Cummings v. Murphy

• Citation: 321 F.Supp.3d 92
• Decision Date: 14 August 2018
• Docket Number: Case No. 17-cv-02308 (APM)
• Parties: Elijah E. CUMMINGS, et al., Plaintiffs, v. Emily W. MURPHY, Administrator, General Services Administration, Defendant.
• Court: U.S. District Court — District of Columbia

321 F.Supp.3d 92

Elijah E. CUMMINGS, et al., Plaintiffs,

v.Emily W. MURPHY, Administrator, General Services Administration, Defendant.

Case No. 17-cv-02308 (APM)

United States District Court, District of Columbia.

Signed August 14, 2018

Scott Lawrence Nelson, Public Citizen Litigation Group, David C. Vladeck, Georgetown Law, Washington, DC, for Plaintiffs.

Steven A. Myers, United States Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, for Defendant.

MEMORANDUM OPINION

Amit P. Mehta, United States District Judge

I. INTRODUCTION

This case concerns an agency's refusal to produce records in response to what is referred to in political parlance as a "Seven Member Rule" request. That moniker derives from the "Seven Member Rule," which is embodied in 5 U.S.C. § 2954. Adopted by Congress in 1928, section 2954 provides in pertinent part that, upon request of the Committee on Oversight and Government Reform of the U.S. House of Representatives ("the House Oversight Committee"), "or of any seven members thereof ," an Executive agency "shall submit any information requested of it relating to any matter within the jurisdiction of the committee." 5 U.S.C. § 2954 (emphasis added). The Seven Member Rule thus provides a statutory mechanism for members of the minority party to obtain records from the Executive Branch to support the Committee's oversight function.

Plaintiffs here are seventeen minority members of the House Oversight Committee who have made several Seven Member Rule requests of the General Services Administration ("GSA") for information relating to GSA's management of its lease agreement with Trump Old Post Office LLC.¹ That lease agreement granted Trump Old Post Office LLC--an entity owned by President Donald J. Trump, his daughter Ivanka Trump, and his sons, Donald, Jr., and Eric Trump--the rights to develop and convert the Old Post Office building in Washington, D.C., into the Trump International Hotel. In early January 2017, GSA produced records that were responsive to Plaintiffs' initial requests. Since President Trump's inauguration, however, GSA has disclosed no additional information about the Old Post Office lease agreement in direct response to Plaintiffs' subsequent Seven Member Rule requests. Plaintiffs brought this action against GSA's Administrator to compel compliance with their Seven Member Rule requests.

Before the court is Defendant's Motion to Dismiss and Plaintiffs' Cross-Motion for Summary Judgment. For the reasons stated below, the court concludes that these Plaintiffs, as individual members of the House Oversight Committee, lack standing to bring this action. Thus, the court grants Defendant's Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1) and denies Plaintiffs' Cross-Motion for Summary Judgment.

II. BACKGROUND

A. Statutory Background

Congress enacted the Seven Member Rule in 1928 as part of an Act containing only three sections, the first two of which are pertinent here. See Act of May 29, 1928, ch. 901, 45 Stat. 986. Section 1 of the Act repealed 128 mandatory reporting statutes that obligated federal agencies to submit periodic reports to Congress. See id. § 1, 45 Stat. at 986–96. Congress repealed these requirements, because it deemed the reports to no longer "serve [a] useful purpose," as the reports proved to be labor intensive but ultimately "useless" in their utility. See H.R. Rep. No. 70-1757, at 3, 6 (1928); see also id. at 6 ("The departmental labor in preparation is a waste of time and the files of Congress are cluttered up with a mass of useless reports."). Section 2 of the Act replaced this mandatory, reports-based model of disclosure with a request-driven process. See Act of May 29, 1928, ch. 901, § 2, 45 Stat. 986, 996. Section 2 is now codified at 5 U.S.C. § 2954, which provides in relevant part: "An Executive agency, on request of the Committee on Government Operations of the House of Representatives [today, the House Committee on Oversight and Government Reform], or of any seven members thereof ... shall submit any information requested of it relating to any matter within the jurisdiction of the committee." 5 U.S.C. § 2954.² Thus, instead of requiring mandatory reporting by Executive agencies, section 2 provided a mechanism by which the House Oversight Committee and its members could obtain information by making a specific demand for information.

Section 2954 plainly gives members of the House Oversight Committee the right to request information from Executive agencies, so long as the information sought falls within the Committee's jurisdiction and at least seven members join in the request. That much is clear. Section 2954's legislative history, however, reveals some ambiguity as to the statute's reach. See generally Louis Fisher, Congressional Access to Information: Using Legislative Will and Leverage , 52 Duke L.J. 323, 362–64 (2002). Part of the legislative history suggests that Congress intended to limit the scope of a request made under section 2954 to information contained in the abolished regular reports that Executive agencies previously had sent to Congress. See H.R. Rep. No. 70-1757, 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...."). But other portions of the legislative history suggest no such limitation. For instance, both the House and Senate Reports provide that, "[i]f 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." Id. (emphasis added); S. Rep. No. 70-1320, at 4 (1928) (emphasis added). Thus, hidden behind the seemingly straightforward and broad statutory language of section 2954 is legislative history that leaves some uncertainty as to the precise scope of demandable information. See Fisher, supra , at 363.

B. Factual Background

Now, spring forward 85 years. On August 5, 2013, GSA entered into a lease agreement with Trump Old Post Office LLC, a company owned by now President Donald J. Trump, his daughter Ivanka Trump, and his sons, Donald, Jr., and Eric Trump. Compl., ECF No. 1, ¶ 10. The lease agreement permitted the company to develop and convert the Old Post Office on Pennsylvania Avenue in Northwest Washington, D.C., into the Trump International Hotel. See id. As relevant here, Article 37.19 of the lease agreement provides:

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.

Id. ¶ 11. It is probably safe to say that when GSA and Trump Old Post Office LLC entered into the lease agreement in August 2013, few would have anticipated that, within years, Article 37.19 would become central to a controversy between the political branches of the federal government.

On November 8, 2016, Donald J. Trump was elected President of the United States. On November 30, 2016, House Oversight Committee Ranking Member Elijah Cummings, joined by three other Representatives, sent a letter to then GSA Administrator Denise Turner Roth requesting unredacted copies of lease documents, monthly and annual statements from Trump Post Office LLC, and a briefing. Id. ¶ 13. On December 14, 2016, they sent another letter to GSA requesting similar records. See id. ¶ 14. On December 22, 2016, Ranking Member Cummings, joined by 10 other members of the House Oversight Committee, sent a third letter to GSA that specifically invoked the Seven Member Rule and demanded unredacted documents and expense reports related to the Old Post Office lease agreement. See id. ¶ 15. By letter dated January 3, 2017, GSA responded to these demands and produced the requested records, including amendments to the lease, a 2017 budget estimate, and monthly income statements. Id. ¶ 16; see also id. (noting that in the letter, GSA Associate Administrator Lisa A. Austin stated that the production was "[c]onsistent with the Seven Member Rule and judicial and Department of Justice, Office of Legal Counsel opinions" (alteration in original) ).

Upon his inauguration on January 20, 2017, President Trump became an "elected official of the Government of the United States." See id. ¶¶ 11, 18. Recall, Article 37.19 of the Old Post Office lease provides that "[n]o ... elected official of the Government of the United States ... shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom." Id. ¶ 11. Yet, according to Plaintiffs, neither President Trump nor his children have divested their interests in Trump Old Post Office LLC. Id. ¶ 18. Concerned about potential conflicts of interest, Ranking Member Cummings, along with the same three Representatives who joined in the first two requests, sent a letter to then GSA Acting Administrator Timothy Horne on January 23, 2017, asking 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; (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.

Id. ¶ 19. GSA did not comply with the request. Id. ¶ 20. Instead, by letter dated February 6, 2017, GSA Acting Associate Administrator Saul Japson promised that "[s]hould the [House Oversight...