Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Civil No. 85-1497.
Weis, Greenberg and Aldisert, Circuit Judges.
The question for decision in this appeal is clear cut and straightforward: does the President of the United States have the power to remove a United States Marshal from office? Matthew Chabal, Jr., former Chief Marshal for the United States District Court, Middle District of Pennsylvania, was removed from office by President Reagan. Chabal filed a complaint in October 1985 against the United States, the Department of Justice, the United States Marshals Service, the President, and several other federal officials. He alleged that the President had removed him from his position as marshal in violation of the first and fifth amendments of the United States Constitution and the federal civil service laws. He sought declaratory relief, reinstatement, back pay, and damages. After remand from this court, Chabal v. Reagan, 822 F.2d 349 (3d Cir. 1987), the district court transferred one of Chabal's claims for money damages to the Court of Claims pursuant to the Little Tucker Act, 28 U.S.C. § 1346(a)(2), and dismissed the remaining claims for failure to state a claim on which relief can be granted, under Rule 12(b)(6), F.R. Civ. P. Chabal v. Reagan, 633 F. Supp. 1061 (M.D. Pa. 1986). Chabal appeals and we affirm.
The district court had subject matter jurisdiction under 28 U.S.C. § 1331. We have jurisdiction of this appeal under 28 U.S.C. § 1291.
United States Marshals are Presidential appointees, nominated for office by the President and confirmed by the Senate. 28 U.S.C. § 561(a). Chabal was appointed to the Middle District position in 1982. In August 1985, he received an unsatisfactory annual performance rating from the United States Marshals Service. One month later the President removed him from office.
Chabal seems to contend that his removal from office stemmed from difficulties he encountered in working with Chief Deputy Richard Reynolds. We will discuss this issue in Part V of the opinion. However, it will not, indeed cannot, affect our disposition of the case.
Two aspects of the district court's decision are not challenged by Chabal on appeal. The district court ruled that it had no jurisdiction over Chabal's statutory claim under the federal civil service laws. This claim was subsequently reviewed by the Court of Appeals for the Federal Circuit. See Chabal v. Dep't of Justice, 818 F.2d 875 (Fed. Cir. 1987) (aff'g mem. Chabal v. Dep't of Justice, Nos. PH07528610029 and PH34438510740 (MSPB Nov. 19, 1985) (initial decision), review denied, 30 M.S.P.R. 499 (MSPB 1986)). The district court also rejected Chabal's first amendment claim, ruling that under Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), Chabal's statements to his superiors regarding the internal operations of the Marshals Service, and its responsibilities to the federal judges of his district, did not constitute protected activity under the first amendment. Chabal has not pursued either the first amendment claim or the statutory claim on appeal. For our purposes, Chabal alleges that his removal deprived him of liberty and property without due process of law in violation of the fifth amendment.
Almost a century ago, in In re Neagle, 135 U.S. 1, 63, 34 L. Ed. 55, 10 S. Ct. 658 (1890), the Supreme Court recognized that United States Marshals "are appointed by the President. . . [and] are removable from office at his pleasure." Every court to address the issue since then has reached the same conclusion. Although the Constitution does not expressly assign the President the power to remove subordinate federal officers, it has long been settled that such a power is implicit in Article II. Among the executive powers vested in the President by Article II is the power, with the advice and consent of the Senate, to appoint "all . . . Officers of the United States, whose Appointments are not . . . otherwise provided for" by the Constitution. The Supreme Court has long held that "[i]n the absence of specific provision to the contrary, the power of removal from office is incident to the power of appointment." Keim v. United States, 177 U.S. 290, 293, 44 L. Ed. 774, 20 S. Ct. 574 (1900); accord Myers v. United States, 272 U.S. 52, 161, 71 L. Ed. 160, 47 S. Ct. 21 (1926); Ex parte Hennen, 38 U.S. 230, 259, 10 L. Ed. 138 (1839); see also Kalaris v. Donovan, 225 U.S. App. D.C. 134, 697 F.2d 376, 389 & n.54 (D.C. Cir.), cert. denied, 462 U.S. 1119, 77 L. Ed. 2d 1349, 103 S. Ct. 3088 (1983). The power of removal also inheres in the President's power and responsibility to "take Care that the Laws be faithfully executed." See Nixon v. Fitzgerald, 457 U.S. 731, 750, 73 L. Ed. 2d 349, 102 S. Ct. 2690 (1982); Myers, 272 U.S. at 164.
The scope of the President's power of removal is defined by three Supreme Court decisions: Myers, Humphrey's Executor v. United States, 295 U.S. 602, 79 L. Ed. 1611, 55 S. Ct. 869 (1935), and Wiener v. United States, 357 U.S. 349, 2 L. Ed. 2d 1377, 78 S. Ct. 1275 (1958), known as the Myers-Humphrey's Executor-Wiener trilogy. Taken together, these cases establish two principles that we think independently dispose of Chabal's claim. The first is that if a federal officer discharges purely executive powers, the President's power to remove the officer is absolute; Congress cannot constitutionally restrain the President from removing such an officer. The second is that if the federal officer's functions are not purely executive, Congress has the constitutional authority to condition his removal from office, but the President's power of removal is unimpaired unless Congress chooses to restrict it.
In Myers, the Court upheld the inherent right of the President to discharge a postmaster in the face of congressional legislation purporting to limit the President's removal authority. The Court endorsed the view that Congress cannot interfere with the President's performance of his constitutional duty to take care that the laws be faithfully executed by curtailing his control over the subordinates whom he has appointed to assist him in that task. Myers, 272 U.S. at 162-64. Thus, regardless of statutory provisions to the contrary, officers exercising purely executive powers are removable at will by the President.
In Humphrey's Executor, the Court sustained the constitutionality of a "for cause" restriction on the President's authority to remove commissioners of the Federal Trade Commission. The Court reasoned that, in contrast to the postmaster in Myers, the FTC commissioners exercised "quasi-judicial" and "quasi-legislative" powers and were "wholly disconnected from the executive department." Humphrey's Executor, 295 U.S. at 624, 628-30. The Court therefore concluded that the "for cause" limitation would not interfere with the President's constitutional duty to execute the laws.
The Court reached a similar conclusion in Wiener, in which it upheld a wrongful discharge claim by a commissioner of the War Claims Commission who had been removed by President Eisenhower. The Court reasoned that, as in Humphrey's Executor, the commissioner did not perform executive tasks. Rather, the War Claims Commission performed adjudicative duties in resolving claims presented to it. Although the enabling legislation, the War Claims Act of 1948, did not expressly limit the President's removal power, the Court inferred that Congress intended the Commission's members to be free from the prospect of removal at will because the governing legislation precluded the President from influencing the adjudication of any particular claim. This demonstrated a basic congressional purpose of insulating the Commission's members from the President's authority. Wiener, 357 U.S. at 356.
Although Humphrey's Executor and Wiener each upheld a congressional limitation on the President's removal power, both decisions reiterate that the President enjoys "the unrestrictable power . . . to remove purely executive officers." Humphrey's Executor, 295 U.S. at 632; Wiener, 357 U.S. at 352. Equally important, both decisions make clear that the President's plenary power of removal does not lapse simply because an officer's functions are other than purely executive; instead, the question then is whether Congress ...