AMY BERMAN JACKSON, United States District Judge
The Committee on Oversight and Government Reform of the United States
The motion to dismiss will be denied. The fact that this case arises out of a dispute between two branches of government does not make it non-justiciable; Supreme Court precedent establishes that the third branch has an equally fundamental role to play, and that judges not only may, but sometimes must, exercise their responsibility to interpret the Constitution and determine whether another branch has exceeded its power. In the Court's view, endorsing the proposition that the executive may assert an unreviewable right to withhold materials from the legislature would offend the Constitution more than undertaking to resolve the specific dispute that has been presented here. After all, the Constitution contemplates not only a separation, but a balance, of powers.
United States v. Nixon, 418 U.S. 683, 707, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974).
This case arises out of the Committee's investigation into Operation Fast and Furious, a law enforcement operation that was launched by the Bureau of Alcohol, Tobacco, and Firearms ("AFT") and the U.S. Attorney's office in Phoenix, Arizona in October of 2009 to confront the suspected illegal flow of firearms from the United States to drug cartels in Mexico. In 2011, the Committee began to investigate the use of certain tactics involved in that operation — tactics which had been previously used by the ATF in Phoenix in 2006, and which have become the subject of intense criticism and public debate. The Committee focused in particular on the decision to permit the guns to "walk" — that is, to let straw purchasers from the cartels carry firearms across the border without being apprehended under the theory that agents would be able to track the weapons to their final destination.
The lawsuit before the Court does not address the existence of the operation or the propriety of those tactics. The facts have been uncovered; the risks inherent in the operation — risks that were tragically realized in the death of a federal law enforcement officer — have been exposed; and the Department has issued clear directives prohibiting similar conduct in the future. But during the early stages of the investigation, the Department of Justice wrote a letter to the Committee denying that the gun walking had taken place, and that letter, dated February 4, 2011, was wrong.
The Attorney General subsequently informed Congress that the letter was incorrect, and it was officially withdrawn by December of 2011. But in the meantime, the Committee shifted its focus to investigating how and why the Department of
The Committee then filed this action to enforce its subpoena. It maintains that the assertion of executive privilege is invalid in this situation since there is no claim that the documents contain advice provided to the President or that they touch upon core constitutional functions of the President. The Attorney General has moved to dismiss the case on the grounds that that the Committee has no standing to bring it and the Court has no jurisdiction to hear it. He urges in the alternative that the Court should exercise its discretion to decline to hear it.
The Court is mindful that "federal courts may exercise power only in the last resort ... and only when adjudication is consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process." Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (internal citations and quotation marks omitted). But here, the narrow legal question posed by the complaint is precisely the sort of crisp legal issue that courts are well-equipped to address and routinely called upon to resolve.
The defendant warns that an assumption of jurisdiction in this case would mark an unprecedented expansion of the role of an Article III court. But there has been binding precedent to the contrary in this Circuit for more than thirty-five years. In United States v. AT & T, 551 F.2d 384, 390 (D.C.Cir.1976), the Court of Appeals declared: "the mere fact that there is a conflict between the legislative and executive branches over a congressional subpoena does not preclude judicial resolution of the conflict." And five years ago, another court in this District carefully considered and rejected the same arguments being advanced by the Attorney General here. In a case involving a different Congress and a different President, Committee on the Judiciary v. Miers, 558 F.Supp.2d 53 (D.D.C.2008), the court concluded in a persuasive opinion that it had jurisdiction to resolve a similar clash between the branches.
For the reasons set forth in Miers, as well as those detailed below, the Court finds that neither the Constitution nor prudential considerations require judges to stand on the sidelines. There is federal subject matter jurisdiction over this complaint, and it alleges a cause of action that plaintiff has standing to bring. The Court cautions that this opinion should not be taken as any indication of its views on the merits of the dispute, which have yet to be briefed, argued, or considered in any way. The defendant's pleadings stress the importance of the privilege and the role it plays encouraging candor in executive branch deliberations and decision making. But at this stage of the proceedings, the sole question before the Court is whether it can and should exercise jurisdiction to hear the case — not whether the documents are covered by the privilege. This opinion does not grapple with the scope of the President's privilege: it simply rejects the notion that it is an unreviewable privilege
In the autumn of 2009, the Phoenix field office of the ATF launched Operation Fast and Furious, in which the ATF knowingly allowed firearms purchased illegally in the United States to be unlawfully transferred to third-parties and transported into Mexico. Am. Compl. [Dkt. # 35] ¶ 1. The goal of the decision to let the guns "walk" without interdiction by law enforcement was to enable ATF to follow the flow of the firearms to the Mexican drug cartels that purchased them. Id. The tactic was brought to the public's attention after guns that had been illegally purchased in the United States were recovered at the scene of a December 15, 2010 firefight in Arizona in which U.S. Customs and Border Protection Agent Brian Terry was killed. See Am. Compl. ¶ 2.
The following month, Members of Congress began inquiring about Operation Fast and Furious, and Senator Charles Grassley wrote letters to the ATF requesting information about allegations that the agency had used these inappropriate law enforcement tactics. Am. Compl. ¶ 2 and n.3. Writing on behalf of the law enforcement agency, the Department of Justice initially denied the allegations. Id. ¶ 2. Assistant Attorney General Ronald Weich wrote in a February 4, 2011 letter to Senator Grassley: "[T]he allegation ... that [ATF] `sanctioned' or otherwise knowingly allowed the sale of assault weapons to a straw purchaser who then transported them into Mexico — is false. ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico." Id. Soon after, though, the Attorney General asked the Inspector General of the Department to conduct an investigation into the allegations contained in Senator Grassley's letter. Def.'s Mem. at 9. And on March 31, 2011, the Committee on Oversight and Government Reform of the U.S. House of Representatives issued a subpoena to the ATF's Acting Director, Kenneth Melson, for documents about Operation Fast and Furious. Am. Compl. ¶ 31.
As more circumstances were brought to light, the Department came to acknowledge that ATF had in fact permitted some guns to walk in the course of the Phoenix operation. It did not embrace or justify ATF's strategy; on October 7, 2011, the Attorney General wrote a letter to the Committee describing the tactics used in Operation Fast and Furious as "fundamentally flawed" and "completely unacceptable." Letter of Oct. 7, 2011, Ex. B to Def.'s Mot. [Dkt. # 13-3] at 2.
From June 10 to October 11, 2011, the Department produced approximately 2,000 pages to the Committee. Am. Compl. ¶ 35. The Department withheld certain materials from production, Am. Compl. ¶ 36, including, according to defendant, grand jury and law enforcement sensitive material such as Reports of Investigation ("ROIs"). Def.'s Mem. at 7-8. The Department sent a letter to the Committee dated October 11, 2011 in which it stated that it had "substantially concluded [its] efforts to respond" to the subpoena. Am. Compl. ¶ 36.
In response, the Committee issued a second subpoena — the subpoena at issue in
According to the Committee, between October 31, 2011, and May 15, 2012, the Department produced approximately 4,000 pages, of which "virtually no documents" were dated or created after February 4, 2011. Am. Compl. ¶ 42. According to the Department, it produced more than 7,600 pages in response to the Holder subpoena, including 1,364 pages about the drafting of the now-withdrawn February 4 letter. Def.'s Mem. at 10-11. But it continued to decline to produce documents dated after February 4, 2011.
The parties engaged in negotiations in an effort to reach an accommodation on the post-February 4 documents, and the Committee states that it offered to narrow the scope of the subpoena. Am. Compl. ¶ 46. But in the meantime, on May 3, 2012, Committee Chairman Issa prepared a memo to the Committee proposing to hold the Attorney General in contempt. Def.'s Mem. at 11-12, citing Mem. from Chairman Issa to Members of the Comm. on Oversight and Gov't Reform. The parties continued to exchange letters and meet and confer about the subpoena up until the day of the scheduled contempt hearing. Am. Compl. ¶ 46.
On June 20, 2012, the day the hearing was scheduled to take place, Deputy Attorney General James Cole informed the Committee that the President had asserted executive privilege "over the relevant post-February 4, 2011[] documents." Am. Compl. ¶ 47, quoting Letter from Dep. Att'y Gen. James Cole to Chairman Darrell Issa (June 20, 2012) ("June 20, 2012 Letter"), Ex. 3 to Pl.'s Opp. The letter stated:
June 20, 2012 Letter at 4. The Department did not provide a privilege log or
On June 20, 2012, the Committee proceeded with the scheduled hearing, rejecting the assertion of executive privilege and voting 23 to 17 to hold the Attorney General in contempt of Congress. Am. Compl. ¶ 48. The parties continued to communicate about the subpoena even after the June 20 vote, but to no avail. Am. Compl. ¶¶ 50-51. On June 28, 2012, the full House adopted House Resolution 711, holding the Attorney General in contempt by a vote of 255 to 67. Am. Compl. ¶ 52, citing H.R. Res. 711, 112th Cong., 158 Cong. Rec. H4164 (daily ed. June 28, 2012) (enacted).
Following the vote, Deputy Attorney General Cole notified the Speaker that the Department would not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General. Am. Compl. ¶ 54. On June 29, 2012, the Speaker of the House certified the House Resolution to the U.S. Attorney for the District of Columbia, Ronald C. Machen, Jr., but the U.S. Attorney did not respond at that time. Am. Compl. ¶ 55. On July 16, 2012, Deputy Attorney General Cole advised Senator Grassley that the U.S. Attorney had asked him to "convey ... his concurrence with the position" of the Department that no criminal prosecution against the Attorney General would be pursued. Am. Compl. ¶ 57. The U.S. Attorney confirmed this position in a letter to the General Counsel of the House. Am. Compl. ¶ 58. Determining that enforcement of the subpoena through the criminal prosecution of the Attorney General was "foreclosed," the Speaker of the House authorized the General Counsel of the House to initiate this action. Am. Compl. ¶¶ 59, 61.
On August 13, 2012, the Committee filed this lawsuit. Compl. [Dkt. # 1].
On September 19, 2012, the Department Inspector General issued a detailed report on Operation Fast and Furious. See Oversight & Review Div., Office of the Inspector Gen., DOJ, A Review of ATF's Operation Fast and Furious and Related Matters (Sept.2012) ("IG Report"); Am. Compl. ¶ 60.
On October 15, 2012, the defendant filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. Def.'s Mot. The Committee filed its opposition on November 21, 2012, Pl.'s Opp., and the defendant replied on December 17, 2012, Def.'s Reply.
On November 26, 2012, the American Center for Law the Justice filed, with leave of Court, an amicus curiae brief opposing the Department's motion to dismiss. Mem. of Amicus Curiae The Am. Ctr. for Law and Justice in Opp. to Def.'s Mot. to Dismiss [Dkt. # 19].
On November 27, 2012, the Court held a status conference, and raised the question of whether the release of the IG report had narrowed the areas of difference between the parties, and whether the parties would benefit from the assistance of a neutral mediator. The parties expressed a desire to continue to confer among themselves.
On December 20, 2012, five United States Representatives, Elijah Cummings, John Conyers, Henry Waxman, Edolphus Towns, and Louise Slaughter, filed a brief as amici curiae with leave of Court. Brief for Representatives Elijah E. Cummings, et al. as Amici Curiae Supporting Defendant ("House Amici Brief") [Dkt. # 30].
On January 3, 2013, the 112th Congress ended at noon, and the 113th Congress commenced thereafter. Am. Compl. ¶ 64, citing U.S. Const. amend. XX, §§ 1, 2; 159 Cong. Rec. H1, H5 (daily ed. Jan. 3, 2013). Following the commencement of the new Congress, the House authorized the Committee to act as successor in interest to the Committee of the 112th Congress with respect to this lawsuit, and the Committee re-issued the Holder subpoena, as authorized by the new Committee. Id. ¶ 64-65. The new subpoena "requires production of the same documents, and provides the same instructions" as the original Holder subpoena. Am. Compl. ¶ 65. On January 15, 2013, the Committee filed an amended complaint, attaching the reissued subpoena. See Am. Compl.; Holder subpoena.
On March 15, 2013, the parties reported to the Court on the status of their negotiations [Dkt. # 40], and on March 18, the Court issued an order referring the matter to a senior United States District Court judge for purposes of mediation, [Dkt. # 41]. The parties participated in a settlement conference on March 26, 2013, but the matter was not resolved. The Court heard oral argument on defendant's motion to dismiss on April 24, 2013, and that motion is pending before this Court.
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must "treat the complaint's factual allegations as true and must grant plaintiff `the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000) (citations omitted), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (internal citations omitted). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002).
Under Rule 12(b)(1), plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shekoyan v. Sibly Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C.2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C.Cir. 2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction."). Because subject-matter jurisdiction is a requirement embodied in Article III of the Constitution as well as
When considering a jurisdictional challenge, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, a court "may consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C.2000); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005).
The defendant has predicated his motion on Rule 12(b)(6) as well as 12(b)(1). "To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id., quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955. In ruling upon a motion to dismiss under Rule 12(b)(6), a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002).
The Attorney General contends that it would threaten the tripartite scheme of government established by the Constitution and subvert 200 years of this country's history if the judiciary were to step in to serve as the arbiter of a dispute between the other two branches of government. He states that "Article III of the Constitution, grounded in the separation of powers, presumes disputes such as this one will be resolved between the political Branches themselves," Def.'s Mem. at 1, and that the "gravest constitutional threat presented by this litigation ... would be presented by a decision from this Court to assume jurisdiction over this dispute." Def.'s Mem.at 4; see also id. at 3 ("Judicial intervention would move the Branches toward litigation, not accommodation, and would dramatically alter the separation of powers."); id. at 20 ("An assumption of jurisdiction here would short-circuit the constitutional design and threaten to alter permanently the relationship among the Branches.") The defendant does not simply suggest that the traditional process of confrontation, compromise, and resolution is the preferable one; he maintains that Article III of the Constitution actually prohibits
But although the defense repeatedly characterizes the case as one raising a "political question," the label does not apply simply because the political branches of government are involved or because political calculations may underlie their actions. In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court acknowledged that there is no single defining element of a political question, and it listed the characteristics that ordinarily differentiate a nonjusticiable dispute:
Id. at 217, 82 S.Ct. 691; see also United States v. AT & T, 551 F.2d 384, 390 (D.C.Cir.1976)("AT & T I") ("the applicability of the political question doctrine depends on the nature of the conflict, the needs and risks on each side, and the availability of judicial standards to apply in making the decision."). Since this case does not call upon the Court to invade the province of another branch or second guess its policy decisions, and since there are guiding legal principles to apply, the political question doctrine does not mandate dismissal of the action.
And more specifically, as the court found in Committee on the Judiciary v. Miers, 558 F.Supp.2d 53, Article III of the U.S. Constitution does not bar the federal courts from exercising their jurisdiction under the circumstances presented in this case.
In Miers, the House of Representative's Committee on the Judiciary filed for a declaratory judgment that the former White House counsel was required to comply with a Congressional subpoena and appear before the Committee to testify regarding its investigation into the resignation of nine United States Attorneys. The executive filed a motion to dismiss and the court denied it. The court held:
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558 F.Supp.2d at 84-5.
The defendant does not attempt to suggest that the Miers case is distinguishable in any way from the instant action; he simply urges the Court to come to a different conclusion. But the Court is persuaded by the reasoning of the Miers opinion and by its own review of the authorities discussed in detail in that opinion. The Court rejects the notion that merely hearing this dispute between the branches would undermine the foundation of our government, or that it would lead to the abandonment of all negotiation and accommodation in the future, leaving the courts deluged with subpoena enforcement actions. Indeed, one cannot help but observe that in the five years that have elapsed since the Miers decision, the dire consequences prophesied by the Department have not come to pass.
In United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039, the Court acknowledged that each branch of government is empowered to interpret the Constitution in the first instance when defining and performing its own constitutional duties, and that one branch's interpretation of its own powers is due deference from the others. Id. at 703, 94 S.Ct. 3090. But the Court reviewed the history of its own jurisprudence, beginning with Marbury v. Madison, and it pointed out that it had repeatedly been called upon to decide whether the executive branch or the legislature had exercised its power in conflict with the Constitution. Id. at 703-04, 94 S.Ct. 3090. The Court quoted Powell v. McCormack: "Our system of government `requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch.'" Id. at 704, 94 S.Ct. 3090, quoting 395 U.S. 486, 549, 89 S.Ct. 1944, 23 L.Ed.2d 491. And it repeated what it had set forth in Baker v. Carr: "(D)eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution." Id., quoting 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
Ultimately, the Supreme Court held that it was "the province and duty" of the Court "`to say what the law is'" with respect to the claim of executive privilege that was presented in that case. Id. at 705, 94 S.Ct. 3090, quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2
To be fair, the Attorney General does not claim that every assertion of executive privilege would absolutely unreviewable, but he takes the position that because the executive is seeking to shield records from the legislature, another co-equal political body, the law forbids the Court from getting involved. But the Department of Justice has pointed to nothing that would suggest that the Court should not follow the clear principles articulated in Nixon in this case. There is nothing in the Nixon opinion that suggests that the holding was premised on the fact that it arose in a criminal case or that it was an intra — as opposed to an inter — branch dispute. And there is no other precedent that holds that an inter-branch dispute, or a dispute that implicates political considerations, is necessarily non justiciable.
Indeed, the law in this Circuit is clearly to the contrary. The Court of Appeals has declared:
AT &T I, 551 F.2d at 390 (internal citation omitted). In the AT & T I case, the Court of Appeals found that there was jurisdiction to hear an action brought by the executive branch to enjoin the telephone company from complying with a Congressional subpoena. Contrary to defendant's assertion, the AT & T I case is not distinguishable on the grounds that it involved a private party's compliance with a request for production; it was the Department of Justice that brought the suit, and the opinion specifically notes that "the District Court correctly treated the case as a clash of the powers of the legislative and executive branches of the United States." Id. at 389; see also Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C.Cir.1974) (en banc) (reaching the merits of an action brought by Congress to enforce a subpoena issued to the President).
Nonetheless, defendant takes the position that a claim of executive privilege is unreviewable when it is the legislature that is seeking the documents. Counsel for the Department of Justice tells the Court: "[W]hat the Supreme Court has said is it [sic] disputes between the branches are different. It matters who the parties are. It matters where the case comes up...." Transcript of Oral Argument of Apr. 24, 2013 ("Tr."). at 32; see also Tr. at 10 (noting that "the parties matter"). Throughout its pleadings and during oral argument, the Department has advanced this constricted view of the role of the courts and maintained that it would violate the separation of powers enshrined in the Constitution if this Court were to undertake to resolve a dispute between the other two branches: "[T]he role of the Article III Courts is to adjudicate the rights of individuals, not to engage in general supervision of the Executive Branch or to act as a willing referee in disputes between
The Raines opinion cannot bear the weight of DOJ's argument. It stands for a much narrower principle, and the circumstances that gave rise to that opinion are distinguishable from the controversy presented here. And there is no other binding precedent that limits this Court's jurisdiction to the resolution of matters involving the rights of individuals.
Raines was a standing case. In Raines, a group of individual Congressmen — four Senators and two Members of the House of Representatives — brought an action against the Director of the Office of Management and Budget. They sought a declaration that the Line Item Veto Act, which had passed both houses of Congress over their "nay" votes, was unconstitutional. The Supreme Court held: "[T]hese individual members of Congress do not have a sufficient `personal stake' in this dispute and have not alleged a sufficiently concrete injury to have established Article III standing." 521 U.S. at 830, 117 S.Ct. 2312. Therefore, the case was remanded to be dismissed for lack of jurisdiction.
It is true that the Raines opinion contains a lengthy discussion about the limited role of Article III courts, and that, in dicta, it anticipates problems that could arise if individual executive officials or Members of Congress were to challenge the merits of decisions committed to the other branch of government in a lawsuit. See id. at 828, 117 S.Ct. 2312. But defendant would have this Court base its opinion on that discussion while ignoring the final paragraph of the opinion, which, as it turns out, contains the holding. See Tr. at 10. This it cannot do.
A reading of the entire opinion reveals that the problem that prompted the dismissal was not the fact that legislators were suing the executive; it was that the plaintiffs had suffered no concrete, personal harm, and they were simply complaining that the Act would result in some "abstract dilution" of the power of Congress as a whole. Id. at 825-26, 117 S.Ct. 2312. It was in that context that the Court saw fit to quote Justice Powell's observation that the value of the judicial power described in Marbury v. Madison "lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups." Id. at 829, 117 S.Ct. 2312, quoting United States v. Richardson, 418 U.S. 166, 192, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974).
Moreover, the fact that it was individual Members of Congress who brought the suit in Raines had a bearing on the outcome. The case does not stand for the proposition that Congress can never assert its institutional interests in court. Instead, it expressly leaves that possibility open:
Id. at 829-30, 117 S.Ct. 2312 (internal citations omitted). So the Raines decision does not compel the dismissal of this case, brought by a duly authorized House Committee. See Miers, 558 F.Supp.2d at 68.
To bolster the Raines argument, the defense has endeavored to create the impression that there is other Supreme Court precedent on point as well.
Tr. at 65. But the Supreme Court did not say anything in Moore, because it was a D.C. Circuit decision. Moore v. U.S. House of Representatives, 733 F.2d 946 (D.C.Cir.1984), abrogated by Chenoweth v. Clinton, 181 F.3d 112, 115-16 (D.C.Cir. 1999). And the opinion to which counsel referred is a concurring opinion which is not binding on this Court. Moreover, the concerns expressed by Justice Scalia when he was writing as a Circuit Judge in Moore do not pertain here because his opinion — like the Raines opinion — addressed only whether individual officers of the executive or legislative branch should have standing to embroil the courts in governmental disputes.
In Moore, eighteen Members of the House sued the House and the Senate, among others, in an effort to challenge the constitutionality of the Tax Equity and Fiscal Responsibility Act of 1982. 733 F.2d at 948. They alleged that the statute was a revenue raising bill that should have originated in the House instead of the Senate. Id. The Court of Appeals found that they had standing — that they had alleged a specific, personal injury to their cognizable legal right to participate in the legislative process established by the Constitution.
In his concurring opinion, Justice Scalia took issue with the panel's application of traditional standing principles, and he maintained that the analysis should be grounded first and foremost in respect for the separation of powers.
Id. at 959 (Scalia, J., concurring).
It is true that in making that point, he observed that the judiciary's "constitutional province" is "solely" to decide the rights of individuals. Id., quoting Marbury v. Madison at 170. But the clear focus of the discussion was the particular situation presented in the Moore case: a lawsuit brought by individual lawmakers. Justice Scalia wrote:
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Id. at 959-60. Finally, he concluded: "[u]nless those powers have been denied in such fashion as to produce a governmental result that harms some entity or individual who brings the matter before us, we have no constitutional power to interfere." Id. at 959 (emphasis in original). Thus, even if this court were bound to follow the reasoning set forth in the concurring opinion in Moore, the opinion would not supply grounds for dismissing this action brought by a governmental entity asserting its rights.
None of the other cases cited by the defense supports the contention that a court may not referee a dispute between the political branches. In Walker v. Cheney, 230 F.Supp.2d 51, 52-53 (D.D.C.2002), the court dismissed a suit brought by the Comptroller General of the United States to compel the Vice President to produce documents to the General Accounting Office related to his national energy task force. The opinion contains important admonitory language about the need to tread with care when separation of powers concerns are implicated:
Id. at 65, quoting Valley Forge Christian Coll. v. Am. United for Separation of Church & State, Inc., 454 U.S. 464, 474, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). But the decision to dismiss the Walker action was made solely on standing grounds, under circumstances that are distinguishable from the situation presented here. Indeed, the court specifically noted that in that case, "neither a House of Congress nor any congressional committee has issued a subpoena for the disputed information or authorized this suit." Id. at 53.
In Walker, the same court that decided the Miers case found that the Comptroller General had failed to meet his burden to demonstrate that he had suffered a personal and particularized injury: he had no personal stake in the receipt of the records, and he brought the action solely in his official capacity, to vindicate what the court characterized as a "vague and amorphous" institutional interest in the material. Id. at 66-67. The court observed that a general interest in oversight or legislation might be too vague to suffice as a premise for a lawsuit, but it did not articulate a general rule that an action to enforce a legislative subpoena could never present a justiciable controversy; indeed, it expressly distinguished the action brought on behalf of the GAO from the situation here: "there is some authority in this Circuit indicating that a House of Congress or a committee of Congress would have standing to sue to retrieve information to which it is entitled.... But here the record reflects that Congress as a whole has undertaken no effort to obtain the documents at issue, that no committee has requested the documents, and that no congressional subpoena has been issued." Id. at 68 (citations omitted). Also, as in Raines, the court found it to be of "some importance" that the lawsuit had not been expressly authorized by Congress. Id. at 68.
So, as the court concluded in Miers, the decision and reasoning in Walker do not compel the dismissal of a House committee's action to enforce its own subpoena. Miers, 558 F.Supp.2d at 67-68. There is simply no binding precedent that requires the Court to dismiss this case on the grounds that it presents a political dispute. That conclusion is reinforced by the fact that the executive branch has itself invoked the jurisdiction of the courts when it sought to enjoin compliance with a Congressional subpoena, see AT & T I, 551 F.2d at 384, or to obtain a declaration concerning the validity of a claim of executive privilege asserted in response to a House request. See United States v. House of Representatives, 556 F.Supp. 150, 150-51 (D.D.C.1983). As the court commented in Miers, "[t]he Court does not understand why separation of powers principles are more offended when the Article I branch sues the Article II branch than when the Article II branch sues the Article I branch." Miers, 558 F.Supp.2d at 96.
The Court finds, as did the court in Miers, that this case presents a federal question and that therefore, the court has jurisdiction under 28 U.S.C. § 1331. 558 F.Supp.2d at 64. That was not a controversial finding in Miers, since both sides conceded that section 1331 provided subject matter jurisdiction over the dispute. Id. But the court went on to observe that since the case involved a failure to comply with a duly issued congressional subpoena, and the subpoena power derives implicitly from Article I of the Constitution, the case arose under the Constitution for purposes of section 1331. The Court agrees. This determination comports with Circuit precedent set forth in AT & T I, where the Court of Appeals recognized the existence of subject matter jurisdiction under section 1331 in a similar subpoena enforcement dispute due to the "fundamental constitutional rights ... involved." 551 F.2d at 388-89.
Notwithstanding its previous concession, the Department of Justice now insists that subject matter jurisdiction is lacking. Defendant argues that the fact that there is a specific statute that vests jurisdiction in the District Court for the District of Columbia for actions brought by the Senate to enforce its subpoenas means that in the absence of a parallel statute, this court does not have jurisdiction over an action brought on behalf of the House. But this does not follow either explicitly or implicitly from 28 U.S.C. § 1365.
The statute provides:
28 U.S.C. § 1365(a).
The first problem with the defendant's argument is that section 1365 specifically states that it does not have anything to do with cases involving a legislative effort to enforce a subpoena against an official of the executive branch withholding records on the grounds of a governmental privilege. 28 U.S.C. § 1365(a). So the statute would not confer jurisdiction in an action similar to this one brought by the Senate either, and the Court would be required look to section 1331 only in any event.
Second, the chronology of events surrounding the enactment of section 1365 reveals that the jurisdictional gap it was meant to cure was not a lack of jurisdiction over actions like this one. In 1973, when the Senate Committee investigating the Watergate scandal brought an action to enforce a subpoena issued to President Nixon, the court held that it lacked jurisdiction because it was impossible to assign a monetary value to the plaintiff's claim, and therefore, it could not be shown that the case satisfied the amount-in-controversy requirement that was included in section 1331 at that time. Senate Select Comm. on Presidential Campaign Activities v. Nixon, 366 F.Supp. 51, 60-61 (D.D.C.1973).
Finally, the Court does not accept DOJ's argument that the lack of specific jurisdictional provision somehow negates the applicability or availability of the general provision. The defense points to Hinck v. United States, 550 U.S. 501, 506, 127 S.Ct. 2011, 167 L.Ed.2d 888 (2007), where the Supreme Court invoked "the well-established principle that, in most contexts, `a precisely drawn, detailed statute pre-empts more general remedies,'" (internal quotation marks omitted). But here, the defense is asking the court to draw inferences from the absence of a precisely drawn, detailed statute. Furthermore, the situation in Hinck is inapposite.
In the Hinck case, the plaintiff filed a suit in the Court of Federal Claims seeking to challenge a refusal by the Secretary of Treasury to abate the interest owed on past taxes under section 6404(e)(1) of the Internal Revenue Code, id. at 505-06, 127 S.Ct. 2011, and the Court found that pursuant to 26 U.S.C. § 6404(h), the Tax Court was the exclusive forum for judicial review of those decisions, id. at 503, 127 S.Ct. 2011. The Court stated that it was guided by two general principles: the general rule acknowledging the primacy of specific statutory remedies cited above, and its "past recognition that when Congress enacts a specific remedy when no remedy was previously recognized, ... the remedy provided is generally regarded as exclusive." Id. at 506, 127 S.Ct. 2011. The Court observed that Congress had enacted section 6404(h) for the specific purpose of altering the state of the law: there was a previous line of decisions holding that the Secretary's decision was purely discretionary and therefore not subject to challenge under the APA at all. Then, as part of the Taxpayer Bill of Rights, Congress gave the Tax Court jurisdiction to hear challenges by taxpayers claiming that the Secretary's failure to abate was an abuse of discretion. Since that statute not only eliminated the original barrier to judicial review — the lack of a standard to apply — but it also set out a serious of other details circumscribing and defining a remedy, such as a specific statute of limitations and a net-worth ceiling on eligible plaintiffs, the Court found that the newly created remedy — including its specification of the forum — was intended to be exclusive. The Court characterized the statute as a comprehensive remedial scheme, and not simply a grant of jurisdiction, and it does not follow from its reasoning that a specific provision dealing solely with jurisdiction was meant to preempt section 1331.
In enacting section 1364, Congress was not creating a new cause of action that did not previously exist; it is not a remedial provision at all, and as the D.C. Circuit stated in the AT & T I case, section 1331 already supplied federal subject matter jurisdiction at that time. 551 F.2d at 389.
Defendant also points to Helms v. Master and/or Captain of SS Marshal Konev, 620 F.Supp. 1488 (E.D.La.1985), but that two page order does not begin to suggest that the District Court does not have jurisdiction to hear an action brought by a
The defendant also maintains that the suit does not present a case or controversy and that the plaintiff lacks standing because the complaint fails to allege the necessary personal injury that is concrete and particularized, and the issue is not one traditionally thought to be capable of resolution through the judicial process." Def.'s Mem. at 24. This contention is based largely on the Supreme Court's decision in Raines, but the defense has also cited Chenoweth v. Clinton, 181 F.3d 112 (D.C.Cir.1999), Campbell v. Clinton, 52 F.Supp.2d 34 (D.D.C.1999), and Walker v. Cheney, 230 F.Supp.2d at 53. But none of these precedents mandates dismissal of this action on standing grounds. This case falls squarely under AT & T I, where the D.C. Circuit stated, "[i]t is clear that the House as a whole has standing to assert its investigatory power...." AT & T I, 551 F.2d at 392; see also U.S. House of Representatives v. U.S. Dep't of Commerce, 11 F.Supp.2d 76, 86 (D.D.C.1998) ("[I]t [is] well established that a legislative body suffers a redressable injury when that body cannot receive information necessary to carry out its constitutional responsibilities. This right to receive information arises primarily in subpoena enforcement cases, where a house of Congress or a congressional committee seeks to compel information in aid of its legislative function.").
Standing, which is an essential predicate to the exercise of jurisdiction, is comprised of three elements: injury in fact, causation, and redressability. First, "the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and internal quotation marks omitted). Second, there must be a causal connection between the injury and the conduct complained of, that is, the injury must be traceable to the challenged action of the defendant and not the result of the independent action of a third party. Id. And third, it must be likely that the injury will be redressed by a favorable decision. Id. at 561, 112 S.Ct. 2130. It is the first element that is of significance here.
The Attorney General is correct in observing that after AT & T I was decided by the D.C. Circuit, the Supreme Court called for a standing inquiry that is "especially rigorous" when a court is faced with an action that presents separation of powers concerns. Raines, 521 U.S. at 819, 117 S.Ct. 2312;
The other cases cited by the defense are distinguishable as well. In Chenoweth v. Clinton, 181 F.3d 112 (D.C.Cir. 1999), the D.C. Circuit applied the decision in Raines when it ruled that individual Members of the House of Representatives lacked standing to pursue an action seeking to enjoin the President's implementation of an initiative created by executive order rather than by statute. The Members could allege no personal injury beyond a claimed usurpation of Congressional authority, and the court found that abstract allegation to be indistinguishable from the basis for standing rejected in Raines. In Campbell v. Clinton, 52 F.Supp.2d 34 (D.D.C.1999), the court similarly found, in light of Raines, that a claim lodged by individual lawmakers asserting that the President had violated the War Powers Clause alleged an injury that was too generalized to confer standing. Id. at 43. The court also took note of an additional consideration not present in this case: "judges traditionally have expressed great reluctance to intercede in disputes between the political branches of government that involve matters of war and peace." Id. at 40. And in Walker, as noted above, the court also rejected the Comptroller General's attempt to launch his own action, without Congressional authorization, and when no subpoena had been issued, on standing grounds. None of those cases involved a suit specifically authorized by a legislative body to redress a clearly delineated, concrete injury to the institution, and so those rulings do not support the dismissal of this action.
The defendant argues that the matter filed under 28 U.S.C. § 2201(a) should be dismissed because invocation of the Declaratory Judgment Act alone is insufficient to create a valid cause of action. While he is correct that a party must have valid grounds for federal jurisdiction independent of the Act, and a District Judge may not simply issue advisory opinions, the Court has already determined that this case presents an actual, ripe controversy over which it can exercise subject matter jurisdiction under section 1331. That is sufficient under the terms of the statute, which unambiguously provides:
28 U.S.C. § 2201(a).
The plaintiff here is not looking to the Declaratory Judgment Act as the source of the right it is seeking to vindicate in this Court, but rather as the source of the mechanism to achieve the vindication of a right derived elsewhere. It is well established that the Committee's power to investigate, and its right to further an investigation by issuing subpoenas and enforcing them in court, derives from the legislative function assigned to Congress in Article I of the Constitution. As the Supreme Court stated in McGrain v. Daugherty, 273 U.S. 135, 175, 47 S.Ct. 319, 71 L.Ed. 580 (1927):
Thus, this case fulfills all of the requirements of the Act. As the court concluded in Miers, since plaintiff has alleged an actual injury to rights derived from the Constitution, giving rise to Article III standing and federal question jurisdiction, there is no further requirement that plaintiff include a substantive count or claim for relief in addition to the request for declaratory relief.
Miers, 558 F.Supp.2d at 81;
It is true that there is case law that has muddied the waters, in which courts have observed that the Act does not create "a cause of action." See, e.g., Buck v. Am. Airlines, Inc., 476 F.3d 29, 33 n. 3 (1st Cir.2007); Okpalobi v. Foster, 244 F.3d 405, 423, n. 31 (5th Cir.2001). But those cases can be read as simply reiterating the well-established principle that the Act does create substantive rights that would not exist otherwise, and that it does not confer federal jurisdiction by itself. See, e.g., Schilling v. Rogers, 363 U.S. 666, 677, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960) (explaining that the availability of declaratory relief "presupposes the existence of a judicially remediable right"); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72, 70 S.Ct. 876, 94 L.Ed. 1194 (1950) (noting that the Act did not impliedly repeal or modify the requirements for subject matter jurisdiction in federal courts); C & E Servs., Inc. of Washington v. D.C. Water & Sewer Auth., 310 F.3d 197, 201 (D.C.Cir.2002) ("[T]he Declaratory Judgment Act `is not an independent source of federal jurisdiction.'"). Any other interpretation
Finally, the Attorney General takes the position that even if the Court is authorized to hear the lawsuit, it should exercise the discretion embodied in the Declaratory Judgment Act and its equitable discretion to decline to do so in favor of a negotiated resolution. His chief argument is the same one that the Court has already rejected: that this case is an inappropriate attempt by legislators to bring a political dispute into a judicial forum, threatening the separation of powers. See Def.'s Mem. at 42-43. But he also insists that that the suit was brought before the possibilities for compromise had been exhausted. Def.'s Mem. at 44. The amici echo that sentiment, taking the position that the process of negotiation and accommodation was still underway at the time the Committee made a precipitous decision to file suit. House Amici Brief at 16-17. Both the defendant and the House amici take particular umbrage at what they characterize as a rush to the contempt vote, see Def.'s Reply at 24; House Amici Brief at 16-17, but the contempt citation is not a matter that is before the Court. For its part, the Committee takes the position that the Attorney General's position was fixed and that further negotiation would have been pointless. See Pl.'s Opp. at 18-19.
Based on everything that has been presented to the Court to date, and the amount of time that has elapsed since this dispute arose, the Court does not believe that a discretionary dismissal is warranted. Moreover, it finds that the equitable considerations tend to favor the assumption of jurisdiction in this instance. While the defense presents its motion as a request that the court remain neutral while the other two bodies work out their difficulties, dismissing the case without hearing it would in effect place the court's finger on the scale, designating the executive as the victor based solely on his untested assertion that the privilege applies.
Defendant cites AT & T I, but this case does not involve the factors that motivated the court to decline jurisdiction there. First of all, the Court of Appeals in the AT & T I case was aware that the parties had already come extremely close to resolving the matter among themselves, and it had received a considerable amount of detail concerning the few remaining sticking points in the negotiation. Second, the case did not involve a purely legal question about the availability of the privilege; the executive sought to bar the transmittal of the records due to a series of significant national security concerns, including issues related to the Congressional committee's ability to safeguard the information. As the court explained:
551 F.2d at 391. The court also pointed out that the issues presented bore one of the hallmarks of a political question: the lack of ascertainable standards for the judiciary to apply. Id. at 390-91; see also id. at 394 ("A court seeking to balance the legislative and executive interests asserted
In the end, it is the defendant's own brief that makes the best case for why the Court should not predicate its ruling on equitable grounds. The Attorney General argues: "[t]he prudential bases for refusing jurisdiction are especially strong here, where substantial accommodation was continuing and has continued, and where Congress's legitimate informational interests have been largely satisfied." Def.'s Mem. at 21. He goes on: "the Committee had little need to resort to the judicial process in order to conduct meaningful oversight." Id. at 45. Making a decision that turns upon on the "legitimacy" of the inquiry, the "need" for the documents, or how "meaningful" the oversight would be would require the Court to wade thigh high into the very waters the defendant spent the first forty pages of his brief telling it to avoid. Getting into the question of who bears responsibility for the impasse here — who negotiated properly or fairly, whether the appropriate amount of time was spent, whether any accommodation offered was "substantial" or merely superficial, and the relative merits of the grounds for the withholding and the stated need for the material — would put the Court squarely in the position of second guessing political decisions and take it well outside of its comfortable role of resolving legal questions that are amenable to judicial determination. And the Court would be wading into the murk without boots: in this case, it is the equitable issues, and not the legal questions posed by the complaint, that lack clear standards to apply and implicate political considerations that the court should be reluctant to assess.
Therefore, following the approach adopted by the court in Miers, this Court will not undertake to assign blame for the impasse — it is supposed to be accepting the complaint on its face at this point in the proceedings in any event. It is sufficient that it finds the conclusion that there is an impasse to be inescapable, and that under those circumstances, it does not appear that there would be any point to sending this matter back.
The Court certainly recognizes that the optimal outcome of a dispute of this nature
The Court rejects the defendant's suggestion that it is the fact that a lawsuit was filed that is the impediment here. See Tr. at 20-21, 30-31, 43. Parties negotiate and even resolve their disputes quite often notwithstanding the pendency of a court case. And defendant has given the Court no facts that would provide the basis for a realistic hope that a decision to excuse itself from the conversation would actually facilitate a resolution. There is nothing about the pendency of the action in particular that limits the ability of the House and the Attorney General to confer and achieve a mutually satisfactory compromise — perhaps there are other factors at work.
Since for all of the reasons set forth above, neither legal nor prudential considerations support the dismissal of this action, the defendant's motion to dismiss the action will be denied. A separate order will issue.
See Tr. at 16-17.
Judge Sirica also rejected the Senate Select Committee's contention that jurisdiction could be properly based on 28 U.S.C. § 1345, for actions commenced by the United States. 366 F.Supp. at 56-57. The Committee here also relies on that provision as a basis for jurisdiction, but the Court agrees with Judge Sirica that it is only the Department of Justice that is authorized to institute actions on behalf of the United States. See 28 U.S.C. § 516.