U.S. House of Representatives v. Mnuchin

• Decision Date: 07 August 2020
• Docket Number: No. 19-5176,19-5176
• Citation: 969 F.3d 353 (Mem)
• Parties: UNITED STATES HOUSE OF REPRESENTATIVES, Appellant v. Steven T. MNUCHIN, in his official capacity as Secretary of The United States Department of the Treasury, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

969 F.3d 353 (Mem)

UNITED STATES HOUSE OF REPRESENTATIVES, Appellant

v.Steven T. MNUCHIN, in his official capacity as Secretary of The United States Department of the Treasury, et al., Appellees

No. 19-5176

United States Court of Appeals, District of Columbia Circuit.

Argued April 28, 2020

Decided August 7, 2020

ORDER

Per Curiam On March 13, 2020, a majority of the judges eligible to participate voted to rehear this case en banc together with Committee on the Judiciary of the U.S. House of Representatives v. McGahn , No. 19-5331, ––– F.3d ––––, to consider the "common issue of Article III standing presented" in both cases. See Order at 1, U.S. House of Representatives v. Mnuchin , No. 19-5176, 2020 WL 1228477 (D.C. Cir. Mar. 13, 2020). The en banc court's decision in McGahn resolves that common issue by holding that there is no general bar against the House of Representatives’ standing in all cases involving purely interbranch disputes. See Committee on the Judiciary of the U.S. House of Representatives v. McGahn , No. 19-5331, ––– F.3d ––––, 2020 WL 4556761 (D.C. Cir. Aug. 7, 2020) (en banc). Accordingly, it is

ORDERED that this case be remanded to the original panel for further consideration in light of McGahn . See Al Bahlul v. United States , 767 F.3d 1, 31 (D.C. Cir. 2014) (en banc) (remanding case to panel to consider outstanding questions); United States v. McCoy , 313 F.3d 561, 562 (D.C. Cir. 2002) (en banc) (same).

Karen LeCraft Henderson, Circuit Judge, with whom Circuit Judge Griffith joins, dissenting:

After the Committee on the Judiciary of the United States House of Representatives timely petitioned for rehearing en banc in McGahn , the Mnuchin panel sua sponte asked the full court to take up that case as well to resolve "the common issue of Article III standing." Order at 1, U.S. House of Representatives v. Mnuchin , No. 19-5176, 2020 WL 1228477 (D.C. Cir. Mar. 13, 2020). The court agreed to rehear both cases en banc, ordered supplemental briefing to address Article III standing and consolidated the cases for oral argument. Now, however, the court has determined that only one of the two warrants discussion, remanding Mnuchin to the panel for further consideration in light of McGahn . Because I would resolve the House's standing in Mnuchin as an en banc court, I dissent from the order remanding that case.

En banc rehearing is "not favored," "rarely granted" and usually ordered only "to secure or maintain uniformity of decisions among the panels ... or to decide questions of exceptional importance." D.C. Circuit Handbook of Practice and Internal Procedures 58 (2019). As an initial matter, it is not obvious that rehearing Mnuchin was necessary to achieve uniformity.

The Mnuchin panel had not issued an opinion before sua sponte seeking rehearing en banc and, in line with our precedent, could have simply "elect[ed] to withhold its decision until the en banc court decide[d] the potentially dispositive question" in McGahn . Nat'l Ass'n of Mfrs. v. SEC , 748 F.3d 359, 374 (D.C. Cir. 2014) (Srinivasan, J., concurring in part) (providing examples), overruled on other grounds by Am. Meat Inst. v. USDA , 760 F.3d 18 (D.C. Cir. 2014) (en banc). Nevertheless, once the en banc court agreed to rehear the Article III issue in Mnuchin , we committed, I thought, to fully resolve the exceptionally important questions of legislative standing therein. By reserving these matters for the panel to consider in the first instance, the remand order disserves the parties’ expectations and makes poor use of scarce judicial resources.

First, the parties do not appear to have shared the circumscribed view that the Article III standing question before the en banc court concerned only whether interbranch suits are generally barred. Both the House of Representatives and the Department of Justice briefed the court on matters relevant to whether Mnuchin could be resolved on narrower grounds, see, e.g. , Appellant's Supp. Br. 13; Appellee's Supp. Br. 5, and we provided no notice that such important questions would remain unanswered after consideration by the en banc court. On the contrary, the precedent cited in the order granting rehearing en banc belies this outcome, see Fields v. Office of Eddie Bernice Johnson , 459 F.3d 1 (D.C. Cir. 2006) (en banc) (two appeals heard together en banc and decided in a consolidated opinion); United States v. Crowder , 87 F.3d 1405 (D.C. Cir. 1996) (en banc) (same), cert. granted, judgment vacated , 519 U.S. 1087, 117 S.Ct. 760, 136 L.Ed.2d 708 (1997), and the remand order's post hoc explanation falls short. In United States v. McCoy , 313 F.3d 561, 567 (D.C. Cir. 2002) (en banc), we remanded the merits question to the panel, rather than to the district court, in order "to consume fewer judicial resources." But, as highlighted below, remanding has the opposite effect here. And in Al Bahlul v. United States , 767 F.3d 1, 31 (D.C. Cir. 2014) (en banc), the appellant raised four challenges that "[w]e intended neither the en banc briefing nor argument to address" and "with the exception of a few passages ..., we received none from the parties." Remand was therefore necessary to dispose of the outstanding issues but, here, we asked for and conducted a thorough airing of the House's Mnuchin standing. The majority points to no case—nor am I aware of any—in which we sua sponte consolidated two appeals for en banc rehearing and then addressed only one of them in the resulting opinion.

Second, although the remand is functionally equivalent to holding Mnuchin in abeyance pending the resolution of McGahn , that does not mean our procedural maneuverings can be written off as "no harm, no foul." To do so would overlook "the time and energy required of this court every time it gathers en banc," Order Denying Rehearing En Banc, Edison Pharm. Co. v. FDA , 517 F.2d 164, 165 (D.C. Cir. 1975) (statement by Leventhal, J.), a concern that is especially pertinent given the constraints imposed by the current pandemic. After two sets of briefing, two merits arguments and months of consideration, there is no reason that the parties should continue to languish without a definitive answer from this court. I see no benefit in prolonging the disposition of this important case and, accordingly, I respectfully dissent.

Griffith, Circuit Judge, with whom Circuit Judge Henderson joins, dissenting:

Today the en banc court issues an order remanding this case to the three-judge panel without deciding the sole issue we agreed to resolve: whether the House of Representatives has Article III standing to sue the Executive Branch for violating the Appropriations Clause. The parties have been litigating this case for well over a year, and the court's remand of the matter to the panel will likely delay final judgment for at least that long again. Such delay not only deprives the parties of timely resolution of this dispute, but it leaves this circuit's law on congressional standing uncertain. That confusion invites Congress to continue to litigate its political disputes with the Executive Branch—to the detriment of both Congress and the Judiciary.

This is not a hard case. Even under the return to the discredited view of legislative standing that the court adopts today in McGahn , the House still lacks Article III standing to sue to enforce the Appropriations Clause. At bottom, the House's lawsuit is indistinguishable from a claim that the Executive Branch has failed to follow the law—a "generalized grievance[ ]" that cannot confer Article III standing. Allen v. Wright , 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). What's more, the House alone cannot sue to protect Congress's interest in enforcing the Appropriations Clause, as the Supreme Court made clear in Virginia House of Delegates v. Bethune-Hill , ––– U.S. ––––, 139 S. Ct. 1945, 1953-54, 204 L.Ed.2d 305 (2019). The House's lawsuit must be dismissed.

I

On February 14, 2019, after the longest-ever partial shutdown of the federal government, Congress passed the Consolidated Appropriations Act of 2019, Pub. L. No. 116-6, 133 Stat. 13, which appropriated $1.375 billion for construction of a wall along the border with Mexico. That amount was several billion dollars less than the President sought. The same day the President signed the bill, the Administration announced that it had "identified up to $8.1 billion" in appropriated funds from other congressional statutes to build the wall. President Donald J. Trump's Border Security Victory , White House (Feb. 15, 2019), J.A. 151.

On April 5, 2019, the House filed suit in federal district court, alleging that the Administration "flouted fundamental separation-of-powers principles and usurped for itself the legislative power specifically vested by the Constitution in Congress." Compl. at 2, J.A. 19. According to the House, the appropriations statutes invoked by the Administration "d[id] not authorize" the Executive Branch to expend funds "to construct a wall along the southern border." Id. ¶ 103, J.A. 58. The House claimed that this unauthorized spending violated the Administrative Procedure Act and the Appropriations Clause. Id. ¶¶ 89-120, J.A. 56-60. The district court denied the House's motion for a preliminary injunction, concluding that the House lacked standing. See U.S. House of Representatives v. Mnuchin , 379 F. Supp. 3d 8 (D.D.C. 2019).

The House timely appealed, and the matter was fully briefed and then argued before a three-judge panel on February 18, 2020. On February 28, our circuit decided Committee on the Judiciary v. McGahn , 951 F.3d 510 (D.C. Cir. 2020) ( McGahn I ), reh'g en banc granted sub nom. U.S. House of Representatives v. Mnuchin , No. 19-5176, 2020 WL 1228477 (D.C. Cir. Mar. 13, 2020) [hereinafter Mnuchin Order ]. In McGahn I , a divided panel held that the Judiciary Committee's suit to enforce a congressional subpoena against the Executive Branch did "not present an Article III case or controversy." Id. at...