Jeffrey Edward McFadden, Law Offices of Jeffrey E. McFadden, LLC, Grasonville, MD, for Plaintiffs Heidi Stirrup, Mark Edward Green, Ralph Warren Norman, Jr.

Jeffrey Edward McFadden, Law Offices of Jeffrey E. McFadden, LLC, Grasonville, MD, for Plaintiffs Sean Spicer, Douglas Lengengelder, Robert A. Gleason.

Madeline McMahon, DOJ-CIV, Washington, DC, for Defendants United States Department of Defense, Lloyd J. Austin, III, United States Department of the Air Force, Frank Kendall, United States Department of the Army, Christine Wormuth, United States Military Academy, Darryl A. Williams, United States Department of the Navy, Sean S. Buck, Richard M. Clark, Carlos Del Toro, United States Naval Academy, United States Air Force Academy, Joseph R. Biden, Jr., Catherine M. Russell, Raphael J. Thalakottur, Anthony Ryan McDonald, Deandra K. Ghostlaw.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge

This case challenges the Biden administration's management of advisory committees to the United States service academies. Four Plaintiffs were presidential appointees to those committees that President Biden fired after taking office. All Plaintiffs dislike other decisions 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 the firings because the President has statutory authority to fire presidential appointees. So the Court will dismiss the case in part for lack of standing, and in part for failure to state a claim.

I. 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.

A. Legal Background

Congress created each of the Boards in the 1950s. Each has substantially similar structure and authority. They each have fifteen members, six of whom are appointed 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 officials and the President. See 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 about firing members.

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

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). Regulations implementing FACA are codified at 41 C.F.R. § 102-3.5 et seq.

One of those regulations instructs agency heads to "assure that the advice or recommendations of advisory committees will not be inappropriately influenced by the 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 Defense, took office, he began a "zero-based review" of Defense Department advisory committees. ECF No. 37 ("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 by email from their Boards' designated federal officers. See Compl. ¶ 53; id. at 57-60.⁵ That email explained that the Boards would "not hold any meetings . . . or otherwise undertake official board business" during the review. Id. 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.

But that resumption came with two changes relevant here. First, President Biden demanded resignations from the four presidentially appointed plaintiffs. See Compl. ¶¶ 61-62, 101, 116. They refused, so he fired them. Compl. ¶ 63. Second, Defendant Austin explained that he would authorize, for the first time, subcommittees of the 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.

C. Procedural History

This case began when Plaintiff Heidi Stirrup sued to challenge the suspension before it was lifted—and before she had been fired. 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 subject-matter 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 defendants the designated federal officers for each of the Boards. ECF No. 32 at 1. The Court granted leave 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 (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 . . . grant[ ] [Plaintiffs] the benefit of all inferences that can be derived from the facts alleged." Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quotation omitted).

Under Rule 12(b)(6), Plaintiffs' complaint must "contain sufficient factual matter . . . 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 (D.C. Cir. 2017) (quotation omitted). Again, the Court must "accept all the 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

Plaintiffs bring four claims. The first is for breach of contract. Compl. ¶¶ 132-35. The second is for violating the Administrative Procedure Act ("APA"). Compl. ¶¶ 136-40....