Leopold v. Manger

• Decision Date: 20 September 2022
• Docket Number: Civil Action 21-cv-00465 (BAH)
• Parties: JASON LEOPOLD, et al. Plaintiffs, v. J. THOMAS MANGER, Chief, U.S. Capitol Police, et al., Defendants.
• Court: U.S. District Court — District of Columbia

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JASON LEOPOLD, et al. Plaintiffs, v. J. THOMAS MANGER, Chief, U.S. Capitol Police, et al., Defendants.

Civil Action No. 21-cv-00465 (BAH)

United States District Court, District of Columbia

September 20, 2022

MEMORANDUM OPINION

BERYL A. HOWELL CHIEF JUDGE

Plaintiffs Jason Leopold and his employer Buzzfeed News assert that the common-law right to public access and certain statutory duties of disclosure require defendants, the Chief of the United States Capitol Police (“USCP”) and the Inspector General of the Capitol Police, both in their official capacities, to disclose certain requested documents relating to internal USCP operations. See generally Am. Compl. ¶¶ 8-17, ECF No. 12.^[1] Defendants contend that sovereign immunity bars the exercise of jurisdiction here and that no valid claim is presented warranting the grant of summary judgment in their favor pursuant to Federal Rule of Civil Procedure 56, Defs.' Mot. Summ. J. (Defs.' Mot.) at 1, ECF No. 19; Defs.' Mem. Supp. Mot. Summ. J. (“Defs.' Mem.”) at 7-8, ECF No. 19-2, while plaintiffs invoke the common-law and statutory duties of disclosure as creating an exception to sovereign immunity, entitling them to mandamus relief ordering the production of the requested documents, Pls.' Cross-Mot. Summ. J. & Opp'n Mot. Summ. J (“Pls.' Cross-Mot.”) at 1, ECF No. 22; Pls.' Mem. Supp. Cross-Mot. Summ. J. & Opp'n Def.'s Mot. Summ. J. (“Pls.' Opp'n”) at 2-4, ECF No. 22.

For the reasons explained below, defendants' motion for summary judgment is construed to be a motion for dismissal for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). See, e.g., Kirkham v Societe Air Fr., 429 F.3d 288, 291 (D.C. Cir. 2005) (treating summary judgment motion, which raised sovereign immunity, as motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, explaining that summary judgment “represents a decision on the merits, which courts may render only after jurisdiction has been established”); Kiakombua v. Wolf, 498 F.Supp.3d 1, 21 (D.D.C. 2020) (Jackson, K.B., J.) (construing motion styled as motion for summary judgment “as a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) or, in the alternative, a motion for summary judgment under Rule 56(a)” (emphasis in original)); Whiteru v. WMATA, 258 F.Supp.3d 175, 181-82 (D.D.C. 2017) (Jackson, K.B., J.) (construing motion for summary judgment on the basis of sovereign immunity as a motion to dismiss under Rule 12(b)(1)). See also Hakki v. Sec'y, Dep't of Veteran Affs., 7 F.4th 1012, 1022-23 (11th Cir. 2021) (holding that challenge to subject matter jurisdiction on motion under Rule 56(a) was “reasonably construed” as Rule 12(b)(1) motion); Smith v. WMATA, 290 F.3d 201, 205 (4th Cir. 2002) (“[A]n assertion of governmental immunity is properly addressed under the provisions of Rule 12(b)(1) of the Federal Rules of Civil Procedure.”). So construed, defendants' motion is granted, requiring dismissal of the Complaint.

I. BACKGROUND

Following the January 6, 2021, attack on the U.S. Capitol, plaintiffs-investigative journalist Jason Leopold and Buzzfeed News-planned to prepare and publish one or more articles about the USCP. Am. Compl. ¶ 1. To that end, on January 28, 2021, plaintiffs submitted requests to the USCP's Public Information Office and the USCP Office of Inspector General (“OIG”) seeking six categories of documents: (1) “Inspector General semiannual reports for 2015 forward,” id. ¶ 4; (2) “other Inspector General reports, including audits for 2008 forward,” id.; (3) “annual financial statements and audits of annual financial statements for 2015 forward,” id.; (4) “semiannual reports of disbursements for 2015 forward,” id.; (5) “USCP written directives in effect on January 6, 2021,” id.; and (6) “demonstration permits, denials, or other written memorials of final decisions relating of final decisions relating to permits for public gatherings on the Capitol grounds on January 6, 2021,” id. See also Pls.' Pet. Writ of Mandamus (“Pls.' Pet.”), Ex. 1, Document Request Emails, ECF No. 1-1;^[2] Defs.' Statement of Material Facts As to Which There Is No Genuine Issue (“Defs.' SMF”) ¶ 3, ECF No. 19-1.^[3]

Shortly thereafter, on February 11, 2021, USCP's general counsel responded to plaintiffs' request by email, declining to provide the documents and suggesting other points of contact to obtain some categories of information. Pls.' Pet., Ex. 2, Initial Request Response, ECF No. 1-1; Defs.' SMF ¶ 4. Three weeks later, on February 23, 2021, plaintiffs filed the instant suit to obtain the requested documents, pursuant to the common-law right of public access and a statute governing the USCP OIG, 2 U.S.C. § 1909. Pls. Pet.; Am. Compl. ¶¶ 8-17.

Since the filing of this lawsuit, defendants have disclosed a number of documents to plaintiffs, narrowing considerably the scope of the requested records remaining at issue in this lawsuit.^[4] Plaintiffs continue to seek, and defendants decline to disclose, the following documents: (1) 101 USCP written directives in effect on January 6, 2021, which directives detail internal policies and guidance for USCP operations and have been classified by USCP as “Law Enforcement Sensitive,” Pls.' Reply Supp. Pls.' Cross-Mot. for Summ. J. (“Pls.' Reply) at 4-18; Defs.' SMF ¶¶ 3, 10; Decl. of James Joyce, Senior Counsel, USCP's Office of the General Counsel (“OGC Decl.”) ¶ 11, ECF No. 19-5; (2) semiannual OIG reports from 2015 to the present, Pls.' Reply at 18-22; Defs.' SMF ¶ 3; and (3) all other OIG reports, including audits, from 2008 to the present, Pls.' Reply 22-25; Defs.' SMF ¶ 3.

As to the 101 USCP written directives at issue, defendants maintain that these directives, which are classified as “Law Enforcement Sensitive,” may not be disclosed because they detail internal policies and guidance for USCP operations and “would reveal confidential sources and methods, investigative activities and techniques” that should not be made public. Defs.' SMF ¶ 10; OGC Decl. ¶¶ 10-12. Furthermore, 65 of the 101 written directives have been designated by a USCP document review team as “security information,” as defined in 2 U.S.C. § 1979(a), meaning that their disclosure is statutorily prohibited absent authorization from the U.S. Capitol Police Board (“USCP Board”), which authorization has not been granted. Defs.' SMF ¶ 8; OGC Decl. ¶ 9 (citing 2 U.S.C. § 1979). As to the requested OIG reports, defendants maintain that the semiannual and other OIG reports are also “Law Enforcement Sensitive” and deemed “security information” under 2 U.S.C. § 1979(a), and public distribution of these OIG reports has been specifically prohibited by the USCP Board in a 2017 order issued pursuant to the Board's statutory authority to regulate the distribution of such security information. Defs.' SMF ¶¶ 1314; Decl. of Michael Bolton, USCP's Inspector General (“IG Decl”) ¶¶ 7-10, ECF No. 19-3 (citing IG Decl., Ex. A, Capitol Police Board Order 17.16 (Dec. 12, 2017) (“2017 Order”), ECF No. 19-4); see also 2 U.S.C. § 1979(b), (d).

The parties' pending motions are 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 ex rel. Am. Stud. Ass'n 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 also Gunn v. Minton, 568 U.S. 251, 256 (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 (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 (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 (2006) (citing Kontrickv. Ryan, 540 U.S. 443, 455 (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 determine jurisdictional questions by accepting as true all uncontroverted material factual allegations contained in the complaint and “‘constru[ing] the complaint liberally, granting plaintiff[s] the benefit of all inferences that can be derived from the facts alleged.'” Hemp Indus. Ass'n v. DEA, 36 F.4th 278, 281 (D.C. Cir. 2022) (second alteration in original) (quoting Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011)). 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. Id. at 288 (making clear that liberally construing complaint in plaintiff's favor “does not entail accept[ing] inferences unsupported by facts or legal conclusions cast in the form of factual allegations” (alteration in original) (internal quotation omitted)); see also Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The court “may consider materials outside the pleadings” in assessing whether subject matter jurisdiction may be exercised. Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 20...