Judicial Watch, Inc. v. Schiff, Civil Action No. 19-cv-3790 (BAH)

474 F.Supp.3d 305

JUDICIAL WATCH, INC., Plaintiff,

v.Adam B. SCHIFF, Chairman, U.S. House Permanent Select Committee on Intelligence, et al., Defendants.

Civil Action No. 19-cv-3790 (BAH)

United States District Court, District of Columbia.

Signed July 27, 2020

James F. Peterson, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Douglas N. Letter, Todd Barry Tatelman, U.S. House Of Representatives Office of General Counsel, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

Plaintiff Judicial Watch, Inc. asserts that the common-law right of access requires defendants, the House Permanent Select Committee on Intelligence ("HPSCI" or "Committee") and Adam B. Schiff, in his capacity as HPSCI's Chairman, to disclose subpoenas issued in September 2019, and associated responses received, by HPSCI to telecommunications providers as part of the Committee's impeachment inquiry into activities of President Donald J. Trump. See generally Compl., ECF No. 1. According to plaintiff, defendants’ failure to produce, upon request, the requested subpoenas and responses violates the common-law right of public access, id . ¶ 14, which gives "members of the public ... the right to examine government records when the public interest in disclosure is greater than that in government secrecy," id . ¶ 7. Defendants move to dismiss the complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defs.’ Mot. Dismiss ("Defs.’ Mot."), ECF No. 9, arguing both that sovereign immunity bars the exercise of jurisdiction here and that no valid claim is presented, Defs.’ Mem. Supp. Mot. Dismiss ("Defs.’ Mem.") at 3–4, ECF No. 9-1. For the reasons explained below, defendants’ motion is granted for lack of jurisdiction, requiring dismissal of the complaint with prejudice.

I. BACKGROUND

On September 24, 2019, Speaker Nancy Pelosi "announced that the House of Representatives would continue with its impeachment inquiry into President Donald J. Trump." Defs.’ Mem. at 1–2 (citing Press Release, Speaker Nancy Pelosi, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), available at https://www.speaker.gov/newsroom/92419-0). Roughly one month later, on October 31, 2019, the House adopted House Resolution 660, "which (i) established the procedures for HPSCI to continue its ongoing investigation in open hearings, (ii) authorized public release of deposition transcripts, (iii) required HPSCI to prepare and issue a report and make recommendations to the Committee on the Judiciary, and (iv) provided additional procedures in furtherance of the impeachment inquiry, including for the Committee on the Judiciary." Id . at 2 (citing H.R. 660, 116th Cong. (2019); H.R. REP. NO. 116-266, at 2 (2019)). "As part of its impeachment investigation, ... HPSCI issued subpoenas to telecommunications providers for certain records," and obtained in response information that "furthered [HPSCI's] investigation by establishing connections—specifically, telephone contacts—between relevant individuals at key points in time." Id . Some of this information was subsequently made public by HPSCI in a published report. See HOUSE PERMANENT SELECT COMMITTEE ON INTELLIGENCE , 116 TH CONG. , THE TRUMP-UKRAINE IMPEACHMENT INQUIRY REPORT (Dec. 2019), available at https://intelligence.house.gov/uploadedfiles/the_trump-ukraine_impeachment_inquiry_report.pdf.

According to plaintiff, the subscribers of the telephone records subject to the subpoenas at issue include "ranking Intelligence Committee Republican Devin Nunes, President Donald J. Trump attorneys Rudy Giuliani and Jay Sekulow, journalist John Solomon, the White House, and others." Pl.’s Opp'n Defs.’ Mot. Dismiss ("Pl.’s Opp'n") at 1, ECF No. 11. This use of subpoena power is, in plaintiff's view, "an unprecedented use of government surveillance power for allegedly partisan purposes," id. at 1, that "raise[s] important questions regarding possible violation[s] of the attorney-client privilege of the President, the First Amendment rights of a journalist, and a purportedly unbounded power by Congress to monitor the telephone calls of any citizen," id . at 1–2.

"[T]o shed light on these questions," id . at 2, on December 6, 2019, plaintiff requested from defendants copies of "[a]ll subpoenas issued by the House Permanent Select Committee on Intelligence on or about September 30, 2019 to any telecommunications provider including, but not limited to AT&T, Inc., for records of telephone calls of any individuals," and "[a]ll responses received to the above-referenced subpoenas," Compl. ¶ 8; Pl.’s Opp'n at 2. Defendants did not respond to this request, Compl. ¶ 9, prompting plaintiff's initiation, on December 20, 2019, of this lawsuit to require disclosure by "issu[ing] a writ of mandamus compelling Defendants to carry out their non-discretionary duty to make all of the requested records available," id . at 4.

Defendants’ pending motion to dismiss is now ripe for review.

II. LEGAL STANDARD

" Article III of the Constitution prescribes that ‘[f]ederal courts are courts of limited subject-matter jurisdiction’ and ‘ha[ve] the power to decide only those cases over which Congress grants jurisdiction.’ " Bronner v. Duggan , 962 F.3d 596, 602 (D.C. Cir. 2020) (alterations in original) (quoting Al-Zahrani v. Rodriguez , 669 F.3d 315, 317 (D.C. Cir. 2012) ); see Gunn v. Minton, 568 U.S. 251, 256, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (" ‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’ " (quoting Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) )). Federal courts therefore have a corresponding "independent obligation to ensure that they do not exceed the scope of their jurisdiction" and "must raise and decide jurisdictional questions that the parties either overlook or elect not to press." Henderson v. Shinseki , 562 U.S. 428, 434, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). Absent subject-matter jurisdiction over a case, the court must dismiss it. See Arbaugh v. Y & H Corp. , 546 U.S. 500, 506–07, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (citing Kontrick v. Ryan , 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) ); FED. R. CIV. P. 12(h)(3).

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of demonstrating the court's subject-matter jurisdiction over the claim at issue. Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015). When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true all uncontroverted material factual allegations contained in the complaint and " ‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged’ and upon such facts determine jurisdictional questions." Am. Nat'l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011) (citations omitted) (quoting Thomas v. Principi , 394 F.3d 970, 972 (D.C. Cir. 2005) ). The court need not accept inferences drawn by the plaintiff, however, if those inferences are unsupported by facts alleged in the complaint or amount merely to legal conclusions. See Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002).

III. DISCUSSION

Defendants argue that the Court lacks jurisdiction over this case for two reasons: first, "the doctrine of sovereign immunity deprives the Court of jurisdiction over the House Defendants," Defs.’ Mem. at 3, and second, "given that the records sought by Plaintiff involve matters pursued and obtained by the House Defendants as part of the House-authorized impeachment inquiry, they are absolutely protected by the Speech or Debate Clause," id . (citing U.S. CONST. , art. I, § 6, cl. 1 ). Plaintiff counters that neither form of immunity applies. See Pl.’s Opp'n at 3–5. Each ground for immunity is examined in turn.¹

A. Sovereign Immunity

The Supreme Court has stated that "[t]he general rule is that a suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act." Dugan v. Rank , 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) (internal quotations and citations omitted). For such suits, "[t]he basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress." Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands , 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983) ; see also FDIC v. Meyer , 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.") (citations omitted); United States v. Mitchell , 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."); Shuler v. United States , 531 F.3d 930, 932 (D.C. Cir. 2008) (quoting Gray v. Bell , 712 F.2d 490, 506 (D.C. Cir. 1983) ) (" ‘The United States is protected from unconsented suit under the ancient common law doctrine of sovereign immunity.’ "). Any "waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text and will not be implied." Lane v. Pena , 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (citations omitted).

Sovereign immunity extends to Congress when "sued as a branch of the government," McLean v. United States , 566 F.3d 391, 401 (4th Cir. 2009), abrogated on other grounds by Lomax v. Ortiz-Marquez , ––– U.S. ––––, 140 S. Ct. 1721, 207 L.Ed.2d 132 (2020), and makes members of Congress "immune from liability for their actions within the legislative sphere," id . Thus, the doctrine of sovereign immunity generally "forecloses ... claims against...