Rangel v. Boehner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHARLES B. RANGEL,
Plaintiff,
v. Civil Action No. 13-540 (JDB)
JOHN A. BOEHNER, et al.,
Defendants.
MEMORANDUM OPINION
Before the Court is [14] defendants’ motion to dismiss plaintiff Charles Rangel’s
complaint, which seeks injunctive and declaratory relief related to his censure by the United
States House of Representatives. Defendants have responded with a motion to dismiss plaintiff’s
complaint on five grounds: standing, the political question doctrine, immunity under the Speech
or Debate Clause of the U.S. Constitution, failure to state a claim, and discretionary dismissal
under the Declaratory Judgment Act or under the doctrine of equitable discretion. The Court will
grant defendants’ motion to dismiss on the first three of those grounds.
BACKGROUND
This case results from the United States House of Representatives’ censure of
Representative Charles Rangel (“Rangel”). Rangel is the U.S. Representative for New York’s
13th congressional district. Currently the third-longest-serving member of the House, Rangel has
been serving for over forty years: he was first elected in 1970 and has been re-elected in every
congressional election since. From 2007 to 2010, Rangel, a Democrat, was the Chairman of the
House Ways and Means Committee (“Ways and Means”). Rep. on the Legis. & Oversight
1
Activities of the Comm. on Ways & Means During the 112th Cong. at 131 (Comm. Print May
31, 2012) (“Ways and Means Rep.”).1
In 2008, Rangel began facing an increasing swell of allegations that he had engaged in
impropriety. Those allegations involved certain failures to report income on federal tax returns
and on House financial disclosure forms; failures to pay tax on rental income from a Caribbean
villa; the use of rent-stabilized apartments in Manhattan for his campaigns in contravention of
state and city regulations; and the improper solicitation of donations for an academic center that
will house his papers and bear his name. Rep. of the Comm. on Standards of Official Conduct, In
the Matter of Rep. Charles B. Rangel, H. Rep. No. 111-661, vol. I, at 147, 267 (Nov. 29, 2010)
(“Ethics Comm. Rep.”).2 Answering the growing clamor, Rangel requested that the House Ethics
Committee investigate the allegations, which it agreed to do. Id. at 258, 266, 644. The Ethics
Committee established an investigative subcommittee and reauthorized it when the 111th
Congress began. Id. at 258, 428-29; Statement of the Chair and Ranking Republican Mem. of the
[Ethics] Comm. (Feb. 10, 2009).3
After conducting an extensive investigation, which included witness interviews,
document review, and subcommittee meetings, the investigative committee adopted and
transmitted to the full Ethics Committee a thirteen-count Statement of Alleged Violation,
detailing the misconduct allegations. Ethics Comm. Rep., vol. I, at 284, 287, 428. In response,
the Ethics Committee convened an adjudicatory subcommittee, which held an adjudicatory
hearing in November 2010. Id. at 260, 364. Concluding that eleven of the thirteen counts in the
Statement of Alleged Violation were established by “clear and convincing evidence,” the
1
Available at http://waysandmeans.house.gov/uploadedfiles/laor_112_mid_year_2012_final.pdf.
2
Available at http://ethics.house.gov/committee-report/matter-representative-charles-b-rangel.
3
Available at http://ethics.house.gov/sites/ethics.house.gov/files/documents/press_statement_
rangel_subcomm_2009.pdf.
2
adjudicatory subcommittee then sent its report to the full Ethics Committee, which in turn held a
hearing to consider what sanction to recommend that the House impose. Id. at 2, 6-14, 396-405,
429-99, 618-89. Following that hearing, the Ethics Committee presented its proposed sanction—
censure—to the full House. Id. at 2, 680-81. After debate, the House voted to adopt the Ethics
Committee’s recommendation: Rangel then stood in the well of the House while then-Speaker
Nancy Pelosi read the text of the censure resolution. 156 Cong. Rec. H7891-99 (daily ed. Dec. 2,
2010). In the normal course of the House’s day-to-day proceedings, the Clerk of the House
prepared a report of the day’s events—including a description of the censure proceedings—for
inclusion in the House Journal. J. of the H.R. ¶¶ 116.25-.27 (Dec. 2, 2010). The Speaker pro
tempore approved the Journal, and thus Rangel’s censure became part of the House Journal. Like
much of Congress’s business, portions of the proceedings were broadcast on C-SPAN. See, e.g.,
Debate on and Censure of Rep. Charles Rangel (Dec. 2, 2010).4
Had that been the end of the matter, this case might not have been filed. But several
months later, a memorandum purportedly written by the chief counsel of the Ethics Committee,
who is a defendant here, was posted on Politico.com, a political journalism website. See John
Bresnahan, Did ethics staff taint Maxine Waters Probe?, Politico (July 18, 2011)5; Compl. Ex. A
(“Chisam Memorandum”). In Rangel’s view, that memorandum contains explosive allegations
that, if true, significantly undermine the integrity of his censure proceedings. The memorandum
addressed, in relevant part, purported ex parte communications between staffers and certain
members of the adjudicatory committee during his disciplinary proceedings. Chisam
Memorandum at 5-7. Rangel also believes that had the chief counsel notified him of the alleged
improprieties before his sanctions hearing concluded, he would have moved to dismiss the
4
Available at http://www.c-spanvideo.org/program/Rangl.
5
Available at http://www.politico.com/news/stories/0711/59225.html.
3
proceedings—and, in his view, the House would have done so, precluding the censure altogether.
Hence, after the memorandum came to light, he moved the Ethics Committee to “withdraw its
actions” in his disciplinary proceedings, which the committee declined to do. Compl. Ex. I.
Rather than seek redress from the full House, Rangel filed this action against: (1) the current
Speaker of the House, Representative John Boehner; (2) the current Clerk of the House, Karen
Haas; (3) the Chairwoman of the Ethics Committee during the 111th Congress, Representative
Zoe Lofgren; (4) the Ranking Member of the Ethics Committee during the 111th Congress,
Representative Jo Bonner; (5) four more members of the adjudicatory subcommittee,
Representatives Michael T. McCaul, K. Michael Conaway, Charles W. Dent, and Gregg Harper;
and (6) three staffers who worked for the Ethics Committee during the 111th Congress, R. Blake
Chisam, C. Morgan Kim, and Stacey Sovereign. Compl. ¶¶ 9-26. Rangel has not sued the
institution that censured him, the House of Representatives itself.
Some other background information is relevant to defendants’ motion to dismiss. During
the investigative phase of the proceedings, Rangel voluntarily stepped down as Chairman of the
Ways and Means Committee, while retaining his membership on the committee. Letter from the
Hon. Charles B. Rangel to the Hon. Nancy Pelosi (Mar. 3, 2010) (“Rangel Letter”).6 In 2010, the
House flipped from majority Democrat to majority Republican, which resulted in lost seats on
Ways and Means for House Democrats—including the Chair. Even so, after being re-elected in
2010, and again in 2012, Rangel was reassigned to the Ways and Means Committee. See Ways
and Means Rep. at II. Rather than being members of any of the subcommittees, the Chair and
Ranking Member of that committee were deemed “ex-officio Members” of all subcommittees.
See Rules of the Comm. on Ways & Means, Rule 9 (112th Cong.) (“Ways and Means Rules”).7
6
Available at http://i2.cdn.turner.com/cnn/2010/images/03/03/0032.rangel.pdf.
7
Available at http://waysandmeans.house.gov/uploadedfiles/rules112__1_7_2011.pdf.
4
Rangel alone was also deemed an ex-officio member of all Ways and Means subcommittees in
the 112th Congress. See Ways and Means Rep. at X n.1. Although his status as only an ex-
officio member would have precluded his voting on any subcommittee matter, in the 112th
Congress every vote was taken at the full committee level. See generally id. at 11-93.
Rangel faced primary challengers in the 2012 election. Unsurprisingly, one opponent
attempted to make hay out of the censure by wrongly asserting that Rangel no longer had “the
ability to vote on his own committee anymore.” Compl. Ex. K. The primary challenges were
ultimately unsuccessful; Rangel defeated all of his opponents despite that particular bit of
mudslinging.
Based on what he views as procedural irregularities in the course of his disciplinary
proceeding in the House, Rangel seeks the following relief: a declaratory judgment to some
unclear effect that, as best the Court can discern, the House must abide by its own rules before
censuring one of its own;8 an injunction requiring defendants to “take all necessary steps to
vacate, strike and remove the recording of censure, as voted on by the House and as set forth in
the Journal”;9 and an “Order or Writ in the nature of mandamus” that requires the Speaker and
the Clerk of the House “to cause to be removed from The Journal of the House’s Proceedings,
any reference to the fact that Plaintiff had been censured.” Compl. ¶ 108.
8
Compl. ¶ 32 (seeking the following declaration: that “the textual meaning and effect of Article [I], Section
5, Clause 2 and the ‘Rules of [the House’s] Proceedings’ require the protection of constitutional restraints and
fundamental constitutional rights, where there is a knowing, intentional and willful violation of the Constitutional
Provision by the Committee charged with recommending the sanction to be imposed by the House, and where the
Chair of the Committee and its Ranking Member falsely and deceptively mislead the House, prior to the House’s
vote on December 2, 2010, to sanction the member by stating that all constitutional restraints and procedural rights
had been recognized and that fundamental constitutional rights had been adhered to. As happened in Plaintiff’s
matter before the Committee, the House lacked the predicate to discipline Plaintiff by reason of the aforesaid
violations”).
9
Compl. ¶ 103. In anticipation of the separation-of-powers difficulties that this request presents, he appears
to ask in the alternative that the Court instruct defendants to fashion a suitable remedy. Pl.’s Opp’n [ECF No. 15] 4
(“[I]t may well be that what the court should do in this case . . . is to give the Defendants time to explain how they
would remedy the wrongs committed. When the court recognizes that determining the relief to be ordered presents a
difficult problem, the court can instruct the defendants to fashion a remedy.”).
5
STANDARD OF REVIEW
Defendants assert five grounds for dismissal, arguing that: (1) Rangel lacks standing to
bring his claims; (2) Rangel’s claims present nonjusticiable political questions; (3) defendants
are absolutely immune from suit under the Speech or Debate Clause, U.S. Const. Art. I, § 6, cl.
1; (4) Rangel fails to state a claim upon which relief can be granted; and (5) even if the Court had
jurisdiction and Rangel has stated a claim, the Court should exercise its discretion not to reach
the merits of his suit. See Defs.’ Mot. to Dism. [ECF No. 14] (“Def.’s Mot.”) 4. The first two
grounds challenge this Court’s subject-matter jurisdiction and therefore will be evaluated under
Federal Civil Rule 12(b)(1); the last three grounds will be evaluated under Rule 12(b)(6). See
Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (stating that “the defect of standing is a
defect in subject matter jurisdiction”); Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1262 (D.C.
Cir. 2006) (explaining that a dismissal under the political question doctrine constitutes a
dismissal for lack of subject-matter jurisdiction and “not an adjudication on the merits”).
Although courts examining a Rule 12(b)(1) motion to dismiss—such as for lack of
standing—will “construe the complaint in favor of the complaining party,” see Warth v. Seldin,
422 U.S. 490, 501 (1975), the “‘plaintiff’s factual allegations in the complaint . . . will bear
closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to
state a claim,” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14
(D.D.C. 2001) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1350 (2d ed. 1987)). Because the elements necessary to establish jurisdiction are
“not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each
element must be supported in the same way as any other matter on which the plaintiff bears the
burden of proof; i.e., with the manner and degree of evidence required at successive stages of the
6
litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Thus, a court may consider
material other than the allegations of the complaint in determining whether it has jurisdiction to
hear the case, so long as the court accepts the factual allegations in the complaint as true. See
Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997).
To survive a motion to dismiss under Rule 12(b)(6), a complaint need only contain “‘a
short and plain statement of the claim showing that the pleader is entitled to relief,’” such that the
defendant has “‘fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion to dismiss, a plaintiff must supply “more than labels and conclusions” or “a formulaic
recitation of the elements of a cause of action” to provide the “grounds” of “entitle[ment] to
relief.” Twombly, 550 U.S. at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986).
Instead, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (quoting
Twombly, 550 U.S. at 570); Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d 672,
681 (D.C. Cir. 2009). A complaint is considered plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. This amounts to a “two-pronged approach,”
under which a court first identifies the factual allegations that are entitled to an assumption of
truth and then determines “whether they plausibly give rise to an entitlement to relief.” Id. at
679.
7
DISCUSSION
Defendants challenge Rangel’s suit on three separate grounds that would each preclude
the Court from reaching the merits of his claims: standing; the political question doctrine; and
absolute immunity under the Speech or Debate Clause. The Court addresses each argument in
turn.
I. RANGEL LACKS STANDING TO ASSERT HIS CLAIMS
Before this Court may entertain the merits of his claims, Rangel must establish that he
has the requisite standing to sue. See Lujan, 504 U.S. at 560-61. Under Rule 12(b)(1), the party
seeking to invoke the jurisdiction of a federal court—Rangel in this case—bears the burden of
establishing that the court has jurisdiction to hear his claims. See U.S. Ecology, Inc. v. U.S.
Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); Grand Lodge, 185 F. Supp. at 13 (explaining
that a court has an “affirmative obligation to ensure that it is acting within the scope of its
jurisdictional authority”). Standing is a “threshold question in every federal case.” Warth, 422
U.S. at 498. Article III of the U.S. Constitution “limits the ‘judicial power’ of the United States
to the resolution of ‘cases’ and ‘controversies,’” Valley Forge Christian Coll. v. Am. United for
Separation of Church and State, Inc., 454 U.S. 464, 471 (1982), and the doctrine of standing
serves to identify those “‘Cases’ and ‘Controversies’ that are of the justiciable sort referred to in
Article III” and which are thus “‘appropriately resolved through the judicial process,’” Lujan,
504 U.S. at 560 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). “In essence the
question of standing is whether the litigant is entitled to have the court decide the merits of the
dispute or of particular issues.” Warth, 422 U.S. at 498. To establish the “irreducible
constitutional minimum of standing,” a plaintiff must allege (1) an “injury in fact” which is “(a)
concrete and particularized and (b) actual or imminent, not conjectural or hypothetical”; (2) “a
causal connection between the injury and the conduct complained of”; and (3) a likelihood “that
8
the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 560-61 (internal
quotation marks and citations omitted). The Supreme Court has stressed that the standing inquiry
is “‘especially rigorous’ when reaching the merits of a case would raise questions about the
proper scope of judicial authority”—in other words, in a case raising important separation-of-
powers concerns. Chenoweth v. Clinton, 181 F.3d 112, 115 (D.C. Cir. 1999) (quoting Raines v.
Byrd, 521 U.S. 811, 819-20 (1997)). “As the Supreme Court has observed, the power to declare
actions of the other branches unconstitutional should be ‘a tool of last resort’ because it ‘is . . .
the ultimate threat to the continued effectiveness of the federal courts in performing that role.’”
Walker v. Cheney, 230 F. Supp. 2d 51, 65 (D.D.C. 2002) (quoting Valley Forge, 454 U.S. at
474). Rangel appears10 to assert four injuries: reputational harm resulting from the censure; a loss
of status on House Ways and Means subcommittees; political exploitation of the censure; and an
amorphous due process injury based on the conduct of certain defendants during the events
leading up to his censure. None of these will support Article III standing.
A. Rangel Does Not Have Standing Based On The Alleged Injury To His
Reputation
Rangel alleges that “[t]he House’s action and the censure recorded in the permanent
record of The Journal of the House’s Proceedings [. . .] have [caused] and will cause Plaintiff
reputational harm, plus public stigmatization [. . .] which is fairly and directly traceable to the
[censure].” Compl. ¶ 86. “[I]njury to reputation can constitute a cognizable injury sufficient for
Article III standing.” Foretich v. United States, 351 F.3d 1198, 1211 (D.C. Cir. 2003) (citing
Meese v. Keene, 481 U.S. 465, 473-77 (1987)). Defendants respond, however, that Rangel’s
claim of reputational injury is insufficiently concrete and particularized. But it is beyond
peradventure that being censured by the U.S. House of Representatives concretely and
10
Rangel’s filings are not models of clarity, but the Court has endeavored to construe them as broadly as
possible.
9
particularly harms a sitting Member’s reputation, particularly a Member like Rangel who has
demonstrated a desire to remain in the House. Foretich, 351 F.3d at 1213 (“[W]here reputational
injury derives directly from an unexpired and unretracted government action, that injury satisfies
the requirements of Article III standing to challenge that action.”).11 Accordingly, Rangel has
sufficiently alleged an Article III injury-in-fact.
That is not the end of the matter, however. Rangel must also show that defendants caused
his reputational injury and that this Court can redress it by granting the relief he requests. Lujan,
504 U.S. at 560-61. To demonstrate causation, Rangel must show that the reputational harm “is
fairly traceable to the challenged action of the defendant, and not the result of the independent
action of some third party not before the court.” Lujan, 504 U.S. at 560-61 (citing Simon v.
Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). As defendants point out, Rangel
has not sued the House itself. Despite his contention that defendants’ argument on this point is
“fruitless wordplay,” Pl.’s Opp’n to Defs.’ Mot. to Dism. [ECF No. 15] (“Pl.’s Opp’n”) 26,
Rangel’s choice of defendants has real consequences for his ability to demonstrate causation.
The reputational harm he suffered resulted from “[t]he House’s action and the censure recorded
in the permanent record of The Journal of the House’s Proceedings.” Compl. ¶ 86. Ultimately, it
was the “independent action” (the censure) “of [a] third party not before the court” (the House)
that caused harm to Rangel’s reputation. Lujan, 504 U.S. at 560-61; Compl. ¶ 86. Four of the
defendants were not Members of the House at the time and thus did not vote to censure Rangel:
the three committee staff defendants, Mr. Chisam, Ms. Kim, and Ms. Sovereign, were staff
members, and Ms. Haas was (and is) the Clerk of the House. Plainly, they did not censure
Rangel. The other seven defendants were, and in most cases still are, Members of the House. But
11
Whether this reputational harm, standing alone, supports Rangel’s due process claim is another matter.
See Paul v. Davis, 424 U.S. 693, 699-700 (1976); Gen. Elec. Co. v. Jackson, 610 F.3d 110, 121 (D.C. Cir. 2010);
Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1108-09 (D.C. Cir. 1985); infra Part II.A.
10
individual Members are not responsible for the actions of the House as an institution, just as they
cannot “represent the interests of an entire House or all of Congress.” Kucinich v. Bush, 236 F.
Supp. 2d 1, 11 (D.D.C. 2002). “Power is not vested in any one individual, but in the aggregate of
the members who compose the body, and its action is not the action of any separate member or
number of members, but the action of the body as a whole.” United States v. Ballin, 144 U.S. 1,
7 (1892). Thus, for the purposes of Article III, Rangel’s reputational harm was not caused by any
of the defendants but by the House as an independent body—and it is not a party to this action.
Rangel counters that but for defendants’ actions—excluding the Speaker and the Clerk,
whom he sues only because of their purported capacity to provide relief—he would not have
been censured. See Compl. ¶¶ 9-11. Rangel’s argument is as follows: if he had been notified that
the staffers and certain members had had improper ex parte communications, he would not have
left the hearing and he would have moved to dismiss the proceedings; if he had moved to
dismiss, the Committee would have granted his motion because of the misconduct; if the
Committee had instead denied his motion, the House still would not have censured him; if the
House had not censured him, he would not have suffered any reputational harm based on his own
misconduct … and so on. This type of speculative and attenuated causation is not sufficient
under Article III. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1150 (2013) (“We decline to
abandon our usual reluctance to endorse standing theories that rest on speculation about the
decisions of independent actors.”); Allen v. Wright, 468 U.S. 737, 759 (1984) (“The links in the
chain of causation between the challenged . . . conduct and the asserted injury are far too weak
for the chain as a whole to sustain [plaintiffs’] standing.”); Simon, 426 U.S. at 33-34, 41 (injury
caused by a hospital, when the hospital was not a defendant, was insufficient to support
standing). Whether the Committee would have granted his motion to dismiss based on the
11
purported misconduct is entirely speculative. Whether, if the Committee had denied his motion,
the House would not have censured him, is as well. Rangel “cannot rely on speculation about the
unfettered choices made by independent actors not before the court,” such as the Ethics
Committee and the House itself. Clapper, 133 S. Ct. at 1150 n.5 (internal quotation marks
omitted). Hence, because he cannot establish that the alleged misconduct by defendants caused
his reputational harm, Rangel does not have Article III standing.
Even if Rangel could satisfactorily demonstrate causation, he cannot show redressability.
Lujan, 504 U.S. at 561 (requiring a likelihood “that the injury will be redressed by a favorable
decision”). Assuming that the House reversing course and striking his censure would remedy his
reputational harm—although defendants contest this point, too—this Court has no power to issue
an order bringing about that result. For the reasons detailed infra, Part II.B, whether the House
will rescind his censure and, in Rangel’s view, rehabilitate his reputation, depends entirely on the
unbridled discretion of the House, and this Court cannot order the relief he seeks. In any event,
the order Rangel asks for would not achieve the result he desires: any alteration of the House’s
Journal from a legislative day other than the previous legislative day requires unanimous
consent, but an order would bind only the six current Member defendants.12 See W. Holmes
Brown, Charles W. Johnson, & John V. Sullivan, House Practice: A Guide to the Rules,
Precedents & Procedures of the House, ch. 28, § 9 (2011). In other words, redressability here
“depends on the unfettered choices made by independent actors not before the courts and whose
exercise of broad and legitimate discretion the courts cannot presume either to control or to
predict.” ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989). Thus, Rangel cannot demonstrate
12
Rep. Jo Bonner resigned from the House on August 2, 2013; the remaining Member defendants are
current Members. See Current Vacancies, Office of the Clerk of the House (Dec. 5, 2013), available at
http://clerk.house.gov/member_info/vacancies_pr.aspx?pr=house&vid=84; Member Information, Office of the Clerk
of the House (Nov. 1, 2013), available at http://clerk.house.gov/member_info/olmbr.aspx.
12
even a likelihood “that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at
560-61.
B. Rangel Does Not Have Standing Based On The Alleged Loss Of His Status
On The House Ways And Means Committee
Rangel next alleges that “after the censure . . . in the 112th Congress, [he] was only
granted ex-officio status on all Ways and Means Subcommittees . . . without having voting rights
as other Member[s] assigned to the Subcommittee[s].” Compl. ¶ 67. In March 2010, while the
investigation into Rangel’s misconduct was still ongoing, Rangel relinquished his responsibilities
as Chairman of the Committee on Ways and Means “until such time as the Committee on
Standards completes its findings on the review currently underway.” Rangel Letter.13 But he
retained his seat on that committee. When Democrats lost control of the House in the 2010
election, House Democrats lost several seats on Ways and Means. Compare Ways and Means
Rep. at II (22 Republicans to 15 Democrats), with Rules Adopted by the 111th Cong. at 309
(Rules Comm. Print 2009) (“111th Cong. Comm. Rules”) (15 Republicans to 26 Democrats).14
Even so, Rangel kept his seat on Ways and Means after being re-elected in 2010 and 2012. See,
e.g., H. Res. 31, 112th Cong. (2011).
Rangel’s lament concerns subcommittee assignments on Ways and Means. First, some
background: the ratio of Republicans to Democrats on each Ways and Means subcommittee was,
by committee rule, not less than the overall ratio of Republicans to Democrats on the committee
13
The Court’s analysis draws upon several documents—mostly from Congressional sources—not in the
record. Normally, at the motion-to-dismiss stage, the Court is limited to consideration of the pleadings. But the
Court nevertheless may take judicial notice of public records, see Fed. R. Evid. 201(b)-(c) (“A court may take
judicial notice, whether requested or not” of any fact that is “not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.”); Texas Border Coalition v.
Napolitano, 614 F. Supp. 2d 54, 57 n.1 (D.D.C. 2009), and because the Court is determining subject-matter
jurisdiction, it may consider material other than the accepted-as-true allegations of the complaint, see Lujan, 504
U.S. at 561; Jerome Stevens, 402 F.3d at 1253-54.
14
Available at http://www.gpo.gov/fdsys/pkg/CPRT-111HPRT52561/pdf/CPRT-111HPRT52561.pdf.
13
itself, so Democrats lost several seats on all Ways and Means subcommittees after the 2010
election. Rule 8, Ways and Means Rules. The Chairman and Ranking Member of Ways and
Means were not regular members of any particular subcommittee; instead, they were “ex-officio
members” of all subcommittees. Rule 9, Ways and Means Rules. As such, they could be counted
to help establish a quorum, and could play some role on every subcommittee, but they were not
taken into consideration for the purposes of determining the ratio of Republicans and Democrats
on the subcommittee. Id. More importantly, they could not vote in the subcommittee. Id. Rangel
also was not a regular member of any Ways and Means subcommittee, but defendants maintain
that the subcommittee positions for Democrats on Ways and Means were filled in accordance
with the rules of the Democratic Caucus, and Rangel does not dispute this assertion. See Rules
26, 31(C), Rules of the Democratic Caucus (112th Cong.), Defs.’ Mot. Ex. 9. Unlike any other
Member on Ways and Means (except the Chair and Ranking Member), Rangel was an “ex[-
]officio member sitting on all of the Subcommittees without voting rights in the 112th
Congress.” Ways and Means Rep. at X n.1. But review of the report on the activities of the Ways
and Means Committee reveals that no subcommittee held a vote during the 112th Congress; the
only Ways and Means votes held during the 112th Congress were taken at the full committee
level. See generally id. at 11-93.
Rangel frames his injury as the loss of status he endured when defendants (in his view)
wrongfully denied him a seat on Ways and Means subcommittees, although he does not specify
how defendants did so—instead, he points only to his ex-officio status. He seems to argue that
because he was only an ex-officio member of all subcommittees, his reputation was harmed.
Maybe so. This reputational harm may constitute a cognizable injury. See supra Part I.A. Yet to
the extent Rangel argues that he suffered some sort of legislative harm sufficient to support
14
legislative standing, see Raines v. Byrd, 521 U.S. 811, 829-30 (1997), the utter lack of votes held
by Ways and Means subcommittees defeats any such claim. Rangel cannot assert that he was
wrongfully deprived of participation in votes that simply never took place. Raines, 521 U.S. at
829-30.
Even if his purported loss of status on Ways and Means were cognizable as an injury
under Article III because of reputational harm or under a theory of legislative standing, Rangel
cannot demonstrate that defendants caused that injury and cannot demonstrate that this Court
could redress it. Rangel does not dispute that subcommittee positions for Democrats on Ways
and Means were filled in accordance with the rules of the Democratic Caucus. See Rules 26,
31(C), Rules of the Democratic Caucus (112th Cong.), Defs.’ Mot. Ex. 9. Recall, too, that those
subcommittees had fewer seats available for Democrats because of the 2010 election. That the
committee staffer defendants and the Clerk of the House did not directly cause Rangel’s failure
to gain a seat on a Ways and Means subcommittee is clear. Moreover, only one of the Member
defendants (Rep. Lofgren) was even a member of the Democratic Caucus in the 112th Congress:
the other six are Republicans. Rangel does not allege that the Democratic Caucus somehow
wrongfully precluded him from holding a subcommittee seat—and if he did, he has sued the
wrong defendant, because just as Rep. Lofgren is not the House, she is not the Democratic
Caucus either. Cf. Ballin, 144 U.S. at 7. What is more, to the extent Rangel considers his ex-
officio status—as opposed to his lack of a seat on any subcommittee—on Ways and Means to be
an injury, he cannot trace that injury to the conduct of any of the defendants here, as none of
them were even members of the Ways and Means Committee in the 112th Congress. See Ways
and Means Rep. at II.
15
Hence, Rangel cannot demonstrate that any harm was caused by defendants rather than
by independent third parties not before the Court. See Lujan, 504 U.S. at 560-61. The chain of
causation is just too attenuated: defendants somehow caused the censure—itself a debatable
point—and because of the censure, the Democratic Caucus and the Ways and Means Committee
deprived him of his seats on subcommittees. Rangel simply cannot show that defendants’
purported misconduct inexorably led to that result; too many independent intervening factors
exist.
Rangel also cannot show redressability. For one thing, the 112th Congress is no more.
His requested relief, that the Court somehow force the House to rescind his censure, does no
work to redress his asserted “injury” of being only an ex-officio member on Ways and Means
subcommittees in the expired 112th Congress. And for the reasons described infra, Part II.B, the
Court cannot grant his requested relief, which would in no way redress any “loss of status” on
Ways and Means in the 112th Congress anyway. Hence, Rangel cannot show the required
redressability, and cannot base standing on this alleged injury.
C. Rangel Does Not Have Standing Based On Political Exploitation Of The
Censure
Rangel further alleges that after he was censured, “[the censure] was exploited by a
political opponent in the 2012 Democratic primary election (in a news release available to the
public) and it is expected that the same will take place in any future election in which Plaintiff is
a candidate.” Compl. ¶ 67. To support this allegation, Rangel references a news article, see
Compl. ¶ 67; Compl. Ex. K, in which one of Rangel’s 2012 primary challengers asserted that
Rangel “doesn’t even have the ability to vote on his own committee anymore” (referring to the
Ways and Means Committee), see id. As explained above, Rangel retained his right to vote on
the full Ways and Means Committee, and only lacked a vote on its subcommittees. As an attempt
16
to exploit electorally Rangel’s censure, this (imprecise) statement fell flat: Rangel was re-elected
to the House in 2012. But he cites no authority for the proposition that his political opponent’s
(unsuccessful and inexact) use of his failure to secure a seat on Ways and Means subcommittees
somehow constitutes a cognizable injury-in-fact. And in this context, it does not. A plaintiff may
not repair to a federal court to obtain a remedy for a public comment about his record made by
his opponent during the innately searching electoral process—it is not as if Rangel asserts a
defamation claim against that (non-defendant) opponent. As a result, the unsuccessful and
inaccurate exploitation of Rangel’s status on Ways and Means following the censure is not a
cognizable Article III injury.
As with his first two alleged injuries, Rangel cannot demonstrate causation or
redressability, even if this were a sufficient injury under Article III. By now, the analysis is
familiar: this asserted injury resulted from the actions of an independent third party not before
the Court (the primary challenger), and even if the Court could grant his requested relief—which
it cannot—the relief would not redress his past injury. Clapper, 133 S. Ct. at 1150 n.5; Lujan,
504 U.S. at 560-61. Retroactively striking the censure will not make the long past 2012 election
any easier for Rangel. Thus, he does not have standing based on his 2012 primary challenger’s
exploitation of the censure.15
D. Rangel Does Not Have Standing Based On The Alleged Due Process Injury
Rangel also argues that he had a “vested interest” in what he views as “guaranteed
protections” of the Committee Rules on disciplinary proceedings, and that his due process rights
15
Rangel responds to defendants’ arguments that he did not suffer any injury-in-fact only by restating his
premise: that he “maintains the claims of extensive damage caused to his reputation, exploitation by primary
opponents because of this damage, and loss of powers on the Committee on Ways and Means.” Pl.’s Opp’n 22. The
Court finds that Rangel has conceded the points by not addressing defendants’ arguments in any meaningful way.
See, e.g., Bradshaw v. Office of the Architect of the Capitol, 856 F. Supp. 2d 126, 143-44 (D.D.C. 2012) (internal
quotation marks and citations omitted) (“It is well understood in this Circuit that when a plaintiff files an opposition
to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments
that the plaintiff failed to address as conceded.”).
17
were violated when he was deprived of those “legally enforceable” interests. Pl.’s Opp’n 25-26.
In other words, he argues that his injury is the purported “deprivation of a fair hearing under
Committee Rules,” which in his view led to his censure. Pl.’s Opp’n 12 (framing the injury as
“Defendants’ violation of the Committee Rules”). He views the Foreword to the Rules of the
Ethics Committee as setting forth binding promises on the Committee’s behalf “to carry out its
advisory and enforcement responsibilities in an impartial manner,” and “to provide a fair
procedural framework” during investigations and hearings. Id. at 23 (arguing that the Foreword
“provides in unequivocal terms [a] fair procedural framework . . . marked by impartiality” and
that as a result he was “promised due process and protection of his fundamental constitutional
rights, and so he has an expectation founded on a written commitment”); id. at 25 (“Plaintiff had
a vested interest in each of these guaranteed protections and was deprived of these interests when
these protections were violated in secret.”). Alleging misconduct during his investigation and
hearing, he seems to argue that the resulting deprivation of due process is itself a cognizable
Article III injury. See Pl.’s Opp’n 6-7 (arguing that the Committee denied Rangel’s: “due process
rights to a fair and impartial hearing”; “confrontation [rights]”; “cross-examination [rights]”;
“the right, as noted in the [Foreword to the Committee] Rules, that Committee Members be
impartial”; that the committee staff member defendants “created a clear and present danger to the
integrity of the proceedings”; that “their conduct could create problems of constitutional
magnitude”; and that they failed to notify him of the alleged misconduct before the proceedings
concluded).
These allegations, even taken together, do not present a cognizable Article III injury. Put
otherwise, a bare assertion of a procedural due process violation is not an Article III injury.
Under settled precedent, plaintiffs do not have standing based simply on allegations that their
18
due process rights have been violated. See Gen. Elec. Co. v. Jackson, 610 F.3d 110, 117 (D.C.
Cir. 2010). The reason is straightforward: the Fifth and Fourteenth Amendments together
guarantee that neither the federal government nor any state government will “deprive any person
of life, liberty, or property, without due process of law . . . .” U.S. Const. amends. V, XIV. Thus,
unless a plaintiff is deprived of one of those interests without due process, that plaintiff has no
claim. Gen. Elec. Co., 610 F.3d at 117 (“Only after finding the deprivation of a protected interest
do we look to see if the [government’s] procedures comport with due process.”). It is the
deprivation of a liberty or property interest itself that triggers procedural due process
requirements, and that deprivation is the Article III injury. See Board of Regents v. Roth, 408
U.S. 564, 570 (1972) (“[T]he range of interests protected by procedural due process is not
infinite.”). The deprivation is what needs to be redressed; the failure to meet the requirements of
due process is what makes that deprivation redressable.
Thus, Rangel’s allegations that defendants violated his due process rights, standing alone,
are not cognizable as injuries-in-fact. Rather, he must allege a deprivation of some liberty or
property interest to satisfy Article III. The ultimate outcome of Rangel’s disciplinary proceedings
was his censure by the full House. Rangel does not assert that he had a liberty or property
interest in not being censured, and as a strictly reputation-based harm, it is unclear that he could.
See infra Part II.A. The proceedings during which Rangel was purportedly deprived of due
process—process to which he was not even due, see infra Part II.A—did not result in the
deprivation of any protectable liberty or property interest. Hence, Rangel did not suffer an injury
under Article III based on the purported Rules violations, even assuming the truth of his
allegations about defendants’ conduct.
19
Assuming arguendo that Rangel has sufficiently shown an Article III injury based on the
purported Rules violations, he has also sufficiently demonstrated causation (by asserting that
defendants violated the Rules)—except as to the Speaker and the Clerk, who are joined as
defendants here only because of the relief that they can purportedly provide. Compl. ¶¶ 9-11. But
as with his other alleged injuries, Rangel cannot demonstrate redressability, and thus even
assuming that he has articulated a cognizable injury under Article III based on his “due process
injury,” he does not have standing.
At bottom, Rangel has not alleged any injury-in-fact caused by defendants that can be
redressed by this Court. Hence, he does not have standing to bring any of his claims, and the
Court must dismiss them for lack of subject-matter jurisdiction. Valley Forge, 454 U.S. at 471.
II. RANGEL’S CLAIMS PRESENT NONJUSTICIABLE POLITICAL QUESTIONS
Defendants argue that, even if Rangel has standing to sue, his claims should still be
dismissed because they raise nonjusticiable political questions. The political question doctrine,
like standing, is part of “the concept of justiciability, which expresses the jurisdictional
limitations imposed on the federal courts by the ‘case or controversy’ requirement of Art[icle]
III.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974). The political
question doctrine “is ‘essentially a function of the separation of powers,’” and it “‘excludes from
judicial review those controversies which revolve around policy choices and value
determinations constitutionally committed for resolution to the halls of Congress or the confines
of the Executive Branch.’” El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 840 (D.C.
Cir. 2010) (en banc) (quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230
(1986); Baker v. Carr, 369 U.S. 186, 217 (1962)). The precise contours of the political question
doctrine remain “‘murky and unsettled.’” Harbury v. Hayden, 522 F.3d 413, 418 (D.C. Cir.
2008) (quoting Tel-Oren v. Libyan Arab Repub., 726 F.2d 774, 803 n.3 (D.C. Cir. 1984) (Bork,
20
J., concurring)); see also Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1514 (D.C. Cir.
1984) (en banc), vacated on other grounds, 471 U.S. 1113 (1985) (describing the “shifting
contours and uncertain underpinnings” of the political question doctrine).
Even so, the Supreme Court has articulated six factors which are “[p]rominent on the
surface” of cases involving nonjusticiable political questions:
[1] a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or [2] a lack of judicially discoverable and
manageable standards for resolving it; or [3] the impossibility of deciding without
an initial policy determination of a kind clearly for nonjudicial discretion; or [4]
the impossibility of a court’s undertaking independent resolution without
expressing lack of respect due coordinate branches of government; or [5] an
unusual need for unquestioning adherence to a political decision already made; or
[6] the potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
Baker, 369 U.S. at 217. The first two factors—a textual commitment to another branch of
government and a lack of judicially manageable standards—are considered to be “the most
important,” see Harbury, 522 F.3d at 418, but in order for a case to be nonjusticiable, a court
“need only conclude that one factor is present, not all,” Schneider v. Kissinger, 412 F.3d 190,
194 (D.C. Cir. 2005). Defendants argue that this case involves two different textually committed
issues, involving the Discipline Clause and the Journal Clause. See U.S. Const. Art. I, § 5, cls. 2,
3. Defendants also argue that it is impossible for the Court to resolve the case or grant Rangel his
requested relief without expressing a profound lack of due respect for the House of
Representatives.
A. Whether The House Properly Disciplined Rangel Is A Political Question
Rangel claims that the House was without power to discipline him because, he contends,
complying with House Rules is a condition precedent to the constitutional imposition of internal
House discipline, such as his censure. Thus, the argument goes, because defendants violated
certain House and Ethics Committee Rules—though Rangel does not specify which, see infra
21
note 22—the House improperly censured him. Rangel’s claim appears to be entirely novel: the
Court has not discovered any case in which a Senator or House Member claimed that Congress
violated the Discipline Clause in Article I, section 5, clause 2 of the U.S. Constitution by censure
or by violating the Rules of their respective chamber.
To evaluate his claim, the Court first examines the adjacent Rulemaking Clause because
of the relative dearth of judicial authority interpreting the Discipline Clause. Article I, section 5,
clause 2 of the Constitution provides that: “Each House may determine the Rules of its
Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two
thirds, expel a Member.” The first part of this provision grants the House the power to make its
own Rules about its internal proceedings; that power “only empowers Congress to bind itself.”
INS v. Chadha, 462 U.S. 919, 955 n.21 (1983); United States v. Rostenkowski, 59 F.3d 1291,
1306 (D.C. Cir. 1995) (“[T]he Rulemaking Clause . . . clearly reserves to each House of the
Congress the authority to make its own rules.”). It is a “broad grant of authority,” Consumers
Union of U.S., Inc. v. Periodical Correspondents’ Ass’n, 515 F.2d 1341, 1343 (D.C. Cir. 1975),
but it is not without limits. The D.C. Circuit “has found no absolute prohibition of judicial
review in the clause.” Morgan v. United States, 801 F.2d 445, 449 (D.C. Cir. 1986) (Opinion of
Scalia, J.) (citing Art. I, § 5, cl. 2.); see Vander Jagt v. O’Neill, 699 F.2d 1166 (D.C. Cir. 1983),
cert. denied, 464 U.S. 823 (1983); CNN v. Anderson, 723 F. Supp. 835, 837 (D.D.C. 1989).
Normally, judicial intervention in this context is only “appropriate where rights of
persons other than members of Congress are jeopardized by Congressional failure to follow its
own procedures.” Metzenbaum v. FERC, 675 F.2d 1282, 1287 (D.C. Cir. 1982) (citing Yellin v.
United States, 374 U.S. 109 (1963); Christoffel v. United States, 338 U.S. 84 (1949); United
22
States v. Smith, 286 U.S. 6, 33 (1932)). The propriety of such intervention was addressed by the
Supreme Court as early as 1892 in United States v. Ballin, where the Court explained that:
The Constitution empowers each house to determine its rules of proceedings. It
may not by its rules ignore constitutional restraints or violate fundamental rights,
and there should be a reasonable relation between the mode or method of
proceeding established by the rule and the result which is sought to be attained.
But within these limitations all matters of method are open to the determination of
the house, and it is no impeachment of the rule to say that some other way would
be better, more accurate, or even more just. It is no objection to the validity of a
rule that a different one has been prescribed and in force for a length of time. The
power to make rules is not one which once exercised is exhausted. It is a
continuous power, always subject to be exercised by the house, and, within the
limitations suggested, absolute and beyond the challenge of any other body or
tribunal.
144 U.S. 1, 5 (1892). Thus, judicial review of House16 Rules can take place only within a limited
set of circumstances and may concern only a similarly limited set of constraints on the Rules.
Here, Rangel does not challenge a particular House or Committee Rule as violative of the
Constitution or of his fundamental rights. Instead, he maintains that defendants violated
unspecified House Rules by engaging in the misconduct he alleges, and that those violations
transformed his censure into an unconstitutional violation of the Discipline Clause.
As the Court explained in Ballin, the authority possessed by the House to make its own
rules is bounded only by “constitutional restraints and fundamental rights.” 144 U.S. at 5. Within
those limitations, a court may not review whether the House has abused the considerable
discretion granted by the Clause. Id. (“within these limitations all matters of method are open to
the determination of the house . . . and, within the limitations suggested, absolute and beyond the
challenge of any other body or tribunal”). This is a classic example of a demonstrable textual
commitment to another branch of government, although that does not ineluctably mean that a
court may not review House Rules for congruence with the Constitution. Kurtz v. Baker, 829
16
While the Court will refer to the House here, the principles discussed under the Rulemaking and
Discipline Clauses apply with equal force to the Senate.
23
F.2d 1133, 1149 (D.C. Cir. 1987) (R. Ginsburg, J., concurring) (“Congress’ Rules and their
implementation ‘may not . . . ignore constitutional restraints or violate fundamental rights,’ and
on that score—and that score only—they are subject to judicial review.” (quoting Ballin, 144
U.S. at 5)); CNN, 723 F. Supp. at 837 (“House rules may be scrutinized by federal courts for
compliance with constitutional requirements.”); Michel v. Anderson, 817 F. Supp. 126, 138
(D.D.C. 1993), aff’d, 14 F.3d 623 (D.C. Cir. 1994) (same). The House may not, by enacting and
enforcing its own rules of procedure, violate another constitutional provision or an individual’s
rights under the Constitution, but the exercise of its discretion under the Clause is otherwise
boundless—at least as far as this Court is concerned. Smith, 286 U.S. at 48 (“The Constitution
commits to the Senate the power to make its own rules; and it is not the function of the Court to
say that another rule would be better.”); Vander Jagt, 699 F.2d at 1173 (“Art. I simply means that
neither we nor the Executive Branch may tell Congress what rules it must adopt. Article I does
not alter our judicial responsibility to say what rules Congress may not adopt because of
constitutional infirmity.”).
Challenges to the exercise of discretion under the Rulemaking Clause have most
frequently arisen in the context of criminal proceedings against individuals who testified before
Congress. See, e.g., Yellin, 374 U.S. at 120-21 (in contempt proceeding, failure of committee to
comply with certain committee rules was defense precluding prosecution); Christoffel, 338 U.S.
at 88-90 (where House committee failed to maintain a quorum under committee rules, perjury
conviction was not by “competent tribunal,” and thus worked a denial of a fundamental right);
see Smith, 286 U.S. at 33 (“As the construction to be given to the rules affects persons other than
members of the Senate, the question presented is of necessity a judicial one.”); Metzenbaum, 675
F.2d at 1287 (“[J]udicial intervention may be appropriate where rights of persons other than
24
members of Congress are jeopardized by Congressional failure to follow its own procedures.”
(citing Yellin, 374 U.S. at 109)). In those cases, defendants identify either violations of Rules or
the application of Rules that violated their rights during the course of their testimony. See, e.g.,
Yellin, 374 U.S. at 120-21; Christoffel, 338 U.S. at 88-89. Courts do not as a result strike down
those Rules as they might an unconstitutional statute; rather, courts hold that either the violation
of the Rules or the application of Rules violating individual rights means that the individual has a
defense to contempt or perjury charges. Simply taking cognizance of a Rule promulgated under
the Rulemaking Clause or examining whether its violation or application impacts a third party’s
constitutional rights does not thereby transform a court’s inquiry into a prohibited intrusion on
Congress’s discretion—in other words, into a political question. Instead, it is better thought of as
a threshold inquiry into whether a political question is implicated at all.
For example, whether “some other way [to achieve the purpose of a Rule] would be
better, more accurate, or more just . . . [or] that a different [rule] has been prescribed and in force
for a length of time” is a “power . . . to be exercised by the house.” Ballin, 144 U.S. at 5. Put
another way, a challenge to the wisdom of a particular House Rule would be barred by the
political question doctrine if it did not implicate other constitutional restraints—think of a
Member challenging a Rule granting the Democratic Caucus the power to make
recommendations regarding committee assignments, or of a Member asserting a violation of that
Rule. See Vander Jagt, 699 F.2d at 1176-77 (internal quotation marks omitted) (finding it “a
startlingly unattractive idea, given our respect for a coequal branch of government, for [the court]
to tell the Speaker of the . . . House of Representatives how many Democrats, and perhaps even
which Democrats, he is to appoint to the standing committees, and perhaps to each such
committee” and thereby refusing to reach the merits under related doctrine of equitable
25
discretion); Metzenbaum, 675 F.2d at 1287 (internal quotation marks omitted) (“[W]hether the
House observed the rules it had established for its own deliberations . . . is political in nature . . .
and is therefore nonjusticiable.”). It is only when the challenge concerns a Rule or the violation
of a Rule that exceeds constitutional restraints that the issue may become justiciable: imagine a
Rule effectively circumscribing the right of Members from New York to participate in House
votes.
Several considerations indicate that the scope of the House’s unreviewable discretion
under the Discipline Clause is similarly broad.17 See In re Grand Jury Subpoenas, 571 F.3d 1200,
1204 (D.C. Cir. 2009) (Kavanaugh, J., concurring) (internal quotation marks and citations
omitted) (“[The Discipline] Clause gives both houses broad official powers to hold investigations
. . . even [for] purely private conduct by a Member that, in the House’s opinion, reflects badly on
it as an institution.”); see Brewster, 408 U.S. at 544 (Brennan, J., concurring) (“[The expulsion
power in Article I, section 5, clause 2] has a broad reach, extending ‘to all cases where the
offence is such as in the judgment of the (House or) [S]enate is inconsistent with the trust and
duty of a member.’” (quoting In re Chapman, 166 U.S. 661, 669-670 (1897))); cf. Harrington v.
Bush, 553 F.2d 190, 214 (D.C. Cir. 1977) (“In deference to the fundamental constitutional
principle of separation of powers, the judiciary must take special care to avoid intruding into a
constitutionally delineated prerogative of the Legislative Branch.” (citing the Rulemaking
Clause)). Like the adjacent Rulemaking Clause, the Discipline Clause deals with matters internal
to the legislative branch, rather than with matters affecting third parties—except perhaps
17
One court recently held that the Discipline Clause is textually committed to each house of Congress.
Haan v. Noem, 13-1009, 2013 WL 5701638, at *2 (D.S.D. Oct. 17, 2013) (“The authority to discipline Members of
the House and to remove them from office is textually committed by the Constitution to each house of congress, and
not the judiciary.”); see also Sissel v. U.S. Dep’t of Health & Human Servs., No. 10-1263, 2013 WL 3244826, at
*11 (D.D.C. June 28, 2013) (internal quotation marks and citation omitted) (“Indeed, the second clause of Article I,
section 5 is a textually demonstrable constitutional commitment of [an] issue to a coordinate political department if
ever there was one.”).
26
tangentially, as in the contempt and perjury cases. In other words, the second clause of section
five deals only with Congress’s power to regulate itself as a body. See Chadha, 462 U.S. at 955
n.21 (Article I, section 5, clause 2 “only empowers Congress to bind itself” and “[e]ach House
has the power to act alone in determining specified internal matters”); Kilbourn v. Thompson,
103 U.S. 168, 189 (1880) (“[T]he Constitution expressly empowers each House to punish its
own members for disorderly behavior.”). In some respects, moreover, there is a lack of judicially
manageable standards. See Brewster, 408 U.S. 501, 519 (1972) (“An accused Member is judged
by no specifically articulated standards and is at the mercy of an almost unbridled discretion of
the charging body.”). What is meant, for example, by “disorderly Behaviour”?
Defendants argue that the House’s authority in this realm is “exclusive.” Def.’s Mot. 30.
But just as the House’s power to make rules of its proceedings is limited by other constitutional
provisions, the House’s wide discretion to discipline its Members is surrounded on all sides by
other constitutional limitations. See Brewster, 408 U.S. at 544 (Brennan, J., concurring)
(“[J]udicial review of the legislative inquiry is not completely foreclosed; the power of the House
and Senate to discipline the conduct of Members is not exempt from the ‘restraints imposed by
or found in the implications of the Constitution.’ (quoting Barry v. U.S. ex rel. Cunningham, 279
U.S. 579, 614 (1929))); cf. Common Cause v. Biden, 909 F. Supp. 2d 9, 28 (D.D.C. 2012) (“[I]n
order to present a justiciable challenge to congressional procedural rules, Plaintiffs must identify
a separate provision of the Constitution that limits the rulemaking power.”). To take defendants’
argument to its logical extreme, imagine the House locking a Member in the basement of the
Capitol for one year based only on an internal disciplinary vote. If the House’s disciplinary
power were truly unbridled, such a case would be nonjusticiable. But as the Court explained in
the closely related context of the Rulemaking Clause in Ballin, the Constitution empowers each
27
House to discipline its Members, but it may not by doing so “ignore constitutional restraints or
violate fundamental rights.” 144 U.S. at 5; see also Brewster, 408 U.S. at 544 (Brennan, J.,
concurring) (“Nor is the Member at the mercy of his colleagues, free to adjust as they wish his
rights to due process and free expression.” (citing Bond v. Floyd, 385 U.S. 116 (1966))).
Hence, to determine whether the alleged conduct here is beyond the authority of this
Court, it is necessary to determine whether members of the House have acted outside of the zone
of their discretion under the Discipline Clause—i.e., whether they have, by disciplining Rangel
and by engaging in the alleged misconduct, ignored constitutional restraints. Ballin, 144 U.S. at
5; Metzenbaum, 675 F.2d at 1287 (“Although judicial intervention is appropriate when the
failure of Congress to adhere to its own rules implicates constitutional rights, ‘Congressional
practice in the transaction of ordinary business is of course none of (the Court’s) concern . . . .’”
(quoting Christoffel, 338 U.S. at 88)); Exxon Corp. v. FTC, 589 F.2d 582, 590 (D.C. Cir. 1978)
(“[W]here constitutional rights are not violated, there is no warrant for the judiciary to interfere
with the internal procedures of Congress.” (citing Consumers Union, 515 F.2d at 1347-48)). If
they have not acted outside of that zone, then the conduct of which Rangel complains is
unreviewable because it is a political question: this Court may not sit as an appellate tribunal,
reviewing whether the House has properly disciplined a Member. Because the Court finds that
Rangel has not even alleged a viable constitutional claim, it is unnecessary to proceed any further
to determine whether the facts he has pleaded support such a claim.
As some courts and several prominent scholars have noted, “inquir[ing] into whether
other branches [have] acted within the bounds of their constitutionally permissible discretion . . .
[may] collapse . . . into an argument on the merits about how the Constitution should be applied
to a particular, challenged action by a non-judicial official.” Henry M. Hart, Jr. & Herbert
28
Wechsler, The Federal Courts and the Federal System 237 (Foundation, 6th ed. 2009); see Nixon
v. United States, 506 U.S. 224, 251 n.4 (1993) (White, J., concurring) (“The judgment [the
Court] wishes to avoid—and the attendant disrespect and embarrassment—will inevitably be cast
because the courts still will be required to distinguish cases on their merits.”); see generally
Louis Henkin, Is There A Political Question Doctrine?, 85 Yale L.J. 597 (1976). Here, this may
be particularly true because the House’s discretion is broad and constrained only by other
constitutional limits: determining whether the House has acted within its discretion, then, is by
nature congruent with determining whether the House has violated another provision of the
Constitution in the course of disciplining a Member. An alternative construct, to avoid a
determination on the merits that precludes a determination on the merits,18 would require the
Court to hold that, because Rangel has simply stated in his complaint that his constitutional
rights have been violated, by definition the issue is outside the realm of discretion granted the
House under the Discipline Clause and hence not a political question. That path would then lead
to an assessment whether Rangel has stated a plausible claim under Federal Civil Rule 12(b)(6).
The better result is to inquire at the outset whether Rangel has asserted a viable
constitutional claim and, if he has not, conclude that his claim raises a political question. Cf.
Brewster, 408 U.S. at 544 (Brennan, J., concurring) (internal quotation marks and citation
omitted) (“Courts are not the place for [resolving legislative bribery issues]. Self-discipline and
the voters must be the ultimate reliance for discouraging or correcting such abuses.”).
Determining preliminarily whether Rangel has identified a constitutional violation in this case
has the ancillary benefit of being a strictly legal question, thus avoiding undue inspection of the
House’s actual conduct. Cf. Common Cause, 909 F. Supp. 2d at 31 (reaching the merits of
18
See Nixon, 506 U.S. at 251 n.4 (White, J., concurring) (“[O]n the basis of a preliminary determination
that the Senate has acted within the ‘broad boundaries’ of the Impeachment Trial Clause, it is concluded that we
must refrain from making that determination.”).
29
dispute over Senate rule “would require an invasion into internal [House] processes at the heart
of the [House’s] constitutional prerogatives,” thereby expressing a lack of due respect).
Assessing whether Rangel has sufficiently alleged that he was deprived of a cognizable liberty or
property interest does not require an intrusive analysis of whether the House acted appropriately
here. As a result, the Court avoids expressing disrespect for a coordinate branch by focusing
solely on whether Rangel has asserted a viable constitutional violation. And if a threshold
showing of a constitutional violation is required, plaintiffs may not simply plead around the
political question doctrine by asserting plainly meritless constitutional violations. At bottom,
because the House only exceeds its discretion under the Discipline Clause when it violates
constitutional rights—and because acts within that discretion are unreviewable as political
questions—if Rangel has not even identified a constitutional right that the House has allegedly
violated, whether the House properly disciplined him remains a political question.
As in Ballin, here “there is no ‘constitutional restraint’ or ‘fundamental right’ at issue.”
144 U.S. at 5. And unlike in Powell v. McCormack, 395 U.S. 486 (1969), where the plaintiff
identified a constitutional provision limiting the House’s discretion on the issue at hand, see 395
U.S. at 531-41 (identifying Article I, section 2, clause 2), Rangel has not identified any
constitutional provision expressly limiting the House’s discretion to discipline him. The closest
he comes is arguing that the House violated his due process rights under the Fifth and Fourteenth
Amendments, but this does not wash. Unless the House deprived Rangel of his “life, liberty, or
property” without due process, Rangel has not identified a constitutional bound that the House
overstepped. “The first inquiry in every due process challenge is whether the plaintiff has been
deprived of a protected interest in ‘liberty’ or ‘property.’ Only after finding the deprivation of a
protected interest do we look to see if the [government’s] procedures comport with due process.”
30
Gen. Elec. Co., 610 F.3d at 117. Rangel argues that the defendants deprived him of a liberty or
property interest when they unfairly and based on bias violated the House’s rules of proceedings
in the course of disciplining him. See Pl.’s Opp’n 25, 28, 29 (“Plaintif[f] was denied due process
when [the] fact finders were biased as a matter of law”; “bias [of some defendants] as a matter of
law depriv[ed] Plaintiff of his Due Process rights”; “the Committee Rules guaranteed a ‘fair
procedural framework’ which included several common trial protections . . . [and] Plaintiff had a
vested interest in each of these guaranteed protections and was deprived of these interests when
these protections were violated”).
To the extent he argues that he had a recognizable interest in the disciplinary process
itself, Rangel is incorrect. In Discipline Clause proceedings, the Supreme Court has explicitly
recognized that “[a]n accused Member is judged by no specifically articulated standards and is at
the mercy of an almost unbridled discretion of the charging body . . . .” Brewster, 408 U.S. at
519 (characterizing the House as acting under Clause “as accuser, prosecutor, judge, and jury
from whose decision there is no established right to review”). In other words, the discipline
power is “not surrounded with the panoply of protective shields that are present in a criminal
case,” despite Rangel’s insistence to the contrary. Id. Recounting the expulsion case of William
Blount in 1797, the Supreme Court has noted without disapproval that “[i]n the [expulsion]
resolution, the [S]enate declared him guilty of a high misdemeanor, though no presentment or
indictment had been found against him, and no prosecution at law was ever commenced upon the
case; and it seems no law existed to authorize such prosecution.’” Chapman, 166 U.S. at 681(citation and internal quotation marks omitted). Even the greater power of expulsion is arguably
bounded only by the requirement of a two-thirds vote, for “[t]he right to expel extends to all
cases where the offense is such as in the judgment of the [S]enate is inconsi[s]tent with the trust
31
and duty of a member.” Chapman (citing 1 Story, Const. § 838). The procedural protections to
which Rangel argues he was due are thus not guarantees. Brewster, 408 U.S. at 519. And even if
they were, those procedural protections would constitute the “due process of law” to which he
would be entitled, not the “liberty” or “property” interest that the government cannot deprive him
of without due process. Procedural rights are not in and of themselves causes of action in this
context. See Gen. Elec. Co., 610 F.3d at 117.
If Rangel is arguing that when he was censured he was deprived of a liberty or property
interest because of defendants’ conduct, he hits closer to the mark. Still, however, he does not
identify a cognizable liberty or property interest in not being censured. True, he alleges
reputational harm. It is well settled, though, that reputational harm alone is not enough: a
plaintiff needs to allege “stigma-plus” in this context. Paul v. Davis, 424 U.S. 693, 699-70
(1976); Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1105-06 (D.C. Cir. 1986). Rangel has not
alleged any sufficient “plus” factor. As explained above, the political exploitation of his censure
was not caused by a defendant before this Court, and in any event it would be strange indeed to
hold that a politician has the right to avoid being aggressively challenged on his record as a
Member during the electoral process. The alleged loss of status on the Ways and Means
Committee was likewise not caused by defendants, and as defendants point out, the House is not
a continuing body—vitiating any claim that he has a vested interest in any particular committee
assignment. See Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 512 (1975). Hence, because
Rangel has not alleged a sufficient “plus” factor, his allegation of bare reputational harm cannot
constitute a liberty or property interest in this context.
Strictly on the basis of what Rangel has alleged, then, even accepting it all as true as this
Court must do on a Rule 12(b)(1) motion, he has not identified any constitutional violation.
32
Thus, he has not even plausibly claimed that the House acted outside of its considerable
discretion under the Discipline Clause, making it a political question whether Rangel was
“properly” disciplined, even assuming the violation of House Rules. Whether discipline of a
Member was “proper” is textually committed to the House, and this Court may step in only to
remedy constitutional violations, which are not implicated here.
Rangel insists that his claims do not involve political questions by comparing his case
with Nixon v. United States, 506 U.S. 224 (1993). There, the Supreme Court held that the Senate
had the sole power to determine its impeachment procedures, thus transforming an impeached
former district court judge’s claim that he had not been properly “tried” into a political question.
Id. at 238. Rangel contends that because the Rulemaking and Discipline Clauses do not contain
the word “sole,” as the Impeachment Clause does, they are not textually committed to the
legislative branch. That is true, so far as it goes: the Impeachment Clause contains particularly
explicit support for the conclusion that it is textually committed to the Senate. But Ballin largely
forecloses Rangel’s argument about the implications of the absence of the word “sole.” The
Court there described the wide discretion granted to the houses of Congress under the
Rulemaking Clause. 144 U.S. at 5. The word “sole” appears only in the Impeachment Clause, yet
courts have repeatedly found textual commitments in other clauses. See, e.g., Luther v. Borden,
48 U.S. (7 How.) 1, 42 (1849) (finding Guarantee Clause textually committed to political
branches); Gonzalez-Vera, 449 F.3d at 1262-63 (finding foreign policy and national security
claims nonjusticiable because of textual commitments to political branches). Rangel also
maintains that the redress he seeks does not present the same dangers as the relief sought in
Nixon. But although the consequences of ordering what he seeks are perhaps not as weighty as
an ex-President challenging his impeachment in the courts, they are still quite problematic. See
33
infra Part II.B. Rangel further argues that because, in his view, the requested order would
embarrass only the defendants who purportedly engaged in misconduct, the order would not
express disrespect towards the House as a whole. But this misperceives the doctrine and perhaps
the nature of what he seeks. Such an order would express a profound lack of disrespect towards
the House as a whole because the Court would be injecting itself into review of the House’s
internal disciplinary process, and the Constitution does not permit that result in these
circumstances.
B. This Court Cannot Grant Rangel’s Requested Relief Because Issues Arising
Under The Journal Clause Are Textually Committed To The House
The nature of the relief Rangel requests also requires dismissal on separation-of-powers
grounds. Rangel essentially requests an order from this Court requiring the defendants to
somehow cause the House to rescind his censure. Any order from this Court requiring either the
defendants or the House itself to act in a fashion consistent with his desires would be severely
problematic from a separation-of-powers perspective.
Article I, section 5, clause 3 of the Constitution “requires that each House ‘keep a Journal
of its Proceedings, and from time to time publish the same, excepting such Parts as may in their
Judgment require Secrecy . . . .’ This Clause has not been the subject of extensive judicial
examination.” Gravel v. United States, 408 U.S. 606, 626 (1972) (citing Ballin, 144 U.S. at 4;
Marshall Field & Co. v. Clark, 143 U.S. 649, 670-671 (1892)). Nonetheless, the Supreme Court
noted in Marshall Field & Co. v. Clark that matters relating to the Journal are “left to the
discretion of the respective houses of [C]ongress.” 143 U.S. at 671. In so noting, the Court
singled out the possibility of expressing disrespect “due to a co-ordinate branch of the
government.” Id. at 673. The D.C. Circuit has concluded that “because the Court based its
holding [in Marshall Field] in part upon separation of powers concerns,” this rule could fairly be
34
viewed as deriving from the political question doctrine. Public Citizen v. U.S. Dist. Ct. for the
Dist. of Columbia, 486 F.3d 1342, 1348 (D.C. Cir. 2007). The D.C. Circuit has also noted, based
on an examination of the Journal Clause and the Rulemaking Clause, that “[i]t is manifest that no
action that the President could take, no formality whatsoever, could force the House to make any
particular entry upon its journal. . . . The President has no control over the Congressional Record
[or] the Journal.” Prevost v. Morgenthau, 106 F.2d 330, 335, n.10 (D.C. Cir. 1939). The Court
cannot conceive of—and Rangel has not made—any principled argument to distinguish the
President’s distinct lack of power over the House’s Journal from this Court’s corresponding lack
of power, particularly where no constitutional rights have been violated.
As defendants point out, any other conclusion with an accompanying order that the
defendants somehow bring about the editing of the House’s Journal to strike any reference to
Rangel’s censure would not only express a profound lack of disrespect for a coordinate branch
but also could trigger a constitutional crisis.19 Under specific House Rules—which Rangel does
not challenge here—any alteration of the House’s Journal from a legislative day other than the
previous legislative day requires unanimous consent. See Brown, Johnson, Sullivan, House
Practice, ch. 28, § 9. How, then, would an injunction requiring defendants to cause the censure’s
removal from the Journal bring about Rangel’s desired result, particularly where Rangel has only
sued seven Members, three staffers, and the Clerk? Does Rangel ask this Court to order
defendants to violate House Rules? Altering the House Journal is clearly within the discretion of
the House, subject only to the possible limit that the House may not violate other provisions of
the Constitution when exercising its discretion under the Clause. This Court has the same ability
to order the House to edit its own Journal as it does to order the House to discipline one of its
19
Perhaps in recognition of the difficulties of such an order, Rangel appears to scale back his desired
remedy somewhat, see supra note 9, but that remedy presents similar difficulties.
35
Members or to promulgate a particular Rule—none. See Vander Jagt, 699 F.2d at 1173. Hence,
because the Constitution vests broad discretion as to the House Journal in the House itself, with a
possible constitutional exception not applicable here, Rangel’s desired relief involves a political
question and the Court must dismiss his claims. 20
III. DEFENDANTS ARE ABSOLUTELY IMMUNE FROM SUIT UNDER THE
SPEECH OR DEBATE CLAUSE
A. Immunity Under The Speech Or Debate Clause
Defendants also move to dismiss on the basis that they are absolutely immune from suit
under the Speech or Debate Clause. “[T]he [Speech or Debate] Clause shields federal legislators
with absolute immunity ‘not only from the consequences of litigation’s results but also from the
burden of defending themselves.’” Davis v. Passman, 442 U.S. 228, 235 n.11 (1979) (quoting
Dombrowski v. Eastland, 387 U.S. 82, 85 (1967)). Article I, section 6, clause 1 of the U.S.
Constitution provides in relevant part that Senators and Representatives:
shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged
from Arrest during their Attendance at the Session of their respective Houses, and
in going to and returning from the same; and for any Speech or Debate in either
House, they shall not be questioned in any other Place.
Id. “Without exception, [the Supreme Court has] read the Speech or Debate Clause broadly to
effectuate its purpose[],” which “is to insure that the legislative function the Constitution
allocates to Congress may be performed independently.” Eastland, 421 U.S. at 501 (citing cases);
Gravel, 408 U.S. at 616 (“The Speech or Debate Clause was designed to assure a co-equal
20
Because the Court determines that Rangel’s claims involve political questions, it is unnecessary to
consider whether to exercise equitable discretion in order not to decide the case. Courts in this circuit have often
expressed unwillingness to interfere in intra-Congress disputes. See, e.g., Vander Jagt, 699 F.2d at 1174 (noting “a
disinclination to intervene unnecessarily in [the legislative branch’s] disputes”); Leach v. Resolution Trust Corp.,
860 F. Supp. 868, 871 (D.D.C. 1994) (expressing the court’s “reluctan[ce] to interfere with what should essentially
be handled as an internal congressional matter”). The D.C. Circuit has labeled this hesitancy “equitable discretion,”
but what life remains in that doctrine is hazy after Raines v. Byrd, 521 U.S. 811 (1997). See Campbell v. Clinton, 52
F. Supp. 2d 34, 40 (D.D.C. 1999) (“the separation of powers considerations previously evaluated under the rubric of
ripeness or equitable or remedial discretion now are subsumed in the standing analysis”).
36
branch of the government wide freedom of speech, debate, and deliberation without intimidation
or threats from the Executive Branch.”); Brewster, 408 U.S. at 507 (purpose of the Clause is “to
protect the integrity of the legislative process by insuring the independence of individual
legislators”); United States v. Johnson, 383 U.S. 169, 178 (1966) (“In the American
governmental structure the clause serves the additional function of reinforcing the separation of
powers so deliberately established by the Founders.”).
To that end, the Clause confers on members of Congress immunity for all actions “within
the ‘legislative sphere,’ even though their conduct, if performed in other than legislative
contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.”
Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 415 (D.C. Cir. 1995) (quoting
Doe v. McMillan, 412 U.S. 306, 312-13 (1973)). But only acts performed within the legitimate
legislative sphere are protected. Eastland, 421 U.S. at 503 (“[O]nce it is determined that
Members are acting within the ‘legitimate legislative sphere’ the Speech or Debate Clause is an
absolute bar to interference.”). To determine whether particular activities other than literal
speech or debate fall within the “legitimate legislative sphere,” courts examine “whether the
activities took place ‘in a session of the House by one of its members in relation to the business
before it.’” Id. (quoting Kilbourn, 103 U.S. at 204). As the Supreme Court explained in Gravel,
covered legislative acts consist of matters that are “an integral part of the deliberative and
communicative processes by which Members participate in committee and House proceedings
with respect to the consideration and passage or rejection of proposed legislation or with respect
to other matters which the Constitution places within the jurisdiction of either House.” 408 U.S.
at 625; Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 10-11 (D.C. Cir. 2006) (Opinion
of Randolph, J.) (citations, quotation marks, and footnotes omitted) (“The legislative process at
37
the least includes delivering an opinion, uttering a speech, or haranguing in debate; proposing
legislation; voting on legislation; making, publishing, presenting, and using legislative reports;
authorizing investigations and issuing subpoenas; and holding hearings and introducing material
at Committee hearings.”).
Discipline Clause activities are plainly within that sphere. As discussed above, the
Constitution places the discretion to discipline House Members firmly within the jurisdiction of
the House. See Brewster, 408 U.S. at 519; In re Grand Jury Subpoenas, 571 F.3d at 1205
(Kavanaugh, J., concurring) (“[T]he House or Senate’s disciplinary proceedings are official
‘Proceedings’ of the House or Senate. And a Member’s speech in such an official congressional
proceeding constitutes ‘Speech . . . in either House.’”). Generally speaking, the Rangel
disciplinary proceedings included activities typically thought of as “deliberative and
communicative processes by which Members participate in committee and House proceedings”:
an investigative subcommittee investigated Rangel’s conduct, then an adjudicatory subcommittee
held a hearing and made recommendations, next the Ethics Committee recommended a censure
to the House, and after debate the House voted to censure Rangel. See Gravel, 408 U.S. at 625.
Each of these activities falls well within the legitimate legislative sphere because they took place
“‘in a session of the House [by] its members in relation to the business before it,’” that business
being the disciplinary proceedings against Rangel. Brown & Williamson, 62 F.3d at 415 (quoting
Kilbourn, 103 U.S. at 204). Actions performed in furtherance of authorized congressional
investigations like the one here—and Rangel does not dispute that the investigation into his
misconduct was authorized—are “integral and indispensable parts of the legislative process.”
CNN, 723 F. Supp. at 841 (citing Eastland, 421 U.S. at 505-06).
38
B. Each Defendant Is Absolutely Immune From Suit Under The Speech Or
Debate Clause
Close examination of the precise conduct that Rangel complains of reveals that all of
defendants’ activities fall within the legitimate legislative sphere. The Court focuses only on
whether the alleged conduct comes within the legitimate legislative sphere because the Speech or
Debate Clause provides immunity from suit for all such actions “even though the[] conduct, if
performed in other than legislative contexts, would in itself be unconstitutional or otherwise
contrary to criminal or civil statutes.” McMillan, 412 U.S. at 312-13 (citing Gravel, 408 U.S. at
624-25).
1. The Chair and Ranking Member are immune from suit
Rangel has sued Rep. Zoe Lofgren based on actions taken while she was Chair of the
Ethics Committee21 and Chair of the adjudicatory subcommittee dealing with Rangel. Similarly,
he has sued former Rep. Jo Bonner based on actions taken while he was Ranking Member and
subsequently Chair of the Ethics Committee. Rangel bases his claims against these two
defendants on certain statements made to the Committee and the House: specifically, that they
made misrepresentations when they told each body that Rangel’s “pre-[censure]-vote
proceedings were conducted fairly, honestly, without bias and according to the law.”
Compl. ¶¶ 12, 13. Zofgren and Bonner’s actions arose from their positions on the Ethics
Committee and on the Rangel adjudicatory subcommittee. That the Committee and the
subcommittee were authorized is not in dispute. See Ethics Comm. Rep. at 258, 266, 644
(Rangel entreating committee to investigate allegations of misconduct). Rangel’s claims are
based on statements that Zofgren and Bonner made in the course of the disciplinary proceeding
and on the floor of the House itself: in other words, on their speech. This is a classic example of
21
The Ethics Committee was known as the Committee on Standards of Official Conduct during the 111th
Congress—i.e., when Lofgren was Chair. See 111th Cong. Comm. Rules at 247.
39
conduct protected by the Speech or Debate Clause—literal speech or debate during official
House proceedings. See Gravel, 408 U.S. at 616 (“Senator Gravel may not be made to
answer . . . for the events that occurred at the Subcommittee meeting”); In re Grand Jury
Subpoenas, 571 F.3d at 1205 (Kavanaugh, J., concurring) (“[A] Member’s speech in . . . an
official congressional proceeding constitutes ‘Speech . . . in either House.” (quoting Speech or
Debate Clause)). Hence, Zofgren and Bonner are absolutely immune from suit under the Speech
or Debate Clause.
2. The adjudicatory subcommittee Member defendants are immune from suit
Rangel has also sued four members of the adjudicatory subcommittee. Against defendant
McCaul, who was the Ranking Member of that subcommittee, he bases his claim on an
allegation that McCaul received improper communications from staff member defendants Kim
and Sovereign, “rendering him[] biased.” Compl. ¶ 22. Against the other three Member
defendants, Conaway, Dent, and Harper, Rangel alleges that they too received those improper
communications, and that all four improperly failed to disclose them to “all of the Members of
the Adjudicatory Subcommittee, or Members of the [Ethics] Committee, or to Plaintiff, or to
Members of the House.” Compl. ¶¶ 24-26. To the extent Rangel alleges that certain
communications made during the adjudicatory subcommittee’s proceedings were improper, those
communications were “an integral part of the deliberative and communicative processes by
which Members participate in committee and House proceedings . . . with respect to other
matters which the Constitution places within the jurisdiction of either House,” as disciplinary
proceedings are well within that jurisdiction. Gravel, 408 U.S. at 625; see supra Part II.A. The
receipt of information by a Member “in preparation for [a] subcommittee hearing,” the conduct
alleged here, is similarly a protected legislative activity. Gravel, 408 U.S. at 629. And any failure
40
to notify committed by defendants during those proceedings can be fairly characterized as
“speech” under the Speech or Debate Clause; just as defendants are immune from suits based on
speech within the legislative sphere, so are they protected for any failure to speak within the
same sphere. Hence, Rangel’s claims against these four Member defendants are barred by the
Speech or Debate Clause.
3. The staff member defendants are immune from suit
Rangel’s allegations against the staff member defendants concern their activities in
preparing the adjudicatory subcommittee for his sanction hearing. He alleges that defendant
Chisam, Chief Counsel for the Ethics Committee and for the adjudicatory subcommittee, failed
“to fulfill his constitutional obligation to timely advise” Rangel “of what had occurred prior to
the Sanction Hearing”: namely, that the other staff member defendants had allegedly engaged in
improper communications with members of the subcommittee. Compl. ¶ 14. He charges
defendants Kim and Sovereign, both members of Chisam’s Ethics Committee staff at the time,
with the alleged improper communications with the defendant Members of the adjudicatory
subcommittee.
As a threshold matter, these staff members are covered by the Speech or Debate Clause
despite not being Members of Congress. Under the Clause, courts are to draw “no distinction
between . . . Members” and their aides, Eastland, 421 U.S. at 507, because “the day-to-day work
of such aides is so critical to the Members’ performance that they must be treated as (the
Members’) alter egos . . . [,]” Gravel, 408 U.S. at 616-17. See also Consumers Union, 515 F.2d
at 1350 (so long as their “actions would have been immune from inquiry . . . had they been
performed by Members of Congress,” aides are entitled to immunity). Had Members taken the
alleged actions here, they would be immune from suit because such actions are within the
41
legitimate legislative sphere. As with the adjudicatory subcommittee member defendants, Rangel
alleges only that the staff members engaged in deliberative and communicative processes in
preparation for a disciplinary proceeding, which the Constitution places within the jurisdiction of
the House. See Gravel, 408 U.S. at 629. Like the receipt of information in preparation for those
proceedings, communicating information to Members in preparation for the proceedings is a
protected legislative act. Gravel makes clear that aides are to be treated as Members’ alter egos,
and if a Member had communicated information to another Member on the adjudicatory
subcommittee, that communication would be protected by the Speech or Debate Clause. 408
U.S. at 616-17. Hence, so are the staff members’ similar communications. See MINPECO, S.A.
v. Conticommodity Servs., Inc., 844 F.2d 856 (D.C. Cir. 1988) (protecting staff communications
regarding alleged alteration of investigative hearing transcript). Like the adjudicatory
subcommittee member defendants, Chisam’s purported failure “to timely advise” Rangel of
conduct occurring during preparation for the hearing is also protected as the lack of speech.
Rangel does not predicate his claims against the staff member defendants on any actions taken
outside their capacities as Committee aides. Because he bases his claims only on actions within
the legitimate legislative sphere taken by aides to the authorized subcommittee, Rangel’s claims
against the staff member defendants are barred by the Speech or Debate Clause.
4. The Speaker of the House is immune from suit
Rangel does not allege that defendant Boehner, Speaker of the House, engaged in any
misconduct. Rather, he joins him as a defendant solely because “in his absence . . . the court
cannot accord complete relief as prayed for.” Compl. ¶ 9. Setting aside the implications for
standing against Boehner, the Speech or Debate Clause provides him with absolute immunity
from suit for actions taken in the legitimate legislative sphere. Because Rangel has not alleged
42
that Boehner engaged in any conduct, let alone any outside of the legislative sphere, Rangel’s
claims against Boehner are barred by the Speech or Debate Clause.
5. The Clerk of the House is immune from suit
Similarly, Rangel does not allege that defendant Haas, as Clerk of the House, engaged in
any misconduct; he joins her only because she is “essential to effectuate relief” as the keeper of
the House Journal. Compl. ¶ 10-11. Like the staff member defendants, the Clerk is entitled to
absolute immunity under the Speech or Debate Clause if her “actions would have been immune
from inquiry . . . had they been performed by Members of Congress.” Consumers Union, 515
F.2d at 1350. Asking whether a Member would have been immune for the Clerk’s actions here is
a non sequitur: Rangel does not base his claims against the Clerk on any of her actions. But even
assuming that the action complained of is recording the censure in the House Journal, the Clerk
is entitled to immunity. As discussed above, maintenance of the Journal is a “matter which the
Constitution places within the jurisdiction of either House.” Gravel, 408 U.S. at 625; see
Marshall Field, 143 U.S. at 671. And here, the Clerk was “acting by virtue of an express
delegation of authority as [an] aide[] or assistant[] of Congress” when she recorded Rangel’s
censure in the House Journal: it is the Clerk’s duty to enter the day’s business in the Journal,
which Rangel does not dispute. Consumers Union, 515 F.2d at 1350; Def.’s Mot. 12. Hence, to
the extent Rangel argues that the Clerk engaged in any misconduct—and the only fairly alleged
actions taken by the Clerk here relate to recording the censure in the Journal—that conduct falls
within the “legitimate legislative sphere,” so Rangel’s claims against the Clerk are barred by the
Speech or Debate Clause.
43
6. Alleged Rules violations do not defeat immunity
Rangel’s claims against each defendant, then, are absolutely barred by the Speech or
Debate Clause. Eastland, 421 U.S. at 501-02 (where the Clause applies, “‘the prohibitions of the
Speech or Debate Clause are absolute,’” barring both criminal and civil liability (quoting
McMillan, 412 U.S. at 312-13)). Thus, it is unnecessary to consider the extent to which the
Clause would preclude discovery or the introduction of evidence. Def.’s Mot. 25-26; Pl.’s Opp’n
19-20; see, e.g., Helstoski, 442 U.S. at 489-90 (discussing non-evidentiary use privilege); Brown
& Williamson, 62 F.3d at 418 (discussing non-disclosure privilege).
Rangel insists that because certain defendants took actions that violated House Rules or
Committee Rules,22 their activities cannot as a matter of law have been within the legitimate
legislative sphere. Pl.’s Opp’n 17-19. This proposition has been soundly rejected. If courts were
permitted to examine and question Members’ conduct once a plaintiff alleged that such conduct
violated Rules or even criminal or civil statutes or the Constitution itself, the Speech or Debate
Clause would be a nullity. CNN, 723 F. Supp. at 841 (“[A]n allegation [of a constitutional
violation] is insufficient to overcome the broad coverage of the Speech or Debate Clause.”
(citing Eastland, 421 U.S. at 508-09)); Porteous v. Baron, 729 F. Supp. 2d 158, 165 (D.D.C.
2010) (rejecting identical argument because acceptance would “entirely eviscerate the
protections afforded by the privilege”); see Eastland, 421 U.S. at 508-09 (“If the mere allegation
that a valid legislative act was undertaken for an unworthy purpose would lift the protection of
the Clause, then the Clause simply would not provide the protection historically undergirding
it.”); Tenney v. Brandhove, 341 U.S. 367, 377-78. Similarly, inquiry is not permitted based upon
22
Note, though, that Rangel does not identify any specific Rules violated by defendants, referencing only
the “Foreword” to the Ethics Committee Rules and alleging violations of unspecified rules. Pl.’s Opp’n 2, 18, 22,
25. (“Plaintiff has alleged egregious violations of [House Rules]” and “any actions taken by Defendants in violation
of the Rules Congress has adopted . . . are outside the legitimate legislative sphere.”).
44
an allegation of an improper or unconstitutional motive for protected conduct. Tenney, 341 U.S.
at 377 (“The claim of an unworthy purpose does not destroy the privilege. . . . The privilege
would be of little value if [Members] could be subjected to the cost and inconvenience and
distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against
them based upon a jury’s speculation as to motives.”). Hence, defendants are entitled to absolute
immunity notwithstanding Rangel’s allegations of rule violations.
C. Neither The House Nor The Defendants Have Waived The Protections Of
The Speech Or Debate Clause
Rangel also urges that either the House as an institution or each of the individual
defendants have waived the protections of the Speech or Debate Clause. The idea that a Member
may waive the protections of the Speech or Debate Clause appears to have had its genesis in
Gravel, where the Supreme Court noted in passing that because the privilege of an aide really
belongs to the member of Congress, “an aide’s claim of privilege can be repudiated and thus
waived by the [Member].” 408 U.S. at 622 n.13. But only a few years later, the Court cast doubt
on this proposition in United States v. Helstoski, 442 U.S. 477 (1979). There, the Court held that
even if a Member could waive the privilege—and the Court explicitly declined to decide whether
individual waiver is possible—“waiver can be found only after explicit and unequivocal
renunciation of the protection” and “[t]he ordinary rules for determining the appropriate standard
of waiver do not apply in this setting.” 442 U.S. at 490-91. Such a “clear and unambiguous”
waiver must also be distinct from a waiver of one’s Fifth Amendment rights. Id. Thus, the Court
rejected the government’s argument in Helstoski that a former Member had waived his rights by
voluntarily testifying in front of grand juries and by voluntarily producing documents in the
course of a corruption investigation, even though the Member “indicated a willingness to waive
the protection of the Fifth Amendment.” Id. at 492; see also Brown & Williamson, 62 F.3d at
45
415 (no waiver where Congressman voluntarily made statements during a radio interview
regarding the subject matter of plaintiffs’ claims); Pittston Coal Grp., Inc. v. Int’l Union, United
Mine Workers of Am., 894 F. Supp. 275, 278 n.5 (W.D. Va. 1995) (no waiver where Senator
voluntarily disclosed documents in litigation).
No court has ever held that a Representative or Senator waived their absolute immunity
from suit under the Speech or Debate Clause. Given the case law, if waiver is at all possible in
this context, it must be pellucidly clear. Here, Rangel argues that defendants somehow
individually waived the protections of the Speech or Debate Clause through publication of the
“Chisam memorandum.” To begin with, he does not allege that any particular defendant caused
the memorandum to be published. And even if he had, such publication is manifestly insufficient
to support a finding that any defendant made an “explicit and unequivocal renunciation of the
[Clause’s] protection.” Helstoski, 442 U.S. at 490-91. Other cases in which Members waived
their Fifth Amendment rights or disclosed documents in discovery present far stronger cases for
waiver than the mere public release of information. See, e.g., Helstoski, 442 U.S. at 492; Pittston
Coal, 894 F. Supp. at 278 n.5. Yet no court has found an individual waiver even in those cases.
What is more, even if Rangel were correct that defendants waived their protections here
through publication of the Chisam memorandum, it is significantly in doubt whether that waiver
would extend so far as Rangel claims. He appears to contend that the publication of the
memorandum abrogates defendants’ absolute immunity from suit. A more likely result—though
one never decided by a court—is that defendants would merely have waived their non-disclosure
or non-evidentiary use privileges under the Clause relating to the memorandum, leaving intact
their immunity from suit. See, e.g., Helstoski, 442 U.S. at 489-90 (non-evidentiary use
privilege); Brown & Williamson, 62 F.3d at 418 (non-disclosure privilege).
46
Still more dubious is the proposition that the House as an institution somehow waived
defendants’ absolute immunity. As with individual waiver, the Supreme Court has left undecided
whether Congress—or one house—may as an institution waive the Clause’s protections on
behalf of individual members. See Helstoski, 442 U.S. at 492-93. But the Court has articulated
serious concerns about the possibility of institutional waiver, noting that the purpose of the
Clause is “to protect the integrity of the legislative process by insuring the independence of
individual legislators.” Eastland, 421 U.S. at 502 (quoting Brewster, 408 U.S. at 507). In other
words, the privilege “is not so much the privilege of the house as an organized body, as of each
individual member composing it, who is entitled to this privilege, even against the declared will
of the house.” Helstoski, 442 U.S. at 493 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (Mass. 1808)).
Moreover, the Court held that even assuming the possibility of institutional waiver, it likewise
“could be shown only by an explicit and unequivocal expression.” Id.Here, Rangel appears to argue that the House waived the Clause’s protections for all
members simply by authorizing the broadcast of its proceedings on C-SPAN.23 C-SPAN is
authorized to broadcast those proceedings by generally applicable House and Committee Rules.
See 111th House Rules, Rule V.2(a); 111th Ethics Comm. Rules, Rules 5(d), 12. In light of the
serious doubt cast by the Supreme Court on the prospect of institutional waiver, and the Court’s
corresponding requirement that any such waiver must be explicit and unequivocal, general
authorization of a public broadcast of the House’s proceedings falls far short of institutional
waiver. Moreover, that waiver would likely work only an abnegation of defendants’ non-
disclosure or non-evidentiary use privileges under the Clause for statements actually broadcast
on C-SPAN. See, e.g., Helstoski, 442 U.S. at 489-90; Brown & Williamson, 62 F.3d at 418.
23
To the extent he argues that authorizing the C-SPAN broadcast somehow constituted an individual
waiver, Rangel has not alleged action by any specific defendant authorizing that broadcast, and thus the Court
construes his argument on the point as relating only to an institutional waiver.
47
Hence, this Court finds that there has been neither an individual nor an institutional waiver of the
Speech or Debate Clause’s protections in this case, and all defendants are absolutely immune
from suit under the Clause.
* * * * * * *
Rangel wants this Court to decree that the House somehow lacked the authority under the
Constitution and its own Rules to censure him; to sit in review of decisions made by the Ethics
Committee, its subcommittees, and the House itself; and to rewrite the House Journal (or to order
defendants to do so). In the end, everything on Rangel’s wish list implicates insurmountable
separation-of-powers barriers to the Court’s exercise of authority. This Court is a court of limited
jurisdiction under Article III, and Rangel has not properly asserted any claim within the bounds
of that jurisdiction. The House has wide discretion to discipline its Members under the Discipline
Clause, and this Court may not lightly intrude upon that discretion. Moreover, Members of
Congress (along with their aides) are entitled to broad—although not unlimited—immunity
under the Speech or Debate Clause. And perhaps most problematic is Rangel’s unprecedented
view that this Court may order the House to, in effect, un-censure him. Rangel’s quarrel is with
the House, and it must stay there; he may not under these circumstances enlist the Court’s
involvement in that quarrel.24
CONCLUSION
For all these reasons, the Court will grant defendants’ motion to dismiss. A separate order
has issued on this date.
24
Because the Court is precluded from reaching the merits of Rangel’s case for several reasons—standing,
the political question doctrine, and immunity from suit under the Speech or Debate Clause—the Court need not, and
indeed may not, decide whether to exercise its discretion under the Declaratory Judgment Act to consider the merits,
or, if it should, to decide whether Rangel has stated a claim. See Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct.
1421, 1427 (2012) (“In [cases involving political questions], we have held that a court lacks the authority to decide
the dispute before it.”).
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/s/
JOHN D. BATES
United States District Judge
Dated: December 11, 2013
49