Leopold v. Pittman

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JASON LEOPOLD, et al.
Plaintiffs,
Civil Action No. 21-cv-00465 (BAH)
v.
Chief Judge Beryl A. Howell
J. THOMAS MANGER, Chief, U.S. Capitol
Police, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs Jason Leopold and his employer Buzzfeed News assert that the common-law
right to public access and certain statutory duties of disclosure require defendants, the Chief of
the United States Capitol Police (“USCP”) and the Inspector General of the Capitol Police, both
in their official capacities, to disclose certain requested documents relating to internal USCP
operations. See generally Am. Compl. ¶¶ 8–17, ECF No. 12. 1 Defendants contend that
sovereign immunity bars the exercise of jurisdiction here and that no valid claim is presented,
warranting the grant of summary judgment in their favor, pursuant to Federal Rule of Civil
Procedure 56, Defs.’ Mot. Summ. J. (Defs.’ Mot.) at 1, ECF No. 19; Defs.’ Mem. Supp. Mot.
Summ. J. (“Defs.’ Mem.”) at 7–8, ECF No. 19-2, while plaintiffs invoke the common-law and
statutory duties of disclosure as creating an exception to sovereign immunity, entitling them to
mandamus relief ordering the production of the requested documents, Pls.’ Cross-Mot. Summ. J.
& Opp’n Mot. Summ. J. (“Pls.’ Cross-Mot.”) at 1, ECF No. 22; Pls.’ Mem. Supp. Cross-Mot.
Summ. J. & Opp’n Def.’s Mot. Summ. J. (“Pls.’ Opp’n”) at 2–4, ECF No. 22.
1
Chief J. Thomas Manger is substituted as defendant for former Acting Chief Yogananda D. Pittman. See
FED. R. CIV. P. 25(d).
1
For the reasons explained below, defendants’ motion for summary judgment is construed
to be a motion for dismissal for lack of subject matter jurisdiction, pursuant to Federal Rule of
Civil Procedure 12(b)(1). See, e.g., Kirkham v. Société Air Fr., 429 F.3d 288, 291 (D.C. Cir.
2005) (treating summary judgment motion, which raised sovereign immunity, as motion to
dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, explaining that summary
judgment “represents a decision on the merits, which courts may render only after jurisdiction
has been established”); Kiakombua v. Wolf, 498 F. Supp. 3d 1, 21 (D.D.C. 2020) (Jackson, K.B.,
J.) (construing motion styled as motion for summary judgment “as a motion to dismiss for lack
of subject-matter jurisdiction under Rule 12(b)(1) or, in the alternative, a motion for summary
judgment under Rule 56(a)” (emphasis in original)); Whiteru v. WMATA , 258 F. Supp. 3d 175,
181–82 (D.D.C. 2017) (Jackson, K.B., J.) (construing motion for summary judgment on the basis
of sovereign immunity as a motion to dismiss under Rule 12(b)(1)). See also Hakki v. Sec’y,
Dep’t of Veteran Affs., 7 F.4th 1012, 1022–23 (11th Cir. 2021) (holding that challenge to subject
matter jurisdiction on motion under Rule 56(a) was “reasonably construed” as Rule 12(b)(1)
motion); Smith v. WMATA, 290 F.3d 201, 205 (4th Cir. 2002) (“[A]n assertion of governmental
immunity is properly addressed under the provisions of Rule 12(b)(1) of the Federal Rules of
Civil Procedure.”). So construed, defendants’ motion is granted, requiring dismissal of the
Complaint.
I. BACKGROUND
Following the January 6, 2021, attack on the U.S. Capitol, plaintiffs—investigative
journalist Jason Leopold and Buzzfeed News—planned to prepare and publish one or more
articles about the USCP. Am. Compl. ¶ 1. To that end, on January 28, 2021, plaintiffs submitted
requests to the USCP’s Public Information Office and the USCP Office of Inspector General
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(“OIG”) seeking six categories of documents: (1) “Inspector General semiannual reports for
2015 forward,” id. ¶ 4; (2) “other Inspector General reports, including audits for 2008 forward,”
id.; (3) “annual financial statements and audits of annual financial statements for 2015 forward,”
id.; (4) “semiannual reports of disbursements for 2015 forward,” id.; (5) “USCP written
directives in effect on January 6, 2021,” id.; and (6) “demonstration permits, denials, or other
written memorials of final decisions relating of final decisions relating to permits for public
gatherings on the Capitol grounds on January 6, 2021,” id. See also Pls.’ Pet. Writ of Mandamus
(“Pls.’ Pet.”), Ex. 1, Document Request Emails, ECF No. 1-1; 2 Defs.’ Statement of Material
Facts As to Which There Is No Genuine Issue (“Defs.’ SMF”) ¶ 3, ECF No. 19-1. 3
Shortly thereafter, on February 11, 2021, USCP’s general counsel responded to plaintiffs’
request by email, declining to provide the documents and suggesting other points of contact to
obtain some categories of information. Pls.’ Pet., Ex. 2, Initial Request Response, ECF No. 1-1;
Defs.’ SMF ¶ 4. Three weeks later, on February 23, 2021, plaintiffs filed the instant suit to
obtain the requested documents, pursuant to the common-law right of public access and a statute
governing the USCP OIG, 2 U.S.C. § 1909. Pls. Pet.; Am. Compl. ¶¶ 8–17.
Since the filing of this lawsuit, defendants have disclosed a number of documents to
plaintiffs, narrowing considerably the scope of the requested records remaining at issue in this
2
Plaintiffs initiated this lawsuit with a filing captioned “Petition for A Writ of Mandamus,” ECF No. 1,
which defendants sought to dismiss on grounds that plaintiffs had not filed an appropriate complaint, Defs.’ Mot.
Dismiss, ECF No. 10; Def.’ Mem. Supp. Mot. Dismiss at 3–6, ECF No. 10-1. Plaintiffs thereafter filed the amended
complaint, ECF No. 12, resulting in dismissal as moot of defendants’ motion, see Minute Order (June 1, 2021).
3
Plaintiffs have controverted no facts in defendants’ statement of material facts, see Pls.’ Cross-Mot. Supp.
Summ. J., Pls.’ Statement of Material Facts As to Which There Is No Genuine Issue (“Pls.’ SMF”), ECF No. 22-2,
and thus the facts set out by defendants may be deemed admitted. See LCvR 7(h)(1) (“In determining a motion for
summary judgment, the court may that assume facts identified by the moving party in its statement of material facts
are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the
motion.”); Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c), the court may: . . . consider the fact undisputed
for the purposes of the [summary judgment] motion . . . .”).
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lawsuit. 4 Plaintiffs continue to seek, and defendants decline to disclose, the following
documents: (1) 101 USCP written directives in effect on January 6, 2021, which directives detail
internal policies and guidance for USCP operations and have been classified by USCP as “Law
Enforcement Sensitive,” Pls.’ Reply Supp. Pls.’ Cross-Mot. for Summ. J. (“Pls.’ Reply) at 4–18;
Defs.’ SMF ¶¶ 3, 10; Decl. of James Joyce, Senior Counsel, USCP’s Office of the General
Counsel (“OGC Decl.”) ¶ 11, ECF No. 19–5; (2) semiannual OIG reports from 2015 to the
present, Pls.’ Reply at 18–22; Defs.’ SMF ¶ 3; and (3) all other OIG reports, including audits,
from 2008 to the present, Pls.’ Reply 22–25; Defs.’ SMF ¶ 3.
As to the 101 USCP written directives at issue, defendants maintain that these directives,
which are classified as “Law Enforcement Sensitive,” may not be disclosed because they detail
internal policies and guidance for USCP operations and “would reveal confidential sources and
methods, investigative activities and techniques” that should not be made public. Defs.’ SMF
¶ 10; OGC Decl. ¶¶ 10–12. Furthermore, 65 of the 101 written directives have been designated
by a USCP document review team as “security information,” as defined in 2 U.S.C. § 1979(a),
meaning that their disclosure is statutorily prohibited absent authorization from the U.S. Capitol
Police Board (“USCP Board”), which authorization has not been granted. Defs.’ SMF ¶ 8; OGC
Decl. ¶ 9 (citing 2 U.S.C. § 1979). As to the requested OIG reports, defendants maintain that the
semiannual and other OIG reports are also “Law Enforcement Sensitive” and deemed “security
information” under 2 U.S.C. § 1979(a), and public distribution of these OIG reports has been
4
The following requested records have been disclosed to plaintiffs: (1) semiannual reports of USCP
disbursements from 2015 to the present, Defs.’ SMF ¶ 5; (2) demonstration permits, denials, or other written
materials of final decisions relating to permits for public gatherings on the Capitol grounds on January 6, 2021, id.
¶ 6; and (3) two USCP written directives in effect on January 6, 2021, id. ¶ 7. Plaintiffs are no longer asserting a
right to access the requested USCP financial statements, and have narrowed their request for the outstanding USCP
written directors to 101 directives. See Pls’ Reply Supp. Pls.’ Cross-Mot. Summ. J. (“Pls.’ Reply”) at 4–25, ECF
No. 27; Decl. of James Joyce, Senior Counsel, USCP’s Office of General Counsel (“OGC Decl.”) ¶¶ 8-10, ECF No.
19-5; Defs.’ Mot., Ex. C, List of Directives, ECF No. 19-7 (listing the specific 101 directives still at issue).
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specifically prohibited by the USCP Board in a 2017 order issued pursuant to the Board’s
statutory authority to regulate the distribution of such security information. Defs.’ SMF ¶¶ 13–
14; Decl. of Michael Bolton, USCP’s Inspector General (“IG Decl.”) ¶¶ 7–10, ECF No. 19-3
(citing IG Decl., Ex. A, Capitol Police Board Order 17.16 (Dec. 12, 2017) (“2017 Order”), ECF
No. 19-4); see also 2 U.S.C. § 1979(b), (d).
The parties’ pending motions are now ripe for review.
II. LEGAL STANDARD
“Article III of the Constitution prescribes that ‘[f]ederal courts are courts of limited
subject-matter jurisdiction’ and ‘ha[ve] the power to decide only those cases over which
Congress grants jurisdiction.’” Bronner ex rel. Am. Stud. Ass’n v. Duggan, 962 F.3d 596, 602
(D.C. Cir. 2020) (alterations in original) (quoting Al-Zahrani v. Rodriguez, 669 F.3d 315, 317
(D.C. Cir. 2012)); see also Gunn v. Minton, 568 U.S. 251, 256 (2013) (“‘Federal courts are
courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and
statute.’” (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994))).
Federal courts therefore have a corresponding “independent obligation to ensure that they do not
exceed the scope of their jurisdiction” and “must raise and decide jurisdictional questions that the
parties either overlook or elect not to press.” Henderson v. Shinseki, 562 U.S. 428, 434 (2011).
Absent subject-matter jurisdiction over a case, the court must dismiss it. See Arbaugh v. Y & H
Corp., 546 U.S. 500, 506–07 (2006) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004)); FED. R.
CIV. P. 12(h)(3).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the
plaintiff bears the burden of demonstrating the court’s subject-matter jurisdiction over the claim
at issue. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). When considering a motion to
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dismiss under Rule 12(b)(1), the court must determine jurisdictional questions by accepting as
true all uncontroverted material factual allegations contained in the complaint and “‘constru[ing]
the complaint liberally, granting plaintiff[s] the benefit of all inferences that can be derived from
the facts alleged.’” Hemp Indus. Ass’n v. DEA, 36 F.4th 278, 281 (D.C. Cir. 2022) (second
alteration in original) (quoting Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.
2011)). The court need not accept inferences drawn by the plaintiff, however, if those inferences
are unsupported by facts alleged in the complaint or amount merely to legal conclusions. Id. at
288 (making clear that liberally construing complaint in plaintiff’s favor “does not entail
accept[ing] inferences unsupported by facts or legal conclusions cast in the form of factual
allegations” (alteration in original) (internal quotation omitted)); see also Browning v. Clinton,
292 F.3d 235, 242 (D.C. Cir. 2002). The court “may consider materials outside the pleadings” in
assessing whether subject matter jurisdiction may be exercised. Jerome Stevens Pharm., Inc. v.
Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005).
III. DISCUSSION
Defendants argue that the doctrine of sovereign immunity deprives the Court of
jurisdiction over defendants, as Legislative Branch officers who were sued in their official
capacity. Defs.’ Mem. at 5–7. Plaintiffs counter that an exception to sovereign immunity
applies, see Pls.’ Opp’n at 2–4, and, further, that the common-law right of access and a statutory
right of access, under 2 U.S.C. § 1909(c), mandate the disclosure of the requested materials, see
id. at 4–40, 40–45. Each argument is addressed in turn. 5
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Defendants also argue that plaintiffs’ claims fail on the merits for several reasons, including that the
Inspector General Act of 1978 (“IG Act”), 5 U.S.C. App. 3, does not amount to a statutory entitlement to the
disclosure of OIG reports, a substantial portion of the requested materials are statutorily prohibited from disclosure
as security information, and the requested materials do not qualify as public records cognizable under the common
law right of access. Defs.’ Mem. at 5. Except to the extent these arguments are intertwined with the jurisdictional
analysis, see infra Part III.A.2, 3, they need not be addressed as the complaint is dismissed for lack of subject-matter
jurisdiction. See Al-Tamimi v. Adelson, 916 F.3d 1, 7 (D.C. Cir. 2019) (finding that district court properly
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A. Sovereign Immunity
Generally, “a suit is against the sovereign if the judgment sought would expend itself on
the public treasury or domain, or interfere with the public administration or if the effect of the
judgment would be to restrain the Government from acting, or to compel it to act.” Dugan v.
Rank, 372 U.S. 609, 620 (1963) (internal quotations and citations omitted). For such suits, “[t]he
basic rule of federal sovereign immunity is that the United States cannot be sued at all without
the consent of Congress.” Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S.
273, 287 (1983); see also FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver,
sovereign immunity shields the Federal Government and its agencies from suit.” (citations
omitted)); United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United
States may not be sued without its consent and that the existence of consent is a prerequisite for
jurisdiction.”); Shuler v. United States, 531 F.3d 930, 932 (D.C. Cir. 2008) (“The United States
is protected from unconsented suit under the ancient common law doctrine of sovereign
immunity.” (quoting Gray v. Bell, 712 F.2d 490, 506 (D.C. Cir. 1983))). Any “waiver of the
Federal Government’s sovereign immunity must be unequivocally expressed in statutory text and
will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations omitted).
The D.C. Circuit has “generally . . . concluded that ‘[f]ederal agencies or
instrumentalities performing federal functions always fall on the “sovereign” side of [the] fault
line’” and thus the doctrine of sovereign immunity forecloses claims against those entities as
institutions. Albrecht v. Comm. on Emp. Benefits, 357 F.3d 62, 67 (D.C. Cir. 2004) (quoting
Auction Co. of Am. v. FDIC, 132 F.3d 746, 752 (D.C. Cir. 1997)) (alterations and emphasis in
considered jurisdictional issue “before considering whether dismissal for failure to state a claim was appropriate
under Fed. R. Civ. P. 12(b)(6)”); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)
(“Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that
of announcing the fact and dismissing the cause.” (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868))).
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the original). Agencies within the legislative branch are therefore no exception. See, e.g.,
Rockefeller v. Bingaman, 234 F. App’x 852, 855 (10th Cir. 2007) (holding that sovereign
immunity “forecloses . . . claims against the House of Representatives and Senate as
institutions,” and against members of both congressional houses “acting in their official
capacities,” because “an ‘official capacity’ suit is treated as a suit against a government entity”
(quoting Rockefeller v. Bingaman, No. CIV-06-0198, 2006 WL 4061183, at *3 (D.N.M. Sept.
20, 2006) and citing Keener v. Cong. of the U.S., 467 F.2d 952, 953 (5th Cir. 1972)); Cofield v.
United States, 64 F. Supp. 3d 206, 213–14 (D.D.C. 2014) (“[S]overeign immunity bars any claim
for money damages against the United States (including the U.S. Senate) and its
agencies.”). Given that a suit against a government official in his official capacity “generally
represent[s] only another way of pleading an action against an entity of which an officer is an
agent,” courts must treat an official capacity suit as “a suit against the entity,” and apply the
governing principles of sovereign immunity accordingly. Kentucky v. Graham, 473 U.S. 159,
165–66 (1985) (internal quotations and citations omitted).
Plaintiffs sued the U.S. Capitol Police and its Inspector General for records generated in
their official capacity. Am. Compl. ¶¶ 2–4. The USCP is a federal agency within the Legislative
Branch, see 2 U.S.C. § 1901 et seq.; Defs.’ SMF ¶ 1; see also, e.g., Baugh v. U.S. Capitol Police,
Civ. No. 22-139, 2022 WL 2702325, at *4 (D.D.C. July 12, 2022). As such, plaintiffs apparently
concede that sovereign immunity would ordinarily bar suit, but nonetheless dispute that such
immunity operates to bar this case because, instead of seeking monetary damages, they seek
mandamus relief under 28 U.S.C. § 1361. Pls.’ Opp’n at 2. Specifically, they contend that the
so-called Larson-Dugan exception to sovereign immunity applies to permit this suit to go
forward. Id. at 2–3 (first citing Wash. Legal Found. v. U.S. Sent’g Comm’n (“WLF II”), 89 F.3d
8
897, 901 (D.C. Cir. 1996), then Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682 (1949),
then Dugan v. Rank, 372 U.S. 609 (1963)). As the analysis that follows shows, even upon
application of the Larson-Dugan exception to sovereign immunity, no disclosure of the
requested records is required.
1. Application of the Larson-Dugan Exception
In Larson v. Domestic & Foreign Commerce Corp., the plaintiff sued the head of the War
Assets Administration, not for money damages, but for specific performance of the delivery of
surplus coal in accordance with the plaintiff’s contract with the government, 337 U.S. 682, 684–
85 (1949). Finding that the Administrator’s action in refusing the coal shipment to the plaintiff
was not unconstitutional or ultra vires conduct outside the scope of the Administrator’s
authority, nor contrary to statute or order, id. at 703, the Supreme Court concluded that the
Administrator’s action “was, therefore, inescapably the action of the United States and the effort
to enjoin it must fail as an effort to enjoin the United States,” id.; see also id. at 688 (noting suit
would be barred “not because it is a suit against an officer of the Government, but because it is,
in substance, a suit against the Government over which the court, in the absence of consent, has
no jurisdiction”). The Court thereby clarified, and made explicit in Dugan v. Rank, 372 U.S. 609(1963), an exception to sovereign immunity in actions seeking specific relief for “(1) action by
[government] officers beyond their statutory powers [or] (2) even though within the scope of
their authority, the powers themselves or the manner in which they are exercised are
constitutionally void.” Id. at 621–22. “In either of such cases the officer’s action ‘can be made
the basis of a suit for specific relief against the officer as an individual.’” Id. at 622 (quoting
Malone v. Bowdoin, 369 U.S. 643, 647 (1962)); see also Dalton v. Specter, 511 U.S. 462, 472
(1994)) (quoting Larson, 337 U.S. at 691 n.11) (summarizing Larson as holding “that sovereign
9
immunity would not shield an executive officer from suit if the officer acted either
‘unconstitutionally or beyond his statutory powers’” (emphasis in original)); Pollack v. Hogan,
703 F.3d 117, 119–21 (D.C. Cir. 2012); id. at 120 (quoting Larson, 337 U.S. at 689) (“Under
[the Larson-Dugan] exception, ‘suits for specific relief against officers of the sovereign’
allegedly acting ‘beyond statutory authority or unconstitutionally’ are not barred by sovereign
immunity.”).
Defendants first contend that “to proceed with this suit, Plaintiffs must identify a waiver
of sovereign immunity that is ‘unequivocally expressed in statutory text,’” and that because they
have not, sovereign immunity remains in force. Defs.’ Mem. at 12 (quoting Lane, 518 U.S. at
192). This argument is insufficient. As Judicial Watch, Inc. v. Schiff, 474 F. Supp. 3d 305(D.D.C. 2020), states regarding mandamus relief, defendants’ argument “merely begs the
question,” id. at 312, because, if the Larson-Dugan exception does apply, “[n]o separate waiver
of sovereign immunity is required to seek a writ of mandamus to compel an official to perform a
duty required in his official capacity,” Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005); see
also WLF II, 89 F.3d at 901 (“If a plaintiff seeks a writ of mandamus to force a public official to
perform a duty imposed upon him in his official capacity, however, no separate waiver of
sovereign immunity is needed.” (citing Chamber of Cong. of U.S. v. Reich, 74 F.3d 1322, 1329
(D.C. Cir. 1996))).
Defendants’ next argument is that the Larson-Dugan exception is inapplicable because
“Plaintiffs have not identified any officer of the sovereign who they allege is exceeding his or her
statutory or constitutional authority.” Defs.’ Mem. at 12 (internal quotation omitted). Instead,
plaintiffs only allege a failure to act under purported statutory duties and a violation of a
common law (as opposed to statutory or constitutional) right of access. Id. at 12–13. Binding
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D.C. Circuit precedent, however, is clear that these violations can indeed trigger the Larson-
Dugan exception. In WLF II, plaintiffs sought, pursuant to the common-law right of public
access to government records, disclosure of documents “compiled or created by an advisory
committee established by the United States Sentencing Commission.” 89 F.3d at 898–99. In the
Circuit’s analysis, the relevant “duty” owed by the defendants in the case stemmed from the
common-law right itself, not a separate statute or regulation. Id. at 901. Whether the Larson-
Dugan exception to sovereign immunity applies “depends upon whether the Government has a
duty to the plaintiff, viz. to allow it access to certain government records.” Id. 6
As a result, applicability of the exception turns first on the existence of the duty, and the
application of sovereign immunity merges with the claimed duty to disclose asserted in the
Complaint. The D.C. Circuit explained: “the question of jurisdiction merges with the merits,”
triggering an assessment of the validity of plaintiff’s claim under the common-law right of
access. Id. at 902. See also Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir. 1996) (determining
whether “the Larson-Dugan exception would be triggered and hence no waiver of sovereign
immunity is required” rested on “discussion of the central merits question in the case, namely
6
The D.C. Circuit’s expansion of the Larson-Dugan doctrine to allow claims akin to those brought against
federal agencies, under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking disclosure of records
from other federal government components, pursuant to the common-law right of public access, significantly
broadens this exception to sovereign immunity beyond the parameters articulated by the Supreme Court and, at first
blush, is not easily reconciled with Supreme Court jurisprudence that waivers of sovereign immunity must be
expressly set out by statute. See, e.g., PennEast Pipeline Co., LLC v. New Jersey, 141 S. Ct. 2244, 2253–54 (2021)
(referring to “this Court’s precedents holding that Congress cannot abrogate state sovereign immunity in the absence
of an ‘unmistakably clear’ statement” (quoting Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 786 (1991));
United States v. Bormes, 568 U.S. 6, 9 (2012) (“Sovereign immunity shields the United States from suit absent a
consent to be sued that is ‘unequivocally expressed.’” (quoting United States v. Nordic Village, Inc., 503 U.S. 30,
33–34 (1992) (citing Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 95 (1990))) (internal quotation marks omitted)).
Indeed, in the instant case, plaintiffs insist that “a Vaughn index is necessary” listing each record withheld by
defendants, with appropriate justification to overcome the common law right of access, Pls.’ Reply at 14, thereby
importing and applying to a Legislative Branch entity a tool used in the FOIA litigation context, see Union Leader
Corp. v. United States Dep't of Homeland Sec., 749 F.3d 45, 49 n.3 (1st Cir. 2014) (“A Vaughn index is a now
standard tool conceived by the District of Columbia circuit to facilitate resolution of FOIA disputes, derived from
the D.C. Circuit’s decision in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).” (internal quotation omitted)).
Nonetheless, the Court is bound by D.C. Circuit authority, which demands this analysis.
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whether” challenged government action violated statute); Mashiri v. Dep’t of Educ., 724 F.3d
1028, 1031–32 (9th Cir. 2013); id. at 1032 (following D.C. Circuit’s practice when finding that
“the question of ‘[w]hether the Larson-Dugan exception’ applied ‘merge[d] with the question on
the merits,’” and therefore turning “to address the substantive merits of the mandamus claim
before it’” (quoting WLF II, 89 F.3d at 901–02) (alterations in original)); accord Int’l Fed’n. of
Prof’l & Tech. Eng’rs v. United States, 934 F. Supp. 2d 816, 821–22 (D. Md. 2013) (applying
Larson-Dugan exception to avoid sovereign immunity bar and reach merits of suit by union and
employees of legislative branch entities against Secretary of the United States Senate and
Sergeant at Arms of the Senate in their official capacities, claiming parts of the Stop Trading on
Congressional Knowledge Act were unconstitutional); Ctr. for Arms Control & Non-
Proliferation v. Lago, Civ. No. 05-682 (RMC), 2006 WL 3328257, at *4–*6 (D.D.C. Nov. 15,
2006) (in suit for disclosure of materials used by defunct presidential commission in developing
a report to the President, finding that sovereign immunity defense was “auxiliary to the ultimate
question on the merits” as to whether the commission owed duty of disclosure under sunshine
provisions of Federal Advisory Committee Act and therefore addressing the merits).
Accordingly, the merits of plaintiffs’ request, under the common-law right of access, that
defendants disclose 101 USCP written directives in effect on January 6, 2021 and OIG reports,
including semiannual reports and audits, must be considered to assess whether sovereign
immunity bars this lawsuit against defendants.
2. No Common-Law Right of Access to Requested Records
The Supreme Court has made “clear that the courts of this country recognize a general
right to inspect and copy public records and documents, including judicial records and
documents.” Nixon v. Warner Commc’ns, 435 U.S. 589, 597 (1978) (footnote omitted). This
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right of access is “not absolute,” id. at 598, but “left to the sound discretion of the trial court, a
discretion to be exercised in light of the relevant facts and circumstances of the particular case,”
id. at 599; see SEC v. Am. Int’l Grp., 712 F.3d 1, 3 (D.C. Cir. 2013) (“Of course, even if a
document is a record of the type subject to the common law right of access, the right is not
absolute: it is defeated when the government’s interest in secrecy outweighs the public’s interest
in disclosure.”). Binding precedent in this Circuit ensures that “the common law right of access
extends beyond judicial records to the ‘public records’ of all three branches of government.”
Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 936 (D.C. Cir. 2003) (citing
WLF II, 89 F.3d at 903–04); see also Schwartz v. U.S. Dep’t of Justice, 435 F. Supp. 1203, 1204
(D.D.C. 1977) (holding “that Congress is subject to the common law rule which guarantees the
public a right to inspect and copy public records” and explaining that even though “Congress has
exempted itself from the requirements of the Freedom of Information Act, 5 U.S.C. § 552, by 5
U.S.C. § 551(1)(A)[,] [t]hat Act, however, is not coextensive with the common law rule”).
a) Displacement of the Common-Law Right of Public Access for OIG
Reports and Certain Written Directives
Certain documents still sought by plaintiffs are not subject to the common-law right of
public access, however, because a statute in place displaces that default right. Specifically, a
statute governing USCP operations provides, in pertinent part:
[A]ny security information in the possession of the Capitol Police may be released
by the Capitol Police to another entity, including an individual, only if the Capitol
Police Board determines in consultation with other appropriate law enforcement
officials, experts in security preparedness, and appropriate committees of
Congress, that the release of the security information will not compromise the
security and safety of the Capitol buildings and grounds or any individual whose
protection and safety is under the jurisdiction of the Capitol Police.
2 U.S.C. § 1979(b) (emphasis added). “Security information” is broadly defined as that which
“is obtained by, on behalf of, or concerning” the USCP and “is sensitive with respect to the
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policing, protection, physical security, intelligence, counterterrorism actions, or emergency
preparedness and response relating to Congress, any statutory protectee of the Capitol Police,
and the Capitol buildings and grounds.” Id. § 1979(a)(1), (2).
As far as “security information” is concerned, then, Congress has crafted a specific
statutory scheme regarding public access that involves the USCP Board and others considering
the material and determining whether public release is appropriate—not the federal courts
applying the common law test for the right of public access. Where Congress has enacted a
particular statutory scheme governing access to certain information, that scheme “preempts the
common law right” of public access, for “[i]t would make no sense” for Congress to create such
a scheme only for courts to “turn and determine that the statute ha[s] no effect on a preexisting
common law right of access.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918,
937 (D.C. Cir. 2003); see also Milwaukee v. Illinois, 451 U.S. 304, 313–14 (1981) (“[F]ederal
common law . . . is resorted to in the absence of an applicable Act of Congress.” (internal
quotation omitted)).
Much of the requested material still at issue has been identified by a USCP document
review team and by the USCP Board as “security information” and so is subject to this statutory
scheme governing disclosure, not to the common-law right of public access. See Defs.’ SMF
¶¶ 8; 13–14 (detailing that the requested OIG reports and 65 of the USCP written directives have
been determined to be security information, under 2 U.S.C. § 1979(a), and implementing
regulations authorized under 2 U.S.C. § 1979(d)); OGC Decl. ¶ 9; IG Decl. ¶ 8.
Specifically, 65 of the 101 written USCP directives at issue, constitute security
information, under 2 U.S.C. § 1979(a), because these directives “contain operational information
that would reveal [the] confidential sources and methods, investigative activities and techniques”
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of USCP and “reflect the USCP’s internal policies, rules, protocols, and guidance for USCP
personnel on a variety of subjects.” OGC Decl. ¶ 11. For example, some of these directives
outline how USCP personnel are to respond to specific types of threats (e.g., active shooters,
suicide bombers, hazardous material incidents), various physical and information technology
security protocols (e.g., the handling of identification badges, the use of computer passwords and
anti-virus software, and the maintenance of physical equipment like self-contained breathing
apparatuses), and operating procedures for regular USCP law enforcement activities (e.g., the use
of handcuffs, executing arrest and search warrants, vehicular pursuits, and building evacuations).
See Defs.’ Mot., Ex. C, List of Directives, ECF No. 19-7. Even a brief perusal of the titles of
these 65 USCP directives makes clear the sensitive operational nature of the contents, with titles
including, for example, “Use of Handcuffs/Restraints,” “Use of Force,” “Vehicular Pursuits,”
“Building Evacuations” and “Responding to a Suicide Bomber: 10-100 S (Sam).” Id.Given the subject matter contemplated by these directives, defendants persuasively posit
that if the “sensitive law enforcement information contained in the security information
directives” were to be made available for the public, it “could unduly reveal the methods,
techniques, and responses that the USCP employs for Capitol Grounds security and could also
increase the potential for individuals and groups that wish to disrupt, attack, or harm the Capitol
or the Congress to do so.” See OGC Decl. ¶ 12. Their designation as “security information” and
the resultant limitations on access contemplated by 2 U.S.C. 1979(b) is therefore proper.
The OIG reports at issue—both the semiannual reports from 2015 forward and all other
reports, including audits, from 2008 forward—have also been designated “security information”
by the USCP Board, which acted under its statutory authority to determine the release of security
information, see 2 U.S.C. § 1979(b), (d), by specifically prohibiting the distribution of all OIG
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information “including, but not limited to, audit reports, investigations reports, analyses, reviews,
evaluations, [and] annual work plans” beyond the USCP or the USCP Board absent prior
authorization. See 2017 Order. These limitations are justified in consideration of the fact that
“the [OIG] obtains and secures national security and law enforcement sensitive information,” id.,and, as a result, the office’s reports could “include, for example, findings and recommendations
regarding sensitive posting locations for USCP officers and personnel in the Capitol building and
on Capitol Grounds in order to improve the security and safety of the Capitol and USCP
protectees,” or sensitive details regarding particular internal USCP programs in their
recommendations for “comprehensive compliance.” IG Decl. ¶ 7. Again, the OIG reports’
designation as security information and the concomitant limitations on its access pursuant to 2
U.S.C. § 1979 (b) are proper.
As a result, the common-law right of public access is not in play as to the requested OIG
reports (both the semiannual reports from 2015 forward and the other reports, including audits,
from 2008 forward) and to the 65 USCP written directives classified as security information.
b) Two-Part Test for Application of Common-Law Right of Public
Access Applies to 36 USCP Non-Security Information Written Directives
The remaining documents at issue that are not subject to a particular statutory disclosure
scheme, must be considered under the two-step process outlined by the D.C. Circuit for
determining whether the common-law right of access applies. Wash. Legal Found. v. U.S. Sent’g
Comm’n (“WLF I”), 17 F.3d 1446, 1451–52 (D.C. Cir. 1994). First, a court must decide
“whether the document sought is a ‘public record,’” id. at 1451, and, if it is, then, second, “the
court should proceed to balance the government’s interest in keeping the document secret against
the public’s interest in disclosure,” id. at 1451–52; see also WLF II, 89 F.3d at 899 (summarizing
prior holding). As to the first prong, under “federal common law,” a “public record” subject to
16
the public right of access “is a government document created and kept for the purpose of
memorializing or recording an official action, decision, statement, or other matter of legal
significance, broadly conceived.” Id. at 905; see also Am. Int’l Grp., 712 F.3d at 3 (same). In
applying the second prong of this test, courts “should focus on the specific nature of the
governmental and public interests as they relate to the document itself,” rather than engaging in
“an abstract inquiry.” WLF I, 17 F.3d at 1452.
In WLF I, the D.C. Circuit found that the “district court erred” by concluding
categorically that the common-law right did not apply “without knowing” precisely which
documents were at issue, and thus instructed that “the court should have analyzed each category
of document requested.” Id. Here, only one category of documents remains as to which the
common-law right of access arguably applies, namely, the 36 USCP written directives in effect
on January 6, 2021 that are not classified as security information. See OGC Decl. ¶ 8. As
explained below, these 36 USCP written directives do not satisfy the two-part public access test.
(1) The 36 USCP Non-Security Information Written Directives
Are Not Public Records.
As an initial matter, the 36 USCP Directives that do not qualify as security information
also do not qualify as “public records,” as that term has been described by the D.C. Circuit. Not
every ministerial or preliminary action by a government entity amounts to the creation of a
“public record.” In fashioning the definition of “public records” subject to the common law right
of public access, the D.C. Circuit articulated two guideposts: “adequately protect[ing] the
public’s interest in keeping a watchful eye on the workings of public agencies—an interest we
regard as fundamental to a democratic state,” WLF II, 89 F.3d at 905 (internal quotations and
citations omitted), and “yet narrow enough to avoid the necessity for judicial application of the
second-step balancing test to documents that are preliminary, advisory, or, for one reason or
17
another, do not eventuate in any official action or decision being taken,” id. As examples of the
latter materials “not encompass[ed]” by the definition, the Circuit cited “the preliminary
materials upon which an official relied in making a decision or other writings incidental to the
decision itself—for example, the report of a blood test provided in support of an application for a
marriage license, the job application of a would-be government employee, a government
auditor’s preliminary notes used in the preparation of an official report, or a cover memorandum
circulated with a copy of an official report or study.” Id. at 905-06. Cf. 5 U.S.C. § 552(b)(2)
(FOIA provision exempting from disclosure agency records that are “related solely to the
internal personnel rules and practices of an agency”).
The 36 non-security information directives at issue may be consulted to guide the action
of USCP personnel but, as such, amount to preliminary material and advisory guidance that may
only eventually lead to an official action. The directives deal with topics like employee social
media use, internal complaint and grievance processes, training, specific types of interactions
with the public, and guidance governing investigations, arrests, and traffic enforcement. See
Defs.’ Mot., Ex. C, List of Directives, ECF No. 19-7. These written directives are internal
memoranda and guidance for USCP employees that is intended to “establish forward-looking
policies or guidance for [USCP] personnel in executing their job responsibilities.” OGC. Decl.
¶ 11. Only after considering this guidance may USCP personnel reach a point of “tak[ing]
official action or mak[ing] an official decision.” Id. These documents do not “memorialize or
record any official action taken by the [USCP],” Pentagen Techs. Int’l, Ltd. v. Comm. on
Appropriations of the U. S. House of Representatives, 20 F. Supp. 2d 41, 45 (D.D.C. 1998),
aff’d, 194 F.3d 174 (D.C. Cir. 1999), and instead concern only the sort of “administrative matters
internal to the [USCP]” that the D.C. Circuit has held not to be public records, WLF II, 89 F.3d at
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900. Thus, the non-security information written directives do not constitute “public records” as
the term has been construed by the D.C. Circuit, and therefore do not give rise to the common-
law right of public access.
(2) The Government’s Interest in Secrecy Outweighs the
Public’s Interest in Disclosure of the 36 USCP Non-Security
Information Written Directives.
For good measure, even if the 36 USCP written directives qualified as public records,
their requested disclosure would nonetheless fail the second part of the test for public access,
which requires “balanc[ing] the government’s interest in keeping the document[s] secret against
the public’s interest in disclosure.” WLF II, 89 F.3d at 903. The D.C. Circuit has made clear
that “the government has a compelling interest in protecting the secrecy of information important
to our national security” and that the “need to guard against risks to national security interests
overcomes a common-law claim for access.” Dhiab v. Trump, 852 F.3d 1087, 1098 (D.C. Cir.
2017) (internal quotations and citations omitted); see also Am. Int’l Grp., 712 F.3d at 3 (“Of
course, even if a document is a record of the type subject to the common law right of access, the
right is not absolute: it is defeated when the government’s interest in secrecy outweighs the
public’s interest in disclosure.”).
All the written directives at issue—including the 36 not considered “security
information” under 2 U.S.C. § 1979(a)—are designated “Law Enforcement Sensitive,” a label
widely used “throughout federal state, and local law enforcement agencies to control and
safeguard sensitive information.” OGC Decl. ¶ 11. The USCP treats information so labelled as
accessible on a need-to-know basis only and as requiring “reasonab[le] protection from
unauthorized disclosure.” Id. While plaintiffs correctly assert that in general, “[m]atters of
substantive law enforcement policy . . . are properly the subject of public concern,” Pls.’ Opp’n
at 14 (quoting Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d
191082, 1093 (D.C. Cir. 2014)), the 36 non-security information directives at issue are
administrative and personnel-related in nature and focus on the internal workings of USCP as an
organization rather than the manner in which USCP substantively enforces the law. As
defendants point out, certain of these “USCP directives describe ‘information related solely to
the internal personnel rules and practices of an agency’ and would fall under Exemption 2 of the
Freedom of Information Act, if the USCP were subject to the [FOIA].” OGC Decl. ¶ 11; see
also FOIA, 5 U.S.C. § 552(b)(2) (exempting from federal agency disclosure obligations “matters
that are . . . related solely to the internal personnel rules and practices of an agency”). Such
internal administrative information may relate to “trivial administrative matters of no genuine
public interest,” Pub. Citizen, Inc. v. Office of Mgmt. and Budget, 569 F.3d 434, 439 (D.C. Cir.
2009) (addressing FOIA Exemption 2) (quoting Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C.
Cir. 1992)), and even minimal public interest would, in any event, be outweighed by the
government’s interest in restricting access to Law Enforcement Sensitive information, disclosure
of which, USCP cautions, “could unduly reveal the methods, techniques, and responses that the
USCP employs for Capitol Grounds security and could also increase the potential for individuals
and groups that wish to disrupt, attack, or harm the Capitol or the Congress to do so,” OGC Decl.
¶ 12.
***
Consequently, disclosure of the requested documents under the common-law right of
public access is not required.
3. No Statutory Duty to Disclose the Requested Records
As an alternative to the common law right of access, plaintiffs point to various provisions
of the organic statute creating the USCP OIG, 2 U.S.C. § 1909, as providing a statutory right of
20
access to the OIG semiannual reports, but their reasoning is predicated on repeated misreading of
the statutory text and therefore fails.
First, plaintiffs assert that 2 U.S.C. § 1909(c)(2), which incorporates certain provisions of
the Inspector General Act of 1978, 5 U.S.C. App. 3 (the “IG Act”), is a statutory source for
defendants’ purported duty to disclose the requested OIG semiannual reports. See Am. Compl.
¶¶ 9-11. This statutory provision, § 1909(c)(2), consists of three sentences, the first of which
provides that:
The Inspector General shall prepare and submit semiannual reports summarizing the
activities of the Office in the same manner, and in accordance with the same deadlines,
terms, and conditions, as an Inspector General of an establishment under section 5 (other
than subsection (a)(13) thereof) of the Inspector General Act of 1978, (5 U.S.C. App.
5)[,]
2 U.S.C. § 1909(c)(2), and the last sentence of which provides that:
The Chief [of the Capitol Police] shall, within 30 days of receipt of a report, report to the
Capitol Police Board, the Committee on House Administration, the Senate Committee on
Rules and Administration, and the Committees on Appropriations of the House of
Representatives and of the Senate consistent with section 5(b) of such Act.
Id. Plaintiffs seemingly conflate the first and last sentences to read § 1909(c)(2) as requiring the
USCP OIG to disclose to the public, upon request, semiannual reports as other OIGs are required
to do under 5 U.S.C. App. 3 § 5(c). Yet, the incorporation of IG Act provisions in the first
sentence only applies to the manner in which the USCP IG “prepare[s] and submit[s]”
semiannual reports, not to its subsequent dissemination. See 2 U.S.C. § 1909(c)(2). The final
sentence of § 1909(c)(2) addresses dissemination of the semiannual reports by the Chief of
USCP to various congressional entities, and makes no provision for public access nor
incorporates the public disclosure requirements of the IG Act. See id. In short, § 1909(c)(2)
imposes no statutory duty on defendants to disclose the semiannual reports, and thus cannot
trigger the Larson-Dugan exception to sovereign immunity.
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Plaintiffs also invoke 2 U.S.C. § 1909(c)(1) as the source of a separate duty to disclose
the remaining requested OIG reports, including audits. Pls.’ Opp’n at 40–45; Am. Compl.
¶¶ 12–17. Again, their argument hinges on the reference to the IG Act in § 1909(c)(1), which
provides:
The Inspector General shall carry out the same duties and responsibilities with respect to
the United States Capitol Police as an Inspector General of an establishment carries out
with respect to an establishment under section 4 of the Inspector General Act of 1978, (5
U.S.C. App. 4), under the same terms and conditions which apply under such section.
2 U.S.C. § 1909(c)(1). The plaintiffs contend that by dint of this subsection, two provisions of
the IG Act—section 4(e)(1) and section 8M(b)(1)(A), each of which requires certain reports to
be posted to the Inspector General’s website—apply to impose a duty of disclosure on the USCP
OIG. Pls.’ Opp’n at 40–41; Compl. ¶¶ 12–17; see 5 U.S.C. App. 3 § 4(e)(1) (“In carrying out the
duties and responsibilities established under this Act, whenever an Inspector General issues a
recommendation for corrective action to the agency, the Inspector General . . . not later than 3
days after the recommendation for corrective action is submitted in final form to the head of the
establish, [shall] post the document making a recommendation for corrective action on the
website of the Office of Inspector General.”); 7 id. § 8M(b)(1)(A) (“The Inspector General of
each Federal agency and designated Federal entity shall . . . not later than 3 days after any audit
report, inspection report, or evaluation report (or portion of any such report) is submitted in final
form to the head of the Federal agency or head of the designated Federal entity, as applicable,
post that report (or portion of that report) on the website of the Office of Inspector General.”).
7
This provision of the IG Act may be ambiguous as to whether the operative modal verb in section
4(e)(1)(C) is “shall” (from section 4(e)(1)(A)) or “may” (from section 4(e)(1)(B)). The Court concludes that this
provision is not incorporated by reference into 2 U.S.C.§ 1909(c)(1) regardless and that the distinction is without
consequence here.
22
Neither provision of the IG Act relied upon by plaintiffs works to provide relief here.
First, 2 U.S.C. § 1909(c)(1) makes no reference to, and therefore does not incorporate, 5 U.S.C.
App. 3 § 8M(b)(1)(A). Indeed, Section 8M’s posting requirement only applies to the Inspectors
General of “Federal agenc[ies]” and “designated Federal entit[ies],” both of which are defined
terms that do not include the USCP. See 5 U.S.C. App. 3 § 8M(b)(1)(A), (c); id. § 8G(a); id.
§ 12(5). Second, while 2 U.S.C. § 1909(c)(1) does incorporate 5 U.S.C. App. 3 § 4(e)(1), the
public posting requirement in section 4(e)(1) was not added until 2016, see Inspector General
Empowerment Act of 2016, Pub. L. No. 114-317, § 4(d) , 130 Stat. 1595, 1602 (2016) (adding
subsection 4(e)(1) to the IG Act), years after the enactment of 2 U.S.C. § 1909(c)(1) in 2005, see
Legislative Branch Appropriations Act, 2006, Pub. L. No. 109-55, § 1004, 119 Stat. 572 (2005).
The Supreme Court has recently explained that “a statute that refers to another statute by specific
title or section number in effect cuts and pastes the referenced statute as it existed when the
referring statute was enacted, without any subsequent amendments.” Jam v. Int’l Fin. Corp., 139
S. Ct. 759, 769 (2019). 2 U.S.C. § 1909(c)(1) does precisely that, and so its reference to the
“duties” under section 4 of the IG Act does not include the subsequently added duty of public
disclosure.
In sum, contrary to plaintiffs’ arguments, no statutory duty of disclosure for the requested
USCP OIG semiannual reports or other reports, including audits, is imposed by 2 U.S.C.
§ 1909(c)(1) or (c)(2).
IV. CONCLUSION
For the reasons set forth above, plaintiffs have no right to demand disclosure of the 101
USCP written directives in effect on January 6, 2021 and the USCP OIG reports, including
semiannual reports from 2015 forward and other reports, including audits, from 2008 forward,
23
and thus defendants’ non-disclosure of these records does not trigger the Larson-Dugan
exception to sovereign immunity. This case is therefore dismissed for lack of subject-matter
jurisdiction.
An Order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: September 20, 2022
__________________________
BERYL A. HOWELL
Chief Judge
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