ALEXANDER WILLIAMS, JR., District Judge.
Pending before the Court are two Motions to Dismiss. Defendants United States, Secretary of the United States Senate Nancy Erickson, and Sergeant at Arms of the Senate Terrance W. Gainer move to dismiss on the grounds that Plaintiffs' claims are barred by sovereign immunity and that venue is improper in this district. Doc. No. 32. Defendant Karen L. Haas, Clerk of the United States House of Representatives, moves to dismiss on the same grounds, and also argues that Plaintiffs lack standing and have failed to state a claim upon which relief can be granted. Doc. No. 33. The Court has reviewed the motion papers and concludes that no hearing is necessary. See Loc. R. 105.6 (D.Md.2011). For the reasons articulated below, Defendants' Motions are GRANTED-IN-PART. Plaintiffs' claims against Defendant United States are barred by sovereign immunity and are therefore dismissed with prejudice. Although Plaintiffs' claims against the remaining individual Defendants are not barred by sovereign immunity, venue is not proper in this district. Accordingly, the Court dismisses without prejudice Plaintiffs' claims against the individual Defendants.
Plaintiffs have brought suit to enjoin implementation of section 8(a)(1) of the Stop Trading on Congressional Knowledge (STOCK) Act. Section 8(a)(1), as amended, requires online posting of Financial Disclosure Forms submitted by covered employees of the legislative branch of the United States government:
Pub. L. No. 112-105, 126 Stat. 291 (Apr. 4, 2012).
Plaintiffs in this case include the International Federation of Professional and Technical Engineers, AFL-CIO & CLC (IFPTE), an international union comprised of local union affiliates that directly represent employees in their dealings with employers such as the Government Accountability Office (GAO) and the Congressional Research Service (CRS). The IFPTE represents approximately 120 Financial Disclosure Form filers employed by these two legislative branch agencies. Individual Plaintiffs Timothy Persons and Nancy Kingsbury are employees of GAO and residents of Maryland. Individual Plaintiff Dennis Roth is a former employee of CRS, while individual Plaintiff Nina Serafino is a current employee of CRS. All the individual Plaintiffs have been responsible for filing Financial Disclosure Forms for the last several years. Defendants are the United States, the Secretary of the Senate, the Sergeant at Arms of the Senate, and the Clerk of the House of Representatives. The individual Defendants are sued in their official capacities only.
Plaintiffs assert that implementing section 8 of the STOCK Act will violate their right to privacy under the United States Constitution, and that retroactive application of Section 8 to Financial Disclosure Forms filed by Plaintiffs prior to the STOCK Act's passage would violate their rights under the Fifth Amendment of the Constitution. Plaintiffs seek a declaratory judgment that section 8 of the STOCK Act as applied to Plaintiffs and other non-elected legislative branch employees is unconstitutional. Plaintiffs further request an order enjoining all Defendants, preliminarily and permanently, from making Financial Disclosure Forms of non-elected legislative branch employees or the information contained in them available on the Internet. Plaintiffs also seek an order enjoining Defendants from requiring non-elected legislative branch employees to submit the forms as long as such information is subject to Internet publication by Defendants.
Plaintiffs filed this action on November 21, 2012, and moved for a temporary restraining order and preliminary injunction on November 30, 2012. After Congress extended the Internet publication deadline from December 8, 2012 to April 15, 2013, the Court denied as moot Plaintiffs' motions. On January 11, 2013, the Court denied Plaintiffs' motion to stay proceedings. Plaintiffs filed their Amended Complaint on January 18 and Defendants filed the pending Motions to Dismiss on February 1 and February 4. The Motions have been fully briefed and are ripe for the Court's consideration.
"As a sovereign the United States `is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" McLean v. United States, 566 F.3d 391, 401 (4th Cir.2009) (quoting United
Defendants also argue that Plaintiffs' claims against the individual Defendants in their official capacities are barred by sovereign immunity. As a general matter, a claim against a federal official for acts performed within his or her official capacity amounts to an action against the sovereign and is therefore barred by sovereign immunity. Portsmouth Redev. & Hous. Auth. v. Pierce, 706 F.2d 471, 473 (4th Cir.1983). However, the Supreme Court has recognized an important exception to this general rule. In Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 684, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), a company brought suit against the head of the War Assets Administration seeking to enjoin the Administrator from selling or delivering coal to anyone but the plaintiff company. The Court upheld the district court's dismissal of the suit as one against the sovereign, but in doing so, recognized that not all suits for specific relief against officers of the sovereign are suits against the sovereign. Id. at 689, 69 S.Ct. 1457. One such exceptional case is "that in which the statute or order conferring power upon the officer to take action in the sovereign's name is claimed to be unconstitutional.... [I]njunctions against the threatened enforcement of unconstitutional statutes [is a] familiar example[] of this type." Id. at 690, 69 S.Ct. 1457. The Court reasoned that in such cases, "the conduct against which specific relief is sought is beyond the officer's powers and is, therefore, not the conduct of the sovereign." Id. Although the officer's power to act may be conferred in form, "the grant is lacking in substance because of its constitutional invalidity." Id.; see also Dugan v. Rank, 372 U.S. 609, 621-22, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) (recognizing that action for injunction against federal officer may proceed where the officer's powers or the manner in which they are exercised is constitutionally void, even if they are within scope of officer's statutory authority). The Court concludes that the relief sought by Plaintiffs in this case — enjoining the individual Defendants' implementation of an allegedly unconstitutional statute — is precisely the type of claim that is not barred by sovereign immunity.
Defendants contend that the Larson exception does not apply because the officials in this case are officers of the legislative branch, not the executive branch. The Larson holding was not so limited, however, and recent caselaw from the D.C. Circuit persuades the Court that the exception applies to legislative branch employees. Most recently, in Pollack v. Hogan, a job applicant brought suit against the Administrative Office (AO) of the United States Courts and AO officials in their official capacities alleging that geographical restrictions on certain positions violated her constitutional right to travel. 703 F.3d 117, 119 (D.C.Cir.2012). The plaintiff in Pollack sought injunctive relief prohibiting individual defendants from discriminating against job applicants on the basis of their place of residence and ordering defendants to consider plaintiff's past and future applications without regard to
Id. at 121.
Other D.C. Circuit precedent confirms that the Larson exception is not limited to executive branch officers and employees. In Clark v. Library of Congress, the Library of Congress requested that the FBI conduct an investigation into the political beliefs and activities of plaintiff, a reshelver of books for the Library. 750 F.2d 89, 90-91 (D.C.Cir.1984). The plaintiff claimed that the investigation violated his First Amendment rights of speech and association and invaded his privacy. Id. at 102. He sought non-monetary relief in the form of reinstatement, correction of his personnel records and an injunction against the defendants prohibiting future infringement of First Amendment rights. Id. The D.C. Circuit held that plaintiff's claims were not barred, calling it "well-established that sovereign immunity does not bar suits for specific relief against government officials where the challenged actions of the officials are alleged to be unconstitutional or beyond statutory authority." Id. at 102 (citing Larson).
Defendants also argue that the Larson doctrine has doubtful continued relevance following Congress's 1976 amendments to the Administrative Procedure Act (APA), 5 U.S.C. § 702. However, as noted by the D.C. Circuit in Clark, the 1976 amendments, which included a broad waiver of sovereign immunity, apply only to "agencies" as defined by the APA. Clark, 750 F.2d at 102 (noting that plaintiff could not take advantage of waiver because the Library of Congress was not an "agency" under the APA). Accordingly, while the 1976 amendments may have superseded Larson with respect to APA-defined "agencies," Larson remains relevant at least with respect to other government entities, such as the United States Congress, and their officers and employees. See 5 U.S.C. § 701(b)(1)(A) (excluding "Congress" from the definition of "agency").
The Court finds the reasoning of the D.C. Circuit persuasive, and finds no reason why the Larson exception does not apply to Plaintiffs' claims in this case. Furthermore, granting injunctive relief to Plaintiffs would not stop the United States in its tracks or cause "substantial bothersome
Plaintiffs contend that the remaining individual Defendants in this case are officers or employees of the United States, and as such, venue in this district is proper under 28 U.S.C. § 1391(e). That section provides the following:
28 U.S.C. § 1391(e). Although the Fourth Circuit has not addressed the issue, courts that have analyzed the language "officer or employee of the United States" are in virtually unanimous agreement that it applies only to officers and employees of the executive branch. See, e.g., King v. Russell, 963 F.2d 1301, 1303-04 (9th Cir.1992) (holding that § 1391(e) applies only to executive branch officials, and not to bankruptcy court officers); Duplantier v. United States, 606 F.2d 654, 663-64 (5th Cir. 1979) (holding that § 1391(e) applies only to executive branch officials, not a federal judge or chairman of judicial ethics committee). In limiting the scope of § 1391(e) to executive branch officials and employees, both the Fifth and Ninth Circuits relied upon the reasoning of the Second Circuit in Liberation News Service v. Eastland, 426 F.2d 1379 (2d Cir.1970).
Judge Friendly also identified the policy concerns that accompany the broad interpretation of § 1391(e) urged by Plaintiffs in this case: "The disruption to the work of Congress by the pendency of actions elsewhere than in Washington could be far more serious than in the case of the executive departments and agencies with their large staffs." Id.; see also Shaffer v. Clinton, 54 F.Supp.2d 1014, 1022 (D.Colo.1999) ("Legislative history reveals the limited
Plaintiffs apparently argue against dismissal on the ground that venue is a doctrine of convenience and that the federal courthouse in Greenbelt, Maryland is only 15 miles from the federal courthouse in Washington, D.C., where both parties acknowledge venue would be proper under the general venue provision of 28 U.S.C. § 1391(b). Congress has directed that in the absence of waiver by defendants, and where it has been determined that venue is not proper, the district court shall either dismiss the case or transfer it to the district or division in which it could have been brought. See 28 U.S.C. §§ 1406(a)-(b). The Court lacks authority to lay claim to venue by deeming itself a sufficiently convenient forum for litigation.
Plaintiffs have cited no cases where a court determined that § 1391(e) applied to actions brought against officers or employees of the legislative or judicial branches. Every court that has examined the issue has concluded that § 1391(e) applies only to actions against executive branch officials, and the Court finds no rationale to depart from this persuasive and well-reasoned authority. The Court concludes that venue is not proper in this district, and Plaintiffs' claims against the individual Defendants are dismissed without prejudice.
For the foregoing reasons, Defendants' Motions to Dismiss are granted-in-part. A separate Order will follow.
Before the Court is a Motion to Vacate brought by Defendant Karen L. Haas, Clerk of the United States House of Representatives. The other individual Defendants in this action, Nancy Erickson, Secretary of the United States Senate, and Terrance W. Gainer, Sergeant at Arms of the Senate, consent to the relief requested by the Clerk, while Defendant the United States takes no position with respect to the Clerk's Motion. See Doc. No. 46 at 1. The Clerk moves to vacate those portions of the Court's April 1, 2013 Amended Memorandum Opinion that discuss the application of sovereign immunity to the individual Defendants. The Court has reviewed the motion papers and concludes that no hearing is necessary. See Loc. R. 105.6 (D.Md.2011). For the reasons stated herein, the Clerk's Motion will be DENIED.
Plaintiffs are non-elected current and former employees of the Legislative Branch, and an international union directly representing employees in their dealings with Legislative Branch entities such as the Government Accountability Office (GAO) and the Congressional Research Service (CRS). Plaintiffs brought suit against the United States and individual Defendants to enjoin implementation of section 8(a) of the Stop Trading on Congressional Knowledge (STOCK) Act on the grounds that the law's financial disclosure requirements violated the Fifth Amendment
On March 20, 2013, the Court granted-in-part Defendants' Motions to Dismiss. Doc. No. 43.
On April 8, 2013, Plaintiffs refiled their claims for injunctive and declaratory relief against individual Defendants in the U.S. District Court for the District of Columbia. See Complaint, Int'l Fed'n of Prof'l & Technical Eng'rs v. Erickson (D.D.C. Apr. 8, 2013) (No. 1:13-cv-00441). On April 15, 2013, Congress passed, and the President signed, new legislation that removed the challenged portions of the STOCK Act. See Modifications of Online Access to Certain Financial Disclosure Statements and Related Forms, Pub.L. No. 113-7, 127 Stat. 438 (2013) ("Modification Act"). As the Modification Act rendered the controversy moot, an issue that neither party disputes, Plaintiffs voluntarily dismissed their Complaint filed in the District Court for the District of Columbia. See Notice of Dismissal, Int'l Fed'n of Prof'l & Technical Eng'rs v. Erickson (D.D.C. Apr. 17, 2013) (No. 1:13-cv-00441).
The Clerk filed the pending Motion to Vacate on May 20, 2013. Doc. No. 46. Seeking relief under Rule 60(b)(6) of the Federal Rules of Civil Procedure, the Clerk asks the Court to vacate those portions of its April 1, 2013 Opinion that discuss the applicability of sovereign immunity to Plaintiffs' claims against individual Defendants. Doc. No. 46-2 at 4. The Clerk argues that the enactment of the Modification Act "precluded the Clerk from obtaining appellate relief" from the Court's adverse determination. Id. at 2. The Clerk further argues that the sovereign immunity ruling "(i) was unnecessary in light of the Court's venue ruling, and (ii) contrasts with the Court's refusal to address the Clerk's other potentially dispositive jurisdictional argument (lack of standing)." Id. at 4. The Motion is fully briefed and ripe for the Court's consideration.
The Clerk seeks relief under Rule 60(b)(6), which provides:
Fed.R.Civ.P. 60(b). Pursuant to Rule 60(b)(6), the Clerk has requested partial vacatur of the Court's April 1, 2013 Amended Opinion on the grounds that the Modification Act has rendered the controversy moot and left individual Defendants unable to appeal the Court's ruling that Plaintiffs' claims against them were not
In Valero, owners and operators of solid waste facilities filed suit against West Virginia officials alleging that portions of the West Virginia Code regarding the regulation of waste disposal and management were unconstitutional. Id. at 115. In 1997, the district court declared certain code provisions invalid under the dormant Commerce Clause and entered a permanent injunction prohibiting their enforcement. Id. While various motions for reconsideration were pending, the West Virginia Legislature substantially revised relevant Code provisions, including those that were enjoined from enforcement. Id. The defendants moved for the complaint to be dismissed as moot and moved pursuant to Rule 60(b) to vacate the 1997 judgment declaring the provisions unconstitutional. Id. The Court thereafter dismissed the complaint as moot and vacated most of its 1997 judgment. The plaintiffs appealed.
On appeal, the Fourth Circuit affirmed the district court's vacatur of its 1997 judgment. The Fourth Circuit's opinion relied heavily upon the Supreme Court's holding in U.S. Bancorp Mortgage Company v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). 211 F.3d at 116-17. In Bancorp, the principal consideration in determining whether the relief of vacatur was warranted was "whether the party seeking relief from the judgment caused the mootness by voluntary action." Id. at 117 (quoting Bancorp, 513 U.S. at 24, 115 S.Ct. 386). For example, where a settlement resulted in mootness, the party seeking relief has "voluntarily forfeited his legal remedy by the ordinary processes of appeal or certiorari, thereby surrendering his claim to the equitable remedy of vacatur" absent "exceptional circumstances." Valero, 211 F.3d at 117-18 (quoting Bancorp, 513 U.S. at 25, 29, 115 S.Ct. 386). However, where the party seeking relief from judgment did not
The Fourth Circuit emphasized that Bancorp only addressed the standards applicable to appellate vacatur of appellate decisions, and therefore disagreed with the trial judge's conclusion that district courts are necessarily bound by the Bancorp decision in deciding whether to vacate their prior opinions. 211 F.3d at 116-121. Regardless, the Valero court concluded that the considerations underlying appellate vacatur also apply to district court vacatur:
Id. at 121. Accordingly, the Court will consider whether "the twin considerations of fault and public interest" favor granting the Clerk's Motion to Vacate, or alternatively whether "exceptional circumstances" exist such that vacatur is justified. Id. at 118, 121.
Although the Clerk did not cause this controversy to become moot,
The Clerk argues that the public interest is "weakly implicated" because district
For the foregoing reasons, the Clerk's Motion to Vacate under Rule 60(b)(6) will be DENIED. A separate Order follows.
Pending before the Court is the Clerk's Motion to Vacate. Doc. No. 46. For the reasons articulated in the accompanying Memorandum Opinion, it is, this
1) The Clerk's Motion to Vacate, Doc. No. 46, is
2) The Clerk shall transmit a copy of this Order and accompanying Memorandum Opinion to all counsel of record.
