D.C. Circuit Panel: Congress Must Pass Law to Authorize House Subpoena Enforcement
On August 31, 2020, in a 2-1 decision after a remand from the en banc court, a panel of the United States Court of Appeals for the D.C. Circuit held that the Committee on the Judiciary of the United States House of Representatives (“Judiciary Committee”) had no valid cause of action to enforce its subpoena for executive branch records related to former White House Counsel Donald F. McGahn, II, where the Executive Branch blocked McGahn’s testimony and asserted “absolute testimonial immunity.”
On August 7, 2020, the en banc court held that the Judiciary Committee has Article III standing to seek judicial enforcement of a subpoena. But the en banc court also held that the Judiciary Committee required a “cause of action to prosecute” its case in federal court, and remanded the case to the panel to determine whether such a cause of action existed.
In the panel’s decision on remand, it stated that the Judiciary Committee argued it had an “implied cause of action under Article I,” in which it could “invoke the traditional power of courts of equity to enjoin unlawful executive action,” and that it had a separate basis for this suit in the Declaratory Judgment Act. The panel disagreed with both arguments made by the Judiciary Committee.
First, the panel listed a number of recent Supreme Court decisions, including Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009, 1015 (2020); Hernandez v. Mesa, 140 S. Ct. 735, 741-43 (2020); Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1402 (2018) and others, to stand for the proposition that “the Supreme Court has warned federal courts to hesitate before finding implied causes of action—whether in a congressional statute or in the Constiution.” The appeals court specifically cited the 2017 Supreme Court decision in Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017): “When a party seeks to assert an implied cause of action under the Constitution itself,…separation-of-powers principles are or should be central to the analysis,” and usually Congress “should decide” whether to authorize a lawsuit.
The panel also pointed to two separate statutes (2 U.S.C. § 288d; 28 U.S.C. § 1365(b)) authorizing lawsuits by the United States Senate, but not mentioning the United States House of Representatives. One of those statutes, the panel asserted, “expressly excludes suits that involve executive-branch assertions of ‘governmental privilege.’” According to the panel, “[t]he expression of one thing implies the exclusion of the other,” and therefore authorizing the Judiciary Committee to bring its lawsuit would conflict with the implication of exclusion created by statutes specifically authorizing Senate lawsuits.
The panel criticized the Judiciary Committee for failure to “point to a single example in which a chamber of Congress brought suit for injunctive relief against the Executive Branch prior to the 1970s.” Although the en banc court rejected a similar argument in its decision, the panel held that examples from after 1970 are “(at least) thirty years too late” given that the proper test for whether the court should exercise its “traditional equitable powers” is whether “the relief” requested “was traditionally accorded by courts of equity.” According to the panel decision, because the “separate systems of law and equity” in our federal judicial system “ceased to exist in 1938,” examples of lawsuits for injunctive relief after 1970 were not persuasive.
The panel decision also disagreed with the Judiciary Committee’s argument that the Declaratory Judgment Act allowed it to bring suit, holding that the “Declaratory Judgment Act does not itself ‘provide a cause of action,’ as the ‘availability of decalaratory relief presupposes the existence of a judicially remediable right.’” According to the panel decision, because Article I does not create a “judicially remediable right” to enforce a congressional subpoena issued by the House of Representatives, the Judiciary Committee cannot use the Declaratory Judgment Act to “bootstrap its way into federal court.”
For the above stated reasons, and even accounting for the en banc court’s holding that the Judiciary Committee had the requisite Article III standing, the D.C. Circuit Court of Appeals panel dismissed the case.
Read the full case: Committee on the Judiciary of the United States House of Representatives v. McGahn.
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.