Carolyn Maloney v. Emily Murphy ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 22, 2019 Decided December 29, 2020
No. 18-5305
CAROLYN MALONEY, ET AL.,
APPELLANTS
v.
EMILY W. MURPHY, ADMINISTRATOR, GENERAL SERVICES
ADMINISTRATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-02308)
David C. Vladeck argued the cause for appellants. With
him on the briefs were Stephanie Glaberson, Scott L. Nelson,
and Allison M. Zieve.
Hashim M. Mooppan, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellee.
With him on the brief were Mark R. Freeman, Scott R.
McIntosh, and Jeffrey E. Sandberg, Attorneys.
Before: TATEL and MILLETT, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge MILLETT.
Dissenting opinion filed by Senior Circuit Judge
GINSBURG.
MILLETT, Circuit Judge: Federal law expressly authorizes
seven or more members (less than a majority) of the House of
Representatives’ Committee on Oversight and Reform to
request and to receive information from government agencies
as relevant to the performance of their Committee duties. See
5 U.S.C. § 2954. In 2017, the Ranking Member of the
Committee and seven other members sent such a request to the
General Services Administration seeking information related
to property owned by the United States government. The
agency refused to comply.
The sole question before the court is whether the members
who requested agency information under Section 2954 have
standing under Article III to enforce their statutorily conferred
right to information. We hold that they do. Informational
injuries have long satisfied the injury requirement of
Article III. A rebuffed request for information to which the
requester is statutorily entitled is a concrete, particularized, and
individualized personal injury, within the meaning of
Article III. That traditional form of injury is quite distinct from
the non-cognizable, generalized injuries claimed by legislators
that are tied broadly to the law-making process and that affect
all legislators equally. And nothing in Article III erects a
categorical bar against legislators suing to enforce statutorily
created informational rights against federal agencies, whether
under the Freedom of Information Act, 5 U.S.C. § 552, or
under Section 2954. Because the plaintiffs have standing, we
reverse the district court’s dismissal of the case and remand for
further proceedings.
3
I
A
Under Section 2954 of Title 5, committee members on the
House and Senate committees dedicated to governmental
oversight may request and receive information from federal
agencies that pertains to those members’ committee work.
Section 2954 provides in full:
An Executive agency, on request of the Committee on
Government Operations of the House of
Representatives [now the Committee on Oversight
and Reform], or of any seven members thereof, or on
request of the Committee on [Homeland Security and]
Governmental Affairs of the Senate, or any five
members thereof, shall submit any information
requested of it relating to any matter within the
jurisdiction of the committee.
5 U.S.C. § 2954.
At the time of Section 2954’s passage, the relevant House
committee had 21 members, thirteen from the majority party
and eight from the minority. See 1 DAVID CANON ET AL.,
COMMITTEES IN THE U.S. CONGRESS, 1789–1946: HOUSE
STANDING COMMITTEES 497 (2002). Section 2954’s terms
specifically empower not just the full committees, but also a
smaller, non-majority group of committee members (seven in
the House and five in the Senate) to request needed information
from federal agencies.
As now constituted, the two committees covered by
Section 2954 are uniquely focused on governmental oversight
and accountability. The Committee on Oversight and Reform
of the House has relatively broad jurisdiction over, among
4
other things, “[g]overnment management and accounting
measures generally”; “[o]verall economy, efficiency, and
management of government operations and activities,
including Federal procurement”; and “[p]ublic information and
records.” House Rule X, cl. 1(n). The Committee on
Homeland Security and Governmental Affairs of the Senate
has jurisdiction over similar subjects, including “[b]udget and
accounting measures” and “[g]overnment information.”
Senate Rule XXV, cl. 1 (k)(1).
Section 2954 was enacted in 1928 in the wake of the
Supreme Court’s landmark decision in McGrain v. Daugherty,
273 U.S. 135 (1927). Suspecting that the Attorney General of
the United States had failed to prosecute specific individuals
who had violated the antitrust laws, the Senate formed a select
committee to investigate the matter. That committee’s
investigative powers included issuing subpoenas to witnesses.
Id. at 151–152. When a witness refused to comply and
challenged Congress’s right to call individuals to testify, the
Court affirmed that Congress’s “power of inquiry—with
process to enforce it—is an essential and appropriate auxiliary
to the legislative function.” Id. at 174. Such power was
necessary to effective governance because “[a] legislative body
cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is
intended to affect or change; and where the legislative body
does not itself possess the requisite information—which not
infrequently is true—recourse must be had to others who do
possess it.” Id. at 175.
Against that backdrop, Congress passed Section 2954, and
the President signed it into law. Previously, 128 different
statutes scattered across the United States Code had obligated
certain federal agencies to submit periodic reports and
information to Congress. See Act of May 29, 1928, Pub. L.
5
No. 70-611, 45 Stat. 986, 986–996. Congress repealed those
mandatory reporting requirements and replaced them with
Section 2954, ensuring that legislators serving on the two
committees directly responsible for government oversight
could more effectively and more timely receive the information
from federal agencies that is necessary and useful to their
performance of their legislative duties. See id. at 996; see also
H.R. REP. NO. 1757, 70th Cong., 1st Sess. 3, 6 (1928); id. at 6(“To save any question as to the right of the House of
Representatives to have furnished any of the information
contained in the reports proposed to be abolished, a provision
has been added to the bill requiring such information to be
furnished to the Committee on Expenditures in the Executive
Departments or upon the request of any seven members
thereof.”) (emphasis added).
Section 2954 is distinct from Congress’s institutional
authority to request or subpoena documents and witnesses.
Those measures require formal authorization by Congress, a
Chamber of Congress, or a committee. But an information
request under Section 2954 can be made by just a small group
of legislators—a true minority—who make the individual
judgment to seek the information as a means of better
informing their committee work. As both the House and
Senate Reports explained: “If any information is desired by
any Member or committee upon a particular subject that
information can be better secured by a request made by an
individual Member or committee, so framed as to bring out the
special information desired.” H.R. REP. NO. 1757, at 6; S. REP.
NO. 1320, 70th Cong., 1st Sess. 4 (1928). 1
1
The tradition of federal agencies providing information to
Congress dates back to at least the Treasury Act of 1789, which made
it “the duty of the Secretary of the Treasury * * * to make report, and
give information to either branch of the legislature, in person or in
6
B
In February 2017, the then–House Oversight Committee
Ranking Member, Representative Elijah Cummings, and seven
other members of the House Oversight Committee
(collectively, “Requesters”), issued a Section 2954 request for
information to the General Services Administration (“GSA”)
after the agency had repeatedly rebuffed their efforts to obtain
the information voluntarily.2
The Requesters’ inquiry has its origin in the GSA’s 2013
lease of the Old Post Office building in Washington, D.C., to
Trump Old Post Office LLC (“Company”), a business owned
by the now-President Donald Trump and his children. The
lease agreement explicitly barred any federal or District of
Columbia elected official from participating in or benefiting
from the lease:
No member or delegate to Congress, or elected
official of the Government of the United States or the
Government of the District of Columbia, shall be
admitted to any share or part of this Lease, or to any
benefit that may arise therefrom.
writing (as he may be required), respecting all matters referred to him
by the Senate or House of Representatives, or which shall appertain
to his office.” Act of Sept. 2, 1789, ch. 12, § 2, 1 Stat. 65, 65–66.
2
During the pendency of this appeal, Representative Cummings
passed away. See Notice Pursuant to Federal Rule of Appellate
Procedure 43(a), Maloney v. Murphy, No. 18-5305 (D.C. Cir.
Oct. 21, 2019). The seven other requesting members have continued
to prosecute this action. Id.7
J.A. 11, Compl. ¶ 11 (quoting Article 37.19 of the lease
agreement).3
In November 2016, following President Trump’s election,
Representative Cummings and three other Committee
members requested that the GSA provide a briefing on the
lease, as well as unredacted copies of lease documents and the
Company’s monthly and annual statements. After the request
was again made by Representative Cummings and ten other
Committee members, invoking Section 2954, the GSA
produced records including lease amendments, a 2017 budget
estimate, and monthly income statements. The GSA stated that
it was releasing the information “[c]onsistent with
[Section 2954.]” J.A. 87.
In January 2017, following President Trump’s
inauguration, Representative Cummings and three other
Committee members requested additional information from the
GSA relating to the agency’s enforcement of the lease terms.
Specifically, they asked the GSA
(a) to explain the steps that GSA had taken, or planned
to take, to address President Trump’s apparent breach
of the lease agreement;
(b) to state whether GSA intended to notify President
Trump’s company that it is in breach;
(c) to provide the monthly reports President Trump’s
company submits to the GSA on the Trump
International Hotel’s revenues and expenses;
3
At this stage, we “assume the truth of the plaintiff[s’] material
factual allegations.” Blumenthal v. Trump, 949 F.3d 14, 18
(D.C. Cir. 2020).
8
(d) to explain and provide documentation of the steps
GSA had taken, or planned to take, to address liens
against the Trump International Hotel; and
(e) to provide copies of all correspondence with
representatives of President Trump’s company or the
Trump transition team.
J.A. 13–14, Compl. ¶ 19.
The GSA refused to comply with that request, stating that
the Committee members should submit a request under
Section 2954. See J.A. 95.
The Requesters took the GSA up on its offer. By letter
dated February 8, 2017, Ranking Member Cummings and
seven other Committee members formally invoked
Section 2954 in support of their information request. The
Requesters asked for a response by February 13, 2017.
The GSA did not respond. After submitting a number of
follow-up inquiries, the Requesters sent a lengthier letter
explaining the background and function of Section 2954. On
July 6, 2017, the Requesters reiterated their informational
inquiry in a third formal communication to the GSA, again
invoking Section 2954.
Finally, in July 2017, the GSA rejected those three formal
requests in a one-page letter. The letter expressed the agency’s
view that “[i]ndividual members of Congress, including
ranking minority members, do not have the authority to
conduct oversight in the absence of a specific delegation by a
full house, committee, or subcommittee.” The letter did not
mention Section 2954.
9
C
The Requesters filed suit in November 2017 against the
then–Acting Administrator of the GSA, asserting that the
agency’s refusal to comply with the statute “deprived the
plaintiffs of information to which they are entitled by law[.]”
J.A. 18. The Requesters asserted that the refusal thwarted each
Member’s ability to:
(a) evaluate the propriety of GSA’s failure to enforce
Article 37.19 of the lease which, by its express terms,
forbids President Donald Trump, an “elected official
of the Government of the United States,” from
benefiting from the lease in any way;
(b) evaluate GSA’s oversight of the lease, including
financial management of the lease;
(c) ascertain the amount of income from the lease
benefiting President Trump, his daughter Ivanka
Trump, and his sons Donald, Jr. and Eric Trump;
(d) determine the extent to which Trump Old Post
Office LLC has received funds from foreign
countries, foreign entities, or other foreign sources;
(e) assess whether GSA’s failure to act is based on a
new interpretation of Article 37.19 of the lease, and if
so, to review the legal opinion or opinions on which
the new interpretation is based;
(f) evaluate whether the GSA contracting officer’s
decision that the Trump Old Post Office LLC is in
compliance with the lease was free from inappropriate
influence; and
10
(g) recommend to the Committee, and to the House of
Representatives, legislative and other actions that
should be taken to cure any existing conflict of
interest, mismanagement, or irregularity in federal
contracting.
J.A. 18–19, Compl. ¶ 36.
The Requesters filed a motion for summary judgment on
the ground that Section 2954 entitled them to the information
sought as a matter of law. Cummings v. Murphy, 321 F. Supp.
3d 92, 96 (D.D.C. 2018). The GSA, for its part, filed a motion
to dismiss arguing that (i) the Requesters, as individual
legislators, lacked Article III standing; (ii) Section 2954 does
not provide a cause of action for enforcement; (iii) principles
of equitable discretion required dismissal; and
(iv) Section 2954 does not apply to the information sought. Id.
at 100.
The district court dismissed the case for lack of standing.
The court reasoned that, in Raines v. Byrd, 521 U.S. 811(1997), the Supreme Court established “a binary rubric of
potential injuries for purposes of assessing [the] standing” of
individual legislators as either “institutional” or “personal.”
Cummings, 321 F. Supp. 3d at 107. The district court then
ruled that the Requesters’ injury was not personal because they
were not “singled out for specially unfavorable treatment,” and
the injury was not to a private right. Id. at 109 (quoting Raines,
521 U.S. at 821). The district court also held that the injury
was not institutional because no subpoena was involved, and
Section 2954 had rarely led to litigation over its enforcement.
Cummings, 321 F. Supp. 3d at 113–114.
Having dismissed the case on standing grounds, the district
court did not address the other grounds for dismissal pressed
by the GSA.
11
The Requesters timely filed a notice of appeal.
II
The district court had subject-matter jurisdiction under 28
U.S.C. § 1331 to evaluate its own jurisdiction in this case. We
have jurisdiction to review the judgment of dismissal under 28
U.S.C. § 1291.
We review questions of standing de novo. Blumenthal v.
Trump, 949 F.3d 14, 18 (D.C. Cir. 2020). In doing so, we
accept as true the plaintiffs’ material factual allegations, id.,and, to the extent it bears on the standing inquiry, we assume
that the Requesters would prevail on the merits of their lawsuit,
Committee on the Judiciary, U.S. House of Representatives v.
McGahn, 968 F.3d 755, 762 (D.C. Cir. 2020) (en banc).
III
A
The Constitution vests limited powers in each branch of
the federal government. See Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1546–1547 (2016). Congress is entrusted with
enumerated “legislative Powers,” U.S. CONST. Art. I, § 1, the
President with “[t]he executive Power,” id. Art. II, § 1, cl. 1,
and the federal courts with “[t]he judicial Power of the United
States,” id. Art. III, § 1.
“[T]o remain faithful to this tripartite structure,” the
judicial power “may not be permitted to intrude upon the
powers given to the other branches.” Spokeo, 136 S. Ct.
at 1547. To that end, the Constitution confines the judicial
power “only to ‘Cases’ and ‘Controversies.’” Id. (quoting U.S.
CONST. Art. III, § 2). Embedded in that “case-or-controversy
requirement” is the obligation of plaintiffs who seek to invoke
12
the jurisdiction of a federal court to establish their standing to
sue. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013);
see also McGahn, 968 F.3d at 762 (“The standing inquiry is
trained on whether the plaintiff is a proper party to bring a
particular lawsuit.”) (formatting modified).
To establish Article III standing, a plaintiff must allege
“(1) a concrete and particularized injury, that (2) is fairly
traceable to the challenged conduct, and (3) is likely to be
redressed by a favorable decision.” Virginia House of
Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1950 (2019). To
satisfy the first prong, a party’s complaint “must establish that
he has a ‘personal stake’ in the alleged dispute, and that the
alleged injury suffered is particularized to him.” Raines, 521
U.S. at 819. “In this manner does Art[icle] III limit the federal
judicial power to those disputes which confine federal courts to
a role consistent with a system of separated powers and which
are traditionally thought to be capable of resolution through the
judicial process.” Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc.,
454 U.S. 464, 472 (1982).
Given that “the law of [Article] III standing is built
on * * * the idea of separation of powers[,]” “our standing
inquiry has been especially rigorous” when the suit pits
members of the two Political Branches against each other.
Raines, 521 U.S. at 820–821 (formatting modified); see
McGahn, 968 F.3d at 763, 769–772 (analyzing the question of
standing with “rigor” in a case involving a clash between
Congress, a former Executive Branch official, and the
Executive). Nonetheless, “the Judiciary has a responsibility to
decide cases properly before it[.]” Zivotofsky ex. rel.
Zivotofsky v. Clinton, 566 U.S. 189, 194–195 (2012) (quoting
Cohens v. Virginia, 6 Wheat. 264, 404 (1821)). “Courts cannot
avoid their responsibility merely because the issues have
13
political implications.” Id. at 196 (quoting INS v. Chadha, 462
U.S. 919, 943 (1983)); see also McGahn, 968 F.3d at 774
(same).
B
The agency’s failure to provide information to which the
Requesters are statutorily entitled is a quintessential form of
concrete and particularized injury within the meaning of
Article III.
The Supreme Court has repeatedly held that informational
injuries satisfy the injury-in-fact requirement. In FEC v. Akins,
524 U.S. 11 (1998), the plaintiffs filed suit against the Federal
Election Commission based on the Commission’s failure to
require a political committee to release information as required
by the Federal Election Campaign Act of 1971, 52 U.S.C.
§ 30101 et seq. See 524 U.S. at 14, 20–21. The Supreme Court
held that the plaintiffs’ “inability to obtain information * * *
that, on [the plaintiff’s] view of the law, [a] statute requires” is
a “concrete and particular” injury. Id. at 21.
Likewise, in Public Citizen v. United States Department of
Justice, 491 U.S. 440, 449 (1989), a plaintiff sought
information under the Federal Advisory Committee Act’s
disclosure provision, 5 U.S.C. App. II, § 10(b). See 491 U.S.
at 449–450. The Supreme Court ruled that the plaintiff had
standing. “As when an agency denies requests for information
under the Freedom of Information Act,” the Supreme Court
explained, the “refusal to permit [plaintiffs] to scrutinize * * *
activities to the extent the [Federal Advisory Committee Act]
allows constitutes a sufficiently distinct injury to provide
standing to sue.” Id. at 449; see also Spokeo, 136 S. Ct.
at 1549–1550 (plaintiffs in cases like Public Citizen and Akins
“need not allege any additional harm beyond the one Congress
has identified”).
14
Our precedent follows suit. As we recently reaffirmed en
banc, “the denial of information to which the plaintiff claims
to be entitled by law establishes a quintessential injury in fact.”
McGahn, 968 F.3d at 766 (citing Shays v. FEC, 528 F.3d 914,
923 (D.C. Cir. 2008)); see also Friends of Animals v. Jewell,
824 F.3d 1033, 1041 (D.C. Cir. 2016) (holding that
Section 10(c) of the Endangered Species Act, 16 U.S.C.
§ 1539(c), “create[d] a right to information upon which a claim
of informational standing may be predicated”); Zivotofsky ex.
rel. Ari Z. v. Secretary of State, 444 F.3d 614, 617 (D.C. Cir.
2006) (Under FOIA, “[t]he requestor is injured-in-fact for
standing purposes because he did not get what the statute
entitled him to receive.”); cf. In re Committee on the Judiciary,
U.S. House of Representatives, 951 F.3d 589, 622 (D.C. Cir.
2020) (Rao, J., dissenting) (“Because [the Federal Election
Campaign Act of 1971 and the Federal Advisory Committee
Act] created affirmative disclosure obligations, a plaintiff
could establish an Article III injury by alleging a refusal to
provide the required information.”).
Cases under the Freedom of Information Act, 5 U.S.C.
§ 552, and the Government in the Sunshine Act, id. § 552b,
drive the point home. Supreme Court “decisions interpreting
the Freedom of Information Act have never suggested that
those requesting information under it need show more than that
they sought and were denied specific agency records” to
establish standing. Public Citizen, 491 U.S. at 449; see also
Zivotofsky, 444 F.3d at 617–618. Under those statutes,
“[a]nyone whose request for specific information has been
denied has standing to bring an action[.]” Zivotofsky, 444 F.3d
at 617. “[T]he requester’s circumstances—why he wants the
information, what he plans to do with it, what harm he suffered
from the failure to disclose—are irrelevant to his standing.”
Id.; see also Prisology, Inc. v. Federal Bureau of Prisons, 852
F.3d 1114, 1117 (D.C. Cir. 2017) (stating that a “requester has
15
suffered a particularized injury because he has requested and
been denied information Congress gave him a right to
receive”).
The language of Section 2954 mirrors the operative
provisions in those statutes and cases. Section 2954 requires,
as relevant here, that, upon a request by at least seven members
of an oversight committee, “[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.
The Freedom of Information Act analogously commands
that “[e]ach agency, upon any request for records[,] * * * shall
make the records promptly available to any person[.]” 5 U.S.C.
§ 552(a)(3)(A)); see Zivotofsky, 444 F.3d at 617; see also
Privacy Act, 5 U.S.C. § 552a(d)(1) (An agency, “upon request
by any individual to gain access to his record or to any
information pertaining to him,” must “permit him * * * to
review the record and have a copy made of all or any portion
thereof[.]”); Sussman v. United States Marshals Serv., 494 F.3d
1106, 1121 (D.C. Cir. 2007) (suit under the Privacy Act by
individual whose request for information from the agency had
been denied).
Likewise, the Federal Advisory Committee Act at issue in
Public Citizen requires that enumerated records of advisory
committees “shall be available for public inspection[.]” 5
U.S.C. App. II, § 10(b); see Public Citizen, 491 U.S. at 446–
447. The Federal Election Campaign Act provision at issue in
Akins similarly provided that “each report under [the statutory]
section shall disclose” to the public certain enumerated
information. 2 U.S.C. § 434(b) (1997) (now codified at 52
U.S.C. § 30104(b)); see Akins, 524 U.S. at 15. And under the
Endangered Species Act, “[i]nformation received by the
Secretary as a part of any application shall be available to the
16
public as a matter of public record at every stage of the
proceeding.” 16 U.S.C. § 1539(c); see Friends of Animals, 824
F.3d at 1041.
The right to request information under Section 2954 is on
all fours, for standing purposes, with the informational right
conferred by those other statutes. Also like FOIA,
Section 2954’s informational right is meant to empower
individuals to better “know ‘what their government is up to.’”
National Archives & Records Admin. v. Favish, 541 U.S. 157,
171 (2004) (internal quotation marks omitted) (quoting United
States Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 773 (1989)); cf. H.R. REP. NO . 1757, at 6
(Under Section 2954, “[i]If any information is desired by any
Member or committee upon a particular subject that
information can be better secured by a request made by an
individual Member or committee, so framed as to bring out the
special information desired.”); S. REP. NO. 1320, at 4 (same).
And the agency’s deprivation of the information to which
requesters are statutorily entitled creates an Article III injury
here for the same reasons it did in Akins, 524 U.S. at 21, Public
Citizen, 491 U.S. at 448–449, Friends of Animals, 824 F.3d
at 1042, and Zivotofsky, 444 F.3d at 617.
That injury in fact is also concrete and particularized, as
Article III requires, see Spokeo, 136 S. Ct. at 1548. In statutory
informational injury cases, a plaintiff must allege that “it has
been deprived of information that, on its interpretation, a
statute requires the government or a third party to disclose to
it,” and that “it suffers, by being denied access to that
information, the type of harm Congress sought to prevent by
requiring disclosure.” Friends of Animals v. Jewell, 828
F.3d 989, 992 (D.C. Cir. 2016).
17
The Requesters have alleged just that. First, the
Requesters have identified a deprivation of information that, on
their reading of the statute, they are legally entitled to receive.
The deprivation is accomplished and complete, and the absence
of information has been and continues to be felt by the
Requesters. As the Supreme Court has recognized numerous
times, that denial works a concrete injury. See Spokeo, 136
S. Ct. at 1549–1550 (“Although tangible injuries are perhaps
easier to recognize, we have confirmed in many of our previous
cases that intangible injuries can nevertheless be concrete,”
citing as examples of cognizable intangible injuries the
agencies’ failure to provide information in Akins and Public
Citizen).
Second, the Requesters have alleged that the withholding
of information has affected each of them “in a personal and
individual way.” Spokeo, 136 S. Ct. at 1548 (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)).
Section 2954 confers its informational right directly on these
specific legislators so that they personally can properly perform
their roles on the oversight committees. In denying their
requests for information due to them under that statute, J.A. 16,
Compl. ¶ 27, the GSA “thwart[ed]” their individual ability to
understand what the GSA is up to with respect to the Old Post
Office lease. See J.A. 18–19, Compl. ¶ 36.
In sum, ample precedent establishes that the statutory
informational injury alleged by the Requesters here amounts to
a concrete and particularized injury in fact for purposes of
Article III standing.
18
C
1
The GSA does not question that established body of
standing law governing informational injuries. Nor does the
GSA dispute that Section 2954 creates a statutory right on the
part of the Requesters to seek and to obtain information from
federal agencies. And the GSA agrees that Members of
Congress suffer informational injuries when they are denied
information that they are statutorily entitled to seek from
federal agencies under similar laws like the Freedom of
Information Act. Oral Arg. Tr. 26 (“[W]e’re not disputing that
the Plaintiffs can invoke FOIA.”).
The GSA’s position, instead, is that an informational
injury under Section 2954 does not count for Article III
purposes simply because that statute vests the informational
right only in legislators.
That is not how Article III’s injury-in-fact requirement
works. For starters, remember, the point of Article III’s
standing requirement is to ensure that there is a “case or
controversy” for the federal court to resolve, U.S. CONST.
Art. III, § 2. See Spokeo, 136 S. Ct. at 1547 (“Although the
Constitution does not fully explain what is meant by ‘[t]he
judicial Power of the United States,’ it does specify that this
power extends only to ‘Cases’ and ‘Controversies[.]’”) (first
quoting U.S. CONST. Art. III, § 1, then quoting id. Art. III, § 2).
By demonstrating (i) an injury in fact in the form of the
deprivation of information to which the plaintiffs are statutorily
entitled (ii) that is concrete and particularized to the Requesters
themselves and them alone, (iii) that was caused by the
agency’s refusal to provide the information, and (iv) that would
be redressed by a judicial order to provide the information, a
case or controversy has been joined here, just as directly and
19
completely as it has in countless other informational injury
cases. It is no different for standing purposes than if these same
Requesters had filed a FOIA request for the same information.
In addition, in analyzing the standing of legislators, cases
have traditionally asked whether the asserted injury is
“institutional” or “personal.” An institutional injury is one that
belongs to the legislative body of which the legislator is a
member. See Arizona State Legislature v. Arizona Indep.
Redistricting Comm’n, 135 S. Ct. 2652, 2664 (2015) (“The
Arizona Legislature * * * [was] an institutional plaintiff
asserting an institutional injury[.]”); see also Bethune-Hill, 139
S. Ct. at 1953 (“[I]ndividual members lack standing to assert
the institutional interests of a legislature[.]”). Such institutional
injuries afflict the interests of the legislature as an entity; they
do not have a distinct personal, particularized effect on
individual legislators.
A personal injury, by contrast, refers to an injury suffered
directly by the individual legislators to a right that they
themselves individually hold. A personal injury to a legislator,
for Article III purposes, is not limited to injuries suffered in a
purely private capacity, wholly divorced from their occupation.
Rather, in the context of legislator lawsuits, an injury is also
“personal” if it harms the legal rights of the individual
legislator, as distinct from injuries to the institution in which
they work or to legislators as a body. See Powell v.
McCormack, 395 U.S. 486, 493 (1969) (reviewing legislator’s
claim that he was inappropriately barred from taking his seat
and from receiving his pay); see also Kerr v. Hickenlooper, 824
F.3d 1207, 1216 (10th Cir. 2016) (stating that, if a subset of
legislators was barred from voting, members of the subset
“could claim a personal injury”); cf. Coleman v. Miller, 307
U.S. 433, 438 (1939) (although asserting an institutional injury,
20
legislators had standing because their individual “votes * * *
ha[d] been overridden and virtually held for naught”).4
The GSA’s argument, like the Dissenting Opinion,
fundamentally confuses those categories by adopting a
sweeping definition of institutional injury that would cut out of
Article III even those individualized and particularized injuries
experienced by a single legislator alone. The GSA tries to
ground its overly broad definition of institutional injury in the
Supreme Court’s decision in Raines.
But Raines was quite different. In that case, six Members
of Congress who had voted against passage of the Line Item
Veto Act filed suit to challenge the constitutionality of the
statute after they were outvoted. 521 U.S. at 814. The Line
Item Veto Act gave the President the authority to cancel
spending or tax measures after they were passed by both
Chambers of Congress and signed into law. Id. (citing Pub. L.
No. 104-130, 110 Stat. 1200 (1996)). The legislators asserted
as injuries the alteration in the balance of powers between the
Executive and Congress caused by the law, the supplanting of
Congress’s veto power, and diminution of the effectiveness of
legislative votes. Raines, 521 U.S. at 816 (quoting Individual
Legislators’ Compl. ¶ 14).
4
The statute requires that six other Committee members (less
than a Committee majority) support the request, thereby preventing
harassing or idiosyncratic uses of Section 2954. See Dissenting Op.
10–11. That additional requirement does not diminish the
individualized and personalized nature of the informational injury,
any more than a jointly signed FOIA request would. The impetus for
such requests comes from individual members’ judgment that they
need particular information. These individual Committee members
do not require the support or permission of the full Committee to
make the request.
21
Those injuries, though, were not personal and
particularized to the six legislators, but instead trod on powers
vested in the House and Senate and their members as a whole.
The six legislators sought to vindicate a diffuse “institutional
injury”—“the diminution of legislative power”—that was
suffered by Congress as an entity, and so “necessarily
damage[d] all Members of Congress and both Houses of
Congress equally.” Raines, 521 U.S. at 821 (emphasis added).
There was, after all, no claim that, under the Line Item Veto
Act, the plaintiff legislators were “singled out for specially
unfavorable treatment as opposed to other Members of their
respective bodies.” Id.; see also Blumenthal, 949 F.3d at 19
(“This case is really no different from Raines. The [m]embers
were not singled out—their alleged injury is shared by the 320
[M]embers of the Congress who did not join the lawsuit—and
their claim is based entirely on the loss of political power.”).
So the injury on which the suing legislators in Raines tried to
predicate standing was not personal and particularized to them.
It was Congress’s ox that was gored, not their own.
The same mismatch between the suing plaintiff and the
injured party occurred in Chenoweth v. Clinton, 181 F.3d 112(D.C. Cir. 1999). There, a group of legislators challenged the
issuance of an executive order on the ground that its
“issuance * * *, without statutory authority therefor, deprived
the plaintiffs of their constitutionally guaranteed responsibility
of open debate and vote on issues and legislation involving
interstate commerce, federal lands, the expenditure of federal
monies, and implementation of the [National Environmental
Policy Act].” Id. at 113 (formatting modified). As in Raines,
any such harm befell the institution as a whole and all
legislators collectively. No personal injury occurred that was
individualized to the plaintiffs. See also Nevada Comm’n on
Ethics v. Carrigan, 564 U.S. 117, 126 (2011) (When a
legislative vote is cast, “[t]he legislative power thus committed
22
is not personal to the legislator but belongs to the people; the
legislator has no personal right to it.”); Campbell v. Clinton,
203 F.3d 19, 20, 22–23 (D.C. Cir. 2000) (legislators lacked
standing to challenge the use of American forces against
Yugoslavia on the grounds that the President violated the War
Powers Clause of the Constitution and the War Powers
Resolution because the claimed injuries were to the legislative
power as a whole).5
The Requesters’ injury is a horse of a different color. The
Requesters do not assert an injury to institutional powers or
functions that “damages all Members of Congress and both
Houses of Congress equally.” Raines, 521 U.S. at 821. The
injury they claim—the denial of information to which they as
individual legislators are statutorily entitled—befell them and
only them. Section 2954 vested them specifically and
particularly with the right to obtain information. The 34 other
members of the Committee who never sought the information
suffered no deprivation when it was withheld. Neither did the
nearly 400 other Members of the House who were not on the
Committee suffer any informational injury. Nor was the House
(or Senate) itself harmed because the statutory right does not
belong to those institutions. In other words, their request did
not and could not, given their non-majority status, constitute
the type of “legislative * * * act” that might warrant treating
them differently from private plaintiffs for standing purposes.
Chenoweth, 181 F.3d at 114; cf. Dissenting Op. 8 n.5. Instead,
the Requesters sought the information covered by Section 2954
in this case to inform and equip them personally to fulfill their
5
In Campbell, the legislators also advanced a vote nullification
argument premised on the Supreme Court’s holding in Coleman.
Campbell, 203 F.3d at 22. This court rejected that claim, concluding
that, because Congress had not voted to bar the use of force, the
President had not nullified any vote. Id. at 23.
23
professional duties as Committee members. They alone felt the
informational loss caused by the agency’s withholding.6 And
they alone had an incentive to seek a remedy.
In that regard, the injury is the same as one suffered by a
FOIA plaintiff. All persons, including legislators, are
statutorily permitted under FOIA to seek information from
federal agencies to monitor and scrutinize the activities of
federal agencies. 5 U.S.C. § 552(a)(3)(A). But not all
individuals have standing to sue following the denial of a FOIA
request. Instead, only the individual or entity who filed the
request and was denied the information has suffered a
cognizable informational injury that can be enforced in federal
court. “The filing of a request, and its denial, is the factor that
distinguishes the harm suffered by the plaintiff in a FOIA case
from the harm incurred by the general public arising from
deprivation of the potential benefits accruing from the
information sought.” McDonnell v. United States, 4 F.3d 1227,
1236–1238 (3d Cir. 1993).
So too here. Although all Committee members have the
right to pursue a request under Section 2954, an Article III
injury occurs only after a request that has been made is denied.
6
The Dissenting Opinion asserts (at 9) that the Requesters’
claim to standing is similar to the standing argument rejected by the
Supreme Court in Hollingsworth v. Perry, 570 U.S. 693 (2013). Not
so. The Hollingsworth petitioners lacked standing because they “had
no ‘direct stake’ in the outcome of their appeal” beyond vindicating
a “generally applicable” law. 570 U.S. at 705–706. Here, the
Requesters do not seek to vindicate the constitutionality of a law—a
matter in which all legislators would have an equivalent interest.
They seek to obtain information that a statute authorizes them to
obtain as individuals. And their stake in the outcome of this litigation
is specific and particularized: If they prevail, they will obtain the
information they have individually sought.
24
And that injury is inflicted only on those who asked for the
information. Here, the Requesters are the only ones who
sought the information from the GSA, and so were the only
ones who suffered a concrete and particularized injury by the
GSA’s denial. “[T]he requestor has suffered a particularized
injury because he has requested and been denied information
Congress gave him a right to receive.” Prisology, 852 F.3d
at 1117. To be sure, Congress created the Requesters’
underlying informational right. But that does not transform the
particularized injury suffered by rebuffed requesters into one
dispersed across all of Congress. Just as Congress’s enactment
of FOIA does not mean that the particularized injury suffered
by a legislator’s unsuccessful FOIA request is shared by
Congress as the body that empowered such requests.
The Supreme Court’s decision in Powell confirms the
personal nature of the Requesters’ informational injury. In
Powell, the Court concluded that a congressman, Adam
Clayton Powell, Jr., had standing to sue Members of Congress
and the leadership of the United States House of
Representatives after he was barred from taking his seat. 395
U.S. at 489. In addition to the denial of his seat, Powell’s salary
was withheld. Id. at 493. The Court concluded that the suit
satisfied Article III’s requirement that legislators sue based on
a personal injury. Id. at 512–514; see also Raines, 521 U.S.
at 821 (confirming that Powell suffered a personal injury by
being deprived of something to which he “personally” was
entitled as an elected legislator). While the harms pertained
directly to his fulfillment of his role as a legislator, they were
individualized and confined to him. No other Representative
suffered the loss of Powell’s seat or of Powell’s salary.
The GSA asserts that the Requesters are different from
Powell. It points to the Supreme Court’s statement in Raines
that, “[u]nlike the injury claimed by Congressman Adam
25
Clayton Powell, the injury claimed by the Members of
Congress here is not claimed in any private capacity but solely
because they are [M]embers of Congress.” Raines, 521 U.S.
at 821 (emphasis added).
But the GSA’s argument misses the Supreme Court’s
point. After all, the right at issue in Powell––to receive a House
of Representatives salary, to take a seat in Congress, and to
exercise the powers of that office––followed from and was
bound up with, not disconnected from, Powell’s status as a
legislator. Cf. Nevada Comm’n on Ethics, 564 U.S. at 126(“[A] legislator casts his vote ‘as trustee for his constituents,
not as a prerogative of personal power.’”) (quoting Raines, 521
U.S. at 821).
As the Supreme Court went on to explain, what made the
claims in Raines institutional rather than personal was that the
interest asserted there ran with the seat in that “the claim would
be possessed by [the legislator’s] successor,” and so belonged
to Congress, not the individual Member. Raines, 521 U.S.
at 821. By contrast, even though Powell’s claims were
intrinsically intertwined with his position as a Member of
Congress, Powell’s successor could not claim the same injury
or assert the same claims as Powell to the seat and salary for
the congressional term to which he was elected. The injury was
to Powell’s own performance of his legislative job, and so ran
to and with the person, not the institution. See Alaska Legis.
Council v. Babbitt, 181 F.3d 1333, 1338 n.3 (D.C. Cir. 1999)
(“[A]n elected representative excluded from the legislature and
denied his salary alleges a personal injury because he has been
‘singled out for specially unfavorable treatment as opposed to
other [m]embers’ of that body.”) (quoting Raines, 521 U.S.
at 821).
26
The same is true here. The GSA does not contend, nor
could it, that the informational injury asserted here runs with
the Committee seat such that any legislators replacing the
Requesters would be successors to this claim. While the legal
right to request information under Section 2954 runs with
Committee membership, the injury arises from the asking and
its rebuff, not from the seat itself. If one of the Requesters were
to leave the Committee, the injury sued upon would end with
her service. Just like Powell. Powell’s successor would have
had an undoubted right to draw a salary from the United States’
Treasury and to take the legislative seat, but the denial of
Powell’s salary and denial of his seat did not work an injury to
his successor. And Powell’s right to that seat and salary
similarly would have terminated when he left his legislative
position. In that regard, we agree with the Dissenting Opinion:
Powell “sought the position to which he had been elected and
all its benefits.” Dissenting Op. 7. These Requesters too seek
a benefit that Section 2954 invests in them in their individual
legislator capacities. And so they “assert a personal injury
[because] they allege they were ‘deprived of something to
which they personally are entitled[.]’” Id. at 4 (quoting Raines,
521 U.S. at 821).
In other words, for Article III purposes, the requirement
that a legislator suffer a “personal” injury does not mean that
the injury must be private. Instead, the requirement of a
personal injury is a means of rigorously ensuring that the injury
asserted is particularized and individualized to that legislator’s
own interests. That is, the injury must be one that “zeroes in
on the individual,” Kerr, 824 F.3d at 1216, rather than an injury
that “necessarily damages all Members of Congress and both
Houses of Congress equally” or that runs with the institutional
seat, Raines, 521 U.S. at 821.
27
That same understanding of “personal” injuries suffered
by legislators was well articulated by the Tenth Circuit in Kerr:
An individual legislator certainly retains the ability to
bring a suit to redress a personal injury, as opposed to
an institutional injury. For example, if a particular
subset of legislators was barred from exercising their
right to vote on bills, such an injury would likely be
sufficient to establish a personal injury. Under those
circumstances, the legislator could claim a personal
injury that zeroes in on the individual and is thus
concrete and particularized.
824 F.3d at 1216 (applying Raines to state legislators)
(citations omitted); see also Alaska Legis. Council, 181 F.3d
at 1338 n.3 (“[A] representative whose vote was denied ‘its full
validity in relation to the votes of [his] colleagues,’ might also
allege a personal injury sufficient to confer standing.”)
(quoting Raines, 521 U.S. at 824 n.7).
The Dissenting Opinion responds that “[n]othing in the
statute [Section 2954] suggests this mechanism for requesting
documents is a personal benefit for [m]embers of the
Committee, rather than a practical tool” that members can use
to “advanc[e] the work of the Committee.” Dissenting Op. 8.
That overlooks Section 2954’s express conferral of its
informational right on a minority of committee members.
Committee tools like subpoenas, by contrast, require the
majority’s assent to be exercised. See House Rule XI,
cl. 2(m)(3)(A)(i) (subpoena power may be exercised by the
committee or may be delegated by the committee to its chair
“under such rules and under such limitations as the committee
may prescribe”); Rule 12(g), Rules of the Comm. on Oversight
& Gov’t Reform of the U.S. House of Representatives, 115th
Cong. (2017) (delegating subpoena power to the committee
28
chair); see also House Rule X, cl. 5(c) (majority party selects
committee chairs). So 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.
2
The GSA also suggests that the asserted injury cannot be
personal because members of the House Committee are
chosen, in part, based on their party affiliation. See GSA Supp.
Br. 4–5. Members of the Committee are nominated for
membership by their “respective party caucus or conference.”
House Rule X, cl. 5(a)(1). Those nominations are then voted
on by the full House. Id. 7
But the GSA never finishes the thought. It is hard to see
how the process for committee selection diminishes the
informational injury suffered when an agency refuses to
comply with a Section 2954 request. Nothing in Section 2954
turns on the political affiliation of the requesters, nor does it
require that the requesters be of a single party. In any event,
members of a political party also nominated Powell as their
candidate for legislative office. See Clayton Knowles, Edge Is
61 Votes, N.Y. TIMES, June 29, 1966, at 1, 34. And it seems
quite likely that he was elected to that legislative seat based in
some part on his political affiliation, positions, and persuasion.
7
Members of Congress not affiliated with either major political
party are also able to serve. Typically, such Members “associate
with one [party] for purposes of being assigned to standing
committees.” Precedents of the United States House of
Representatives, vol. 1, ch. 3, § 8 (2017) (“2017 House Precedents”),
https://go.usa.gov/xd8q9 (last accessed Dec. 21, 2020).
29
Yet that party connection had no bearing on the personal nature
of the harms he suffered by virtue of his legislative status.
Nor do rules regarding the removal of Committee
members bear on the injury analysis. Under House Rule X,
Clause 5(b), if a legislator ceases to be a member of the party
that nominated him or her to the Committee, the member’s
committee membership is vacated. Of course, any
informational injury incurred by that member would also end
with the loss of the seat. Which makes sense because the
informational right is meant to equip individual Committee
members with the information needed to discharge their duties
on the oversight committees. That same feature also
underscores the personal and individuated, rather than
institutional, character of the legal right and the injury suffered.
3
In its supplemental brief to this court, the GSA also hints
at a constitutional avoidance argument:
Indeed, if the ability to request information under
section 2954 were truly a “personal” right enforceable
under Article III, then House Rule X, Clause 5(b)
would raise serious constitutional concerns. After all,
a Member of Congress has the right under the First
Amendment to switch political parties, yet House
Rule X, Clause 5(b) penalizes that switch in parties
(and the resulting resignation or expulsion from the
original congressional party’s caucus or conference),
by automatically terminating the Member’s seat on
the Committee, and hence his or her putative “right”
to request information under section 2954.
GSA Supp. Br. 7–8.
30
The GSA’s reasoning on this point is hard to follow. It
seems as though the GSA continues to equate a personal injury
with a purely private injury. What is more, if terminating a
member’s Committee seat does not run afoul of the First
Amendment, it is hard to see how the attendant loss of an
informational right under Section 2954 would change the
constitutional calculus.
In any event, we need not probe this undeveloped
argument further, as “[m]entioning an argument ‘in the most
skeletal way, leaving the court to do counsel’s work, create the
ossature for the argument, and put flesh on its bones’ is
tantamount to failing to raise it.” Al-Tamimi v. Adelson, 916
F.3d 1, 6 (D.C. Cir. 2019) (quoting Schneider v. Kissinger, 412
F.3d 190, 200 n.1 (D.C. Cir. 2005)).
D
When called upon to adjudicate disputes between the
Political Branches and their members, we apply the standing
inquiry with special rigor. Arizona State Legislature, 135
S. Ct. at 2665 n.12 (noting that the inquiry is “especially
rigorous”) (quoting Raines, 521 U.S. at 819); McGahn, 968
F.3d at 763. We have done so here, and we find that
Article III’s standing requirements are fully met. The
informational injury asserted is a traditional and long-
recognized form of Article III injury. It is concrete—the
request was made and straightforwardly denied; the Requesters
have been and remain empty-handed. The injury is personal
and particularized to the Requesters themselves, not to any
other legislators, to a legislative body, or even to their
Committee seats.
Article III’s causation and redressability prongs are also
straightforwardly met. See Lujan, 504 U.S. at 560 (stating an
injury must be “fairly traceable to the challenged conduct of
31
the defendant” and “likely to be redressed by a favorable
judicial decision”). The GSA’s categorical refusal to provide
the requested documents has caused the Requesters an
informational injury. And a judicial order requiring
compliance with Section 2954 would redress that injury, just as
it routinely does in a FOIA suit.
Also, while the plaintiffs in Raines filed suit in defiance of
the institution’s views, 521 U.S. at 829 (“both Houses actively
oppose the[] suit”), the Requesters’ information inquiry comes
with the strongest dispensation: The statutory authorization of
both Houses of Congress and the President who signed
Section 2954 into law, 5 U.S.C. § 2954. And for what it is
worth, the House of Representatives has never opposed the
Requesters’ suit, nor has the Senate.
Also, unlike in Raines, relief cannot be obtained through
the legislative process itself. See 521 U.S. at 829 (noting that
Congress could repeal the offending Act or “exempt
appropriations bills from its reach”). The statutory right, by its
plain terms, applies to individual Committee members, as long
as at least six others support the request, so that they can
exercise their legislative role with informed vigor. To require
the requesting members to obtain enforcement by a majority of
the Committee or Chamber, as the Dissenting Opinion
proposes (at 10), would be to empty the statute of all meaning,
since a Committee or the Chamber can already subpoena
desired information. McGahn, 968 F.3d at 764.
It also seems quite dubious that the 70th Congress that
enacted Section 2954 would have thought that legislators in the
minority should simply wait until they assumed majority status
to seek judicial enforcement through the subpoena power
instead. At the time Congress enacted Section 2954, changes
in control of the House were rare. See Office of the Historian,
32
U.S. House of Representatives, Party Divisions of the House of
Representatives (1789 to Present) (one party controlled the
House for 32 of the 38 years between 1895 and 1933),
https://history.house.gov/Institution/Party-Divisions/Party-
Divisions/ (last accessed Dec. 21, 2020). This trend continued
for the better part of the century after Section 2954’s
enactment. See id. (one party controlled the House for 60 of
the 62 years between 1933 and 1995). Given that history,
Congress plainly meant exactly what Section 2954 says: Non-
majority legislators too are empowered to seek the information
needed to do their jobs. In that way, the statutory right is
distinctly non-institutional.
Nor does this case implicate any potentially special
circumstances. It is not a suit against the President or a claim
for information from him. See Franklin v. Massachusetts, 505
U.S. 788, 796 (1992) (stating that the President is not an agency
under the Administrative Procedure Act); see also 5 U.S.C.
§ 105 (“For purpose of this title, ‘Executive agency’ means an
Executive department, a Government corporation, and an
independent establishment.”). Section 2954, like FOIA, only
allows requests for information from an “Executive agency[.]”
5 U.S.C. § 2954; see id. §§ 551(1), 552(a).
Information requests against agencies like this are
commonplace, and the informational deficit suffered is not
lessened just because the Requesters are legislators. “[T]he
requester’s circumstances * * * are irrelevant to his standing.”
Zivotofsky, 444 F.3d at 617. The GSA admits as much when it
concedes that these same Requesters would suffer an
Article III-cognizable informational injury if they sought the
same information under FOIA. See Oral Arg. Tr. 26 (“[W]e’re
not disputing that the Plaintiffs can invoke FOIA.”). Yet the
GSA offers no sound reason, grounded in Article III principles,
as to why the informational injury becomes more or less
33
sufficient under Article III based on whether non-legislative
people could, if they wanted, also ask for information under the
same statute. Indeed, the fact that information requests under
Section 2954 are less widely available than record requests
under FOIA would seem to make the injury more personal and
particularized, not less.
Notably, the GSA’s opposition to legislator standing is
categorical; it does not argue that any difference between the
scope of Section 2954 and FOIA is itself of separation-of-
powers moment.
For similar reasons, the Dissenting Opinion’s worry that
recognizing standing “ruinous[ly]” opens the judicial
floodgates to suits by “errant” Members of Congress “acting
contrary to the will of their committee, the will of their party,
and the will of the House” falls flat. Dissenting Op. 11. That
is because every Member of Congress, errant or otherwise, has
been able under FOIA since 1966 to seek similar information
from Executive Branch agencies as was requested here, with
no hint of such untoward results.
The separation of powers, it must be remembered, is not a
one-way street that runs to the aggrandizement of the Executive
Branch. When the Political Branches duly enact a statute that
confers a right, the impairment of which courts have long
recognized to be an Article III injury, proper adherence to the
limited constitutional role of the federal courts favors judicial
respect for and recognition of that injury.
IV
For those reasons, we hold that the Requesters have
asserted an informational injury that is sufficient for Article III
standing. This decision resolves only the standing question
decided by the district court. To the extent the GSA’s argument
34
or the district court’s reasoning implicate the existence of a
cause of action, the appropriate exercise of equitable discretion,
or the merits of the Requesters’ claims, those issues remain to
be resolved by the district court in the first instance.
The judgment of the district court is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
So ordered.
GINSBURG, Senior Circuit Judge, dissenting: When this
court recently considered the standing of a committee of the
House of Representatives to enforce a subpoena, we asked
ourselves the same question we must answer today: “whether
the claimed injury is personal to the plaintiff or else shared by
a larger group of which the plaintiff is only a component – in
other words, whether the injury is particularized.” Committee
on the Judiciary, U.S. House of Representatives v. McGahn,
968 F.3d 755, 767 (2020). We held a House committee had
standing to seek judicial enforcement of a subpoena that it had
issued to a former Executive Branch official and that it had
been authorized by a vote of the full House to pursue in court.
Id. Because the committee was acting on behalf of the full
House, the committee was “an institutional plaintiff asserting
an institutional injury,” so there was no “mismatch” between
the plaintiff and the injured party. Id.This case is fundamentally different. Here, 15 individual
Members of the House claim a statute enacted in 1928 and
never successfully invoked in litigation gives each of them a
personal right to exercise the investigative powers of the House
of Representatives. See 5 U.S.C. § 2954.1 Although, as my
colleagues remind us more than once, “‘our standing inquiry
has been especially rigorous’ when the suit pits members of the
two Political Branches against each other,” Ct. Op. 12, 30
(quoting Raines v. Byrd, 521 U.S. 811, 819 (1997)), the Court
today strains Supreme Court precedent to uphold the standing
of Plaintiff-Members to assert the interests of the whole House.
* * *
1
The statute, entitled “Information to committees of Congress on
request,” reads in relevant part: “An Executive agency, on request of
the Committee on [Oversight and Reform] of the House of
Representatives, or any seven members thereof ... shall submit any
information requested of it relating to any matter in the jurisdiction
of the committee.”
2
Again, the key question in this case is this: Whether the
harm the Plaintiff-Members allege is personal to each of them
or is a harm to the House as an institution. The Supreme Court
has clearly stated 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, 521 U.S. at 829, and holding “a
single chamber of a bicameral [state] legislature” lacks
standing to appeal the invalidation of a redistricting plan
because redistricting authority is vested in the legislature as a
whole); accord McGahn, 968 F.3d at 767. In other words, there
can be no “mismatch between the [party] seeking to litigate
and the body” that suffered the alleged harm. McGahn, 968
F.3d at 767. Here, the mismatch is plain. The harm the
Plaintiff-Members allege – viz., the “impedance of [their]
legislative and oversight responsibilities” – is a harm to the
House of Representatives, of which each plaintiff is only one
among 435 Members.2 Accordingly, the Plaintiff-Members
lack standing to bring this case.
Article III of the Constitution of the United States permits
the federal courts to hear “cases” and “controversies” and
nothing more. Powell v. McCormack, 395 U.S. 486, 496 n.7
(1969). To stay within our “proper constitutional sphere,” the
court must ensure in each case that the party invoking its power
has standing to do so. Raines, 521 U.S. at 819-20; Va. House
of Delegates, 139 S. Ct. at 1950. This requirement is rooted in
the separation of powers. See Ct. Op. 11-12. The standing
2
See Raines, 521 U.S. at 829 n.10 (“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, and its action is not the action of any separate
member or number of members, but the action of the body as whole.”
(quoting United States v. Ballin, 144 U.S. 1, 7 (1892))).
3
doctrine buttresses that separation by limiting the judicial
power “only to redress or otherwise protect against injury to
the complaining party,” and not to “general supervision of the
operations of government.” Warth v. Seldin, 422 U.S. 490,
498-99 (1975); Raines, 521 U.S. at 829 (quoting United States
v. Richardson, 418 U.S. 166, 192 (1974)). Separation of
powers concerns are “particularly acute ... when a legislator
attempts to bring an essentially political dispute into a judicial
forum.” Chenoweth v. Clinton, 181 F.3d 112, 114 (D.C. Cir.
1999).
To establish their standing, the plaintiffs must allege they
suffered an injury-in-fact that is both concrete and
particularized. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548
(2016). A court must consider each of these requirements
independently. See id. at 1545. The Plaintiff-Members here
do allege a concrete harm, see id. at 1549 (holding the denial
of a statutory right to information is a concrete injury), but they
do not allege a harm particularized – that is, personal – to
themselves. See McGahn, 968 F.3d. at 766 (“For an injury to
be particularized, it must affect the plaintiff in a personal and
individual way.” (quoting Spokeo, 136 S.Ct. at 1548) (internal
quotation marks omitted)). The particularization requirement
helps to ensure the plaintiff is the appropriate party to vindicate
the claim. See Warth, 422 U.S. at 499 (“A federal court’s
jurisdiction ... can be invoked only when the plaintiff himself
has suffered”); Blumenthal v. Trump, 949 F.3d 14, 18 (D.C.
Cir. 2020) (holding 215 Members of the Congress lacked
standing to seek a declaration that the president was violating
the Foreign Emoluments Clause of the Constitution, and
explaining that “our standing inquiry ... focuses on whether the
plaintiff is the proper party to bring the suit” (cleaned up)).
The particularization inquiry is of special importance
when the plaintiffs are legislators. Thus did Raines, “our
4
starting point when individual members of the Congress seek
judicial remedies,” Blumenthal, 949 F.3d at 19, distinguish
between “personal” injuries, which are particular to the
plaintiff, and “institutional” injuries, which are not.3 Raines,
521 U.S. at 818-19, 821. Legislators assert a personal injury
when they allege they were “deprived of something to which
they personally are entitled — such as their seats as Members
of Congress after their constituents had elected them.” Raines,
521 U.S. at 821. In contrast, legislators assert an institutional
injury when they allege “a loss of political power,” id., and an
institutional injury requires an “institutional plaintiff.” AIRC,
135 S. Ct. at 2664. Maintaining this distinction helps avoid a
mismatch between the party suing and the party harmed. See
McGahn, 968 F.3d at 767 (explaining legislator-standing cases
require “an inquiry into whether the claimed injury is personal
to the plaintiff or else shared by a larger group ... in other
words, whether the injury is particularized”).
The Plaintiff-Members here allege harm to the House
rather than to themselves personally. Their theory of injury is
that the General Services Administration (GSA), by refusing
their request for certain documents, hindered their efforts to
oversee the Executive and potentially to pass remedial
3
The Supreme Court has allowed individual legislators to sue over
an institutional injury in one and only one situation: “legislators
whose votes would have been sufficient to defeat (or enact) a specific
legislative Act have standing to sue if that legislative action goes into
effect (or does not go into effect), on the ground that their votes have
been completely nullified.” Raines, 521 U.S. at 823 (explaining
Coleman v. Miller, 307 U.S. 433 (1939)); see also Ariz. State Legis.
v. AIRC, 135 S. Ct. 2652, 2665 (2015) (confirming this
understanding of Coleman). The “Coleman exception to the Raines
rule,” as this court has called it, Campbell v. Clinton, 203 F.3d 19,
22 (2000), clearly does not apply here because this is not a case about
a disputed vote.
5
legislation. The Complaint is clear and consistent on this point:
The Plaintiff-Members were harmed through the “impedance
of the oversight and legislative responsibilities that have been
delegated to them by Congress involving government
management and accounting measures and the economy,
efficiency, and management of government operations and
activities.” Compl. ¶ 36. More specifically, the Plaintiffs-
Members, who sit on the Committee on Oversight and Reform,
allege the denial of their requests under 5 U.S.C. § 2954thwarted their efforts to evaluate several aspects of the GSA’s
management of the Trump Old Post Office lease, and hence
their ability to “recommend to the Committee, and to the House
of Representatives, legislative and other actions that should be
taken to cure any existing conflict of interest, mismanagement,
or irregularity in federal contracting.” Id. That the allegations
of harm go to the Plaintiff-Members’ responsibilities for
oversight and legislation makes manifest the institutional
nature of the harm in this case.
When a defendant impedes legislators in the fulfillment of
their legislative duties, the defendant harms the legislature, not
the legislators. After all, a legislator legislates “as trustee for
his constituents, not as a prerogative of personal power.”
Raines, 521 U.S. at 821. Any legislative power delegated to a
legislator “is not personal to the legislator but belongs to the
people; the legislator has no personal right to it.” Nevada
Comm’n on Ethics v. Carrigan, 564 U.S. 117, 125-26 (2011).
The power to oversee the workings of the Executive
Branch likewise belongs to the House (and the Senate) as an
institution. Each House of the Congress has an inherent power
to conduct investigations, including “probes into departments
of the Federal Government to expose corruption, inefficiency
or waste.” Watkins v. United States, 354 U.S. 178, 187 (1957).
This power has long been recognized as an “auxiliary to the
6
legislative function,” McGrain v. Daugherty, 273 U.S. 135,
174 (1927), as was reconfirmed earlier this very year in Trump
v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020): “[E]ach
House has power to secure needed information in order to
legislate,” which power is “justified solely as an adjunct to the
legislative process.” (quotations omitted). Accord McGahn,
968 F.3d at 764 (“Each House of Congress is specifically
empowered to compel ... the production of evidence in service
of its constitutional functions”). Just as the legislative power
is not vested personally in individual legislators, neither is the
auxiliary power of oversight. Indeed, the power of oversight is
so squarely committed to the institution that an investigation is
illegitimate if it is conducted to further the personal interests of
legislators rather than to aid the House in legislating. Mazars,
140 S. Ct. at 2032 (“Investigations conducted solely for the
personal aggrandizement of the investigators ... are
indefensible” (quoting Watkins, 354 U.S. at 200)).
The Plaintiff-Members sought information from the GSA
in order to search for a “conflict of interest, mismanagement,
or irregularity” and to recommend remedial legislation – a clear
exercise of the oversight power of the House. Compl. ¶ 36;
compare Watkins, 354 U.S. at 187 (reaffirming the House’s
power to probe for “corruption, inefficiency or waste” in
furtherance of “intelligent legislative action”). When their
request was refused, it was the House that suffered a legally
cognizable injury-in-fact, not the Members who bring this suit.
My colleagues rely upon Powell v. McCormack, 395 U.S.
486 (1969), to reach the opposite conclusion, but that case is in
complete harmony with the principles just discussed. During
the 89th Congress, a House investigation found evidence that
longtime congressman Adam Clayton Powell, Jr. had
overstated his travel expenses. Id. at 489-90. At the start of
the 90th Congress, the House barred Powell from taking his
7
seat. Id. at 493. Powell sued for his seat and his salary, and a
declaration that his exclusion violated the Constitution. Id.While the case was being litigated, Powell was reelected; the
91st Congress allowed him to take his seat but stripped him of
his seniority and fined him $25,000. Id. at 494-95. The House
defendants argued Powell’s case was moot. Id. at 496. The
Supreme Court disagreed: Powell had an “obvious and
continuing interest in his withheld salary,” so there remained a
live case or controversy. Id. at 496-99.
The Supreme Court, in denying standing to the legislator
plaintiffs in Raines, distinguished Powell in terms that apply
equally to this case: “Unlike the injury claimed by
Congressman Adam Clayton Powell, the injury claimed by the
Members of Congress here is not claimed in any private
capacity but solely because they are Members of Congress.”
521 U.S. at 821. Powell’s claim was justiciable not because he
had been deprived of his ability to legislate or investigate; it
was justiciable because Powell claimed he was owed money,
to which he was “personally ... entitled.” Id.The Members’ injury here is also quite different from the
denial of Powell’s seat. 4 Powell sought the position to which
he had been elected and all its benefits. The political power of
the House was not diminished by his absence – the harm fell
upon Powell alone. Claiming a seat in the House of
4
The Supreme Court held Powell’s case presented a case-or-
controversy based solely upon his request for back pay, as Powell
had been seated by the time the Supreme Court issued its decision.
See Powell, 395 U.S. at 495-96. Nevertheless, the Supreme Court’s
discussion in Raines suggested the denial of Powell’s seat was also
a personal injury. 521 U.S. at 821; see also Campbell, 203 F.3d at21 n.2 (noting the deprivation of Powell’s salary and seat were “both
personal injuries”).
8
Representatives is personal; wielding the investigative power
of the House is not.
That § 2954 delegates authority to certain Members to
request information from an Executive agency does not mean
it confers a right personal to each of them. The Congress
enacted § 2954 in an apparent attempt to “reform Congress’s
oversight of public expenditures.” Appellant’s Br. at 13-14.
The Member-Plaintiffs inform us that prior to the passage of
§ 2954 various statutes required federal agencies to send
hundreds of periodic reports to the House for review. Id. at 16
(citing H.R. Rep. No. 70-1757, at 6). By 1928, many of these
reports had become outdated and irrelevant. Id. The statute
discontinued these reports, while providing a mechanism for
the Committee on Oversight, “or any seven members thereof,”
to make more targeted and useful requests of the Executive.
See An Act to Discontinue Certain Reports Now Required by
Law to Be Made to Congress, Pub. L. No 70-611, 45 Stat. 986(1928). Nothing in the statute suggests this mechanism for
requesting documents is a personal benefit for Members of the
Committee, rather than a practical tool made available to
Members for the purpose of advancing the work of the
Committee. 5 See id.5
The Court gets off track when it analogizes a request made by
Members under § 2954 to a request made under the Freedom of
Information Act. The GSA has already given the Plaintiff-Members
all the information to which they were entitled under the FOIA. In its
cases on legislator standing, the Supreme Court has not looked for
analogies to statutes like the FOIA that make no distinction between
legislators and other members of the public. To the contrary, the
Court long ago forced us to rethink our view “that congressional and
private plaintiffs should be treated alike for the purpose of
determining their standing.” Chenoweth, 181 F.3d at 114-15
(holding this principle was “untenable in the light of Raines”).
9
The Court makes much of the fact the statute gives the
ability to make requests “specifically and particularly” to a
group of Committee Members, rather than to any group of
Members of the House. Ct. Op. 22. The Supreme Court
considered a similar argument in Hollingsworth v. Perry, 570
U.S. 693 (2013), where the official proponents of a successful
ballot initiative asserted they had standing to defend the
constitutionality of the law resulting from their initiative. The
proponents stressed their “‘unique,’ ‘special,’ and ‘distinct’
role in the initiative process” under state law, but the Supreme
Court was not persuaded. Id. at 706. Notwithstanding the
proponents’ particular role, their interest was shared with every
citizen of their state. Id. at 706-07. Just so here. Requests
must come from Members of the Committee, but it does not
follow that Committee Members suffer a personal harm when
a request is denied.
From the foregoing discussion, it is clear the Plaintiff-
Members have not alleged the impedance of their legislative
duties harmed them in any private or personal capacity. Rather,
they allege and seek to redress an institutional injury that befell
the House of Representatives. This is fatal to their case:
“individual members lack standing to assert the institutional
interests of a legislature.” Va. House of Delegates, 139 S. Ct.
at 1953.
* * *
Making a request for information is just the first step in the
process of congressional oversight of an Executive agency. An
Executive agency is likely to grant routine requests. See
Hearings on S. 2170 et al. before the Subcommittee on
Intergovernmental Relations of the Senate Committee on
Government Operations, 94th Cong., 107-08 (1975) (A. Scalia,
Assistant Attorney General, Office of Legal Counsel) (stating
10
§ 2954 may be used to obtain “routine information”); Id. at 71
(informal requests from a single legislator are “usually
accommodated”). If a request is refused, the Committee on
Oversight and Reform can issue a subpoena. If the subpoena
is ignored, the House can, by majority vote, authorize the
Committee to seek judicial enforcement or to hold the
respondent in contempt. This process is more cumbersome
than allowing seven individual Members to sue without
persuading a majority of their colleagues, 6 but it is necessary
to safeguard against investigative demands made for “personal
aggrandizement of the investigators” or for other idiosyncratic
reasons. See Mazars, 140 S. Ct. at 2032. Once their party
became the majority in the House, if not earlier, the Plaintiff-
Members in this case might well have obtained a subpoena
from the Committee and, if necessary, a House Resolution
authorizing suit. See McGahn, 968 F.3d at 764 (“The Supreme
Court has ... long held that each House has power to secure
needed information through the subpoena power” (cleaned up)
(quoting Mazars, 140 S. Ct. at 2031)); United States v. AT&T,
6
My colleagues insist that “[t]o require the requesting members to
obtain enforcement by a majority of the Committee or Chamber ...
would be to empty the statute of all meaning.” Ct. Op. 31. That
seems to assume without reason that the Executive habitually ignores
requests made pursuant to the statute. In any event, it is a
fundamental precept that the “Congress cannot erase Article III’s
standing requirements” by statute. Spokeo, 136 S. Ct. at 1547-48(quoting Raines, 521 U.S. at 820 n.3). The Congress attempted to do
so in Raines itself. There, as we recently summarized, although the
statute the legislators challenged “provided that ‘[a]ny Member of
Congress or any individual adversely affected by [this Act] may
bring an action, [in our District Court] for declaratory and injunctive
relief on the ground that ... [it] violates the Constitution,’ the
Members of Congress were still required to show an injury in fact to
establish constitutional injury.” U.S. House of Representatives v.
Mnuchin, 976 F.3d 1, 10 (D.C. Cir. 2020) (quoting Raines, 521 U.S.
at 815-16) (first two alterations in original).
11
551 F.2d 384, 391 (D.C. Cir. 1976) (holding the House of
Representatives has standing to enforce a subpoena in court);
House Rule XI, cl. 2(m) (governing the House’s subpoena
power). Perhaps they preferred to take their chance on
establishing a more powerful precedent.
The consequences of allowing a handful of members to
enforce in court demands for Executive Branch documents
without regard to the wishes of the House majority are sure to
be ruinous. Judicial 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; as the district court said, it would
subject the Executive to “the caprice of a restless minority of
Members.” Cummings v. Murphy, 321 F. Supp. 3d 92, 115
(2018). In the past this court has warned it would be hesitant
to enforce a document demand made by “a wayward committee
acting contrary to the will of the House.” AT&T, 551 F.2d at
393; see also id. at n.16 (explaining the requirement of a
resolution of the full House to cite a witness for contempt
“assures the witness some safeguard against aberrant
subcommittee or committee demands”). Today’s ruling does
more than that; it blazes a trail for judicial enforcement of
requests made by an errant group of Members acting contrary
to the will of their committee, the will of their party, and the
will of the House.
Conclusion
Because the legislative power and the attendant power of
investigation are committed to the House and not to its
Members, a legislator does not suffer a personal injury when
the denial of information he or she requested impedes the
oversight and legislative responsibilities of the House.
Accordingly,
12
I respectfully dissent.