Carolyn Maloney v. Robin Carhahan (ORDER IN SLIP OPINION FORMAT) ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed On: August 8, 2022
No. 18-5305
CAROLYN MALONEY, ET AL.,
APPELLANTS
VAL DEMINGS,
APPELLEE
v.
ROBIN CARNAHAN, ADMINISTRATOR, GENERAL SERVICES
ADMINISTRATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-02308)
On Petition for Rehearing En Banc
BEFORE: Srinivasan, Chief Judge; Henderson***, Rogers,
Millett**, Pillard, Wilkins, Katsas*, Rao***,
Walker***, and Childs*, Circuit Judges****
2
ORDER
Appellee Kale's petition for rehearing en banc and the
response thereto were circulated to the full court, and a vote was
requested. Thereafter, a majority of the judges eligible to
participate did not vote in favor of the petition. Upon
consideration of the foregoing, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
* Circuit Judges Katsas and Childs did not participate in this
matter.
** A statement by Circuit Judge Millett, joined by Senior
Circuit Judge Tatel, concurring in the denial of rehearing en
banc, is attached.
*** Circuit Judge Rao would grant the petition for rehearing en
banc. A statement by Circuit Judge Rao, joined by Circuit
Judges Henderson and Walker, and Senior Circuit Judge
Ginsburg, dissenting from the denial of rehearing en banc, is
attached.
**** A statement by Senior Circuit Judge Ginsburg is attached.
MILLETT, Circuit Judge, with whom Senior Circuit Judge
TATEL joins, concurring in the denial of rehearing en banc:
While much still remains to be litigated in district court, the
court rightly denies rehearing en banc on the narrow issue
before us. The only question in this case is whether Plaintiffs,
who are individual Members of Congress, have standing to
enforce an information request as authorized by a statute, 5
U.S.C. § 2954, that confers on certain legislators a right to
obtain information from federal agencies. This court held that
the Plaintiffs’ injury—“[a] rebuffed request for information to
which the requester is statutorily entitled”—has long been held
to be “a concrete, particularized, and individualized personal
injury, within the meaning of Article III.” Maloney v. Murphy,
984 F.3d 50, 54 (D.C. Cir. 2020). Further, applying Raines v.
Byrd, 521 U.S. 811 (1997), the court rejected the General
Services Administration’s (“GSA”) contention that the injury
of which the Plaintiffs complain was to Congress rather than to
themselves as individual lawmakers. See Maloney, 984 F.3d at
62–70. I write to respond briefly to the views of my colleagues
who thoughtfully dissent from the denial of rehearing en banc.
I
As Judge Ginsburg did in his opinion dissenting from the
court’s decision, Judge Rao characterizes the Plaintiffs’ injury
as institutional, not personal. She reasons that their power to
request documents from GSA is a delegation of Congress’s
power of inquiry, which is “an adjunct to the legislative
process.” Watkins v. United States, 354 U.S. 178, 197 (1957);
see Rao Dissent 10. Viewing the Plaintiffs’ statutory right as
one that really belongs to Congress, she argues that the injury
that resulted from GSA’s noncompliance is also institutional.
Not at all. The source of the Plaintiffs’ informational right
is not Congress’s inherent power to obtain information in aid
of legislation—as, say, a committee subpoena authorized by
House rules would be. Rather, it is the express provision of a
2
federal law—5 U.S.C. § 2954—duly enacted by both Houses
of Congress and signed into law by President Coolidge. See
Act of May 29, 1928, Pub. L. No. 70-611, 45 Stat. 986, 996.
Their right to information, in other words, is the outcome of
bicameralism and presentment, not an implicit constitutional
power.
Beyond that, while the power of inquiry vests in “each
House[,]” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031
(2020), and is exercised by “Congress, a Chamber of Congress,
or a committee[,]” Section 2954 applies to members as
individuals, Maloney, 984 F.3d at 55, 64. Not only that, but
Section 2954 extends an informational right to individuals in a
committee minority, underscoring that, by its very design, the
statute’s right to information is entirely independent of any
congressional or committee decision to investigate anything.
So an individual’s exercise of that specific statutory right to
request information is neither derived from nor an exercise of
the implicit investigative power. See id. at 55–56.
Instead, the statutory right the Plaintiffs are enforcing is a
product of Congress’s Article I authority to ensure the proper
functioning of government through accountability and
transparency. See U.S. CONST. Art. I, § 8, cl. 18. That
authority includes the power to create an individual right to
obtain information, including from federal agencies. The
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, the
Federal Advisory Committee Act, 5 U.S.C. app. 2 § 10(b), the
Federal Election Campaign Act, 52 U.S.C. § 30104(b), the
Endangered Species Act, 16 U.S.C. § 1539(c), the Government
in the Sunshine Act, 5 U.S.C. § 552b, and the Privacy Act, 5
U.S.C. § 552a(d)(1), are all examples of statutes that create
such a right. And under these statutes, “[a]nyone whose
request for specific information has been denied has standing
to bring an action[.]” Zivotofsky ex rel. Ari Z. v. Secretary of
3
State, 444 F.3d 614, 617–618 (D.C. Cir. 2006) (discussing
FOIA, Government in the Sunshine Act, and Federal Advisory
Committee Act); see also, e.g., Public Citizen v. Department of
Justice, 491 U.S. 440, 449 (1989) (Federal Advisory
Committee Act); FEC v. Akins, 524 U.S. 11, 21 (1998) (Federal
Election Campaign Act); Friends of Animals v. Jewell, 824
F.3d 1033, 1040–1041 (D.C. Cir. 2016) (Endangered Species
Act); cf. Doe v. Chao, 540 U.S. 614, 624–625 (2004)
(observing that anyone who suffers an “adverse effect” from a
violation of the Privacy Act “satisfies the injury-in-fact and
causation requirements of Article III standing”).
Section 2594 “is on all fours, for standing purposes, with
the informational right conferred by those other statutes.”
Maloney, 984 F.3d at 61. And there is no dispute that Plaintiffs
are among those in whom Section 2954 invests an
informational right. So their Article III standing is no different
from the standing of individuals to enforce other statutory
rights to information in the federal government’s possession.
In other words, Section 2954 fits the tradition of numerous
other information-disclosure statutes and, like many of them, is
a product of Congress’s Article I authority to enact statutes
creating a right to obtain information from federal agencies
about their taxpayer-funded activities, not some exercise of an
implicit power to investigate.1
1
Judge Rao contends that Maloney “assume[d] the most
important question—whether a statute can constitutionally grant
members of Congress a personal right, enforceable in federal court,
to information from the Executive Branch.” Rao Dissent 11. But
Judge Rao does some assuming of her own in suggesting that
Congress’s power to command disclosure “stems exclusively from
the legislative power[,]” Rao Dissent 2, despite the rich history of
disclosure statutes that do not arise from Congress’s inherent power
of inquiry.
4
Judge Rao suggests that this statutory injury is not
“grounded in historical practice[.]” Rao Dissent 5 (quoting
Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)). To be sure,
that the informational right in this case arises from a statute is
not alone enough to decide the standing question because
“Congress cannot erase Article III’s standing requirements by
statutorily granting the right to sue to a plaintiff who would not
otherwise have standing.” Raines, 521 U.S. at 820 n.3. But the
precedential basis for Congress’s creation of such
informational injuries is longstanding. Binding precedent from
the Supreme Court and this court has long held that
informational injuries give rise to standing. See Spokeo, 578
U.S. at 342 (citing Akins and Public Citizen as cases in which,
consonant with the “common law * * *, the violation of a
procedural right granted by statute” was sufficient “to
constitute injury in fact”); see also, e.g., Public Citizen, 491
U.S. at 449; Akins, 524 U.S. at 21; Zivotofsky, 444 F.3d at 617–
618; Friends of Animals, 824 F.3d at 1040–1041.
To be sure, Section 2954’s informational right vests in
individuals who are members of Congress, rather than in the
general public. See Rao Dissent 17. But for standing purposes,
that is beside the point. Article III standing depends on a
plaintiff demonstrating an injury in fact, causation, and
redressability. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–561 (1992). The only prong at issue here is the
injury-in-fact requirement, and reams of precedent has
recognized that an informational injury is a “quintessential”
injury in fact. Maloney, 984 F.3d at 59; see also, e.g.,
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2214 (2021)
(reiterating that plaintiffs who “allege that they failed to receive
* * * required information” under a disclosure statute have
standing). And Article III has never required that an otherwise
qualifying injury in fact be shared with others—let alone the
general public—before it counts. There is no noscitur a sociis
5
canon for Article III injuries; their existence does not depend
on the company they keep.
What is more, Plaintiffs’ injury is materially identical to
an injury any member of the public could suffer: the denial of
a FOIA request. Indeed, if these Plaintiffs had requested the
same information under both FOIA and Section 2954, they
would have standing to vindicate that informational injury.
Spokeo, 578 U.S. at 342; Zivotofsky, 444 F.3d at 617–618. And
their status as members of Congress would not change things:
Under FOIA, “the requester’s circumstances—why he wants
the information, what he plans to do with it, what harms he
suffered from the failure to disclose—are irrelevant to his
standing.” Zivotofsky, 444 F.3d at 617. The government
agrees. Oral Arg. Tr. 26 (GSA Counsel: “[W]e’re not disputing
that the Plaintiffs can invoke FOIA.”). And courts have long
entertained FOIA actions brought by members of Congress
even though, as Judge Rao observes, FOIA can “be used for
any purpose[,]” legislative or otherwise. Rao Dissent 17; see
id. 18–19 n.6; EPA v. Mink, 410 U.S. 73, 75 (1973)
(adjudicating FOIA action brought by 33 members of
Congress).
If Congress may, under 5 U.S.C. § 552, confer on
Plaintiffs a right to this very same information, the denial of
which gives rise to standing, it may do the same under 5 U.S.C.
§ 2954. Article III’s standing inquiry does not change based
on the section of Title 5 in which Congress houses the
informational right.
Of course, Section 2954’s scope is narrower than FOIA in
that the informational right vests only in members of two
congressional committees, and extends only to “information
* * * relating to any matter within the jurisdiction of the
committee.” 5 U.S.C. § 2954. But even if a Section 2954
6
request has a relationship to “official congressional
responsibilities,” Rao Dissent 19, that does not change the
standing analysis.
After all, “personal, particularized” injuries suffered by
legislators, and legislators alone, can affect prerogatives
essential to the legislative role and yet still confer standing.
Maloney, 984 F.3d at 62. For instance, Congressman Adam
Clayton Powell had standing when he complained of the loss
of his seat and his salary—both of which were entitlements
meant solely to enable him to participate in legislating. See
Raines, 521 U.S. at 821 (explaining that although members
hold their seats “as trustee[s] for [their] constituents,” “they
personally are entitled” to them for standing purposes)
(emphasis in original). The congressional seat for which he
sued “pertained directly to his fulfillment of his role as a
legislator,” and yet its loss was still a concrete, individual harm
that gave him Article III standing. See Maloney, 984 F.3d at
66.
Likewise, even if legislators are denied the right to engage
in core legislative acts—like voting—on a particularized basis,
they would have standing to remedy that denial. See Kerr v.
Hickenlooper, 824 F.3d 1207, 1216 (10th Cir. 2016); Alaska
Legis. Council v. Babbitt, 181 F.3d 1333, 1338 n.3 (D.C. Cir.
1999); cf. Raines, 521 U.S. at 824 n.7.
This is all to say that an injury is not institutional simply
because it trenches on a right that exists to enable legislators to
perform their individual jobs. Even injuries that “pertain[] to
the official, legislative powers of members” may be personal
for standing purposes. Rao Dissent 16; see id. 9 n.3 (“[I]n
narrow circumstances a private harm, like the denial of a salary,
may result from an official position.”). What matters is that the
Plaintiffs complain of an injury that “befell them and only
7
them[,]” rather than “all Members of Congress[,]” “both
Houses of Congress equally[,]” or the successor to the
requester’s committee seat. Maloney, 984 F.3d at 64 (internal
quotation marks omitted) (quoting Raines, 521 U.S. at 821).
Because Plaintiffs’ informational injury “zeroes in on the
individual[,]” it confers standing. Kerr, 824 F.3d at 1216.
Judge Rao is correct that Congress enacted Section 2954
to aid committee members’ work and the legislative process as
a whole. See Rao Dissent 17–19. The statute’s text and
legislative history confirm as much. See 5 U.S.C. § 2954; H.R.
REP. NO. 1757, 70th Cong., 1st Sess. 3, 6 (1928); Maloney, 984
F.3d at 55–56. But Congress’s subjective policy goals in
passing a law have no role in the standing analysis. With
FOIA, Congress likewise sought to make oversight of the
executive branch work better by “pierc[ing] the veil of
administrative secrecy and * * * open[ing] agency action to the
light of public scrutiny[.]” Department of Air Force v. Rose,
425 U.S. 352, 361 (1976) (citation omitted). That underlying
purpose, however, does not mean that FOIA requests are
somehow a delegation of Congress’s oversight powers. And
(it bears repeating) that remains true even when members of
Congress seek information germane to their legislative work
under FOIA. Maloney, 984 F.3d at 69. Indeed, if Congress
had simply amended FOIA to expressly include members of
the two legislative committees listed in Section 2954 seeking
information relevant to their job as “person[s]” who may obtain
information, 5 U.S.C. § 552(a)(3)(A), the informational right
and injury would be identical to that of any other FOIA
claimant for standing purposes. That Congress accomplished
that same end through two statutes rather than one has no
bearing on Article III’s injury-in-fact analysis.
8
II
Judges Rao and Ginsburg anticipate that the court’s
decision will have “ruinous” consequences. Ginsburg Dissent
2; see Rao Dissent 21–26. That concern does not stand up
either practically or legally.
Their practical concern that the Executive Branch will be
overwhelmed by Section 2954 lawsuits is misplaced. For one
thing, Section 2954 has been on the books since 1928 without
causing any such flood of litigation. Or even a puddle.
Compare Pls.’ Opening Br. at 19–20 (documenting a handful
of occasions dating back three decades on which members have
requested information under Section 2954), with Rao Dissent
23 n.8. For another thing, FOIA and a host of other federal
laws already subject federal agencies to informational demands
from the public—legislators included—and lawsuits if the
agencies fail to comply. And remember, more Members of
Congress can obtain more information of interest to them as
legislators under FOIA than under Section 2954 because
FOIA’s right lacks Section 2954’s limitations. That has been
true since 1966, “with no hint of such untoward results.”
Maloney, 984 F.3d at 69. In any event, Article III is not a
roadblock to suits judges happen to find uncongenial as a
policy matter.
To the extent the dissenters are concerned about “whether
a statute can constitutionally grant members of Congress a
personal right, enforceable in federal court, to information from
the Executive Branch[,]” Rao Dissent 11 (emphasis omitted),
they are getting ahead of this case. This court has not yet even
decided if Section 2954 creates a cause of action. More
generally, questions about Section 2954’s scope and
constitutionality are for another day. See Maloney, 984 F.3d at
70 (“[T]he existence of a cause of action, the appropriate
9
exercise of equitable discretion, [and] the merits of the
[Plaintiffs’] claims * * * remain to be resolved by the district
court in the first instance.”); Defs.’ Mot. to Dismiss at 36,
Cummings v. Murphy, 321 F. Supp. 3d 92 (D.D.C. 2018) (No.
17-2308), ECF No. 8 (asserting that Plaintiffs’ use of the statute
could “raise serious constitutional concerns.”). The only
question before the court in this case was whether the Plaintiffs
have suffered an informational injury in fact for Article III
standing purposes. In answering that question, we assume that
the Plaintiffs are correct on all merits questions in the case,
including the existence of a cause of action and the
constitutionality of the statute that provides the source of their
asserted legal claim. See NB ex rel. Peacock v. District of
Columbia, 682 F.3d 77, 82 (D.C. Cir. 2012); Maloney, 984
F.3d at 58.
The central mistake that the dissenting opinions make is
trying to force the injury-in-fact prong of the Article III
standing analysis to take on the substantive merits work of
resolving their constitutional qualms about this statutory
scheme, facially or as applied. The en banc court rightly
recognizes today that there is no need for Article III to get out
over its skis. Those constitutional questions and more await
resolution on remand. All we have held in this case is that the
agency’s denial of a statutorily conferred right to information
inflicted an injury in fact on the requesting Plaintiffs.
* * *
For those reasons and with the greatest respect for my
colleagues’ dissenting views, I concur in the denial of rehearing
en banc.
RAO, Circuit Judge, with whom Circuit Judges HENDERSON
and WALKER and Senior Circuit Judge GINSBURG join,
dissenting from the denial of rehearing en banc:
Disputes between Congress and the Executive over
documents have occurred since the Founding but have seldom
involved the Judiciary. In concluding that individual members
of Congress have standing to sue when an executive agency
rejects their requests for information, the panel majority clears
the way for the federal courts to referee ordinary informational
disputes between the political branches. The panel’s rationale
has no logical stopping point and would permit standing to
even a single member of Congress suing the Executive. To
reach this unprecedented holding, the panel relies on a nearly
100-year-old statute that allows members to request
information from executive branch agencies and finds that 5
U.S.C. § 2954 creates a personal “informational right” for
members exercising their “professional” legislative duties.
Maloney v. Murphy, 984 F.3d 50, 64–65 (D.C. Cir. 2020). The
Members’ claim in this case, however, has no historical
analogue. The panel’s recognition of a personal injury to
legislative power clashes with the fundamental constitutional
principles that limit congressional standing, upends the balance
of power between Congress and the Executive, and drags
courts into disputes wholly foreign to the Article III “judicial
Power.”
Perhaps this is a logical culmination of this court’s recent
decisions on congressional standing, which continue to invoke
the Supreme Court’s decision in Raines v. Byrd, 521 U.S. 811(1997), while steadily moving away from its substantive
foundation. 1 By recognizing standing for members of Congress
1
See Comm. on the Judiciary of the U.S. House of Representatives
v. McGahn, 968 F.3d 755, 782 (D.C. Cir. 2020) (en banc) (Griffith,
J., dissenting) (explaining that “[t]he majority returns this circuit to
the prudential approach to standing that we experimented with
2
based on harms that are simultaneously personal and
legislative, the panel decisively breaks with the structural
constitutional limits articulated in Raines.
I would revisit the panel decision because, first, the text
and structure of the Constitution, historical practice, and the
Supreme Court’s decisions all establish that individual
members of Congress cannot bring suit to assert injuries to the
legislative power. The federal courts do not superintend
disputes between the political branches because such disputes
are outside the traditional understanding of an Article III
“Case” or “Controversy.” Second, the power of members of
Congress to investigate the Executive Branch stems
exclusively from the legislative power. Section 2954 cannot
convert that institutional legislative power into a personal
“informational right” for members that is vindicable in federal
court. Finally, allowing standing for members of Congress
under Section 2954 not only expands the judicial power, but
otherwise unbalances the Constitution’s separation of powers.
The novel questions presented here are of exceptional
importance, particularly because the D.C. Circuit has an
effective monopoly over lawsuits between Congress and the
Executive Branch. These questions should be resolved by the
decades ago and that the Supreme Court rejected in Raines”); U.S.
House of Representatives v. Mnuchin, 976 F.3d 1 (D.C. Cir. 2020)
(extending the McGahn majority’s prudential approach to conflicts
over appropriations), vacated as moot, 142 S. Ct. 332 (2021); In re
Comm. on the Judiciary, U.S. House of Representatives, 951 F.3d
589, 617–18 (D.C. Cir. 2020) (Rao, J., dissenting) (“[A]llowing
standing in this context would run against historical practice and the
limited role of the federal judiciary in our system of separated
powers.”) (citing Raines, 521 U.S. at 819), vacated as moot sub nom.
Dep’t of Justice v. House Comm. on the Judiciary, 142 S. Ct. 46(2021).
3
full court to realign our decisions with the Constitution and
longstanding Supreme Court precedent.
I.
Seventeen members of Congress brought this suit under an
extraordinary statute, one that permits “any seven members” of
the House Committee on Oversight and Reform or “any five
members” of the Senate Committee on Homeland Security and
Governmental Affairs—less than a majority of each
committee—to compel executive agencies to disclose
information. Act of May 29, 1928, Pub. L. No. 70-611 § 2, 45
Stat. 986, 996 (codified as amended at 5 U.S.C. § 2954). Upon
such a request, “[a]n Executive agency … shall submit any
information requested of it relating to any matter within the
jurisdiction of the committee.” 5 U.S.C. § 2954.
This case concerns requests made under Section 2954 to
the General Services Administration (“GSA”) by members of
the House Committee on Oversight and Reform (the
“Committee”). The Members sought records relating to GSA’s
lease of the Old Post Office building to a company owned by
President Donald Trump and members of his family. GSA did
not provide the requested information, and members of the
Committee who made the rebuffed requests brought this action
seeking to compel disclosure. In particular, the Members
pleaded that “numerous issues” concerning the lease
“requir[ed] congressional oversight,” including “potential
conflicts of interest” and “GSA’s ongoing management of the
lease.” The complaint repeatedly referenced the official
oversight responsibilities of Congress and the Committee. The
Members claimed the deprivation of information “thwart[ed]”
their ability “to carry out their congressionally-delegated duty
to perform oversight” and impeded the fulfillment of their
“legislative responsibilities.”
4
The district court dismissed the complaint on the
jurisdictional ground that the Members lacked standing.
Cummings v. Murphy, 321 F. Supp. 3d 92 (D.D.C. 2018). A
divided panel of this court reversed, holding that Section 2954
confers an individual right to information on members of
Congress, and that members have standing in federal court to
assert those rights against an executive branch agency.
Maloney, 984 F.3d at 54. Judge Ginsburg dissented, explaining
that “[b]ecause the legislative power and the attendant power
of investigation are committed to the House and not to its
[m]embers, a legislator does not suffer a personal injury when
the denial of information … impedes the oversight and
legislative responsibilities of the House.” Id. at 76.
II.
The Members here allege they have standing to sue an
executive branch agency for information because Section 2954
gives them a personal right to exercise the official legislative
powers of investigation. Their claims are foreclosed by the
Constitution, longstanding precedent, and historical practice,
which dictate that harms to official legislative powers cannot
be vindicated in the federal courts by individual legislators.
Article III of the Constitution extends the federal judicial
power only to “Cases” or “Controversies.” U.S. CONST. art. III,
§ 2. “No principle is more fundamental to the [J]udiciary’s
proper role in our system of government than the constitutional
limitation of federal-court jurisdiction to actual [C]ases or
[C]ontroversies.” Raines, 521 U.S. at 818 (cleaned up). While
the panel majority recites these constitutional limitations, it
rests its standing analysis entirely on Section 2954, which
purportedly “confers [an] informational right directly
on … specific legislators so that they personally can properly
5
perform their roles on the oversight committees.” Maloney, 984
F.3d at 61.
But “[i]t is settled that Congress cannot erase Article III’s
standing requirements by statutorily granting the right to sue to
a plaintiff who would not otherwise have standing.” Raines,
521 U.S. at 820 n.3; see also Lujan v. Defs. of Wildlife, 504
U.S. 555, 577–78 (1992). The standing inquiry, therefore,
cannot simply begin and end with the so-called informational
right created by Section 2954. To determine whether the
Members’ claim is judicially cognizable, we must consider
whether the alleged harm is “grounded in historical practice”
and “has a close relationship to a harm that has traditionally
been regarded as providing a basis for a lawsuit in English or
American courts.” Spokeo, Inc. v. Robins, 578 U.S. 330, 341
(2016); see also TransUnion LLC v. Ramirez, 141 S. Ct. 2190,
2204 (2021) (a concrete injury requires plaintiffs to “identif[y]
a close historical or common-law analogue for their asserted
injury”); id. at 2219 (Thomas, J., dissenting) (explaining that
the requirement of concreteness developed with respect to
public rights and interests).
Members of Congress seeking standing in the federal
courts must satisfy particularly stringent requirements because
of the serious separation of powers concerns raised by judicial
resolution of disputes between the political branches. See
Raines, 521 U.S. at 819–20; Ariz. State Legislature v. Ariz.
Indep. Redistricting Comm’n, 576 U.S. 787, 803 n.12 (2015);
see also id. at 854 (Scalia, J., dissenting); Chenoweth v.
Clinton, 181 F.3d 112, 114 (D.C. Cir. 1999) (explaining that
separation of powers concerns “are particularly acute [ ] when
a legislator attempts to bring an essentially political dispute
into a judicial forum”). As a result, the Supreme Court has
established a narrow set of circumstances in which individual
legislators can sue in federal court.
6
“Raines is our starting point when individual members of
the Congress seek judicial remedies.” Blumenthal v. Trump,
949 F.3d 14, 19 (D.C. Cir. 2020) (per curiam). In Raines, the
Supreme Court recognized the novelty of the question of
legislative standing presented for review and explained why
“historical practice” did not support legislative standing
because “in analogous confrontations between one or both
Houses of Congress and the Executive Branch, no suit was
brought on the basis of claimed injury to official authority or
power.” 521 U.S. at 826 (emphasis added). Instead,
constitutional challenges to the respective powers of the
political branches had been adjudicated primarily in lawsuits in
which a private individual had suffered a personal,
particularized, and concrete harm. Canvassing the historical
record, the Court pointed to numerous instances where, if it had
been possible, the President or a member of Congress might
have sued to vindicate their respective constitutional powers
but never had. Id. at 826–28.
The Court concluded that the Judiciary serving as referee
between the political branches “is obviously not the regime that
has obtained under our Constitution to date.” Id. at 828.
Moreover, the Constitution vests the Article III courts with a
restricted role, primarily that of protecting individual rights and
liberties, not providing “some amorphous general supervision
of the operations of government.” Id. at 829 (quoting United
States v. Richardson, 418 U.S. 166, 192 (1974) (Powell, J.,
concurring)). The Judiciary should hesitate to adjudicate
“dispute[s] involving only officials, and the official interests of
those, who serve in the branches of the National Government”
because such disputes lie “far from the model of the traditional
common-law cause of action at the conceptual core of the case-
or-controversy requirement.” Id. at 833 (Souter, J., concurring
in the judgment).
7
Raines also clarified that members of Congress may not
circumvent the Judiciary’s limited role in interbranch disputes
by bringing suit as individuals to vindicate harms to the
legislative power. Because the legislative power is vested in
Congress as a whole, not in individual representatives and
senators, injuries to the legislative power are not injuries to the
individual members. Therefore, a suit by members of Congress
challenging the Line Item Veto Act could not be maintained in
federal court because the “claim of standing [was] based on a
loss of political power, not loss of any private right, which
would make the injury more concrete.” Id. at 821 (majority
opinion) (emphasis added). In subsequent cases, the Supreme
Court adhered closely to Raines and emphasized that
“individual members lack standing to assert the institutional
interests of a legislature.” Va. House of Delegates v. Bethune-
Hill, 139 S. Ct. 1945, 1953 (2019); Ariz. State Legislature, 576
U.S. at 802.
After Raines decisively closed the door on this circuit’s
expansive congressional standing decisions,2 we have
consistently denied standing to legislators seeking to sue the
2
We have recognized that Raines was the culmination of a long
period of tension between this court’s approach to standing and the
Supreme Court’s. Chenoweth, 181 F.3d at 115. In the 1970s, this
court was “receptive to the idea that we had jurisdiction to hear”
complaints brought by members of Congress “seek[ing] judicial
relief from allegedly illegal executive actions that impaired the
exercise of their power as legislators.” Id. at 114 (citing Kennedy v.
Sampson, 511 F.2d 430 (D.C. Cir. 1974), and Goldwater v. Carter,
617 F.2d 697 (D.C. Cir.) (en banc) (per curiam), vacated on other
grounds, 444 U.S. 996 (1979)). Even as the Supreme Court clarified
that standing was an essential aspect of the separation of powers,
Allen v. Wright, 468 U.S. 737, 752 (1984), this court continued to
analyze standing apart from separation of powers concerns. See
Chenoweth, 181 F.3d at 114.
8
Executive Branch to vindicate legislative powers or to enforce
the requirements of a statute. See Chenoweth, 181 F.3d at 113(holding that members of Congress lacked standing to
challenge an executive order they claimed “denied them their
proper role in the legislative process”); Campbell v. Clinton,
203 F.3d 19 (D.C. Cir. 2000) (holding that legislators lacked
standing to challenge presidential actions they alleged violated
the War Powers Resolution). We recently explained that the
Supreme Court’s “as well as this court’s precedent confirm that
Raines stands for the proposition that whereas a legislative
institution may properly assert an institutional injury, an
individual member of that institution generally may not.”
McGahn, 968 F.3d at 775. Individual lawmakers lack standing
to assert the official, institutional interests of Congress because
of the “mismatch” problem, i.e., congressmen cannot assert
injuries on behalf of Congress. Bethune-Hill, 139 S. Ct. at
1953; McGahn, 968 F.3d at 767.
The only two Supreme Court decisions recognizing
legislator standing similarly do not support standing for
members of Congress asserting harms to a purportedly personal
legislative power. First, Congressman Powell was allowed to
sue for backpay in connection with the salary he was denied
when the House unlawfully prevented him from taking his seat.
Powell v. McCormack, 395 U.S. 486 (1969). In Raines, the
Court contrasted Congressman Powell’s injury, which was
claimed in a “private capacity” and for which there could be
standing, with an “institutional injury (the diminution of
legislative power)” claimed by a member of Congress in an
“official capacit[y],” for which there was no standing. 521 U.S.
at 821 (emphases added). The Constitution guarantees that
members of Congress shall be paid. U.S. CONST. art. I, § 6. This
is plainly a private and personal right of individual members of
Congress, the invasion of which inflicts a paradigmatic Article
III injury. See TransUnion, 141 S. Ct. at 2204 (“[C]ertain
9
harms readily qualify as concrete injuries under Article III. The
most obvious are traditional tangible harms, such
as … monetary harms.”). An unpaid salary was not a harm to
the legislative power, but rather an injury to Powell’s
pocketbook. 3 Moreover, in Powell, the claim for backpay was
not made against the Executive Branch, but the agents of
Congress, and therefore did not implicate the same type of
conflict between the branches. See 395 U.S. at 550.
The only other case recognizing individual legislator
standing, Coleman v. Miller, 307 U.S. 433 (1939), involved
state legislators and has been cabined to its facts. See Raines,
521 U.S. at 823–24, 824 n.8 (explaining Coleman’s limited
application and noting that the case involved state legislators,
which would not raise the same separation of powers concerns
as suits between the federal political branches); Bethune-Hill,
139 S. Ct. at 1954 (repeating Raines’s characterization of
Coleman).
3
The panel majority takes from Powell that some official harms may
be personal. Maloney, 984 F.3d at 65–66. It is true that Powell’s
monetary harms flowed from his election as a congressman. That
simply means that in narrow circumstances a private harm, like the
denial of a salary, may result from an official position. See, e.g.,
Humphrey’s Executor v. United States, 295 U.S. 602, 618 (1935)
(deciding the extent to which Congress may insulate a commissioner
of a so-called independent agency from presidential removal in the
context of a suit in the Court of Claims for the unpaid salary of a
fired executive official). Powell cannot be read to recognize a
category of personal legislative injuries because Powell’s injuries
were not to his exercise of legislative power. Indeed, Raines
recognized that Coleman v. Miller is the only case upholding
“standing for legislators (albeit state legislators) claiming an
institutional injury,” further reinforcing that Powell is not a case
about institutional or official harms. Raines, 521 U.S. at 821.
10
***
A legislator may have standing in the federal courts only
if his affected “interest … [is] of a personal and not of an
official nature.” Braxton Cnty. Ct. v. West Virginia ex rel. State
Tax Comm’rs, 208 U.S. 192, 197 (1908). Injuries to the official
interests of a member of Congress, like other harms to
institutional legislative power, lie outside the traditional
understanding of the “Cases” and “Controversies” cognizable
by the Article III courts.
III.
The foregoing provides the constitutional backdrop for
assessing the panel majority’s conclusion that Section 2954
grants members of Congress a personal right to information
from executive branch agencies that is no different from any
other private informational injury that may be vindicated in
court. Maloney, 984 F.3d at 64. The investigative power of
Congress is not and cannot be personal, because it is “justified
solely as an adjunct to the legislative process.” Trump v.
Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020) (cleaned up).
Section 2954 cannot create a personal right to information
for the Members, because Congress cannot constitutionally
convert its institutional legislative power to investigate into a
personal right of its members. Nor can the official and
institutional injuries alleged by the Members under Section
2954 be analogized to the private informational injuries under
statutes such as the Freedom of Information Act (“FOIA”) and
the Federal Advisory Committee Act (“FACA”). Therefore,
the denial of information under Section 2954 does not provide
members of Congress with the type of concrete and
particularized injury cognizable by the Article III courts.
11
A.
The panel majority frames this case generically as simply
a question of whether the denial of information to which a
“person” or “requester” is statutorily entitled constitutes an
injury sufficient to invoke Article III jurisdiction. It concludes
a concrete injury exists because “Section 2954’s plain terms
invest the informational right in legislators, not the legislature.
Which makes the deprivation of requested information an
injury personal to the requesting legislators.” Maloney, 984
F.3d at 67. But framing the case this way assumes the most
important question—whether a statute can constitutionally
grant members of Congress a personal right, enforceable in
federal court, to information from the Executive Branch.
Section 2954 cannot create such a personal right because any
power to investigate belongs to the House and Senate as part of
their institutional legislative powers, and Congress cannot
delegate these institutional powers in a way that creates rights
in individual members.
Congress’ power to investigate the Executive Branch
derives solely from the legislative power. As the Supreme
Court recently reiterated, “Congress has no enumerated
constitutional power to conduct investigations[,] … but we
have held that each House has power ‘to secure needed
information’ in order to legislate.” Mazars, 140 S. Ct. at 2031
(quoting McGrain v. Daugherty, 273 U.S. 135, 161 (1927)).
The panel’s so-called informational right is merely an
“auxiliary to the legislative function.” McGrain, 273 U.S. at
174. Just as the legislative power is vested in Congress, U.S.
CONST. art. I, § 1, the auxiliary power to investigate also
belongs to Congress and is inextricably linked to the need to
gather information in order to “legislate ‘wisely or
effectively.’” Mazars, 140 S. Ct. at 2031 (quoting McGrain,
273 U.S. at 175). Perhaps in recognition of these principles, the
12
Members pleaded that the informational right in Section 2954
was “congressionally-delegated” and that they were exercising
necessary “congressional” oversight.
The power to legislate, however, “is not personal to the
legislator,” so “the legislator has no personal right to it.” Nev.
Comm’n on Ethics v. Carrigan, 564 U.S. 117, 126 (2011).
Injuries to “political power” are not judicially cognizable
because the legislator exercises legislative power “as trustee for
his constituents, not as a prerogative of personal power.”
Raines, 521 U.S. at 821; see also United States v. Ballin, 144
U.S. 1, 7 (1892) (“The two houses of Congress are legislative
bodies representing larger constituencies. Power is not vested
in any one individual, but in the aggregate of the members who
compose the body.”). While members of course undertake
myriad lawmaking functions, legislators have no personal right
to the legislative power and therefore have no personal right to
the incidents of that power, such as investigation and
oversight. 4
4
The principle that a legislator has no personal right to the legislative
power follows from the text and structure of the Constitution, which
confers no power on representatives and senators that may be
exercised individually. The Constitution recognizes individual
members primarily with regard to their selection and compensation.
See U.S. CONST. art. I, § 2, cl. 1; id. § 3, cl. 1; id. § 6, cl. 1. The
Constitution vests the legislative power in Congress as a whole. U.S.
CONST. art. I, § 1; see also Neomi Rao, Why Congress Matters: The
Collective Congress in the Structural Constitution, 70 FLA. L. REV.
1, 71 (2018) (“Congress can take no binding action against the other
branches except through legislation or through impeachment and
removal.”). Members share a part of the legislative power and
exercise an important public trust, but the legislative power does not
belong to them individually.
13
Because investigation is an institutional prerogative and
exists only insofar as it is a legitimate adjunct to the legislative
power, Section 2954 cannot confer an informational right on
individual members to sue the Executive Branch in federal
court. The Supreme Court has consistently invalidated statutes
that attempt to reallocate the legislative power to Congress’
constituent parts. See John F. Manning, Textualism as a
Nondelegation Doctrine, 97 COLUM. L. REV. 673, 715–18
(1997) (discussing these cases).
For instance, a single house of Congress cannot exercise
the legislative power because legislative power must be
exercised through bicameralism and presentment. See INS v.
Chadha, 462 U.S. 919, 955 (1983) (explaining that when the
Constitution permits “either House of Congress to act alone,”
it “narrowly and precisely define[s] the procedure for such
action”). The prohibition, recognized in Chadha, against
Congress reassigning legislative power to a single house
applies a fortiori to reassigning legislative powers to individual
members of Congress. Similarly, Congress cannot assign a
subset of its members the power to veto decisions made by an
agency, because “Congress may not delegate the power to
legislate to its own agents or to its own [m]embers.” Metro.
Washington Airports Auth. v. Citizens for the Abatement of
Aircraft Noise, Inc., 501 U.S. 252, 275 (1991). Indeed, “[i]f
Congress were free to delegate its policymaking authority to
one of its components, or to one of its agents, it would be able
to evade the carefully crafted restraints spelled out in the
Constitution.” Bowsher v. Synar, 478 U.S. 714, 755 (1986)
(Stevens, J., concurring in the judgment) (cleaned up).
Furthermore, the Court has specifically held that Congress
cannot by statute convert a “generalized grievance” about
government into a judicially cognizable personal injury. See
Lujan, 504 U.S. at 573–76 (discussing cases). In Lujan, the
14
Court reviewed a citizen-suit provision and recognized that the
relevant question was “whether the public interest in proper
administration of the laws … can be converted into an
individual right by a statute that denominates it as such, and
that permits all citizens (or, for that matter, a subclass of
citizens who suffer no distinctive concrete harm) to sue.” Id. at
576–77. The Court answered that question with a resounding
no: “To permit Congress to convert the undifferentiated public
interest in executive officers’ compliance with the law into an
‘individual right’ vindicable in the courts is to permit Congress
to transfer from the President to the courts the Chief
Executive’s most important constitutional duty, to ‘take Care
that the Laws be faithfully executed.’” Id. at 577 (quoting U.S.
CONST. art. II, § 3).
Interpreting Section 2954 to confer standing on individual
members of Congress would raise parallel constitutional
problems because it would allow Congress to convert the
collective legislative power, and the accompanying power to
investigate, into an “individual right” of lawmakers that could
be vindicated in the federal courts. To allow such actions
“would enable the courts, with the permission of Congress, to
assume a position of authority over the governmental acts of
another and co-equal department, and to become virtually
continuing monitors of the wisdom and soundness of Executive
action. We have always rejected that vision of our role.” Id.
(cleaned up).
Just as Congress cannot transfer bits of the President’s
executive power to the general public, it similarly cannot
transfer bits of Congress’ legislative power to individual
legislators. Statutory say-so is insufficient to expand the
powers of individual legislators and the reach of the federal
courts.
15
The unsuitability of judicial review is further highlighted
by the fact that Section 2954 accomplishes by statute what
would ordinarily be addressed by the internal rules or orders of
the House and Senate, which frequently assign investigative
authority to committees and subcommittees. See U.S. CONST.
art. I, § 5, cl. 2. Such rules, however, do not create any personal
rights in members enforceable in federal court. Internal
allocations of congressional power generally cannot be
vindicated in court by any legislator or groups of legislators.
See Metzenbaum v. FERC, 675 F.2d 1282, 1287 (D.C. Cir.
1982) (per curiam) (concluding that the question of whether the
House observed its own rules was political and therefore
nonjusticiable); Vander Jagt v. O’Neill, 699 F.2d 1166, 1181
(D.C. Cir. 1983) (Bork, J., concurring in the judgment)
(“[F]ederal courts should firmly refuse to enter upon the wholly
inappropriate task of ensuring absolute equity in Congress’s
legislative procedures. It is absurd to think that courts should
purge the political branches of politics.”); id. at 1176 (majority
opinion) (calling adjudication of such disputes a “startlingly
unattractive idea”) (cleaned up); Chadha, 462 U.S. at 955 n.21
(emphasizing that the rulemaking power “only empowers
Congress to bind itself”). Judicial review of House and Senate
rules of proceeding would likely exceed the Article III “judicial
Power” and encroach on the independence of Congress. This
further suggests that Congress lacks the authority to vest
individual members with judicially enforceable investigative
rights that would ordinarily be allocated by non-reviewable
internal rules. 5
5
A further constitutional difficulty is that each house of Congress
has an independent power to make internal rules of proceeding. U.S.
CONST. art. I, § 5. Section 2954, however, purports to allocate (or
delegate) some investigative authority to a subgroup of committee
members in both the House and Senate. If Congress by statute may
allocate power to individual representatives and senators, that could
16
I would also note that there is no evidence that Congress
created individual member standing when enacting Section
2954. Given the total absence of any historical precedent for
such lawsuits in 1928, the establishment of a judicially
cognizable informational right would have been an exceptional
expansion of federal court jurisdiction to decide informational
disputes between Congress and the Executive. In light of the
novelty of the statute and the fact that it makes no mention of a
cause of action or of standing for individual members, we
should not readily assume Section 2954 creates the type of right
and injury that is cognizable by the federal courts. Cf. Whitman
v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (“Congress,
we have held, does not … hide elephants in mouseholes.”);
FEC v. Akins, 524 U.S. 11, 30 (1998) (Scalia, J., dissenting)
(“Because this provision is so extraordinary, we should be
particularly careful not to expand it beyond its fair meaning.”).
The Members’ complaint and the panel majority’s
reasoning recognize that the “informational right” in Section
2954 pertains to the official, legislative powers of members.
See Maloney, 984 F.3d at 64 (“[T]he Requesters sought the
information covered by Section 2954 in this case to inform and
equip them personally to fulfill their professional duties as
Committee members.”) (emphasis added). What the panel
majority fails to explain, however, is how Congress may
convert the institutional legislative power of investigation into
a personal right of individual legislators.
Congress cannot self-delegate a piece of the legislative
power to individual representatives and senators in a way that
frustrate the independent constitutional power of each house to make
its own rules, because one house of Congress would be unable to
promulgate a rule of proceeding contrary to a statute without the
consent of the other house and the President.
17
creates judicially cognizable rights. Section 2954 should not be
read to create standing for members of Congress asserting their
investigative, i.e., legislative, powers when such an
interpretation would contravene the Constitution’s separation
of powers.
B.
The panel’s analogy to private informational injuries under
FOIA and FACA is similarly inapposite. Those statutes create
certain informational rights against the government, and
individuals may sue in federal court to challenge an agency’s
failure to provide information to which the person is entitled.
See 5 U.S.C. § 552(a)(4)(B); 5 U.S.C. app. 2 § 10(b). The
Supreme Court and this court have held that the deprivation of
such information can constitute a private, particularized, and
concrete injury that gives rise to standing. See Pub. Citizen v.
U.S. Dep’t of Justice, 491 U.S. 440, 449–50 (1989); Prisology,
Inc. v. Fed. Bureau of Prisons, 852 F.3d 1114, 1117 (D.C. Cir.
2017).
The informational right created by Section 2954 is
different. FOIA and FACA create a private right to information
to be used for any purpose. By contrast, Section 2954 gives
legislators a right to information specifically for legislating, as
evidenced by the fact that information requests must “relat[e]
to any matter within the jurisdiction of the committee.” 5
U.S.C. § 2954. Only by glossing over this material distinction
can the majority avoid the salient constitutional questions. See
Concurring Op. 3–6.
While in the context of private plaintiffs the court properly
looks to whether the withholding of information has harmed
the plaintiff “in a personal and individual way,” Spokeo, 578
U.S. at 339, the inquiry is entirely different for members of
18
Congress seeking to exercise their legislative powers.6 The
panel states that “[a] personal injury … refers to an injury
6
Members of Congress sometimes use FOIA to seek information
from the Executive Branch, and there are a few cases in which they
have litigated an agency’s failure to release information under FOIA.
But these cases have recognized a distinction between individual
informational rights held by private citizens and the official
prerogatives of members of Congress. FOIA suggests that Congress’
power to investigate and to seek information from the Executive is
distinct from and perhaps greater than private citizens’ FOIA rights.
See 5 U.S.C. § 552(d) (“This section is not authority to withhold
information from Congress.”); see also Murphy v. Dep’t of the Army,
613 F.2d 1151, 1157 (D.C. Cir. 1979) (explaining that “when a
document is released for official congressional purposes, a waiver of
[a] FOIA exemption is not implied”).
The courts have struggled, however, with distinguishing FOIA
requests made by a member in his or her private capacity and those
made in an official capacity. See Leach v. Resol. Tr. Corp., 860 F.
Supp. 868, 880 (D.D.C. 1994) (refusing to decide whether a member
could assert the rights of Congress as an institution and dismissing
the case without prejudice to the representative’s “right to assert any
claims he might have as a member of the public”). We have, for
instance, distinguished a FOIA request by a representative made as a
private citizen from his receipt of that same information as a member
of a committee. See Aspin v. Dep’t of Def., 491 F.2d 24, 26 & n.14
(D.C. Cir. 1973). In EPA v. Mink, the Supreme Court treated a FOIA
request by 33 representatives as a request made by private citizens.
See 410 U.S. 73, 75 (1973). It is notable that the district court in Mink
dismissed the action “insofar as plaintiffs seek to maintain the action
in their capacity as [m]embers of Congress on the ground that
plaintiffs have failed to present a justiciable [C]ase or [C]ontroversy
and they may not maintain the action in that capacity by reason of
the Separation of Powers provisions of the Constitution.” Mink v.
EPA, No. 1614-71, 1971 U.S. Dist. LEXIS 15238 at *1–2 (D.D.C.
Aug. 27, 1971). The D.C. Circuit did not reach that issue, so it was
not before the Supreme Court. Mink, 410 U.S. at 73 n.2.
19
suffered directly by the individual legislators to a right that they
themselves individually hold.” Maloney, 984 F.3d at 62. But
legislators have no individual right to information from the
Executive Branch in the exercise of their official legislative
duties. Rather, as already discussed, any investigative rights a
member has may be exercised only as part of the institutional,
legislative power of the House or the Senate.
When members make a request under Section 2954, they
are exercising their official, congressional responsibilities and
therefore are not acting as private individuals. In other
contexts, the Supreme Court has rebuffed the claim that
members of Congress act as individuals when exercising
congressional responsibilities. For example, even when a
statute designated members of Congress as serving on a Board
“in their individual capacities” the Court noted this fact “does
not prevent this group of officials from qualifying as a
congressional agent exercising federal authority for separation-
of-powers purposes.” Metro. Washington Airports Auth., 501
U.S. at 267. Because the Members were exercising
“congressional responsibilities,” it “belie[d] the ipse dixit that
the Board members will act in their individual capacities.” Id.(cleaned up). Section 2954 limits information requests to
official congressional responsibilities, namely those within the
jurisdiction of the Committee, which belies the panel
The few decisions allowing members to bring suit under FOIA
have generally proceeded as though the requests for information
were made by private individuals. None of these decisions have held
that members of Congress may sue to vindicate personal
informational injuries to the exercise of their official legislative
powers.
20
majority’s claim that members have a personal right to the
information. 7
Characterizing the exercise of congressional
responsibilities as personal and individual only further
unmoors this Circuit’s law from Raines, Chenoweth,
Campbell, and other congressional standing cases. Members of
Congress acting in their official capacity are not like private
parties. As we noted in Chenoweth, the idea that “congressional
and private plaintiffs should be treated alike for the purpose of
determining their standing” is “untenable” after the Supreme
Court’s decision in Raines. 181 F.3d at 114–15. Analogies to
private injuries of private persons do not bear on our inquiry in
congressional standing cases where the branches are suing each
other. See, e.g., Joint Anti-Fascist Refugee Comm. v. McGrath,
341 U.S. 123, 150 (1951) (Frankfurter, J., concurring) (“[A]
court will not decide a question unless … the relationship
between the parties [is] such that judicial determination is
consonant with what was, generally speaking, the business of
7
The panel majority maintains that the Members’ informational right
does not run with their Committee seats and therefore must be a
personal injury, similar to Congressman Powell’s claim for loss of
salary. Maloney, 984 F.3d at 65–66. But Congressman Powell would
have been entitled to backpay even after leaving office because he
was entitled to the salary in his “private capacity.” Raines, 521 U.S.
at 821. By contrast, upon leaving office, the Members here would
not be entitled to information under Section 2954, as the panel
majority recognizes. Maloney, 984 F.3d at 66 (“If one of the
Requesters were to leave the Committee, the injury sued upon would
end with her service.”). This difference shows the flaw in the panel
majority’s analogy. Unlike Congressman Powell, the Members’
claimed injury is to official powers because it is wholly dependent
upon the Members’ current service in the House (and on a particular
committee). An injury cannot be “personal” and “individual” if it is
extinguished when a member leaves office.
21
the Colonial courts and the courts of Westminster when the
Constitution was framed.”) (emphasis added).
The analogy between Section 2954 and private
informational harms fails because members of Congress are not
acting as private persons when exercising official, legislative
powers, such as investigating the Executive Branch.
***
Section 2954 cannot create a so-called “informational
right” in members of Congress because the investigative
powers of Congress belong to the House and the Senate as an
adjunct of their legislative powers and may not be delegated to
individual members. Interpreting Section 2954 to allow
congressional standing in a suit against an executive branch
agency strays far afield of the historical understanding of the
“Cases” and “Controversies” cognizable by the Article III
courts.
IV.
Within the Constitution’s carefully calibrated structure of
separated powers, the expansion of one federal power
inevitably distorts the others. The panel’s assertion of
jurisdiction to decide this lawsuit not only exceeds the Article
III limits on the federal courts, but it also implicates additional
constitutional concerns that cannot be swept under the rug.
Contra Maloney, 984 F.3d at 69 (“Nor does this case implicate
any potentially special circumstances.”). The Supreme Court
has cautioned that courts must scrutinize novel attempts by
Congress to enlist the courts in disputes against the Executive.
See Mazars, 140 S. Ct. at 2033–34 (rebutting the conclusion of
the D.C. Circuit that a subpoena for the President’s papers
presented “no direct interbranch dispute”); id. at 2036
(concluding that the courts of appeal “did not take adequate
22
account” of the “special concerns regarding the separation of
powers”). In that vein, I highlight some of the constitutional
concerns implicated by allowing standing to members of
Congress in informational disputes with executive agencies.
First, this case pits Congress and the President against each
other. Although the panel majority places weight on the fact
that this is “not a suit against the President or a claim for
information from him,” Maloney, 984 F.3d at 69, the Members
requested information about the former President’s lease with
GSA and potential conflicts of interest. And while this lawsuit
is nominally between members of Congress and the GSA, these
parties are simply subcomponents of Congress and the
Executive. An investigation of the President by Congress may
present the most profound separation of powers concerns, but
the balance of power may be unsettled even in a less direct
“clash between rival branches of government over records of
intense political interest for all involved.” Mazars, 140 S. Ct.
at 2034.
Second, allowing standing for members of Congress to sue
the Executive for information would substantially and
unnecessarily change the “‘established practice’ of the political
branches.” Id. (quoting NLRB v. Noel Canning, 573 U.S. 513,
524 (2014)). Committees, subcommittees, and individual
members of Congress frequently request information or
documents from executive branch agencies. Such requests are
ordinarily dealt with through negotiation and the give and take
between the branches. See id. at 2029. Indeed, despite the
thousands of requests by members of Congress that sally forth
each year to executive branch agencies and officials, plaintiffs
can identify no case, and I am aware of none, allowing a
member of Congress to sue an executive agency for the failure
23
to release documents pursuant to such a request. 8 If individual
members of Congress can bring such lawsuits in the federal
courts, “[i]nstead of negotiating over information requests,
Congress could simply walk away from the bargaining table
and compel compliance in court.” Mazars, 140 S. Ct. at 2034.
Nothing in the Constitution’s text or structure or our historical
practice suggests that members of Congress can resort to the
courts in order to shake documents loose from the Executive
Branch.
Moreover, in the disputes between the political branches
Congress is already vested with substantial powers to pressure
the Executive to disclose information. Congress may conduct
oversight hearings, drawing attention to problems of
administration. Congress may reduce or eliminate agency
funding, or it may create or abolish programs. Congress may
eliminate the statutory authority of an agency or mandate
specific agency actions by statute. Congress may impeach and
remove executive branch officials and may create new offices
within the Executive Branch. The existence of these and other
formidable powers strongly weighs against judicial review of
ordinary informational disputes. Having delegated substantial
authority and discretion to agencies, members of Congress
understandably seek new ways to hold those agencies
accountable. But Congress may provide accountability only
8
That includes requests under Section 2954, which has never been
successfully invoked in litigation since its passage in 1928. One
district court, in a decision later vacated as moot, allowed such a suit
to go forward, Waxman v. Evans, 2002 WL 32377615 (C.D. Cal. Jan.
18, 2002), rev’d and vacated, 52 F. App’x 84 (9th Cir. 2002). The
only other case to consider the question of standing under Section
2954 held that the legislators had no standing to sue. Waxman v.
Thompson, 2006 WL 8432224, at *6–12 (C.D. Cal. July 24, 2006).
24
through the exercise of its legislative powers.9 It cannot
dragoon the federal courts into its investigations.
Third, finding disputes under Section 2954 to be
justiciable encourages congressional aggrandizement because
Congress may deputize small subgroups of members to
conduct investigations, not through the traditional legislative
process, but through the federal courts. Empowered cabals may
thus take aim at executive branch agencies. 10 Ordinary political
squabbling will now entitle members of Congress to proceed to
court. The Executive Branch then must face not one political
rival, Congress, but countless combinations of lawmakers, as
Section 2954 requires only seven members of a 45-person
House committee or five members of a 14-person Senate
committee. Furthermore, the panel majority’s reasoning
provides no limit to Congress’ ability to assign such legislative
powers to even smaller groups or a single member.
Consequently, members of Congress may enlist the courts in
9
The Constitution vests the President with all executive power and
therefore responsibility and accountability for the execution of the
laws. U.S. CONST. art. II, § 1. Agency accountability to Congress
exists only as an incident of the legislative power.
10
The Framers of the Constitution frequently expressed concern
about legislation by “cabal” or “junto,” by which small self-
interested groups could corrupt the legislative power. See Rao, supra,
at 29–30; see also JAMES MADISON, NOTES OF DEBATES IN THE
FEDERAL CONVENTION OF 1787 376–77 (Gaillard Hunt & James
Brown Scott eds., 1987) (warning of dangers by a “juncto” if a small
number of legislators were permitted to govern); THE FEDERALIST
NO. 55, at 288 (James Madison) (George W. Carey & James
McClellan eds., 2001) (“[I]n all cases, a certain number at least
seems to be necessary … to guard against too easy a combination for
improper purposes.”).
25
their political conflicts and strategically threaten executive
agencies with protracted litigation.
Finally, dispersing the investigative power to small groups
of representatives or senators who may then bring lawsuits
allows Congress to duck responsibility for oversight and
investigations. While the House and the Senate regularly
delegate authority to committees and subcommittees, the
hierarchical structure of those committees creates a certain type
of accountability in the leadership of the House and Senate. If
Section 2954 creates standing, a few representatives or senators
on their respective committees need not persuade the chairman
or a committee majority; instead they need just a few like-
minded and zealous members willing to go to court to obtain
information from the Executive. Allowing standing could be
“ruinous” and “[j]udicial enforcement of requests under § 2954
will allow the minority party (or even an ideological fringe of
the minority party) to distract and harass Executive agencies
and their most senior officials.” Maloney, 984 F.3d at 75
(Ginsburg, J., dissenting). The panel’s decision not only
empowers small groups of lawmakers, it also frees House and
Senate leadership from taking responsibility for their more
fractious members or from being tasked with negotiating the
requests of such members with the Executive Branch.
The legislative power often expands in imperceptible
ways. As James Madison warned, Congress ultimately has the
upper hand and can “mask under complicated and indirect
measures, the encroachments which it makes on the co-
ordinate departments.” THE FEDERALIST NO. 48, at 257 (James
Madison) (George W. Carey & James McClellan eds., 2001).
Allowing standing under Section 2954 both empowers
individual legislators and expands the reach of congressional
investigations, while at the same time undermining Congress’
responsibility and accountability for incursions against the
26
Executive. Such aggrandizement without accountability
contravenes the Constitution’s vesting of the legislative,
executive, and judicial powers in three separate and distinct
departments of the federal government.
***
By holding that Section 2954 creates an informational
right that may give rise to standing for members of Congress
against the Executive Branch, this court has conscripted the
Judiciary in an inter-branch dispute far afield of the traditional
domain of the Article III courts. For the foregoing reasons, I
respectfully dissent from the denial of rehearing en banc.
GINSBURG, Senior Circuit Judge, statement regarding the
court's denial of en banc review:
Today the court declines to rehear a panel decision
holding a nearly century-old statute, 5 U.S.C. § 2954, never
before successfully invoked in court, grants any seven
members of the House Oversight Committee a personal
right to investigate the Executive – a right they have
standing to enforce in court. Until now, before going to
court, Committee Members seeking to force an Executive
Branch official to produce documents had to get the full
Committee to approve and, if that was not enough, get the
House to issue a subpoena, which is enforceable in court. See
Comm. on Judiciary of U.S. House of Representatives v.
McGahn, 968 F.3d 755, 764-66 (D.C. Cir. 2020) (en banc).
In the panel majority’s view, that is not, and for a century has
not been, necessary: When seven Members of the Committee
request documents pursuant to this statute, they are acting –
oxymoronically – on their own behalf “to inform and
equip them personally to fulfill their professional
duties as Committee members.” Maloney v. Murphy,
984 F.3d 50, 64 (D.C. Cir. 2020) (emphasis added).
Therefore, the plaintiff-Members here each suffered a personal
injury when the General Services Administration limited his
or her ability to peruse Executive Branch files for any “conflict
of interest, mismanagement, or irregularity in federal
contracting” and hence to recommend remedial legislation.
As explained in my dissent, Id. at 70-76, the panel’s
decision flies in the face of the Supreme Court’s clear teaching
that “individual members lack standing to assert
the institutional interests of a legislature.” Virginia
House of Delegates v. Bethune-Hill, 139 S. Ct. 1945,
1950, 1953-54 (2019) (citing Raines v. Byrd, 521 U.S. 811,
829 (1997)). The upshot of this judicial affrontery is that a
few members of the Oversight Committee can wield the
investigative powers of the House and prevent a majority of
the Committee and of the House from blocking an ill-
advised lawsuit. As the district
2
court said, it will subject the Executive to “the caprice of a
restless minority of Members,” Cummings v. Murphy, 321 F.
Supp. 3d 92, 115 (D.D.C. 2018), who may represent no more
than “an ideological fringe of the minority party.” Maloney,
984 F.3d at 76 (Ginsburg, J., dissenting). This is sure to have
ruinous consequences for the orderly functioning of
government; it will require the courts to referee the daily
disagreements, sure to multiply under this ruling, that arise
over the production of documents to the Congress. For these
reasons, I believe the en banc court should vacate the panel’s
opinion and affirm the judgment of the district court rather than
burden the Supreme Court with the obvious necessity of doing
so.