Carolyn Maloney v. Emily MurphyCarolyn Maloney v. Emily Murphy
David C. Vladeck argued the cause for appellants. With him on the briefs were Stephanie Glaberson, Scott L. Nelson, and Allison M. Zieve.
Hashim M. Mooppan, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Mark R. Freeman, Scott R. McIntosh, and Jeffrey E. Sandberg, Attorneys.
Before: TATEL and MILLETT, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.
Dissenting opinion filed by Senior Circuit Judge GINSBURG.
The sole question before the court is whether the members who requested agency information under
I
A
Under
An Executive agency, on request of the Committee on Government Operations of the House of Representatives [now the Committee on Oversight and Reform], or of any seven members thereof, or on request of the Committee on [Homeland Security and] Governmental Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee.
At the time of
As now constituted, the two committees covered by
Against that backdrop, Congress passed
B
In February 2017, the then–House Oversight Committee Ranking Member, Representative Elijah Cummings, and seven other members of the House Oversight Committee (collectively, “Requesters”), issued a
The Requesters’ inquiry has its origin in the GSA’s 2013 lease of the Old Post Office building in Washington, D.C., to Trump Old Post Office LLC (“Company”), a business owned by the now-President Donald Trump and his children. The lease agreement explicitly barred any federal or District of Columbia elected official from participating in or benefiting from the lease:
No member or delegate to Congress, or elected official of the Government of the United States or the Government of the District of Columbia, shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom.
J.A. 11, Compl. ¶ 11 (quoting Article 37.19 of the lease agreement).3
In November 2016, following President Trump’s election, Representative Cummings and three other Committee members requested that the GSA provide a briefing on the lease, as well as unredacted copies of lease documents and the Company’s monthly and annual statements. After the request was again made by Representative Cummings and ten other Committee members, invoking
In January 2017, following President Trump’s inauguration, Representative Cummings and three other Committee members requested additional information from the GSA relating to the agency’s enforcement of the lease terms. Specifically, they asked the GSA
- to explain the steps that GSA had taken, or planned to take, to address President Trump’s apparent breach of the lease agreement;
- to state whether GSA intended to notify President Trump’s company that it is in breach;
-
to provide the monthly reports President Trump’s company submits to the GSA on the Trump International Hotel’s revenues and expenses;
- to explain and provide documentation of the steps GSA had taken, or planned to take, to address liens against the Trump International Hotel; and
- to provide copies of all correspondence with representatives of President Trump’s company or the Trump transition team.
J.A. 13–14, Compl. ¶ 19.
The GSA refused to comply with that request, stating that the Committee members should submit a request under
The Requesters took the GSA up on its offer. By letter dated February 8, 2017, Ranking Member Cummings and seven other Committee members formally invoked
The GSA did not respond. After submitting a number of follow-up inquiries, the Requesters sent a lengthier letter explaining the background and function of
Finally, in July 2017, the GSA rejected those three formal requests in a one-page letter. The letter expressed the agency’s view that “[i]ndividual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee.” The letter did not mention
C
The Requesters filed suit in November 2017 against the then–Acting Administrator of the GSA, asserting that the agency’s refusal to comply with the statute “deprived the plaintiffs of information to which they are entitled by law[.]” J.A. 18. The Requesters asserted that the refusal thwarted each Member’s ability to:
- evaluate the propriety of GSA’s failure to enforce Article 37.19 of the lease which, by its express terms, forbids President Donald Trump, an “elected official of the Government of the United States,” from benefiting from the lease in any way;
- evaluate GSA’s oversight of the lease, including financial management of the lease;
- ascertain the amount of income from the lease benefiting President Trump, his daughter Ivanka Trump, and his sons Donald, Jr. and Eric Trump;
- determine the extent to which Trump Old Post Office LLC has received funds from foreign countries, foreign entities, or other foreign sources;
- assess whether GSA’s failure to act is based on a new interpretation of Article 37.19 of the lease, and if so, to review the legal opinion or opinions on which the new interpretation is based;
- evaluate whether the GSA contracting officer’s decision that the Trump Old Post Office LLC is in compliance with the lease was free from inappropriate influence; and
- recommend to the Committee, and to the House of Representatives, legislative and other actions that should be taken to cure any existing conflict of interest, mismanagement, or irregularity in federal contracting.
J.A. 18–19, Compl. ¶ 36.
The Requesters filed a motion for summary judgment on the ground that
The district court dismissed the case for lack of standing. The court reasoned that, in Raines v. Byrd, 521 U.S. 811 (1997), the Supreme Court established “a binary rubric of potential injuries for purposes of assessing [the] standing” of individual legislators as either “institutional” or “personal.” Cummings, 321 F. Supp. 3d at 107. The district court then ruled that the Requesters’ injury was not personal because they were not “singled out for specially unfavorable treatment,” and the injury was not to a private right. Id. at 109 (quoting Raines, 521 U.S. at 821). The district court also held that the injury was not institutional because no subpoena was involved, and
Having dismissed the case on standing grounds, the district court did not address the other grounds for dismissal pressed by the GSA.
The Requesters timely filed a notice of appeal.
II
The district court had subject-matter jurisdiction under
We review questions of standing de novo. Blumenthal v. Trump, 949 F.3d 14, 18 (D.C. Cir. 2020). In doing so, we accept as true the plaintiffs’ material factual allegations, id., and, to the extent it bears on the standing inquiry, we assume that the Requesters would prevail on the merits of their lawsuit, Committee on the Judiciary, U.S. House of Representatives v. McGahn, 968 F.3d 755, 762 (D.C. Cir. 2020) (en banc).
III
A
The Constitution vests limited powers in each branch of the federal government. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1546–1547 (2016). Congress is entrusted with enumerated “legislative Powers,”
“[T]o remain faithful to this tripartite structure,” the judicial power “may not be permitted to intrude upon the powers given to the other branches.” Spokeo, 136 S. Ct. at 1547. To that end, the Constitution confines the judicial power “only to ‘Cases’ and ‘Controversies.’” Id. (quoting
To establish Article III standing, a plaintiff must allege “(1) a concrete and
Given that “the law of [Article] III standing is built on * * * the idea of separation of powers[,]” “our standing inquiry has been especially rigorous” when the suit pits members of the two Political Branches against each other. Raines, 521 U.S. at 820–821 (formatting modified); see McGahn, 968 F.3d at 763, 769–772 (analyzing the question of standing with “rigor” in a case involving a clash between Congress, a former Executive Branch official, and the Executive). Nonetheless, “the Judiciary has a responsibility to decide cases properly before it[.]” Zivotofsky ex. rel. Zivotofsky v. Clinton, 566 U.S. 189, 194–195 (2012) (quoting Cohens v. Virginia, 6 Wheat. 264, 404 (1821)). “Courts cannot avoid their responsibility merely because the issues have political implications.” Id. at 196 (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)); see also McGahn, 968 F.3d at 774 (same).
B
The agency’s failure to provide information to which the Requesters are statutorily entitled is a quintessential form of concrete and particularized injury within the meaning of Article III.
The Supreme Court has repeatedly held that informational injuries satisfy the injury-in-fact requirement. In FEC v. Akins, 524 U.S. 11 (1998), the plaintiffs filed suit against the Federal Election Commission based on the Commission’s failure to require a political committee to release information as required by the Federal Election Campaign Act of 1971,
Likewise, in Public Citizen v. United States Department of Justice, 491 U.S. 440, 449 (1989), a plaintiff sought information under the Federal Advisory Committee Act’s disclosure provision,
Cases under the Freedom of Information Act,
The language of
The Freedom of Information Act analogously commands that “[e]ach agency, upon any request for records[,] * * * shall make the records promptly available to any person[.]”
Likewise, the Federal Advisory Committee Act at issue in Public Citizen requires that enumerated records of advisory committees “shall be available for public inspection[.]”
The right to request information under
That injury in fact is also concrete and particularized, as Article III requires, see Spokeo, 136 S. Ct. at 1548. In statutory informational injury cases, a plaintiff must allege that “it has been deprived of information that, on its interpretation, a statute requires the government or a third party to disclose to it,” and that “it suffers, by being denied access to that information, the type of harm Congress sought to prevent by requiring disclosure.” Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016).
The Requesters have alleged just that. First, the Requesters have identified a deprivation of information that, on their reading of the statute, they are legally entitled to receive. The deprivation is accomplished and complete, and the absence of information has been and continues to be felt by the Requesters. As the Supreme Court has recognized numerous times, that denial works a concrete injury. See Spokeo, 136 S. Ct. at 1549–1550 (“Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete,” citing as examples of cognizable intangible injuries the agencies’ failure to provide information in Akins and Public Citizen).
Second, the Requesters have alleged that the withholding of information has affected each of them “in a personal and individual way.” Spokeo, 136 S. Ct. at 1548 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)).
In sum, ample precedent establishes that the statutory informational injury alleged by the Requesters here amounts to a concrete and particularized injury in fact for purposes of Article III standing.
1
The GSA does not question that established body of standing law governing informational injuries. Nor does the GSA dispute that
The GSA’s position, instead, is that an informational injury under
That is not how Article III’s injury-in-fact requirement works. For starters, remember, the point of Article III’s standing requirement is to ensure that there is a “case or controversy” for the federal court to resolve,
In addition, in analyzing the standing of legislators, cases have traditionally asked whether the asserted injury is “institutional” or “personal.” An institutional injury is one that belongs to the legislative body of which the legislator is a member. See Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2664 (2015) (“The Arizona Legislature * * * [was] an institutional plaintiff asserting an institutional injury[.]”); see also Bethune-Hill, 139 S. Ct. at 1953 (“[I]ndividual members lack standing to assert the institutional interests of a legislature[.]”). Such institutional injuries afflict the interests of the legislature as an entity; they do not have a distinct personal, particularized effect on individual legislators.
A personal injury, by contrast, refers to an injury suffered directly by the individual legislators to a right that they themselves individually hold. A personal injury to a legislator, for Article III purposes, is not limited to injuries suffered in a purely private capacity, wholly divorced from their occupation. Rather, in the context of legislator lawsuits, an injury is also “personal” if it harms the legal rights of the individual legislator, as distinct from injuries to the institution in which they work or to legislators as a body. See Powell v. McCormack, 395 U.S. 486, 493 (1969) (reviewing legislator’s claim that he was inappropriately barred from taking his seat and from receiving his pay); see also Kerr v. Hickenlooper, 824 F.3d 1207, 1216 (10th Cir. 2016) (stating that, if a subset of legislators was barred from voting, members of the subset “could claim a personal injury”);
The GSA’s argument, like the Dissenting Opinion, fundamentally confuses those categories by adopting a sweeping definition of institutional injury that would cut out of Article III even those individualized and particularized injuries experienced by a single legislator alone. The GSA tries to ground its overly broad definition of institutional injury in the Supreme Court’s decision in Raines.
But Raines was quite different. In that case, six Members of Congress who had voted against passage of the Line Item Veto Act filed suit to challenge the constitutionality of the statute after they were outvoted. 521 U.S. at 814. The Line Item Veto Act gave the President the authority to cancel spending or tax measures after they were passed by both Chambers of Congress and signed into law. Id. (citing Pub. L. No. 104-130, 110 Stat. 1200 (1996)). The legislators asserted as injuries the alteration in the balance of powers between the Executive and Congress caused by the law, the supplanting of Congress’s veto power, and diminution of the effectiveness of legislative votes. Raines, 521 U.S. at 816 (quoting Individual Legislators’ Compl. ¶ 14).
Those injuries, though, were not personal and particularized to the six legislators, but instead trod on powers vested in the House and Senate and their members as a whole. The six legislators sought to vindicate a diffuse “institutional injury“—“the diminution of legislative power“—that was suffered by Congress as an entity, and so “necessarily damage[d] all Members of Congress and both Houses of Congress equally.” Raines, 521 U.S. at 821 (emphasis added). There was, after all, no claim that, under the
The same mismatch between the suing plaintiff and the injured party occurred in Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999). There, a group of legislators challenged the issuance of an executive order on the ground that its “issuance * * *, without statutory authority therefor, deprived the plaintiffs of their constitutionally guaranteed responsibility of open debate and vote on issues and legislation involving interstate commerce, federal lands, the expenditure of federal monies, and implementation of the [
The Requesters’ injury is a horse of a different color. The Requesters do not assert an injury to institutional powers or functions that “damages all Members of Congress and both Houses of Congress equally.” Raines, 521 U.S. at 821. The injury they claim—the denial of information to which they as individual legislators are statutorily entitled—befell them and only them.
In that regard, the injury is the same as one suffered by a
So too here. Although all Committee members have the right to pursue a request under
The Supreme Court‘s decision in Powell confirms the personal nature of the Requesters’ informational injury. In Powell, the Court concluded that a congressman, Adam Clayton Powell, Jr., had standing to sue Members of Congress and the leadership of the United States House of Representatives after he was barred from taking his seat. 395 U.S. at 489. In addition to the denial of his seat, Powell‘s salary was withheld. Id. at 493. The Court concluded that the suit satisfied Article III‘s requirement that legislators sue based on a personal injury. Id. at 512–514; see also Raines, 521 U.S. at 821 (confirming that Powell suffered a personal injury by being deprived of something to which he “personally” was entitled as an elected legislator). While the harms pertained directly to his fulfillment of his role as a legislator, they were individualized and confined to him. No other Representative suffered the loss of Powell‘s seat or of Powell‘s salary.
The GSA asserts that the Requesters are different from Powell. It points to the Supreme Court‘s statement in Raines that, “[u]nlike the injury claimed by Congressman Adam Clayton Powell, the injury claimed by the Members of Congress here is not claimed in any private capacity but solely because they are [M]embers of Congress.” Raines, 521 U.S. at 821 (emphasis added).
But the GSA‘s argument misses the Supreme Court‘s point. After all, the right at issue in Powell––to receive a House of Representatives salary, to take a seat in Congress, and to exercise the powers of that office––followed from and was bound up with, not disconnected from, Powell‘s status as a legislator. Cf. Nevada Comm‘n on Ethics, 564 U.S. at 126 (“[A] legislator casts his vote ‘as trustee for his constituents, not as a prerogative of personal power.‘“) (quoting Raines, 521 U.S. at 821).
As the Supreme Court went on to explain, what made the claims in Raines institutional rather than personal was that the interest asserted there ran with the seat in that “the claim would be possessed by [the legislator‘s] successor,” and so belonged to Congress, not the individual Member. Raines, 521 U.S. at 821. By contrast, even though Powell‘s claims were intrinsically intertwined with his position as a Member of Congress, Powell‘s successor could not claim the
The same is true here. The GSA does not contend, nor could it, that the informational injury asserted here runs with the Committee seat such that any legislators replacing the Requesters would be successors to this claim. While the legal right to request information under
In other words, for Article III purposes, the requirement that a legislator suffer a “personal” injury does not mean that the injury must be private. Instead, the requirement of a personal injury is a means of rigorously ensuring that the injury asserted is particularized and individualized to that legislator‘s own interests. That is, the injury must be one that “zeroes in on the individual,” Kerr, 824 F.3d at 1216, rather than an injury that “necessarily damages all Members of Congress and both Houses of Congress equally” or that runs with the institutional seat, Raines, 521 U.S. at 821.
That same understanding of “personal” injuries suffered by legislators was well articulated by the Tenth Circuit in Kerr:
An individual legislator certainly retains the ability to bring a suit to redress a personal injury, as opposed to an institutional injury. For example, if a particular subset of legislators was barred from exercising their right to vote on bills, such an injury would likely be sufficient to establish a personal injury. Under those circumstances, the legislator could claim a personal injury that zeroes in on the individual and is thus concrete and particularized.
824 F.3d at 1216 (applying Raines to state legislators) (citations omitted); see also Alaska Legis. Council, 181 F.3d at 1338 n.3 (“[A] representative whose vote was denied ‘its full validity in relation to the votes of [his] colleagues,’ might also allege a personal injury sufficient to confer standing.“) (quoting Raines, 521 U.S. at 824 n.7).
The Dissenting Opinion responds that “[n]othing in the statute [
2
The GSA also suggests that the asserted injury cannot be personal because members of the House Committee are chosen, in part, based on their party affiliation. See GSA Supp. Br. 4–5. Members of the Committee are nominated for membership by their “respective party caucus or conference.” House Rule X, cl. 5(a)(1). Those nominations are then voted on by the full House.
But the GSA never finishes the thought. It is hard to see how the process for committee selection diminishes the informational injury suffered when an agency refuses to comply with a
Nor do rules regarding the removal of Committee members bear on the injury analysis. Under House Rule X, Clause 5(b), if a legislator ceases to be a member of the party that nominated him or her to the Committee, the member‘s committee membership is vacated. Of course, any informational injury incurred by that member would also end with the loss of the seat. Which makes sense because the informational right is meant to equip individual Committee members with the information needed to discharge their duties on the oversight committees. That same feature also underscores the personal and individuated, rather than institutional, character of the legal right and the injury suffered.
3
In its supplemental brief to this court, the GSA also hints at a constitutional avoidance argument:
Indeed, if the ability to request information under section 2954 were truly a
“personal” right enforceable under Article III, then House Rule X, Clause 5(b) would raise serious constitutional concerns. After all, a Member of Congress has the right under the First Amendment to switch political parties, yet House Rule X, Clause 5(b) penalizes that switch in parties (and the resulting resignation or expulsion from the original congressional party‘s caucus or conference), by automatically terminating the Member‘s seat on the Committee, and hence his or her putative “right” to request information under section 2954.
GSA Supp. Br. 7–8.
The GSA‘s reasoning on this point is hard to follow. It seems as though the GSA continues to equate a personal injury with a purely private injury. What is more, if terminating a member‘s Committee seat does not run afoul of the First Amendment, it is hard to see how the attendant loss of an informational right under
In any event, we need not probe this undeveloped argument further, as “[m]entioning an argument ‘in the most skeletal way, leaving the court to do counsel‘s work, create the ossature for the argument, and put flesh on its bones’ is tantamount to failing to raise it.” Al-Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019) (quoting Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005)).
D
When called upon to adjudicate disputes between the Political Branches and their members, we apply the standing inquiry with special rigor. Arizona State Legislature, 135 S. Ct. at 2665 n.12 (noting that the inquiry is “especially rigorous“) (quoting Raines, 521 U.S. at 819); McGahn, 968 F.3d at 763. We have done so here, and we find that Article III‘s standing requirements are fully met. The informational injury asserted is a traditional and long-recognized form of Article III injury. It is concrete—the request was made and straightforwardly denied; the Requesters have been and remain empty-handed. The injury is personal and particularized to the Requesters themselves, not to any other legislators, to a legislative body, or even to their Committee seats.
Article III‘s causation and redressability prongs are also straightforwardly met. See Lujan, 504 U.S. at 560 (stating an injury must be “fairly traceable to the challenged conduct of the defendant” and “likely to be redressed by a favorable judicial decision“). The GSA‘s categorical refusal to provide the requested documents has caused the Requesters an informational injury. And a judicial order requiring compliance with
Also, while the plaintiffs in Raines filed suit in defiance of the institution‘s views, 521 U.S. at 829 (“both Houses actively oppose the[] suit“), the Requesters’ information inquiry comes with the strongest dispensation: The statutory authorization of both Houses of Congress and the President who signed
Also, unlike in Raines, relief cannot be obtained through the legislative process itself. See 521 U.S. at 829 (noting that Congress could repeal the offending Act or “exempt appropriations bills from its reach“). The statutory right, by its plain terms, applies to individual Committee members, as long as at least six others support the request, so that they can exercise their legislative role with
It also seems quite dubious that the 70th Congress that enacted
Nor does this case implicate any potentially special circumstances. It is not a suit against the President or a claim for information from him. See Franklin v. Massachusetts, 505 U.S. 788, 796 (1992) (stating that the President is not an agency under the
Information requests against agencies like this are commonplace, and the informational deficit suffered is not lessened just because the Requesters are legislators. “[T]he requester‘s circumstances * * * are irrelevant to his standing.” Zivotofsky, 444 F.3d at 617. The GSA admits as much when it concedes that these same Requesters would suffer an Article III-cognizable informational injury if they sought the same information under
Notably, the GSA‘s opposition to legislator standing is categorical; it does not argue that any difference between the scope of
For similar reasons, the Dissenting Opinion‘s worry that recognizing standing “ruinous[ly]” opens the judicial floodgates to suits by “errant” Members of Congress “acting contrary to the will of their committee, the will of their party, and the will of the House” falls flat. Dissenting Op. 11. That is because every Member of Congress, errant or otherwise, has been able under
IV
For those reasons, we hold that the Requesters have asserted an informational injury that is sufficient for Article III standing. This decision resolves only the standing question decided by the district court. To the extent the GSA‘s argument or the district court‘s reasoning implicate the existence of a cause of action, the appropriate exercise of equitable discretion, or the merits of the Requesters’ claims, those issues remain to be resolved by the district court in the first instance.
The judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
GINSBURG, Senior Circuit Judge, dissenting: When this court recently considered the standing of a committee of the House of Representatives to enforce a subpoena, we asked ourselves the same question we must answer today: “whether the claimed injury is personal to the plaintiff or else shared by a larger group of which the plaintiff is only a component – in other words, whether the injury is particularized.” Committee on the Judiciary, U.S. House of Representatives v. McGahn, 968 F.3d 755, 767 (2020). We held a House committee had standing to seek judicial enforcement of a subpoena that it had issued to a former Executive Branch official and that it had been authorized by a vote of the full House to pursue in court. Id. Because the committee was acting on behalf of the full House, the committee was “an institutional plaintiff asserting an institutional injury,” so there was no “mismatch” between the plaintiff and the injured party. Id.
This case is fundamentally different. Here, 15 individual Members of the House claim a statute enacted in 1928 and never successfully invoked in litigation gives each of them a personal right to exercise the investigative powers of the House of Representatives. See
* * *
Again, the key question in this case is this: Whether the harm the Plaintiff-Members allege is personal to each of them or is a harm to the House as an institution. The Supreme Court has clearly stated that “individual members lack standing to assert the institutional interests of a legislature.” Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1950, 1953-54 (2019) (citing Raines, 521 U.S. at 829, and holding “a single chamber of a bicameral [state] legislature” lacks standing to appeal the invalidation of a redistricting plan because redistricting authority is vested in the legislature as a whole); accord McGahn, 968 F.3d at 767. In other words, there can be no “mismatch between the [party] seeking to litigate and the body” that suffered the alleged harm. McGahn, 968 F.3d at 767. Here, the mismatch is plain. The harm the Plaintiff-Members allege – viz., the “impedance of [their] legislative and oversight responsibilities” – is a harm to the House of Representatives, of which each plaintiff is only one among 435 Members.2 Accordingly, the Plaintiff-Members lack standing to bring this case.
Article III of the Constitution of the United States permits the federal courts to hear “cases” and “controversies” and nothing more. Powell v. McCormack, 395 U.S. 486, 496 n.7 (1969). To stay within our “proper constitutional sphere,” the court must ensure in each case that the party invoking its power has standing to do so. Raines, 521 U.S. at 819-20; Va. House of Delegates, 139 S. Ct. at 1950. This requirement is rooted in the separation of powers. See Ct. Op. 11-12. The standing doctrine buttresses that separation by limiting the judicial power “only to redress or otherwise protect against injury to the complaining party,” and not to “general supervision of the operations of government.” Warth v. Seldin, 422 U.S. 490, 498-99 (1975); Raines, 521 U.S. at 829 (quoting United States v. Richardson, 418 U.S. 166, 192 (1974)). Separation of powers concerns are “particularly acute ... when a legislator attempts to bring an essentially political dispute into a judicial forum.” Chenoweth v. Clinton, 181 F.3d 112, 114 (D.C. Cir. 1999).
To establish their standing, the plaintiffs must allege they suffered an injury-in-fact that is both concrete and particularized. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). A court must consider each of these requirements independently. See id. at 1545. The Plaintiff-Members here do allege a concrete harm, see id. at 1549 (holding the denial of a statutory right to information is a concrete injury), but they do not allege a harm particularized – that is, personal – to themselves. See McGahn, 968 F.3d. at 766 (“For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” (quoting Spokeo, 136 S. Ct. at 1548) (internal quotation marks omitted)). The particularization requirement helps to ensure the plaintiff is the appropriate party to vindicate the claim. See Warth, 422 U.S. at 499 (“A federal court‘s jurisdiction ... can be invoked only when the plaintiff himself has suffered“); Blumenthal v. Trump, 949 F.3d 14, 18 (D.C. Cir. 2020) (holding 215 Members of the Congress lacked standing to seek a declaration that the president was violating the Foreign Emoluments Clause of the Constitution, and explaining that “our standing inquiry ... focuses on whether the plaintiff is the proper party to bring the suit” (cleaned up)).
The particularization inquiry is of special importance when the plaintiffs are legislators.
The Plaintiff-Members here allege harm to the House rather than to themselves personally. Their theory of injury is that the General Services Administration (GSA), by refusing their request for certain documents, hindered their efforts to oversee the Executive and potentially to pass remedial legislation. The Complaint is clear and consistent on this point: The Plaintiff-Members were harmed through the “impedance of the oversight and legislative responsibilities that have been delegated to them by Congress involving government management and accounting measures and the economy, efficiency, and management of government operations and activities.” Compl. ¶ 36. More specifically, the Plaintiffs-Members, who sit on the Committee on Oversight and Reform, allege the denial of their requests under
When a defendant impedes legislators in the fulfillment of their legislative duties, the defendant harms the legislature, not the legislators. After all, a legislator legislates “as trustee for his constituents, not as a prerogative of personal power.” Raines, 521 U.S. at 821. Any legislative power delegated to a legislator “is not personal to the legislator but belongs to the people; the legislator has no personal right to it.” Nevada Comm‘n on Ethics v. Carrigan, 564 U.S. 117, 125-26 (2011).
The power
The Plaintiff-Members sought information from the GSA in order to search for a “conflict of interest, mismanagement, or irregularity” and to recommend remedial legislation – a clear exercise of the oversight power of the House. Compl. ¶ 36; compare Watkins, 354 U.S. at 187 (reaffirming the House‘s power to probe for “corruption, inefficiency or waste” in furtherance of “intelligent legislative action“). When their request was refused, it was the House that suffered a legally cognizable injury-in-fact, not the Members who bring this suit.
My colleagues rely upon Powell v. McCormack, 395 U.S. 486 (1969), to reach the opposite conclusion, but that case is in complete harmony with the principles just discussed. During the 89th Congress, a House investigation found evidence that longtime congressman Adam Clayton Powell, Jr. had overstated his travel expenses. Id. at 489-90. At the start of the 90th Congress, the House barred Powell from taking his seat. Id. at 493. Powell sued for his seat and his salary, and a declaration that his exclusion violated the Constitution. Id. While the case was being litigated, Powell was reelected; the 91st Congress allowed him to take his seat but stripped him of his seniority and fined him $25,000. Id. at 494-95. The House defendants argued Powell‘s case was moot. Id. at 496. The Supreme Court disagreed: Powell had an “obvious and continuing interest in his withheld salary,” so there remained a live case or controversy. Id. at 496-99.
The Supreme Court, in denying standing to the legislator plaintiffs in Raines, distinguished Powell in terms that apply equally to this case: “Unlike the injury claimed by Congressman Adam Clayton Powell, the injury claimed by the Members of Congress here is not claimed in any private capacity but solely because they are Members of Congress.” 521 U.S. at 821. Powell‘s claim was justiciable not because he had been deprived of his ability to legislate or investigate; it was justiciable because Powell claimed he was owed money, to which he was “personally ... entitled.” Id.
That
The Court makes much of the fact the statute gives the ability to make requests “specifically and particularly” to a group of Committee Members, rather than to any group of Members of the House. Ct. Op. 22. The Supreme Court considered a similar argument in Hollingsworth v. Perry, 570 U.S. 693 (2013), where the official proponents of a successful ballot initiative asserted they had standing to defend the constitutionality of the law resulting from their initiative. The proponents stressed their “‘unique,’ ‘special,’ and ‘distinct’ role in the initiative process” under state law, but the Supreme Court was not persuaded. Id. at 706. Notwithstanding the proponents’ particular role, their interest was shared with every citizen of their state. Id. at 706-07. Just so here. Requests must come from Members of the Committee, but it does not follow that Committee Members suffer a personal harm when a request is denied.
From the foregoing discussion, it is clear the Plaintiff-Members have not alleged the impedance of their legislative duties harmed them in any private or personal
* * *
Making a request for information is just the first step in the process of congressional oversight of an Executive agency. An Executive agency is likely to grant routine requests. See Hearings on S. 2170 et al. before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 94th Cong., 107-08 (1975) (A. Scalia, Assistant Attorney General, Office of Legal Counsel) (stating
551 F.2d 384, 391 (D.C. Cir. 1976) (holding the House of Representatives has standing to enforce a subpoena in court); House Rule XI, cl. 2(m) (governing the House‘s subpoena power). Perhaps they preferred to take their chance on establishing a more powerful precedent.
The consequences of allowing a handful of members to enforce in court demands for Executive Branch documents without regard to the wishes of the House majority are sure to be ruinous. Judicial enforcement of requests under
Conclusion
Because the legislative power and the attendant power of investigation are committed to the House and not to its Members, a legislator does not suffer a personal injury when the denial of information he or she requested impedes the oversight and legislative responsibilities of the House. Accordingly,
I respectfully dissent.