JUDICIAL WATCH, INC., Plaintiff, v. ADAM B. SCHIFF, Chairman,
Civil Action No. 19-cv-3790 (BAH)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Chief Judge Beryl A. Howell
July 27, 2020
MEMORANDUM OPINION
Plaintiff Judicial Watch, Inc. asserts that the common-law right of access requires defendants, the House Permanent Select Committee on
I. BACKGROUND
On September 24, 2019, Speaker Nancy Pelosi announced that the House of Representatives would continue with its impeachment inquiry into President Donald J. Trump. Defs.’ Mem. at 1-2 (citing Press Release, Speaker Nancy Pelosi, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), available at https://www.speaker.gov/newsroom/92419-0). Roughly one month later, on October 31, 2019, the House adopted House Resolution 660, which (i) established the procedures for HPSCI to continue its ongoing investigation in open hearings, (ii) authorized public release of deposition transcripts, (iii) required HPSCI to prepare and issue a report and make recommendations to the Committee on the Judiciary, and (iv) provided additional procedures in furtherance of the impeachment inquiry, including for the Committee on the Judiciary. Id. at 2 (citing
According to plaintiff, the subscribers of the telephone records subject to the subpoenas at issue include ranking Intelligence Committee Republican Devin Nunes, President Donald J. Trump attorneys Rudy Giuliani and Jay Sekulow, journalist John Solomon, the White House, and others. Pl.‘s Opp‘n Defs.’ Mot. Dismiss (Pl.‘s Opp‘n) at 1, ECF No. 11. This use of subpoena power is, in plaintiff‘s view, an unprecedented use of government surveillance power for allegedly partisan purposes, id. at 1, that raise[s] important questions regarding possible violation[s] of the attorney-client privilege of the President, the First Amendment rights of a journalist, and a purportedly unbounded power by Congress to monitor the telephone calls of any citizen, id. at 1-2.
[T]o shed light on these questions, id. at 2, on December 6, 2019, plaintiff requested
Defendants’ pending motion to dismiss is now ripe for review.
II. LEGAL STANDARD
Article III of the Constitution prescribes that [f]ederal courts are courts of limited subject-matter jurisdiction and ha[ve] the power to decide only those cases over which Congress grants jurisdiction. Bronner v. Duggan, 962 F.3d 596, 602 (D.C. Cir. 2020) (alterations in original) (quoting Al-Zahrani v. Rodriguez, 669 F.3d 315, 317 (D.C. Cir. 2012)); see Gunn v. Minton, 568 U.S. 251, 256 (2013) (Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute. (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994))). Federal courts therefore have a corresponding independent obligation to ensure that they do not exceed the scope of their jurisdiction and must raise and decide jurisdictional questions that the parties either overlook or elect not to press. Henderson v. Shinseki, 562 U.S. 428, 434 (2011). Absent subject-matter jurisdiction over a case, the court must dismiss it. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004));
To survive a motion to dismiss under
III. DISCUSSION
Defendants argue that the Court lacks jurisdiction over this case for two reasons: first, the doctrine of sovereign immunity deprives the Court of jurisdiction over the House Defendants, Defs.’ Mem. at 3, and second, given that the records sought by Plaintiff involve matters pursued and obtained by the House Defendants as part of the House-authorized impeachment inquiry, they are absolutely protected by the Speech or Debate Clause, id. (citing
A. Sovereign Immunity
The Supreme Court has stated that [t]he general rule is that a suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act. Dugan v. Rank, 372 U.S. 609, 620 (1963) (internal quotations and citations omitted). For such suits, [t]he basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress. Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983); see also FDIC v. Meyer, 510 U.S. 471, 475 (1994) (Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.) (citations omitted); United States v. Mitchell, 463 U.S. 206, 212 (1983) (It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.); Shuler v. United States, 531 F.3d 930, 932 (D.C. Cir. 2008) (quoting Gray v. Bell, 712 F.2d 490, 506 (D.C. Cir. 1983)) (The United States is protected from unconsented suit under the ancient common law doctrine of sovereign immunity.). Any waiver of the Federal Government‘s sovereign immunity must be unequivocally expressed in statutory text and will not be implied. Lane v. Pena, 518 U.S. 187, 192 (1996) (citations omitted).
Sovereign immunity extends to Congress when sued as a branch of the government, McLean v. United States, 566 F.3d 391, 401 (4th Cir. 2009), abrogated on other grounds by Lomax v. Ortiz-Marquez, 140 S. Ct. 1721 (2020), and makes members of Congress immune from liability for their actions within the legislative sphere, id. Thus, the doctrine of sovereign immunity generally forecloses . . . claims against the House of Representatives and Senate as institutions, and against members of both congressional houses acting in their official capacities, since an official capacity suit is treated as a suit against a government entity. Rockefeller v. Bingaman, 234 F. App‘x 852, 855 (10th Cir. 2007) (quoting Rockefeller v. Bingaman, No. CIV-06-0198, 2006 WL 4061183, at *3 (D.N.M. Sept. 20, 2006)) (citing Keener v. Cong. of the U.S., 467 F.2d 952, 953 (5th Cir. 1972)); see also Cofield v. United States, 64 F. Supp. 3d 206, 213-14 (D.D.C. 2014) ([S]overeign immunity bars any claim for money damages against the United States (including the U.S. Senate) and its agencies.).
Here, plaintiff acknowledges that this suit against a House Committee and a House member is for records generated pursuant to the Committee‘s impeachment investigation. Compl. paragraph 17; id. paragraph 10. Notwithstanding the official capacity in which the requested records were generated, plaintiff disputes that sovereign immunity bars this suit because, instead of seeking monetary damages, Plaintiff‘s complaint specifically seeks mandamus relief under
1. Application of the Larson-Dugan Exception
In Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), the plaintiff sued the head of the War Assets Administration, not for money damages, but for specific performance of the delivery of surplus coal in accordance with plaintiff‘s contract with the government, id. at 684-85. Finding that the Administrator‘s action in refusing the coal shipment to plaintiff was not unconstitutional or ultra vires conduct outside the scope of the Administrator‘s authority, nor contrary to statute or order, id. at 703, the Supreme Court concluded the Administrator‘s action was, therefore, inescapably the action of the United States and the effort to enjoin it must fail as an effort to enjoin the United States, id.; see also id. at 688 (noting suit would be barred not because it is a suit against an officer of the Government, but because it is, in substance, a suit against the Government over which the court, in the absence of consent, has no jurisdiction). The Court thereby clarified, and made explicit in Dugan v. Rank, 372 U.S. 609 (1963), an exception to sovereign immunity in actions seeking specific relief for (1) action by [government] officers beyond their statutory powers [or] (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void, id. at 621-22. In either of such cases the officer‘s action can be made the basis of a suit for specific relief against the officer as an individual . . . . Id. at 622 (quoting Malone v. Bowdoin, 369 U.S. 643, 647 (1962)); see also Dalton v. Specter, 511 U.S. 462, 472 (1994) (quoting Larson, 337 U.S. at 691 n.11) (summarizing Larson as holding that sovereign immunity would not shield an executive officer from suit if the officer acted either unconstitutionally or beyond his statutory powers (emphasis in original)); Pollack v. Hogan, 703 F.3d 117, 119-21 (D.C. Cir. 2012); id. at 120 (quoting Larson, 337 U.S. at 689) (Under the Larson-Dugan exception, suits for specific relief against officers of the sovereign allegedly acting beyond statutory authority or unconstitutionally are not barred by sovereign immunity.).
Second, defendants argue, Defs.’ Reply at 2, that plaintiff fails to meet the necessary prerequisites for this court to exercise its mandamus jurisdiction, Swan, 100 F.3d at 976 n.1, which requires that: (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff, id. (quoting Am. Cetacean Soc‘y v. Baldrige, 768 F.2d 426, 433 (D.C. Cir. 1985), rev‘d on other grounds sub nom. Japan Whaling Ass‘n v. Am. Cetacean Soc‘y, 478 U.S. 221 (1986)). Defendants primarily target the second mandamus prong, stating that Plaintiff cannot demonstrate that either Congressman Schiff or the Committee ‘has a clear, nondiscretionary duty to act.’ Defs.’ Reply at 2 (quoting Sluss v. U.S. Citizenship & Immigr. Servs., 899 F. Supp. 2d 37, 41 (D.D.C. 2012)) (citing, as support,
Finally, defendants insist that the Larson-Dugan exception is inapplicable because plaintiff presents no claim that the challenged action of either of the House defendants was
unconstitutional, ultra vires, or beyond statutory authority. Defs.’ Mem. at 4-5; Defs.’ Reply at 3. Indeed, absolutely no allegation is made—and no evidence suggests—that HPSCI or its chairman acted ultra vires or in a manner contrary to the U.S. Constitution or a statute in issuing the subpoenas at issue, or receiving the responses thereto, in connection with the impeachment inquiry. To the contrary, as defendants point out, the Committee‘s investigation—led by Congressman Schiff in his capacity as Chairman of the Committee—and the subpoenas it issued were clearly and expressly authorized by the full House and entirely consistent with its standing rules. Defs.’ Reply at 4.
At the same time, defendants’ argument that the Larson-Dugan exception is inapplicable because the powers of House Defendants are simply not ‘limited by statute’ and, thus, no statutory ‘limitations’ on the issuance of subpoenas by a House committee during an investigation exist, Defs.’ Reply at 3, is forestalled by binding D.C. Circuit precedent. In WLF II, plaintiffs sought, pursuant to the common-law right of public access to government records, disclosure of documents compiled or created by an advisory committee established by the United States Sentencing Commission, 89 F. 3d at 898-99. In the D.C. Circuit‘s analysis, the relevant duty owed by the defendants in the case stemmed from the common-law right itself, not a separate statute or regulation. Id. at 901. Whether the Larson-Dugan exception to sovereign immunity applies depends upon whether the Government has a duty to the plaintiff, viz. to allow it access to certain government records. Id. As a result, applicability of the exception turns first on the existence of the duty, and the application of sovereign immunity merges with the claimed duty to disclose asserted in the petition for mandamus. The D.C. Circuit explained: the question of jurisdiction merges with the merits, triggering an assessment of the validity of plaintiff‘s claim under the common-law right of access. Id. at 902.
Likewise, here, while defendants are correct that no independent statutory duty requires disclosure of the requested subpoenas, see Defs.’ Reply at 3-4, the relevant duty, as in WLF II, is that potentially created by the common-law right itself. Applicability of the Larson-Dugan exception thus turns on—or merges with, WLF II, 89 F.3d at 902—the question of whether defendants have a duty to provide plaintiff with access to the requested records. See also Swan, 100 F.3d at 981 (determining whether the Larson-Dugan exception would be triggered and hence no waiver of sovereign immunity is required rested on discussion of the central merits question in the case, namely whether challenged government action violated statute); Mashiri v. Dep‘t of Educ., 724 F.3d 1028, 1031-32 (9th Cir. 2013); id. at 1032 (quoting WLF II, 89 F.3d at 901-02) (following D.C. Circuit‘s practice when finding that the question of ‘[w]hether the Larson-Dugan exception’ applied ‘merge[d] with the question on the merits,’ and therefore turning to address the substantive merits of the mandamus
In short, the merits of plaintiff‘s claimed right of access to the requested subpoenas must be considered to assess whether the sovereign immunity defendants claim bars this lawsuit.
2. Plaintiff Has No Common-Law Right of Access to the Requested Records
The Supreme Court has made clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents. Nixon v. Warner Commc‘ns, 435 U.S. 589, 597 (1978) (footnote omitted). This right of access is not absolute, id. at 598, but left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case, id. at 599; see SEC v. Am. Int‘l Grp., 712 F.3d 1, 3 (D.C. Cir. 2013) (Of course, even if a document is a record of the type subject to the common law right of access, the right is not absolute: it is defeated when the government‘s interest in secrecy outweighs the public‘s interest in disclosure.). Binding precedent in this Circuit ensures that the common law right of access extends beyond judicial records to the ‘public records’ of all three branches of government. Ctr. for Nat‘l Sec. Studies v. U.S. Dep‘t of Justice, 331 F.3d 918, 936 (D.C. Cir. 2003) (citing WLF II, 89 F.3d at 903-04); see also Schwartz v. U.S. Dep‘t of Justice, 435 F. Supp. 1203, 1204 (D.D.C. 1977) (holding that Congress is subject to the common law rule which guarantees the public a right to inspect and copy public records and explaining that even though Congress has exempted itself from the requirements of the Freedom of Information Act,
(a) Two-Part Test for Application of Common-Law Right of Public Access
The D.C. Circuit has outlined a two-step process for determining whether the common-law right of access applies. Wash. Legal Found. v. U.S. Sent‘g Comm‘n (WLF I), 17 F.3d 1446, 1451-52 (D.C. Cir. 1994). First, a court must decide whether the document sought is a ‘public record,’ id. at 1451, and, if it is, then, second, the court should proceed to balance the government‘s interest in keeping the document secret against the public‘s interest in disclosure, id. at 1451-52; see also WLF II, 89 F.3d at 899 (summarizing prior holding). As to the first prong, under federal common law, a public record subject to the public right of access is a government document created and kept for the purpose of memorializing or recording
The requested records at issue in this lawsuit do not satisfy this two-part public access test.
(b) The Requested Records Are Not Public Records
The requested subpoenas were issued by HPSCI and in this respect certainly reflect an official action of the Committee.4 Not every ministerial or preliminary step to gather
information by a government entity amounts to creation of a public record, however. In fashioning the definition of public records subject to the common law right of public access, the D.C. Circuit articulated two guideposts: adequately protect[ing] the public‘s interest in keeping a watchful eye on the workings of public agencies,—an interest we regard as fundamental to a democratic state, WLF II, 89 F.3d at 905 (internal quotations and citations omitted), and yet narrow enough to avoid the necessity for judicial application of the second-step balancing test to documents that are preliminary, advisory, or, for one reason or another, do not eventuate in any official action or decision being taken, id. As examples of the latter not encompass[ed] by the definition, the Court cited the preliminary materials upon which an official relied in making a decision or other writings incidental to the decision itself—for example, the report of a blood test provided in support of an application for a marriage license, the job application of a would-be government employee, a government auditor‘s preliminary notes used in the preparation of an official report, or a cover memorandum circulated with a copy of an official report or study. Id. at 905-06.
HPSCI‘s issuance of the requested subpoenas was just such a preliminary step to gather information pertinent to the Committee‘s task of deciding whether to recommend
Here, the requested subpoenas were issued as part of HPSCI‘s investigative effort and such issuance, though undeniably a form of Committee action, was so preliminary to any final recommendation that this action lacks the legal significance to constitute a public record to which the right of public access attaches. See WLF II, 89 F.3d at 906 (concluding that requested documents of Advisory Group to U.S. Sentencing Commission were made up entirely of materials that are, if not preliminary, then merely incidental to the only official action the Advisory Group was authorized to take, viz., recommending sentencing guidelines to the Commission, and did not qualify as public records). Consequently, plaintiff has no right to disclosure of these subpoenas under the common-law right of access.5
B. Speech or Debate Clause
Plaintiff‘s demand for disclosure of the requested subpoenas, and responses thereto, not only fails under the common-law right of access but is also barred by the Speech or Debate Clause, which provides that Senators and Representatives . . . for any Speech or Debate in either House . . . shall not be questioned in any other Place.
Without exception, the Supreme Court ha[s] read the Speech or Debate Clause broadly to effectuate its purposes. Eastland, 421 U.S. at 501. Thus, although the Clause speaks of ‘Speech or Debate,’ it extends further to all ‘legislative acts.’ Rangel, 785 F.3d at 23 (quoting Doe v. McMillan, 412 U.S. 306, 312 (1973)). Indeed, when it is determined that Members are acting within the ‘legitimate legislative sphere[,]’ the Speech or Debate Clause is an absolute bar to interference. Eastland, 421 U.S. at 503 (quoting McMillan, 412 U.S. at 314)).
To be considered within the legislative sphere for purposes of the Clause, a given activity must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. Gravel v. United States, 408 U.S. 606, 625 (1972). Under this standard, authorizing an investigation pursuant to which . . . materials were gathered qualifies for protection, McMillan, 412 U.S. at 313, as does [t]he issuance of a subpoena pursuant to an authorized investigation, Eastland, 421 U.S. at 505, both of which, the Supreme Court has explained, are indispensable ingredient[s] of lawmaking, id. The Clause applies to a legislative act even when a plaintiff alleges that [the act] violated the House Rules . . . or even the Constitution. Rangel, 785 F.3d at 24 (first citing Kilbourn v. Thompson, 103 U.S. (13 Otto) 168, 203 (1880); and then citing McMillan, 412 U.S. at 312-13). Such is the nature of absolute immunity, which is—in a word—absolute. Id. at 24 (citing Bogan v. Scott-Harris, 523 U.S. 44, 54-55 (1998).6
Applying these standards to the HPSCI subpoenas at issue in this case, make amply clear that the Speech or Debate Clause bars plaintiff‘s suit. Though the aim of an impeachment inquiry is not to enact legislation, such inquiry is undoubtedly a matter[] which the Constitution places within the jurisdiction of either House. Gravel, 408 U.S. at 625. Indeed, the Constitution specifically entrusts the House of Representatives
articulated in Gravel, because the subpoenas were an integral part of [a] deliberative and communicative process[], Gravel, 408 U.S. at 625, underlying a matter constitutionally entrusted to the House. As the Eleventh Circuit explained in reaching this same conclusion: impeachment is viewed as a legislative activity in the sense that it is one of the ‘other matters which the Constitution places within the jurisdiction of either House.’ In re Request for Access to Grand Jury Materials Grand Jury No. 81-1, Miami, 833 F.2d 1438, 1446 (11th Cir. 1987) (quoting Gravel, 408 U.S. at 625); see also Porteous v. Baron, 729 F. Supp. 2d 158, 165 (D.D.C. 2010) (quoting Gravel, 408 U.S. at 625) (The trial of impeachable offenses is, of course, a matter that the Constitution places within the sole jurisdiction of the Senate . . . and the use of relevant testimony at or in preparation for that trial is, without a doubt, ‘an integral part of the deliberative and communicative processes by which Members participate’ in the trial proceedings. (internal citations omitted)).
Plaintiff asserts three counterarguments, none of which is persuasive. First, plaintiff argues that the Speech or Debate Clause should not apply because [t]his case is only about the disclosure of public records, rather than about whether Defendants can be held responsible for their actions in the issuance of the subpoenas. Pl.‘s Opp‘n at 4. This argument misapprehends the nature of Speech or Debate immunity, which, as the D.C. Circuit has made plain, is absolute. Rangel, 785 F.3d at 24. The prospect of civil liability lessens the ability of the Members of Congress to ‘represent the interests of their constituents,’ and litigation itself ‘creates a distraction and forces Members to divert their time, energy, and attention from their legislative tasks[.]’ Id. at 24 (first quoting Powell v. McCormack, 395 U.S. 486, 503 (1969); and then quoting Eastland, 421 U.S. at 503)). To protect against such diversions, the clause not only provides a defense on the merits but also protects a legislator from the burden of defending himself. Powell, 395 U.S. at 502-03. Thus, the fact that plaintiff seeks disclosure, rather than to establish criminal or civil liability, has no bearing on the application of the Clause to bar this lawsuit. This principle was well articulated in United States v. Peoples Temple of the Disciples of Christ, 515 F. Supp. 246 (D.D.C. 1981), in which the court quashed a subpoena for documents concerning a House committee‘s investigation of a congressman‘s death in Guyana, explaining that: Once it is determined . . . that the [Members‘] actions fall within the legitimate legislative sphere, judicial inquiry is at an end. Otherwise, Members of Congress conducting investigations would be forced to consider at every turn whether evidence received pursuant to the investigation would subsequently have to be produced in court. This would imperil the legislative independence protected by the Clause. 515 F. Supp. at 249 (internal quotations omitted).
Second, plaintiff questions the application of Speech or Debate immunity on the grounds that impeachment proceedings are judicial rather than
address, and is not relevant to, the meaning of the term legislative sphere for purposes of the Speech or Debate Clause. See id. at 149-57.
Third and finally, plaintiff cites—only in the Complaint and without further explanation—Pentagen Technologies, to assert that no legislative purpose affording Speech and Debate Clause immunity applies. Compl. paragraph 10. This reliance is entirely misplaced. After all, the Pentagen Technologies court ruled that the requested congressional investigative reports at issue in that case were protected from compulsory disclosure by the Speech or Debate Clause of the Constitution, 20 F. Supp. 2d at 45, and neither made contrary findings nor drew any distinctions as to investigative materials collected in the context of an impeachment inquiry.
Accordingly, the Speech or Debate Clause bars this lawsuit because the subpoenas at issue were an integral part of an impeachment inquiry, a matter which the Constitution places within the jurisdiction of either House, Gravel, 408 U.S at 625. This case must therefore be dismissed.
IV. CONCLUSION
For the reasons set forth above, plaintiff has no right to demand disclosure of the requested subpoenas and responses thereto issued by HPSCI in connection with the impeachment inquiry of the President, and the Speech or Debate Clause of the Constitution provides immunity from suit to defendants. This case is therefore dismissed with prejudice.
An Order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: July 27, 2020
BERYL A. HOWELL
Chief Judge