Musgrave v. Warner

Decision Date15 September 2022
Docket NumberCivil Action 21-cv-2198 (BAH)
PartiesSHAWN MUSGRAVE, Plaintiff, v. MARK WARNER, et al., Defendants.
CourtU.S. District Court — District of Columbia
MEMORANDUM OPINION

BERYL A. HOWELL, CHIEF JUDGE

Plaintiff Shawn Musgrave asserts that the common-law right to public access requires defendants, the Senate Select Committee on Intelligence (“SSCI” or “Committee”) and Mark Warner, in his capacity as the Chair of SSCI, to disclose, in full, the classified 2014 Senate Report 113-288 Report of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency's Detention and Interrogation Program (“the Report”). See generally Compl., ECF No 1.[1] According to plaintiff, defendants' failure to produce upon requested, the classified Report violates the common-law right of public access “to inspect and copy public records and documents.” Id. ¶ 7. Defendants move to dismiss the Complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defs.' Mot. Dismiss (“Defs.' Mot.”), ECF No. 5 arguing that the Speech or Debate Clause and sovereign immunity bars the exercise of jurisdiction here and that no valid claim is presented, Defs.' Mem. Supp. Mot. Dismiss (“Defs.' Mem.”) at 1-2, ECF No. 5-1. Plaintiff moves for partial summary judgment seeking “a declaratory judgment that the common law right of access applies to reports written by Committees of the U.S. Congress in appropriate circumstances.” Pl.'s Opp'n Defs.' Mot. Dismiss (“Pl.'s Opp'n”) at 1, ECF No. 14; accord Pl.'s Mot. Partial Summ. J., ECF No. 15. For the reasons explained below, defendants' motion is granted for lack of jurisdiction, requiring dismissal of the Complaint without prejudice.

I. BACKGROUND

In December 2007, after a briefing from then-CIA Director Michael Hayden, the Committee ordered a review of the destruction of videotapes related to CIA interrogations of specific individuals. Report, Executive Summary at 8 (background on the Report);[2] Defs.' Mem. at 4. That review proved extensive and led SSCI to deepen its evaluation into the destruction of videotapes related to CIA interrogations, which revealed that a broader study of the CIA's detention and interrogation program at large was needed. Id. Consequently, on March 5, 2009, “against [the] backdrop [of September 11, 2001]-the largest attack against the American homeland in our history,” Compl. ¶ 17-SSCI approved a study into the CIA's former program of detention and interrogation techniques with instructions that this examination be used “as broadly as appropriate to help make sure that this experience is never repeated,” id. ¶ 26; see Report at 8. SSCI's study resulted in a report more than 6,700 pages long with approximately 38,000 footnotes, that is “highly critical” of the CIA's response to 9/11 and the agency's actions taken “in the name of national security.” Compl. ¶¶ 16-18. The classified report, Senate Report 113-288, was approved by SSCI on December 13, 2012. See Report at i. Senator Dianne Feinstein, then-Chair of SSCI, described the Report as “the most significant and comprehensive oversight report in [SSCI's] history.” Compl. ¶ 23; accord Report, Foreword at 5.

On December 9, 2014, the full Report was ordered to be printed and the 700-page declassified Executive Summary, Findings and Conclusions, and Additional and Minority Views were released to the public. Id. ¶ 16; see also Press Release, U.S. Senate Select Committee on Intelligence, Committee Releases Study of the CIA's Detention and Interrogation Program (Dec. 9, 2014), http://www.intelligence.senate.gov/press/committee-releases-study-cias-detention-and-interrogation-program. According to plaintiff, Senator Feinstein did not seek immediate declassification of the full Report because doing so for the “more than six thousand page report would have significantly delayed the release of the Executive Summary.” Compl. ¶ 21; accord Report, Foreword at 3. Plaintiff contends that [a]lthough the Executive Summary provides sufficient detail to demonstrate the inaccuracies of each of the CIA's claims,” the Report provided to the President and executive agencies “is far more extensive.” Compl. ¶ 20 (internal citations omitted).

On January 14, 2015, Senator Richard Burr, Senator Feinstein's successor as Chair of SSCI, requested that “all copies of the full and final report in the possession of the Executive Branch be returned immediately to the Committee.” ACLU v. CIA, 823 F.3d 655, 661 (D.C. Cir. 2016); see also Compl. ¶ 27. Many executive-branch departments complied with Senator Burr's request, see id. ¶ 29, and the Trump administration later provided the White House's copies of the Report, see id. ¶ 30, but two copies were not returned to SSCI. Copies of the Report are maintained by the National Archives and Records Administration, as part of President Obama's official presidential archive, and by a federal district court and the Department of Defense pursuant to Judge Lamberth's order of preservation in connection with pending Guantanamo Bay litigation. Id. ¶ 28; see also Al-Nashiri v. Obama, No. 08-cv-1207, Preservation Order, ECF No. 268 (D.D.C. Dec. 28, 2016). According to plaintiff, the return of the Report by executive agencies “increase[d] the risk that future government officials, unable to read the report, will never learn its lessons.” Compl. ¶ 30.

On June 4, 2021, plaintiff requested from SSCI a copy of the full Report because of the significant “public interest in disclosure,” id. ¶ 15, of a “critical piece of American history,” id. ¶ 34. SSCI denied his request. Id. ¶ 37. Plaintiff then filed this lawsuit on August 18, 2021, against SSCI and its current Chair, Senator Mark Warner, asserting a claim under the commonlaw right of access to public records, the Declaratory Judgment Act, 28 U.S.C. § 2201, and the All Writs Act, 28 U.S.C. § 1651. Compl. at 1.

Defendants' pending motion to dismiss and plaintiff's cross-motion for partial summary judgment 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 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 Gunn v. Minton, 568 U.S. 251, 256 (2013) (‘Federal courts are courts of limited jurisdiction,' possessing ‘only that power authorized by [the] 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 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) (quoting Am. Nat'lIns. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (citations omitted)). 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 accepting] inferences unsupported by facts or legal conclusions cast in the form of factual allegations” (internal quotations and citations omitted)); see also Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

III. DISCUSSION

Defendants argue that the Court lacks jurisdiction over this case for two reasons: first, “the SSCI Report constitutes a Senate committee's communication to the Senate on a matter within the legislative sphere, and, therefore, the Committee and its Chairman are absolutely protected from compelled disclosure of the Report by the Speech or Debate Clause,” Defs.' Mem. at 8; and, second, [b]oth SSCI, as a congressional committee, and Senator Warner, as a Senator and as the Chairman of SSCI sued in his official capacity, are covered by sovereign immunity,” id. at 13. Plaintiff counters that neither form of immunity applies, see Pl.'s Opp'n at 2-7, 15-18, and instead that the common-law right of access permits disclosure of the full Report in this instance, id. at 7-15, 18-20. Each argument is addressed in turn.[3]

A. Speech or Debate Clause

Plaintiff's demand for disclosure of the Report is barred by the Speech or Debate Clause, which provides that “Senators and Representatives . . . for any Speech or Debate in either House . . . shall not be questioned in any other Place.” U.S. CONST., art. I, § 6, cl. 1. This Clause creates “absolute immunity from civil suit.” Rangel v. Boehner, 785 F.3d 19, 23 (D.C. Cir. 2015) (citing Eastland v. U.S Servicemen's Fund, 421 U.S. 491, 502-03 (1975)). The purpose of such immunity “is to protect the individual...

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