Leopold v. Manger

102 F.4th 491

Jason LEOPOLD, Appellant v. J. Thomas MANGER, Chief, United States Capitol Police and Ronald Gregory,Acting Inspector General of the United States Capitol Police, Appellees

No. 22-5304

United States Court of Appeals, District of Columbia Circuit

Argued December 13, 2023

Decided May 28, 2024

Appeal from the United States District Court for the District of Columbia (No. 1:21-cv-00465)

Jeffrey Light argued the cause and filed the briefs for appellant.

Thomas Pulham, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Michael S. Raab, Attorney.

Before: Pillard, Wilkins and Childs, Circuit Judges.

Wilkins, Circuit Judge:

Jason Leopold is an investigative reporter who seeks to access the written directives of the United States Capitol Police, as well as audits and reports prepared by the Inspector General of the Capitol Police. To that end, he sued and invoked the District Court's mandamus jurisdiction under 28 U.S.C. § 1361 to bring two claims that are relevant here. The first claim arose under the common law right to access public documents and applies to both the written directives along with the documents prepared by the Inspector General. His second claim arose under 2 U.S.C. § 1909(c)(1) and applies to only the reports and audits prepared by the Inspector General. The District Court dismissed these claims holding that sovereign immunity barred suit. This appeal followed. We affirm the District Court's dismissals for lack of jurisdiction, although for reasons different from those relied on by the District Court.

I.

In Nixon v. Warner Communications, Inc., the Supreme Court found it "clear," as a matter of federal common law, that there is a "right to inspect and copy public records and documents." 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). But what was less clear, the Court conceded, were the "precise[ ] contours of the common-law right." Id. at 599, 98 S.Ct. 1306. Since Nixon, we have attempted to fill some of the gaps.

Beginning with Washington Legal Foundation v. United States Sentencing Commission, we explained that where a plaintiff asserts the common law right to access, the court must determine whether the document sought is a public record. 17 F.3d 1446, 1451 (D.C. Cir. 1994) (Washington Legal Foundation I). And if the document is a public record, then the court must balance the government's "specific" interest in secrecy against the public's "specific" interest in disclosure, "as well as the general public interest in the openness of governmental processes." Id. at 1452. There, we also made clear that sometimes a list with a description of the withheld documents (akin to a "Vaughn index") is necessary to aid the district court's analysis. Id. (citing Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973)). Because the district court had not adequately familiarized itself with the documents at issue and did not apply the proper balancing test, we remanded. Id. at 1452-53.

The case then returned to our Court. See Washington Legal Found. v. U.S. Sent'g Comm'n, 89 F.3d 897 (D.C. Cir. 1996) (Washington Legal Foundation II). With the benefit of a more developed record, we provided a concrete definition of a public record—"a government document created and kept for the purpose of memorializing or recording an official action, decision, statement, or other matter of legal significance, broadly conceived." Id. at 905. This definition, we explained, was not "limited to records that are similar to court documents," but applies to "all three branches of government." Id. at 903 (internal quotation marks and modifications omitted).

In this case, Mr. Leopold invoked the District Court's Section 1361 mandamus jurisdiction to access records held by the Capitol Police. His complaint alleges that, under Nixon and Washington Legal Foundation I & II, he has a common law right to access 101 Capitol Police directives that were in effect during the January 6, 2021 attack on the United States Capitol, along with audits and reports that the Inspector General of the Capitol Police prepared and submitted to the Capitol Police Board. Additionally, his complaint alleges that the Inspector General of the Capitol Police must "post" all audits and reports "making a recommendation for corrective action on the website of the Office of Inspector General" under 2 U.S.C. § 1909(c)(1). See J.A. 9.

Of course, the Capitol Police disagrees. In response to Mr. Leopold's common law claims, the Capitol Police argues that sovereign immunity bars suit. Broadly, the Capitol Police contends that federal courts have no authority to hear a suit based on an allegation that a government officer has violated federal common law. More narrowly, in its view, none of the records that Mr. Leopold requested fall within Washington Legal Foundation II's definition of a public document.

The Capitol Police further argues that Mr. Leopold's common law right to access does not extend to sixty-five of the 101 written directives, nor to any of the audits and reports prepared by the Inspector General. That is because, the Capitol Police argues, 2 U.S.C. § 1979 governs; and it prevents the "release[ ]" of "any security information" absent certain determinations made by the Capitol Police Board. 2 U.S.C. § 1979.

As for Section 1979's application here, the Capitol Police asserts that the sixty-five written directives cannot be disclosed because one of its review teams designated these directives as "security information." The Capitol Police advances a similar argument regarding its Inspector General's audits and reports: in late 2017, the Capitol Police Board designated all of the Inspector General's "audit reports, investigation[ ] reports, analyses, reviews, evaluations, [and] annual work plans" as "security information" in Order 17.16. J.A. 19.

The District Court accepted many of the Capitol Police's arguments and held that sovereign immunity barred Mr. Leopold's suit. See Leopold v. Manger, 630 F. Supp. 3d 71 (D.D.C. 2022). This appeal followed.

II.

We begin with the "first and fundamental question" of subject-matter jurisdiction. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453, 20 S.Ct. 690, 44 L.Ed. 842 (1900)). Mr. Leopold invoked Section 1361, which provides district courts with "original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361.

In a footnote, the Capitol Police cites a few decisions from other courts of appeal that limit Section 1361 jurisdiction to Executive Branch officials. Capitol Police Br. 53 n.9; see generally Liberation News Serv. v. Eastland, 426 F.2d 1379, 1384 (2d Cir. 1970) (concluding that the legislative history supports limiting Section 1361 to executive branch officials); Trackwell v. U.S. Gov't, 472 F.3d 1242, 1247 (10th Cir. 2007) (holding that the Supreme Court of the United States is not an "agency" under Section 1361); Semper v. Gomez, 747 F.3d 229, 250 (3d Cir. 2014) (holding that Section 1361 does not allow courts to issue writs of mandamus against federal judges). We assume without deciding that these decisions are correct, and construe Mr. Leopold's invocation of Section 1361 as an application for a mandatory injunction under the federal-question statute, 28 U.S.C. § 1331. See Wren v. Carlson, 506 F.2d 131, 133 (D.C. Cir. 1974). As we have previously held, and as Mr. Leopold's counsel acknowledged at oral argument, Oral Arg. 8:15-9:13, a "request for [a] mandatory injunction [is] generally judged by the same principles as [a] request for mandamus." Swan v. Clinton, 100 F.3d 973, 976 n.1 (D.C. Cir. 1996) (citing P. Bator et al., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 998-99 (4th ed. 1996)).

Though we construe Mr. Leopold's claim as a request for mandatory injunction under Section 1331, the sovereign immunity issue remains, as it is not waived by Section 1331 or Section 1361. See Swan, 100 F.3d at 981. Under the "Larson-Dugan" exception, however, federal courts may enjoin federal officers from taking actions that the sovereign has not "empowered [the officer] to do or [the officer] is doing [ ] in a way which the sovereign has forbidden." Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 689, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); see also Dugan v. Rank, 372 U.S. 609, 620-23, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Schilling v. U.S. House of Representatives, No. 22-5290, 102 F.4th 503, 506-07 (D.C. Cir. May 28, 2024). That is because these "actions are ultra vires [the delegated] authority and therefore may be made the object of specific relief." Larson, 337 U.S. at 689, 69 S.Ct. 1457. In these circumstances, "there is no sovereign immunity to waive—it never attached in the first place." Chamber of Com. v. Reich, 74 F.3d 1322, 1329 (D.C. Cir. 1996).

We have already explained the relationship between the Larson-Dugan exception and sovereign immunity in Washington Legal Foundation II, which presented nearly identical circumstances. There, the plaintiff sought a writ of mandamus to force the government to allow access to government documents based on the common law right to access public records and documents. Washington Legal Found. II, 89 F.3d at 900. And there, as is the case here, the government asserted sovereign immunity as it denied that it had any duty to disclose the documents. Id. at 901. Thus, to determine whether we could issue a writ of mandamus under the Larson-Dugan exception, we explained "that the question of jurisdiction merges with the question on the merits." Id. at 902. Unsurprisingly, Mr. Leopold argues that here, too, the jurisdictional inquiry merges with the merits.

The Capitol Police, however, asks us to...