Maloney v. Carnahan

Decision Date08 August 2022
Docket Number18-5305
Citation45 F.4th 215 (Mem)
Parties Carolyn MALONEY, et al., Appellants Val Demings, Appellee v. Robin CARNAHAN, Administrator, General Services Administration, Appellee
CourtU.S. Court of Appeals — District of Columbia Circuit

Scott Lawrence Nelson, Allison M. Zieve, Public Citizen Litigation Group, Washington, DC, David Charney Vladeck, Georgetown University Law Center, Washington, DC, for Plaintiffs-Appellants Carolyn Maloney, Eleanor Holmes Norton, Lacy Clay, Wm., Stephen Lynch, Jim Cooper, Gerald Connolly, Robin Kelly, Brenda Lawrence, Bonnie Watson Coleman, Stacey E. Plaskett, Raja Krishnamoorthi, Jamie Raskin, Peter Welch, Matt Cartwright.

Allison M. Zieve, Public Citizen Litigation Group, Washington, DC, David Charney Vladeck, Georgetown University Law Center, Washington, DC, for Plaintiff-Appellant Mark DeSaulnier, Members of the United States House of Representatives, Committee on Oversight and Government Reform and Plaintiff-Appellee Val Demings.

Scott R. McIntosh, Jeffrey Eric Sandberg, Attorneys, U.S. Department of Justice, (DOJ) Civil Division, Appellate Staff, Washington, DC, for Defendant-Appellee.

BEFORE: Srinivasan, Chief Judge; Henderson*** , Rogers, Millett** , Pillard, Wilkins, Katsas*, Rao***, Walker***, and Childs* , Circuit Judges****


Per Curiam

Appellee Kale's petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

Millett, Circuit Judge, with whom Senior Circuit Judge Tatel joins, concurring in the denial of rehearing en banc:

While much still remains to be litigated in district court, the court rightly denies rehearing en banc on the narrow issue before us. The only question in this case is whether Plaintiffs, who are individual Members of Congress, have standing to enforce an information request as authorized by a statute, 5 U.S.C. § 2954, that confers on certain legislators a right to obtain information from federal agencies. This court held that the Plaintiffs’ injury—"[a] rebuffed request for information to which the requester is statutorily entitled"—has long been held to be "a concrete, particularized, and individualized personal injury, within the meaning of Article III." Maloney v. Murphy , 984 F.3d 50, 54 (D.C. Cir. 2020). Further, applying Raines v. Byrd , 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), the court rejected the General Services Administration's ("GSA") contention that the injury of which the Plaintiffs complain was to Congress rather than to themselves as individual lawmakers. See Maloney , 984 F.3d at 62–70. I write to respond briefly to the views of my colleagues who thoughtfully dissent from the denial of rehearing en banc.


As Judge Ginsburg did in his opinion dissenting from the court's decision, Judge Rao characterizes the Plaintiffs’ injury as institutional, not personal. She reasons that their power to request documents from GSA is a delegation of Congress's power of inquiry, which is "an adjunct to the legislative process." Watkins v. United States , 354 U.S. 178, 197, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957) ; see Rao Dissent 225-26. Viewing the Plaintiffs’ statutory right as one that really belongs to Congress, she argues that the injury that resulted from GSA's noncompliance is also institutional.

Not at all. The source of the Plaintiffs’ informational right is not Congress's inherent power to obtain information in aid of legislation—as, say, a committee subpoena authorized by House rules would be. Rather, it is the express provision of a federal law— 5 U.S.C. § 2954 —duly enacted by both Houses of Congress and signed into law by President Coolidge. See Act of May 29, 1928, Pub. L. No. 70-611, 45 Stat. 986, 996. Their right to information, in other words, is the outcome of bicameralism and presentment, not an implicit constitutional power.

Beyond that, while the power of inquiry vests in "each House[,]" Trump v. Mazars USA, LLP , ––– U.S. ––––, 140 S. Ct. 2019, 2031, 207 L.Ed.2d 951 (2020), and is exercised by "Congress, a Chamber of Congress, or a committee[,]" Section 2954 applies to members as individuals, Maloney , 984 F.3d at 55, 64. Not only that, but Section 2954 extends an informational right to individuals in a committee minority, underscoring that, by its very design, the statute's right to information is entirely independent of any congressional or committee decision to investigate anything. So an individual's exercise of that specific statutory right to request information is neither derived from nor an exercise of the implicit investigative power. See id. at 55–56.

Instead, the statutory right the Plaintiffs are enforcing is a product of Congress's Article I authority to ensure the proper functioning of government through accountability and transparency. See U.S. CONST. Art. I, § 8, cl. 18. That authority includes the power to create an individual right to obtain information, including from federal agencies. The Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the Federal Advisory Committee Act, 5 U.S.C. app. 2 § 10(b), the Federal Election Campaign Act, 52 U.S.C. § 30104(b), the Endangered Species Act, 16 U.S.C. § 1539(c), the Government in the Sunshine Act, 5 U.S.C. § 552b, and the Privacy Act, 5 U.S.C. § 552a(d)(1), are all examples of statutes that create such a right. And under these statutes, "[a]nyone whose request for specific information has been denied has standing to bring an action[.]" Zivotofsky ex rel. Ari Z. v. Secretary of State , 444 F.3d 614, 617–618 (D.C. Cir. 2006) (discussing FOIA, Government in the Sunshine Act, and Federal Advisory Committee Act); see also, e.g. , Public Citizen v. Department of Justice , 491 U.S. 440, 449, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (Federal Advisory Committee Act); FEC v. Akins , 524 U.S. 11, 21, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (Federal Election Campaign Act); Friends of Animals v. Jewell , 824 F.3d 1033, 1040–1041 (D.C. Cir. 2016) (Endangered Species Act); cf. Doe v. Chao , 540 U.S. 614, 624–625, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004) (observing that anyone who suffers an "adverse effect" from a violation of the Privacy Act "satisfies the injury-in-fact and causation requirements of Article III standing").

Section 2954 "is on all fours, for standing purposes, with the informational right conferred by those other statutes." Maloney , 984 F.3d at 61. And there is no dispute that Plaintiffs are among those in whom Section 2954 invests an informational right. So their Article III standing is no different from the standing of individuals to enforce other statutory rights to information in the federal government's possession. In other words, Section 2954 fits the tradition of numerous other information-disclosure statutes and, like many of them, is a product of Congress's Article I authority to enact statutes creating a right to obtain information from federal agencies about their taxpayer-funded activities, not some exercise of an implicit power to investigate.1

Judge Rao suggests that this statutory injury is not "grounded in historical practice[.]" Rao Dissent 223 (quoting Spokeo, Inc. v. Robins , 578 U.S. 330, 341, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) ). To be sure, that the informational right in this case arises from a statute is not alone enough to decide the standing question because "Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing." Raines , 521 U.S. at 820 n.3, 117 S.Ct. 2312. But the precedential basis for Congress's creation of such informational injuries is longstanding. Binding precedent from the Supreme Court and this court has long held that informational injuries give rise to standing. See Spokeo , 578 U.S. at 342, 136 S.Ct. 1540 (citing Akins and Public Citizen as cases in which, consonant with the "common law * * *, the violation of a procedural right granted by statute" was sufficient "to constitute injury in fact"); see also, e.g. , Public Citizen , 491 U.S. at 449, 109 S.Ct. 2558 ; Akins , 524 U.S. at 21, 118 S.Ct. 1777 ; Zivotofsky , 444 F.3d at 617–618 ; Friends of Animals , 824 F.3d at 1040–1041.

To be sure, Section 2954 ’s informational right vests in individuals who are members of Congress, rather than in the general public. See Rao Dissent 229. But for standing purposes, that is beside the point. Article III standing depends on a plaintiff demonstrating an injury in fact, causation, and redressability. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The only prong at issue here is the injury-in-fact requirement, and reams of precedent has recognized that an informational injury is a "quintessential" injury in fact. Maloney , 984 F.3d at 59 ; see also, e.g. , TransUnion LLC v. Ramirez , ––– U.S. ––––, 141 S. Ct. 2190, 2214, 210 L.Ed.2d 568 (2021) (reiterating that plaintiffs who "allege that they failed to receive * * * required information" under a disclosure statute have standing). And Article III has never required that an otherwise qualifying injury in fact be shared with others—let alone the general public—before it counts. There is no noscitur a sociis canon for Article III injuries; their existence does not depend on the company they keep.

What is more, Plaintiffs’ injury is materially identical to an injury any member of the public could suffer: the denial of a FOIA request. Indeed, if these Plaintiffs had requested the same information under both FOIA and Section 2954, they would have standing to vindicate that informational injury. Spokeo , 578 U.S. at 342, 136 S.Ct. 1540 ; Zivotofsky , 444 F.3d at 617–618. And their status as members of Congress would not change things: Under FOIA, "the requester's circumstances—why he...

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1 books & journal articles
    • United States
    • Harvard Journal of Law & Public Policy Vol. 46 No. 1, January 2023
    • January 1, 2023
    ...Law School: Textualism's Political Morality (Mar. 3, 2022), 73 Case W. L. Rev. (forthcoming). (30.) See, e.g., Maloney v. Carnahan, 45 F.4th 215, 221 (D.C. Cir. 2022) (Rao, J., dissenting from the denial of rehearing en banc) ("[T]he text and structure of the Constitution, historical practi......

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