Comm. on the Judiciary of the U.S. House of Representatives v. McGahn

• Decision Date: 31 August 2020
• Docket Number: No. 19-5331,19-5331
• Citation: 973 F.3d 121
• Parties: COMMITTEE ON the JUDICIARY OF the UNITED STATES HOUSE OF REPRESENTATIVES, Appellee v. Donald F. MCGAHN, II, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

973 F.3d 121

COMMITTEE ON the JUDICIARY OF the UNITED STATES HOUSE OF REPRESENTATIVES, Appellee

v.Donald F. MCGAHN, II, Appellant

No. 19-5331

United States Court of Appeals, District of Columbia Circuit.

Decided August 31, 2020

Rehearing En Banc Granted, Judgment Vacated October 15, 2020

Hashim M. Mooppan, Deputy Assistant Attorney General, U.S. Department of Justice, and Mark R. Freeman, Michael S. Raab, and Martin Totaro, New York, NY, Attorneys, were on the briefs for appellant.

Douglas N. Letter, General Counsel, U.S. House of Representatives, Todd B. Tatelman, Deputy General Counsel, Megan Barbero and Josephine Morse, Associate General Counsel, Adam A. Grogg and William E. Havemann, Assistant General Counsel, Jonathan B. Schwartz, Attorney, and Annie L. Owens were on the brief for appellee.

Steven A. Hirsch, Justin Florence, Jamila G. Benkato, and Cameron O. Kistler were on the brief for amici curiae Republican Legal Experts, et al. in support of plaintiff-appellee.

Before: Henderson, Rogers, and Griffith, Circuit Judges.

Dissenting opinion filed by Circuit Judge Rogers.

Griffith, Circuit Judge:

In Committee on the Judiciary v. McGahn , ––– F.3d ––––, 2020 WL 4556761 (Aug. 7, 2020), the en banc court held that the Committee on the Judiciary of the House of Representatives has Article III standing to seek judicial enforcement of a subpoena issued to former White House Counsel Donald F. McGahn, II. Id. at ––––, 2020 WL 4556761, at *15. It remanded the case to this three-judge panel to consider the remaining issues, including whether the Committee has a cause of action to enforce its subpoena and, if so, whether McGahn must testify despite the Executive Branch's assertion of absolute testimonial immunity. Id. We have no occasion to address the immunity argument because we conclude that the Committee lacks a cause of action. Accordingly, the case must be dismissed.

I

The en banc court held that the Committee has Article III standing, but the Committee "also need[s] a cause of action to prosecute" its case in federal court. Make the Road N.Y. v. Wolf , 962 F.3d 612, 631 (D.C. Cir. 2020). Here, the Committee argues that it has an implied cause of action under Article I, that it can invoke the traditional power of courts of equity to enjoin unlawful executive action, and that the Declaratory Judgment Act provides a separate basis for this suit. We disagree.

A

Start with Article I. The Committee argues that it is "entitled under Article I to seek equitable relief to enforce a subpoena ... issued in furtherance of its constitutional power of inquiry." Committee Panel Br. 34 (internal quotation marks omitted). But time and again, the Supreme Court has warned federal courts to hesitate before finding implied causes of action—whether in a congressional statute or in the Constitution. See, e.g. , Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media , ––– U.S. ––––, 140 S. Ct. 1009, 1015, 206 L.Ed.2d 356 (2020) ; Hernandez v. Mesa , ––– U.S. ––––, 140 S. Ct. 735, 741-43, 206 L.Ed.2d 29 (2020) ; Jesner v. Arab Bank, PLC , ––– U.S. ––––, 138 S. Ct. 1386, 1402, 200 L.Ed.2d 612 (2018) ; Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 1857, 198 L.Ed.2d 290 (2017) ; Alexander v. Sandoval , 532 U.S. 275, 286-87, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). "When a party seeks to assert an implied cause of action under the Constitution itself, ... separation-of-powers principles are or should be central to the analysis," and usually Congress "should decide" whether to authorize a lawsuit. Ziglar , 137 S. Ct. at 1857 (internal quotation marks omitted).

In this case, Congress has declined to authorize lawsuits like the Committee's twice over. First, Congress has granted an express cause of action to the Senate—but not to the House. See 2 U.S.C. § 288d ; 28 U.S.C. § 1365(b). Second, the Senate statute expressly excludes suits that involve executive-branch assertions of "governmental privilege." 28 U.S.C. § 1365(a). The expression of one thing implies the exclusion of the other, and authorizing the Committee to bring its lawsuit would conflict with two separate statutory limitations on civil suits to enforce congressional subpoenas. When determining whether to "recognize any causes of action not expressly created by Congress," "our watchword is caution," Hernandez , 140 S. Ct. at 742, and we should not ignore Congress's carefully drafted limitations on its authority to sue to enforce a subpoena.

The Committee next suggests that—even if Article I alone doesn't provide a cause of action—the court may exercise its "traditional equitable powers" to grant relief. Ziglar , 137 S. Ct. at 1856. But even those equitable powers remain "subject to express and implied statutory limitations," Armstrong v. Exceptional Child Ctr., Inc. , 575 U.S. 320, 327, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015), and are further limited to relief that was "traditionally accorded by courts of equity," Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc. , 527 U.S. 308, 319, 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999). Again, "implied statutory limitations" foreclose suits by the House and suits that implicate a governmental privilege; this one checks both boxes, so Congress itself has precluded us from granting the requested relief to the Committee.

In any event, there is also nothing "traditional" about the Committee's claim. The Committee cannot point to a single example in which a chamber of Congress brought suit for injunctive relief against the Executive Branch prior to the 1970s. True enough, the en banc court rejected McGahn's argument that "federal courts have not historically entertained congressional subpoena enforcement lawsuits," but the full court also recognized the "relative recency" of lawsuits to enforce subpoenas. McGahn , ––– F.3d at ––––, 2020 WL 4556761, at *14. When determining the scope of our equitable authority, however, "relatively recent" history isn't enough. In Grupo Mexicano , the Supreme Court explained that we "must ask whether the relief" that the Committee requests "was traditionally accorded by courts of equity ." 527 U.S. at 319, 119 S.Ct. 1961 (emphasis added). The relief requested here—an injunction issued against a former Executive Branch official in an interbranch information dispute—cannot possibly have been traditionally available in courts of equity, because the "separate systems of law and equity" in our federal system ceased to exist in 1938. SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC , ––– U.S. ––––, 137 S. Ct. 954, 960, 197 L.Ed.2d 292 (2017). The Committee's smattering of examples from the 1970s comes (at least) thirty years too late.

Confining ourselves "within the broad boundaries of traditional equitable relief" constrains federal courts to their proper role in a democratic system. Grupo Mexicano , 527 U.S. at 322, 119 S.Ct. 1961. We cannot simply gesture towards the "flexibility" of equity and offer whatever relief (in our view) seems necessary to redress an alleged harm; that would transform equity's "flexibility" into "omnipotence." Id. Congress may someday determine that the federal courts should stand ready to enforce legislative subpoenas against executive-branch officials, but authorizing that remedy ourselves would be "incompatible with the democratic and self-deprecating judgment" that we lack the "power to create remedies previously unknown to equity jurisprudence." Id. at 332, 119 S.Ct. 1961. "The debate concerning [the] formidable power" to compel executive-branch officials to respond to congressional subpoenas "should be conducted and resolved where such issues belong in our democracy: in the Congress." Id. at 333, 119 S.Ct. 1961.

Finally, the Committee claims that the Declaratory Judgment Act allows it to bring suit. See 28 U.S.C. § 2201(a). This argument is even less persuasive. The Declaratory Judgment Act does not itself "provide a cause of action," as the "availability of declaratory relief presupposes the existence of a judicially remediable right." Ali v. Rumsfeld , 649 F.3d 762, 778 (D.C. Cir. 2011) (cleaned up); see also C&E Servs., Inc. of Wash. v. D.C. Water & Sewer Auth. , 310 F.3d 197, 201 (D.C. Cir. 2002). That statute is "procedural only" and simply "enlarge[s] the range of remedies available in the federal courts." Skelly Oil Co. v. Phillips Petroleum Co. , 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950) (internal quotation marks omitted). Because Article I does not create a "judicially remediable right" to enforce a congressional subpoena, the Committee cannot use the Declaratory Judgment Act to bootstrap its way into federal court. Thus, even though the Committee has the Article III standing necessary to "get[ ] [it] through the courthouse door, [that] does not keep [it] there." Make the Road , 962 F.3d at 631.

B

The dissent's contrary arguments fail. First, the dissent suggests that the court may infer a cause of action from the Committee's Article I power to issue subpoenas. Dissent at –––– – ––––. The dissent quotes McGrain v. Daugherty , which held that the "power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function." 273 U.S. 135, 174, 47 S.Ct. 319, 71 L.Ed. 580 (1927) ; see also Quinn v. United States , 349 U.S. 155, 160-61, 75 S.Ct. 668, 99 L.Ed. 964 (1955) (similar). But the Supreme Court has also explained that "[a]uthority to exert the powers of the [House] to compel production of evidence differs widely from authority to invoke judicial power to that purpose." Reed v. Cty. Comm'rs of Del. Cty. , 277 U.S. 376, 389, 48 S.Ct. 531, 72 L.Ed. 924 (1928) (emphasis added). And neither of the cases that the dissent cites says that Article I gives the Committee power to file a civil suit to enforce its subpoenas. McGrain arose out of a habeas corpus suit filed after the Senate exercised its inherent contempt power to arrest the Attorney General's brother. See McGrain , 273 U.S. at 153-54, 47 S.Ct. 319. And...