LEOPOLD v. PITTMANLEOPOLD v. PITTMAN
MEMORANDUM OPINION
Plaintiffs Jason Leopold and his employer Buzzfeed News assert that the common-law right to public access and certain statutory duties of disclosure require defendants, the Chief of the United States Capitol Police (“USCP“) and the Inspector General of the Capitol Police, both in their official capacities, to disclose certain requested documents relating to internal USCP operations. See generally Am. Compl. ¶¶ 8-17, ECF No. 12.1 Defendants contend that sovereign immunity bars the exercise of jurisdiction here and that no valid claim is presented, warranting the grant of summary judgment in their favor, pursuant to
For the reasons explained below, defendants’ motion for summary judgment is construed to be a motion for dismissal for lack of subject matter jurisdiction, pursuant to
Following the January 6, 2021, attack on the U.S. Capitol, plaintiffs—investigative journalist Jason Leopold and Buzzfeed News—planned to prepare and publish one or more articles about the USCP. Am. Compl. ¶ 1. To that end, on January 28, 2021, plaintiffs submitted requests to the USCP‘s Public Information Office and the USCP Office of Inspector General (“OIG“) seeking six categories of documents: (1) “Inspector General semiannual reports for 2015 forward,” id. ¶ 4; (2) “other Inspector General reports, including audits for 2008 forward,” id.; (3) “annual financial statements and audits of annual financial statements for 2015 forward,” id.; (4) “semiannual reports of disbursements for 2015 forward,” id.; (5) “USCP written directives in effect on January 6, 2021,” id.; and (6) “demonstration permits, denials, or other written memorials of final decisions relating of final decisions relating to permits for public gatherings on the Capitol grounds on January 6, 2021,” id. See also Pls.’ Pet. Writ of Mandamus (“Pls.’ Pet.“), Ex. 1, Document Request Emails, ECF No. 1-1;2 Defs.’ Statement of Material Facts As to Which There Is No Genuine Issue (“Defs.’ SMF“) ¶ 3, ECF No. 19-1.3
Shortly thereafter, on February 11, 2021, USCP‘s general counsel responded to plaintiffs’ request by email, declining to provide the documents and suggesting other points of contact to obtain some categories of information. Pls.’ Pet., Ex. 2, Initial Request Response, ECF No. 1-1; Defs.’ SMF ¶ 4. Three weeks later, on February 23, 2021, plaintiffs filed the instant suit to obtain the requested documents, pursuant to the common-law right of public access and a statute governing the USCP OIG,
Since the filing оf this lawsuit, defendants have disclosed a number of documents to plaintiffs, narrowing considerably the scope of the requested records remaining at issue in this lawsuit.4 Plaintiffs continue
As to the 101 USCP written directives at issue, defendants maintain that these directives, which are classified as “Law Enforcement Sensitive,” may not be disclosed bеcause they detail internal policies and guidance for USCP operations and “would reveal confidential sources and methods, investigative activities and techniques” that should not be made public. Defs.’ SMF ¶ 10; OGC Decl. ¶¶ 10-12. Furthermore, 65 of the 101 written directives have been designated by a USCP document review team as “security information,” as defined in
The parties’ pending motions are 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 ex rel. Am. Stud. Ass‘n 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 also 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 casе, 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));
III. DISCUSSION
Defendants argue that the doctrine of sovereign immunity deprives the Court of jurisdiction over defendants, as Legislative Branch officers who were sued in their official capacity. Defs.’ Mem. at 5-7. Plaintiffs counter that an exception to sovereign immunity applies, see Pls.’ Opp‘n at 2-4, and, further, that the common-law right of access and a statutory right of access, under
A. Sovereign Immunity
Generally, “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) (“The United States is protected from unconsented suit under the ancient common law doctrine of sovereign immunity.” (quoting Gray v. Bell, 712 F.2d 490, 506 (D.C. Cir. 1983))). 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).
The D.C. Circuit has “generally . . . concluded that ‘[f]ederal agencies or instrumentalities performing federal functions always fall on the “sovereign” side of [the] fault line’ and thus the doctrine of sovereign immunity forecloses claims against those entities as institutions. Albrecht v. Comm. on Emp. Benefits, 357 F.3d 62, 67 (D.C. Cir. 2004) (quoting Auction Co. of Am. v. FDIC, 132 F.3d 746, 752 (D.C. Cir. 1997)) (alterations and emphasis in the original). Agencies within the legislative branch are therefore no exception. See, e.g., Rockefeller v. Bingaman, 234 F. App‘x 852, 855 (10th Cir. 2007) (holding that sovereign immunity “forecloses . . . claims against the House of Representatives and Senate as institutions,” and against members of both congressional houses “acting in their official capacities,” because “an ‘official capacity’ suit is treated as a suit against a government entity” (quoting Rockefeller v. Bingaman, No. CIV-06-0198, 2006 WL 4061183, at *3 (D.N.M. Sept. 20, 2006) and citing Keener v. Cong. of the U.S., 467 F.2d 952, 953 (5th Cir. 1972))); 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.“). Given that a suit against a government official in his official capacity “generally represent[s] only another way of pleading an action against an entity of which an officer is an agent,” courts must treat an official capacity suit as “a suit against the entity,” and apply the governing principles of sovereign immunity accordingly. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (internal quotations and citations omitted).
Plaintiffs sued the U.S. Capitol Police and its Inspector General for records generated in their official capacity. Am. Compl. ¶¶ 2-4. The USCP is a federal agency within the Legislative Branch, see
1. Application of the Larson-Dugan Exception
In Larson v. Domestic & Foreign Commerce Corp., 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 the plaintiff‘s contract with the government, 337 U.S. 682, 684-85 (1949). Finding that the Administrator‘s action in refusing the coal shipment to the 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 that 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 uncоnstitutionally’ are not barred by sovereign immunity.“).
Defendants first contend that “to proceed with this suit, Plaintiffs must identify a waiver of sovereign immunity that is ‘unequivocally expressed in statutory text,‘” and that because they have not, sovereign immunity remains in force. Defs.’ Mem. at 12 (quoting Lane, 518 U.S. at 192). This argument is insufficient. As Judicial Watch, Inc. v. Schiff, 474 F. Supp. 3d 305 (D.D.C. 2020), states regarding mandamus relief, defendants’ argument “merely begs the question,” id. at 312, because, if the Larson-Dugan exception does apply, “[n]o separate waiver of sovereign immunity is required to seek a writ of mandamus to compel an official to perform a duty required in his official capacity,” Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005); see also WLF II, 89 F.3d at 901 (“If a plaintiff seeks a writ of mandamus to force a public official to perform a duty imposed upon him in his official capacity, however, no separate waiver of sovereign immunity is needed.” (citing Chamber of Com. of U.S. v. Reich, 74 F.3d 1322, 1329 (D.C. Cir. 1996))).
Defendants’ next argument is that the Larson-Dugan exception is inapplicable because “Plaintiffs have not identified any
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 Complaint. 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. See also Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir. 1996) (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 (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 substantivе merits of the mandamus
Accordingly, the merits of plaintiffs’ request, under the common-law right of access, that defendants disclose 101 USCP written directives in effect on January 6, 2021 and OIG reports, including semiannual reports and audits, must be considered to assess whether sovereign immunity bars this lawsuit against defendants.
2. No Common-Law Right of Access to 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) Displacement of the Common-Law Right of Public Access for OIG Reports and Certain Written Directives
Certain documents still sought by plaintiffs are not subject to the common-law right of public access, however, because a statute in place displaces that default right. Specifically, a statute governing USCP operations provides, in pertinent part:
[A]ny security information in the possession of the Capitol Policе may be released by the Capitol Police to another entity, including an individual, only if the Capitol Police Board determines in consultation with other appropriate law enforcement officials, experts in security preparedness, and appropriate committees
of Congress, that the release of the security information will not compromise the security and safety of the Capitol buildings and grounds or any individual whose protection and safety is under the jurisdiction of the Capitol Police.
As far as “security information” is concerned, then, Congress has crafted a specific statutory scheme regarding public access that involves the USCP Board and others considering the material and determining whether public release is appropriate—not the federal courts applying the common law test for the right of public access. Where Congress has enacted a particular statutory scheme governing access to certain information, that scheme “preempts the common law right” of public access, for “[i]t would make no sense” for Congress to create such a scheme only for courts to “turn and determine that the statute ha[s] no effect on a preexisting common law right of access.” Ctr. for Nat‘l Sec. Studies v. U.S. Dep‘t of Justice, 331 F.3d 918, 937 (D.C. Cir. 2003); see also Milwaukee v. Illinois, 451 U.S. 304, 313-14 (1981) (“[F]ederаl common law . . . is resorted to in the absence of an applicable Act of Congress.” (internal quotation omitted)).
Much of the requested material still at issue has been identified by a USCP document review team and by the USCP Board as “security information” and so is subject to this statutory scheme governing disclosure, not to the common-law right of public access. See Defs.’ SMF ¶¶ 8; 13-14 (detailing that the requested OIG reports and 65 of the USCP written directives have been determined to be security information, under
Specifically, 65 of the 101 written USCP directives at issue, constitute security information, under
The OIG reports at issue—both the semiannual reports from 2015 forward and all other reports, including audits, from 2008 forward—have also been designated “security information” by the USCP Board, which acted under its statutory authority to determine the release of security information, see
As a result, the common-law right of public access is not in play as to the requested OIG reports (both the semiannual reports from 2015 forward and the other reports, including audits, from 2008 forward) and to the 65 USCP written directives classified as security information.
b) Two-Part Test for Application of Common-Law Right of Public Access Applies to 36 USCP Non-Security Information Written Directives
The remaining documents at issue that are not subject to a particular statutory disclosure scheme, must be considered under the two-step process outlined by the D.C. Circuit 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 an official action, decision, statement, or other matter of legal significance, broadly conceived.” Id. at 905; see also Am. Int‘l Grp., 712 F.3d at 3 (same). In applying the second prong of this test, courts “should focus on the specific nature of the governmental and public interests as they relate to the document itself,” rather than engaging in “an abstract inquiry.” WLF I, 17 F.3d at 1452.
(1) The 36 USCP Non-Security Information Written Directives Are Not Public Records.
As an initial matter, the 36 USCP Directives that do not qualify as security information also do not qualify as “public records,” as that term has been described by the D.C. Circuit. Not every ministerial or preliminary action by a government entity amounts to the creation of a “public record.” 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 аny official action or decision being taken,” id. As examples of the latter materials “not encompass[ed]” by the definition, the Circuit 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. Cf.
The 36 non-security information directives at issue may be consulted to guide the action of USCP personnel but, as such, amount to preliminary material and advisory guidance that may only eventually lead to an official action. The directives deal with topics like employee social media use, internal complaint and grievance processes, training, specific types of interactions with the public, and guidance governing investigations, arrests, and traffic enforcement. See Defs.’ Mot., Ex. C, List of Directives, ECF No. 19-7. These written directives are internal memoranda and guidance for USCP employees that is intended to “establish forward-looking policies or guidance for [USCP] personnel in executing their job responsibilities.” OGC. Decl. ¶ 11. Only after considering this guidance may USCP personnel reach a point of “tak[ing] official action or mak[ing] an official decision.” Id. These documents do not “memorialize or record any official action taken by the [USCP],” Pentagen Techs. Int‘l, Ltd. v. Comm. on Appropriations of the U. S. House of Representatives, 20 F. Supp. 2d 41, 45 (D.D.C. 1998), aff‘d, 194 F.3d 174 (D.C. Cir. 1999), and instead concern only the sort of “administrative matters internal to the [USCP]” that the D.C. Circuit has held not to be public records, WLF II, 89 F.3d at 900. Thus, the non-security information written directives do not constitute “public
(2) The Government‘s Interest in Secrecy Outweighs the Public‘s Interest in Disclosure of the 36 USCP Non-Security Information Written Directives.
For good measure, even if the 36 USCP written directives qualified as public records, their requested disclosure would nonetheless fail the second part of the test for public access, which requires “balanc[ing] the government‘s interest in keeping the document[s] secret against the public‘s interest in disclosure.” WLF II, 89 F.3d at 903. The D.C. Circuit has made clear that “the government has a compelling interest in protecting the secrecy of information important to our national security” and that the “need to guard against risks to national security interests overcomes a common-law claim for access.” Dhiab v. Trump, 852 F.3d 1087, 1098 (D.C. Cir. 2017) (internal quotations and citations omitted); see also Am. Int‘l Grp., 712 F.3d at 3 (“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.“).
All the written directives at issue—including the 36 not considered “security information” under
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Consequently, disclosure of the requested documents under the common-law right of public access is not required.
As an alternative to the common law right of access, plaintiffs point to various provisions of the organic statute creating the USCP OIG,
First, plaintiffs assert that
The Inspector General shall prepare and submit semiannual reports summarizing the activities of the Office in the same manner, and in accordance with the same deadlines, terms, and conditions, as an Inspector General of an establishment under section 5 (other than subsection (a)(13) thereof) of the Inspector General Act of 1978, (
5 U.S.C. App. 5 )[,]
The Chief [of the Capitol Police] shall, within 30 days of receipt of a report, report to the Capitol Police Board, the Committee on House Administration, the Senate Committee on Rules and Administration, and the Committees on Appropriations of the House of Representatives and of the Senate consistent with section 5(b) of such Act.
Id. Plaintiffs seemingly conflate the first and last sentences to read § 1909(c)(2) as requiring the USCP OIG to disclose to the public, upon request, semiannual reports as other OIGs are required to do undеr
The Inspector General shall carry out the same duties and responsibilities with respect to the United States Capitol Police as an Inspector General of an establishment carries out with respect to an establishment under section 4 of the Inspector General Act of 1978, (
5 U.S.C. App. 4 ), under the same terms and conditions which apply under such section.
Neither provision of the IG Act relied upon by plaintiffs works to provide relief here. First,
In sum, contrary to plaintiffs’ arguments, no statutory duty of disclosure for the requested USCP OIG semiannual reports or other reports, including audits, is imposed by
IV. CONCLUSION
For the reasons set forth above, plaintiffs have no right to demand disclosure of the 101 USCP written directives in effect on January 6, 2021 and the USCP OIG reports, including semiannual reports from 2015 forward and other reports, including audits, from 2008 forward, and thus defendants’ non-disclosure of these records does not trigger the Larson-Dugan exception to sovereign immunity. This case is therefore dismissed for lack of subject-matter jurisdiction.
An Order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: September 20, 2022
BERYL A. HOWELL
Chief Judge