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Docket Number

No. 08-5357.

Attorney(S)

Carl J. Nichols, Principal Deputy Associate Attorney General, U.S. Department of Justice, argued the cause for appellants. With him on the motion for stay pending appeal and reply were Gregory G. Katsas, Assistant Attorney General, Jonathan F. Cohn, Deputy Assistant Attorney General, and Scott R. McIntosh, Michael S. Raab, Mark R. Freeman, Sarang Vijay Damle, and Henry Whitaker, Attorneys. Irvin B. Nathan, General Counsel, U.S. House of Representatives, argued the cause for appellee. With him on the opposition were Kerry W. Kircher, Deputy General Counsel, and Richard A. Kaplan, Assistant Counsel.

Judges

David S. Tatel

Acts

Judiciary And Judicial Procedure — Courts Of Appeals — Jurisdiction And Venue — Interlocutory Decisions

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Smart Summary

Opinion Summary — Committee on the Judiciary v. Miers & Bolten (No. 08-5357), D.C. Cir., Oct. 6, 2008 (Per Curiam; Tatel, J., concurring)

Factual and Procedural Background

On June 13, 2007, the Committee on the Judiciary of the U.S. House of Representatives issued subpoenas to Harriet Miers (former Counsel to the President) and Joshua Bolten (White House Chief of Staff), seeking documents and testimony relating to the forced resignation of nine U.S. Attorneys in late 2006. President Bush asserted executive privilege to block testimony and document production; Miers and Bolten refused to comply. On February 14, 2008, the House voted to hold Miers and Bolten in contempt and authorized the Committee to seek enforcement of the subpoenas in federal court. The Committee filed suit on March 10, 2008.

The district court ordered Miers to appear and testify (permitting invocation of executive privilege to specific questions), and ordered Miers and Bolten to produce non‑privileged documents and to provide privilege logs for any withheld documents. The district court did not adjudicate whether particular documents or communications were covered by executive privilege. Miers and Bolten appealed and moved for a stay pending appeal and for expedited briefing and argument.

Legal Issues Presented

Whether this court has appellate jurisdiction over the district court's orders compelling production of documents and (by declaratory judgment) compelling testimony, given the executive's claim of privilege or immunity.
Whether a stay pending appeal should be granted to defendants (Miers and Bolten).
Whether the appeal should proceed on an expedited briefing and oral-argument schedule.

Arguments of the Parties

The opinion contains a limited account of party positions. The following summarizes those positions as presented.

Appellee (Committee on the Judiciary)

The Committee acknowledged that injunctions are immediately appealable under 28 U.S.C. § 1292(a) but argued this court lacked jurisdiction here because the district court issued no injunction (the Committee contended the district court's relief did not constitute an appealable order).
The Committee opposed the appellants' request to expedite the appeal if a stay were granted (it requested expedition if the stay were granted, but the majority denied expedition).

Appellants (Harriet Miers and Joshua Bolten, with President's assertion of privilege)

The President asserted executive privilege to block testimony and production; Miers and Bolten refused to comply with the subpoenas on that basis (and the record reflects an assertion of immunity/privilege from congressional process, including a claim characterized in the opinion as an assertion of absolute immunity from process, which the district court had persuasively rejected).
Miers and Bolten moved for a stay pending appeal and for expedited briefing and argument on the appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Nixon, 418 U.S. 683 (1974)	Support for the proposition that orders compelling production in the face of executive-branch privilege claims are immediately appealable.	The court relied on Nixon to hold that the district court's order compelling production and a privilege log (despite the President's claim) was immediately appealable.
Carson v. American Brands, Inc., 450 U.S. 79 (1981)	Supports immediate appealability of certain interlocutory orders (cited alongside Nixon).	Used with Nixon to justify finding appellate jurisdiction over the district court's order to produce documents and privilege log.
United States v. Philip Morris, 314 F.3d 612 (D.C. Cir. 2003)	Referenced in the context of appealability and, in concurrence, as authority regarding when a stay is inappropriate because it would cause substantial harm to the non-moving party.	The majority cited it as a related authority; the concurrence invoked it to caution against stays that would cause substantial harm by effectively denying district-court relief.
Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985)	Support for treating a declaratory judgment as the functional equivalent of an injunction in certain contexts.	The court treated the district court's declaratory judgment directing Miers to appear as functionally equivalent to an injunction and therefore appealable.
Samuels v. Mackell, 401 U.S. 66 (1971)	Cited as supporting authority for the functional equivalence of declaratory relief to injunctive relief (as used in Sanchez-Espinoza).	Indirectly supported the court's conclusion that the declaratory judgment was appealable as the functional equivalent of an injunction.
Mitchell v. Forsyth, 472 U.S. 511 (1985)	Establishes that denial of a colorable claim of immunity from process is immediately appealable.	The court cited Mitchell to support appellate jurisdiction where the district court denied a colorable immunity claim.
United States v. AT&T Co. (AT&T I), 551 F.2d 384 (D.C. Cir. 1976)	Demonstrates that subpoenas issued by a particular Congress expire when that Congress ends; used in context of potential mootness when the 110th Congress expired.	The court cited AT&T I to explain that the subpoenas here could expire with the end of the 110th Congress and that the case might become moot, informing the decision not to expedite.
United States v. Munsingwear, 340 U.S. 36 (1950)	Related to dispositive handling of cases that become moot and the prudence of avoiding wasted judicial resources.	The court cited Munsingwear to justify declining expedited consideration because the case might become moot and expedited work could be wasted.
Moore v. Ogilvie, 394 U.S. 814 (1969)	Cited among authorities that, even if a case survives expiration of a prior congressional term, there may be no pressing need for immediate judicial decision.	Used to support the court's assessment that an immediate decision was not imperative even if the matter were not mooted by the end of the 110th Congress.
Nixon v. Administrator of General Services, 433 U.S. 425 (1977)	Analogous authority concerning post-term handling of controversies and the value of allowing the incoming branches to participate.	Cited to support the view that allowing the new President and new House to express views on the merits was an additional reason not to expedite.
Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. Dist. of Columbia, 972 F.2d 365 (D.C. Cir. 1992)	Cited as part of a group of authorities addressing the absence of need for immediate decisions in some circumstances.	Referenced to support the court's discretionary decision not to expedite despite the case's significance.
Wilderness Society v. Morton, 479 F.2d 842 (D.C. Cir. 1973) (en banc)	Cited for the proposition that delay can permit fuller consideration and input from newly constituted branches.	Invoked to show that waiting has the benefit of permitting the incoming President and House to weigh in on the merits.
United States v. AT&T Co. (AT&T II), 567 F.2d 121 (D.C. Cir. 1977)	Used to illustrate that a successor Congress can assert the investigatory interest of the prior congressional committee.	The concurrence relied on AT&T II to support the view that the case would likely survive the transition to the next Congress, reducing the risk that a stay would permanently deprive the Committee of district-court relief.
Cobell v. Kempthorne, 455 F.3d 317 (D.C. Cir. 2006)	Authority addressing appealability under 28 U.S.C. § 1292(a)(1) of orders relating to privileged-document listings.	The concurrence cited Cobell to support that the district court's order directing production of a privilege list operates as an appealable injunction under § 1292(a)(1).
United States ex rel. Long v. SCS Bus. Technical Inst., Inc., 173 F.3d 870 (D.C. Cir. 1999)	Authority for exercising pendent jurisdiction over issues "inextricably intertwined" with an appealable interlocutory order.	The concurrence invoked Long to explain why pendent jurisdiction over the entire appeal was appropriate once the privilege-log order was appealable.
Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977)	Sets a modest standard for showing likelihood of success on the merits sufficient to obtain a stay pending appeal (quoting the standard in the opinion).	The concurrence applied Holiday Tours to explain the standard for granting a stay and found the appellants' questions met that modest threshold, apart from the absolute-immunity claim.

Court's Reasoning and Analysis

The court began by addressing jurisdiction. Although the Committee argued the court lacked jurisdiction because the district court issued no injunction, the panel concluded the district court's orders were effectively appealable. With respect to document production, the district court ordered production of non‑privileged documents and a privilege log despite the President's claim of privilege; given that the executive claimed protection from judicial enforcement of congressional subpoenas, the court found the order immediately appealable. The court relied on established authority (e.g., Nixon, Carson) for the proposition that orders compelling production in the face of executive-branch privilege claims are appealable.

For Ms. Miers's testimony, although the district court framed relief as a declaratory judgment, the panel reasoned that because Miers acted under the President's instruction, and because courts presume Executive Branch officials will adhere to a court's legal declarations, the declaratory judgment operated as the functional equivalent of an injunction (citing Sanchez-Espinoza and Samuels). The panel further observed that the Supreme Court has long treated denials of colorable immunity claims as immediately appealable (citing Mitchell), reinforcing appellate jurisdiction.

Turning to the motions, the court considered the practical posture and timing of the case. The court recognized the dispute's constitutional significance but noted the 110th Congress would end January 3, 2009, at which point the subpoenas issued by that House would expire (citing AT&T I). Because the case — despite its importance — could become moot before full judicial resolution, the panel concluded that expediting the appeal would risk wasting judicial and party resources (citing Munsingwear). The court also observed that, if not mooted by the end of the 110th Congress, there would still be no pressing need for immediate adjudication and that delaying consideration would permit the incoming President and House to express their views (citing Moore, Nixon v. AGS, Wilderness Society, and related authority). Based on these considerations, the court exercised its discretion to grant a stay pending appeal and to deny the request for expedited briefing and oral argument.

In a separate concurrence, Judge Tatel agreed on jurisdiction and on granting the stay but expressed concern about granting stays that could effectively nullify a district-court victory by causing irrevocable mootness. Judge Tatel explained the standard for obtaining a stay under Holiday Tours and observed that, aside from the disputed claim of absolute immunity, the appellants had raised sufficiently serious questions to warrant a stay. He further reasoned that the Committee had persuaded him the litigation would likely survive into the next Congress (citing AT&T II), which ameliorated his concerns about irreparable harm to the Committee from the stay and supported allowing a full (non‑expedited) briefing schedule to enable input from the incoming branches.

Holding and Implications

Holding (core ruling): The court granted the appellants' motion for a stay pending appeal and denied the appellants' motion to expedite briefing and oral argument. The court thereby stayed federal-court enforcement of the district court's orders while the appeal proceeds.

DISPOSITION: Stay pending appeal GRANTED; motion for expedition DENIED.

Implications:

The immediate practical effect is that the district court's orders directing production of documents, provision of a privilege log, and declaratory relief compelling testimony are stayed while the appeal is litigated.
The court reached no merits determination regarding executive privilege or immunity; it explicitly did not resolve whether executive privilege would bar disclosure of any particular communication or document.
The opinion emphasizes the potential for mootness when a congressional term ends (the subpoenas at issue were issued by the 110th Congress and could expire), and it therefore declines to expedite the appeal in the exercise of judicial discretion. The court also noted the institutional value of permitting the incoming President and House to participate in the resolution of this interbranch dispute.
The court's action does not announce a new substantive precedent on executive privilege or immunity; it is a procedural disposition addressing jurisdiction and interim relief (stay and expedition) rather than the merits.

This summary is based exclusively on the text of the opinion provided. Where the opinion did not provide detailed party briefings on other issues, those details are not included here.

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COMMITTEE ON THE JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES, Appellee v. Harriet MIERS and Joshua B. Bolten, in his Capacity as Custodian of White House Records, Appellants.

PER CURIAM:

On June 13, 2007, the Committee on the Judiciary of the United States House of Representatives issued a subpoena to Harriet Miers, former Counsel to President George W. Bush, seeking to compel her to produce documents and to appear and testify about the forced resignation of nine United States Attorneys in late 2006. On the same day, the Committee issued a subpoena to Joshua B. Bolten, President Bush's Chief of Staff, seeking documents regarding the same subject. President Bush asserted executive privilege to block the testimony and production of the documents, and Ms. Miers and Mr. Bolten refused to comply with the subpoenas. On February 14, 2008, the House of Representatives voted to hold Ms. Miers and Mr. Bolten in contempt of Congress and passed an accompanying resolution authorizing the Committee to initiate an action in federal court seeking to enforce compliance with the subpoenas. The Committee filed suit in the district court on March 10, 2008.

The district court declared that Ms. Miers was legally required to appear and testify in response to the Committee's subpoena, although she could invoke executive privilege in response to specific questions. The district court further ordered Ms. Miers and Mr. Bolten to produce all non-privileged documents and to provide privilege logs describing any documents not produced. The district court's opinion did not address whether executive privilege would bar the disclosure of any particular communication or document. Ms. Miers and Mr. Bolten filed a notice of appeal and moved for a stay pending disposition of the appeal and for expedited briefing and oral argument.

Although the Committee acknowledges that an order granting an injunction is immediately appealable, see 28 U.S.C. § 1292(a), it argues that this court lacks jurisdiction because the district court issued no such order. With respect to the production of documents, the Committee is plainly incorrect. The district court ordered Mr. Bolten and Ms. Miers to take certain actions — to produce documents and a privilege log despite their claim, at the President's behest, that they are shielded from legislative compulsion enforced by the judiciary. Given that claim, the district court's order is immediately appealable. See United States v. Nixon, 418 U.S. 683, 691, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Carson v. Am. Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981); cf. United States v. Philip Morris, 314 F.3d 612, 617-18 (D.C. Cir. 2003). As to Ms. Miers's testimony, the court framed its decree as a declaratory judgment. But Ms. Miers acted in compliance with the instruction of President Bush, and we have long presumed that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction. See Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n. 8 (D.C. Cir. 1985) (citing Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971)). In addition, the Supreme Court has long held that a district court's denial of a colorable claim of immunity from process is immediately appealable. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 525-26, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We therefore find that appellate jurisdiction exists.

The present dispute is of potentially great significance for the balance of power between the Legislative and Executive Branches. But the Committee recognizes that, even if expedited, this controversy will not be fully and finally resolved by the Judicial Branch — including resolution by a panel and possible rehearing by this court en banc and by the Supreme Court — before the 110th Congress ends on January 3, 2009. At that time, the 110th House of Representatives will cease to exist as a legal entity, and the subpoenas it has issued will expire. See, e.g., United States v. Am. Tel. Tel. Co. (AT T I), 551 F.2d 384, 390 (D.C. Cir. 1976). In view of the above considerations, we see no reason to set the appeal on an expedited briefing and oral argument schedule. If the case becomes moot, we would be wasting the time of the court and the parties. See United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950). If the case does not become moot despite the expiration of the subpoenas, see Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 448-49, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. Dist. of Columbia, 972 F.2d 365, 370 (D.C. Cir. 1992) — an issue we need not resolve at this time — there would be no pressing need for an immediate decision. See Wilderness Soc'y v. Morton, 479 F.2d 842, 886-87 (D.C. Cir. 1973) (en banc). This course has the additional benefit of permitting the new President and the new House an opportunity to express their views on the merits of the lawsuit. See Nixon, 433 U.S. at 448-49, 97 S.Ct. 2777; AT T I, 551 F.3d at 390.

We therefore grant the motion for stay pending appeal and deny the motion for expedition.

So ordered.

TATEL, Circuit Judge, concurring in the disposition of the motions:

I agree that we have jurisdiction. The district court's order directing the defendants to produce a list of privileged documents, relief the Committee specifically seeks in its complaint, Compl. ¶ 83, operates as an appealable injunction under 28 U.S.C. § 1292(a)(1). See Cobell v. Kempthorne, 455 F.3d 317, 322 (D.C. Cir. 2006). And because the challenge to that order is "inextricably intertwined" with the other issues in the case, we have pendent jurisdiction over the entire appeal. United States ex rel. Long v. SCS Bus. Technical Inst., Inc., 173 F.3d 870, 873 (D.C. Cir. 1999).

To show a likelihood of success on the merits sufficient to obtain a stay pending appeal, an appellant who will suffer serious irreparable injury need only raise "questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation." Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977) (internal quotation marks omitted). Except for the executive's assertion of absolute immunity from congressional process, see Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F.Supp.2d 53, 99-107 (D.D.C. 2008) (persuasively rejecting claim of absolute immunity), the issues before us satisfy that modest standard.

Nonetheless, I am perplexed by the panel majority's willingness to grant a stay while hypothesizing that the expiration of the 110th Congress might moot the case before it is heard on the merits. Never have we granted a stay that would have the effect of irrevocably depriving a party of its victory in the district court. Nor have we authority to do so, for a stay in such circumstances would necessarily cause "substantial" — indeed, overwhelming — harm. See United States v. Philip Morris, Inc., 314 F.3d 612, 617 (D.C. Cir. 2003) (explaining that a stay is inappropriate where it would cause "substantial harm" to a non-moving party).

For the reasons stated by committee counsel at oral argument, however, I am convinced the case will survive this Congress. Whether or not the case would otherwise be capable of repetition yet evading review, the successor Congress can assert the prior Committee's investigatory interest, as it did in United States v. AT T Co. (AT T II), 567 F.2d 121 (D.C. Cir. 1977). See also Conyers Decl. That being the ease, the Committee's concession that this matter will continue into the 111th Congress, regardless of whether we grant a stay, tips the balance of harms in favor of giving the courts due time for "more deliberative investigation." Holiday Tours, 559 F.2d at 844.

The Committee has asked us to expedite this appeal if we grant a stay, but the fact that the case will in any event continue into next year counsels against rushing our deliberations. In another parallel to the AT T litigation, abiding by the usual briefing schedule has the advantage of allowing the input "not only [of] a new House but [of] a new President." United States v. AT T Co. (AT T I), 551 F.2d 384 (D.C. Cir. 1976); see also AT T II, 567 F.2d at 127 ("The framers, rather than attempting to define and allocate all governmental power in minute detail, relied, we believe, on the expectation that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system.").

COMM. ON JUD. v. MIERS