United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16, 2008 Decided October 6, 2008
No. 08-5357
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
On the Motion for Stay Pending Appeal
(No. 1:08-cv-00409-JDB)
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
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Richard A. Kaplan, Assistant Counsel.
Before: GINSBURG, RANDOLPH and TATEL, Circuit Judges.
Opinion for the Court filed PER CURIAM.
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
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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 executive
privilege shields them 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 (1974); Carson v. Am. Brands, Inc., 450 U.S. 79, 84
(1981); cf. United States v. Phillip Morris, 314 F.3d 612,
617-618 (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 (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 (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
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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
(1950). If the case does not become moot despite the expiration
of the subpoenas, see Moore v. Ogilvie, 394 U.S. 814, 816
(1969); Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 448–49
(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; 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.
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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
s u c h c i r c u ms t a n c e s w o u l d n e c e s s a r i l y c a u s e
“substantial”—indeed, overwhelming—harm. See United States
v. Philip Morris, Inc., 314 F.3d 612, 617 (D.C. Cir. 2003)
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(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 case, 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.”).