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Jewish War Veterans of the United States of America, Inc. v. Gates

November 8, 2007


The opinion of the court was delivered by: John D. Bates United States District Judge


On September 18, 2007 this Court issued an Order and an accompanying Memorandum Opinion requiring that Congressmen Darrell E. Issa, Brian P. Bilbray, and Duncan Hunter (collectively "the Members") disclose certain documents to plaintiffs, the Jewish War Veterans of the United States of America, Inc. (hereinafter "JWV"). See Jewish War Veterans v. Gates, 506 F. Supp. 2d 30, 62-63 (D.D.C. 2007). In particular, this Court ordered the Members to produce documents responsive to JWV's subpoena specifications 1, 2, 4 and 6. Additionally, the Court also ordered the Members to produce documents responsive to JWV's specifications 3, 5, 7 and 9 that were not protected by the Speech or Debate Clause as construed by this Court in its Memorandum Opinion. As to the documents that the Members, applying the standards established by this Court, believed were protected by the Clause, the Order instructed them to indicate by not later than October 4, 2007 that the privilege applied. Rather than comply with the terms of the Order, the Members filed a Notice of Appeal on September 27, 2007. They did not, however, initially file a corresponding motion to stay the Order with this Court, perhaps operating under the misconception that their appeal automatically stayed these proceedings and their obligations. In any event, the Members did belatedly move to stay this Court's Order, and that motion, now fully briefed, is currently before the Court. For the reasons set forth below, the Court will grant in part and deny in part the Members' motion for stay pending appeal.


The standard for granting a motion for stay pending appeal is well-established in this Circuit. To prevail on such a motion, a party must show:

(1) that it has a substantial likelihood of success on the merits; (2) that it will suffer irreparable injury if the stay is denied; (3) that issuance of the stay will not cause substantial harm to other parties; and (4) that the public interest will be served by issuance of the stay.

United States v. Philip Morris, Inc., 314 F.3d 612, 617 (D.C. Cir. 2003) (citing Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1997)). Furthermore, the D.C. Circuit has explained that the "substantial likelihood of success" prong does not necessarily imply that a party needs to demonstrate a 50% chance or better of prevailing on appeal. Holiday Tours, 559 F.2d at 844. Instead, the moving party can satisfy that element by raising a "serious legal question. . . . whether or not [the] movant has shown a mathematical probability of success." Id. Put another way, "it will ordinarily be enough that the [movant] has raised 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." Id. (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953)).*fn1


A. The Members' Likelihood of Success on the Merits

This aspect of the stay analysis requires two separate inquiries because the Members have not raised Speech or Debate Clause objections to documents that are responsive to subpoena specifications 1, 2, 4 and 6. See JWV, 506 F. Supp. 2d at 52. Thus, the Court will first address that category, as to which the Members' objection to producing responsive documents rests entirely on this Court's relevance holding. The Members take the Court to task for "conflating House Rule VIII -- which authorizes Members to respond to judicial subpoenas only if the information sought is, among other things, 'material and relevant' -- with Federal Rule of Civil Procedure 26(b)(1)." Members' Mot. for Stay Pending Appeal (hereinafter "Members' Mot.") at 9. The Members also argue that the Court "applied the wrong substantive law." Id. at 10.

The Court has no difficulty concluding that the Members do not have a substantial likelihood of success with respect to these issues. Indeed, the Members have failed to raise even a "serious, substantial, difficult [or] doubtful" legal question. Holiday Tours, 559 F.2d at 844 (internal citations omitted). The Members insist that complying with the Court's Order will force them to violate House Rule VIII -- which they maintain has constitutional dimensions -- because the information sought by plaintiffs is not "material." Members Mot. at 10. The argument draws heavily from the Rulemaking Clause, which provides: "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member." U.S. Const. Art. I, § 5, cl. 2.*fn2

The Court is not persuaded by the Members' argument. As plaintiffs correctly note, the Rulemaking Clause, and Rule VIII in particular, "relate[] to the House's own internal governance, and do[] not extend to allow the House to exempt itself unilaterally from the requirements of civil litigation overseen by the judiciary." JWV Opp'n at 8. The Members, for their part, declare that they are not "trying to exempt themselves from Federal Civil Rule 26," but rather they maintain that House Rule VIII "only . . . creates an additional, judicially enforceable, standard that must be satisfied when discovery is sought from Members of the House." Members' Reply at 5. But in this context at least, the end result of creating an additional hurdle in the form of House Rule VIII is indeed the effective equivalent of exempting the House from the reach of Fed. R. Civ. P. 26. Surely any document that qualifies as "material" for purposes of Rule VIII would also satisfy Rule 26's relevancy requirement. Thus, materiality, as the Members would have it, would be the sole standard governing the House in discovery. The Rule 26 standard would be replaced with a higher standard when there is a congressional party in civil litigation. Taken to its logical conclusion, then, the Members essentially argue that one house of Congress, if it so chooses and solely based on the Rulemaking Clause, may unilaterally displace the entirety of the Federal Rules of Civil Procedure by internal rules such as Rule VIII.

Tellingly, the Members point to no authority to support this remarkable proposition.*fn3

Indeed, there is no indication that this position has ever before even been advocated. Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978), cited by the Members, is no aid to them. In Goland, the D.C. Circuit wrote that "Congress has undoubted authority to keep its records secret, authority rooted in the Constitution, longstanding practice, and current congressional rules." Id. at 346. The constitutional provision cited by the Goland court, however, was the Journal Clause, which explicitly provides that the journal of congressional proceedings may be kept secret in the sound discretion of Congress. Id. at 346 n.36; see also U.S. Const. art. I, § 5, cl. 3. Unlike in Goland, however, there is no evidence that this case involves the records of congressional proceedings; instead, plaintiffs seek documents retained by the Members in other capacities. Simply put, Goland and the Journal Clause have no application here.

The Court finds that House Rule VIII presents no obstacle to compliance with the Court's Order. Rules promulgated under the authority of the Rulemaking Clause do not have force beyond the internal proceedings of the appropriate House of Congress, and they especially do not strip an Article III court of its traditional authority over the litigation before it. To hold otherwise would, as plaintiffs argue, "give rise to serious separation of powers and other Constitutional difficulties." ...

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