Maloney v. Murphy, 122920 FEDDC, 18-5305

Docket Nº18-5305
Opinion JudgeMILLETT, CIRCUIT JUDGE
Party NameCarolyn Maloney, et al., Appellants v. Emily W. Murphy, Administrator, General Services Administration, Appellee
AttorneyDavid C. Vladeck argued the cause for appellants. With him on the briefs were Stephanie Glaberson, Scott L. Nelson, and Allison M. Zieve. Hashim M. Mooppan, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Mark R. Freeman, Sc...
Judge PanelBefore: Tatel and Millett, Circuit Judges, and Ginsburg, Senior Circuit Judge. Ginsburg, Senior Circuit Judge, dissenting:
Case DateDecember 29, 2020
CourtUnited States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Carolyn Maloney, et al., Appellants

v.

Emily W. Murphy, Administrator, General Services Administration, Appellee

No. 18-5305

United States Court of Appeals, District of Columbia Circuit

December 29, 2020

Argued October 22, 2019

Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-02308)

David C. Vladeck argued the cause for appellants. With him on the briefs were Stephanie Glaberson, Scott L. Nelson, and Allison M. Zieve.

Hashim M. Mooppan, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Mark R. Freeman, Scott R. McIntosh, and Jeffrey E. Sandberg, Attorneys.

Before: Tatel and Millett, Circuit Judges, and Ginsburg, Senior Circuit Judge.

OPINION

MILLETT, CIRCUIT JUDGE

Federal law expressly authorizes seven or more members (less than a majority) of the House of Representatives' Committee on Oversight and Reform to request and to receive information from government agencies as relevant to the performance of their Committee duties. See 5 U.S.C. § 2954. In 2017, the Ranking Member of the Committee and seven other members sent such a request to the General Services Administration seeking information related to property owned by the United States government. The agency refused to comply.

The sole question before the court is whether the members who requested agency information under Section 2954 have standing under Article III to enforce their statutorily conferred right to information. We hold that they do. Informational injuries have long satisfied the injury requirement of Article III. A rebuffed request for information to which the requester is statutorily entitled is a concrete, particularized, and individualized personal injury, within the meaning of Article III. That traditional form of injury is quite distinct from the non-cognizable, generalized injuries claimed by legislators that are tied broadly to the law-making process and that affect all legislators equally. And nothing in Article III erects a categorical bar against legislators suing to enforce statutorily created informational rights against federal agencies, whether under the Freedom of Information Act, 5 U.S.C. § 552, or under Section 2954. Because the plaintiffs have standing, we reverse the district court's dismissal of the case and remand for further proceedings.

I

A

Under Section 2954 of Title 5, committee members on the House and Senate committees dedicated to governmental oversight may request and receive information from federal agencies that pertains to those members' committee work. Section 2954 provides in full: An Executive agency, on request of the Committee on Government Operations of the House of Representatives [now the Committee on Oversight and Reform], or of any seven members thereof, or on request of the Committee on [Homeland Security and] Governmental Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee.

5 U.S.C. § 2954.

At the time of Section 2954's passage, the relevant House committee had 21 members, thirteen from the majority party and eight from the minority. See 1 David Canon et al., Committees in the U.S. Congress, 1789-1946: House Standing Committees 497 (2002). Section 2954's terms specifically empower not just the full committees, but also a smaller, non-majority group of committee members (seven in the House and five in the Senate) to request needed information from federal agencies.

As now constituted, the two committees covered by Section 2954 are uniquely focused on governmental oversight and accountability. The Committee on Oversight and Reform of the House has relatively broad jurisdiction over, among other things, "[g]overnment management and accounting measures generally"; "[o]verall economy, efficiency, and management of government operations and activities, including Federal procurement"; and "[p]ublic information and records." House Rule X, cl. 1(n). The Committee on Homeland Security and Governmental Affairs of the Senate has jurisdiction over similar subjects, including "[b]udget and accounting measures" and "[g]overnment information." Senate Rule XXV, cl. 1 (k)(1).

Section 2954 was enacted in 1928 in the wake of the Supreme Court's landmark decision in McGrain v. Daugherty, 273 U.S. 135 (1927). Suspecting that the Attorney General of the United States had failed to prosecute specific individuals who had violated the antitrust laws, the Senate formed a select committee to investigate the matter. That committee's investigative powers included issuing subpoenas to witnesses. Id. at 151-152. When a witness refused to comply and challenged Congress's right to call individuals to testify, the Court affirmed that Congress's "power of inquiry-with process to enforce it-is an essential and appropriate auxiliary to the legislative function." Id. at 174. Such power was necessary to effective governance because "[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information-which not infrequently is true-recourse must be had to others who do possess it." Id. at 175.

Against that backdrop, Congress passed Section 2954, and the President signed it into law. Previously, 128 different statutes scattered across the United States Code had obligated certain federal agencies to submit periodic reports and information to Congress. See Act of May 29, 1928, Pub. L. No. 70-611, 45 Stat. 986, 986-996. Congress repealed those mandatory reporting requirements and replaced them with Section 2954, ensuring that legislators serving on the two committees directly responsible for government oversight could more effectively and more timely receive the information from federal agencies that is necessary and useful to their performance of their legislative duties. See id. at 996; see also H.R. Rep. No. 1757, 70th Cong., 1st Sess. 3, 6 (1928); id. 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 to be furnished to the Committee on Expenditures in the Executive Departments or upon the request of any seven members thereof.") (emphasis added).

Section 2954 is distinct from Congress's institutional authority to request or subpoena documents and witnesses. Those measures require formal authorization by Congress, a Chamber of Congress, or a committee. But an information request under Section 2954 can be made by just a small group of legislators-a true minority-who make the individual judgment to seek the information as a means of better informing their committee work. As both the House and Senate Reports explained: "If 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." H.R. Rep. No. 1757, at 6; S. Rep. No. 1320, 70th Cong., 1st Sess. 4 (1928).[1]

B

In February 2017, the then-House Oversight Committee Ranking Member, Representative Elijah Cummings, and seven other members of the House Oversight Committee (collectively, "Requesters"), issued a Section 2954 request for information to the General Services Administration ("GSA") after the agency had repeatedly rebuffed their efforts to obtain the information voluntarily.2

The Requesters' inquiry has its origin in the GSA's 2013 lease of the Old Post Office building in Washington, D.C., to Trump Old Post Office LLC ("Company"), a business owned by the now-President Donald Trump and his children. The lease agreement explicitly barred any federal or District of Columbia elected official from participating in or benefiting from the lease: 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.

J.A. 11, Compl. ¶ 11 (quoting Article 37.19 of the lease agreement).3

In November 2016, following President Trump's election, Representative Cummings and three other Committee members requested that the GSA provide a briefing on the lease, as well as unredacted copies of lease documents and the Company's monthly and annual statements. After the request was again made by Representative Cummings and ten other Committee members, invoking Section 2954, the GSA produced records including lease amendments, a 2017 budget estimate, and monthly income statements. The GSA stated that it was releasing the information "[c]onsistent with [Section 2954.]" J.A. 87.

In January 2017, following President Trump's inauguration, Representative Cummings and three other Committee members requested additional information from the GSA relating to the agency's enforcement of the lease terms. Specifically, they asked the 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...

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