UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SHAWN MUSGRAVE,
Plaintiff, Civil Action No. 21-cv-2199 (BAH) v. Chief Judge Beryl A. Howell J. THOMAS MANGER, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Shawn Musgrave initiated this lawsuit against Sonceria Berry, the Secretary of
the Senate, and the Office of the Secretary of the Senate (“Senate defendants”) and William J.
Walker, the House of Representatives Sergeant at Arms, the Office of the House of
Representatives Sergeant at Arms, the House of Representatives (“House defendants”) to compel
release of two congressional security documents, pursuant to the common law right of access to
public records, the Declaratory Judgment Act, 28 U.S.C. § 2201, and the All Writs Act, 28
U.S.C. § 1651. Pending are four motions by the parties: (1) Senate defendants’ Motion to
Dismiss (“Sen. Defs.’ MTD”), ECF No. 11; (2) House defendants’ Motion to Dismiss (“H.
Defs.’ MTD”), ECF No. 12; (3) plaintiff’s Motion for Partial Summary Judgment (“Pl.’s Mot.
Part. Summ. J.”), ECF No. 21; and (4) Senate and House defendants’ Joint Motion to Dismiss
Plaintiff’s Claims Against Them as Moot (“Defs.’ Jt. MTD”), ECF No. 26. For the reasons set
forth below, Senate and House defendants’ Joint Motion to Dismiss is granted, all other pending
motions are denied, and this case is dismissed as moot.
I. BACKGROUND
Plaintiff’s quest for congressional documents stems from his interest in gathering
information about House and Senate security policies, particularly those concerning 1 “Congressional treatment of sensitive information,” following the events at the U.S. Capitol on
January 6, 2021. Am. Compl. ¶ 21, ECF No. 22. Summarized below is the relevant factual and
procedural history for this case.
On June 23, 2021, plaintiff requested from House defendants the most recent edition of
the House Security Policy Manual, which contains “security policies, procedures, standards, and
other regulations and requirements governing the handling of national security information for
House staff.” Am. Compl. ¶¶ 35, 48–52. On June 25, 2021, he also requested from Senate
defendants the most recent edition of the Senate Security Manual, the Senate’s counterpart
document, id. ¶¶ 53–57; see also Sen. Defs.’ MTD, Ex. B, ECF No. 11-3 (Letter from Kel
McClanahan, Executive Director, National Security Counselors, to Nicolette Llewellyn, Director
of Security, Office of Senate Security (June 25, 2021)). 1 At that time, neither document was
available to the public. Am. Compl. ¶ 35. The General Counsel of the House and the Office of
Senate Legal Counsel denied those requests on July 12, 2021, and August 17, 2021, respectively,
both stating that the common law right of access does not apply to either manual. Id. ¶¶ 50, 55;
see Sen. Defs.’ MTD, Ex. C, ECF No. 11-4 (Letter from Thomas E. Caballero, Assistant
Counsel, Office of Senate Legal Counsel, to Kel McClanahan, Executive Director, National
Security Counselors (Aug. 17, 2021)).
On October 22, 2021, Senate and House defendants moved to dismiss, under Federal
Rules of Civil Procedure 12(b)(1) and (b)(6), plaintiff’s Complaint for lack of subject-matter
jurisdiction and failure to state a claim. See Sen. Defs.’ MTD; H. Defs.’ MTD. Approximately
1 In deciding a motion to dismiss for lack of subject-matter jurisdiction, a court is not limited to the allegations set forth in the complaint, but may consider materials outside the complaint’s four corners. See, e.g., Am. Freedom L. Ctr. v. Obama, 821 F.3d 44, 49 (D.C. Cir. 2016) (“[W]e ‘may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.’” (quoting Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005))).
2 five months later, plaintiff was granted leave to file a First Amended Complaint. Min. Order
(Apr. 4, 2022) (citing FED. R. CIV. P. 15(a)(2)); see Pl.’s Mot. for Leave to File First Amended
Compl., ECF No. 19. The Amended Complaint added the House of Representatives as a
defendant, Am. Compl. ¶ 9, and asserted the same requests for disclosure of the Senate Security
Manual, id. ¶ 54, and the House Security Policy Manual, id. ¶ 49. 2
On April 2, 2022, plaintiff moved for partial summary judgment under Federal Rule of
Civil Procedure 56, arguing that the common law right of access is generally applicable to the
House and Senate security manuals as well as similar documents held by these offices. Pl.’s
Mem. in Supp. Pl.’s Cross-Mot. for Partial Summ. J. at 3, ECF No. 21-1. While simultaneously
opposing plaintiff’s Motion for Partial Summary Judgment, see ECF Nos. 30, 32, and countering
plaintiff’s opposition to their motions to dismiss, ECF Nos. 29, 31, House and Senate defendants
moved to dismiss as moot plaintiff’s claims against them for lack of subject-matter jurisdiction,
Mem. in Supp. Defs.’ Jt. MTD, ECF No. 26-1 (“Defs.’ Mem.”).
II. LEGAL STANDARD
Under Article III of the Constitution, federal-court jurisdiction is limited to “Cases” and
“Controversies.” U.S. CONST. art. III, § 2, cl. 1. The Supreme Court has interpreted that
limitation to require that “‘an actual controversy . . . be extant at all stages of review, not merely
2 Plaintiff’s original complaint requested from J. Thomas Manger, the Chief of Police of the U.S. Capitol Police, and U.S. Capitol Police (1) security footage captured on January 6, 2021, and shared with the Federal Bureau of Investigation, Compl. ¶¶ 36–41, ECF No. 1; (2) Capitol Police “records about the policy and procedure from the sharing of information that was requested by Congress in H.R. Rep. No. 116-447, at 22 (2020),” id. ¶ 43 (citations omitted); accord id. ¶¶ 42–48; and (3) “a copy of the report that was requested by Congress in H.R. Rep. No. 116- 447, at 22 (2020), discussing which [Capitol Police Office of the Inspector General] reports from the previous three years could have been made public,” id. ¶ 50; accord id. ¶¶ 49–53. The Amended Complaint eliminated these defendants and claims, see Pl.’s Mot. for Leave to File First Amended Compl. at 2; see also Pl.’s Mem. in Supp. Pl.’s Cross-Mot. for Partial Summ. J. at 3–4, ECF No. 21-1 (explaining that plaintiff withdrew all claims against Capitol Police defendants, citing other cases he has filed against those defendants asserting similar claims and his realization that the reports he had requested from Capitol Police “are not worth the argument, and he does not wish to burden the Court with a dispute that serves no practical purpose”). Consequently, the Capitol Police defendants were formally dismissed on August 9, 2022. Min. Order (Aug. 9, 2022). .
3 at the time the complaint is filed.’” Campbell–Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016)
(quoting Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 67 (1997)). Accordingly, “[i]f an
intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the
lawsuit,’ at any point during litigation, the action can no longer proceed and must be dismissed
as moot.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013) (quoting Lewis v.
Cont’l Bank Corp., 494 U.S. 472, 477–78 (1990)). If, for example, “the court can provide no
effective remedy because a party has already obtained all the relief that it has sought,” a case has
become moot and thus federal courts lack jurisdiction to decide the matter. Conservation Force,
Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013) (internal citations omitted); see also Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“Without jurisdiction the court cannot
proceed at all in any cause.”).
“The initial heavy burden of establishing mootness lies with the party asserting a case is
moot, . . . but the opposing party bears the burden of showing an exception applies.” Honeywell
Int’l, Inc. v. Nuclear Regul. Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010) (internal citations
omitted). An exception arises when the defendant voluntarily ceases the disputed activity and
moves for dismissal, “thus securing freedom to return to his old ways.” Alaska v. U.S. Dep’t of
Agric., 17 F.4th 1224, 1227 (D.C. Cir. 2021) (internal citations omitted). 3 In such cases, the
party opposing mootness must show that “(1) there is no reasonable expectation that the alleged
violation will recur, and (2) interim relief or events have completely or irrevocably eradicated the
effects of the alleged violation.” Porup v. Cent. Intel. Agency, 997 F.3d 1224, 1231 (D.C. Cir.
2021) (citing Zuckerman v. U.S. Postal Serv., 961 F.3d 431, 442 (D.C. Cir. 2020)).
3 Plaintiff does not argue that the second exception to mootness, capable of repetition yet evading review, applies, so that argument is waived, Seed Co. Ltd. v. Westerman, Hattori, Daniels & Adrian, LLP, 961 F.3d 1190, 1195 (D.C. Cir. 2020), and defendants’ counterarguments on that point will not be considered, see Defs.’ Mem. at 9–10.
4 “In considering a motion to dismiss for lack of subject matter jurisdiction [under Federal
Rule of Civil Procedure 12(b)(1)], courts are required to ‘accept as true all of the factual
allegations contained in the complaint,’” Am. Freedom L. Ctr. v. Obama, 821 F.3d 44, 49 (D.C.
Cir. 2016) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002)), and courts “may
consider materials outside the pleadings in deciding” the motion, id. (citing Jerome Stevens
Pharm., Inc. v. Food & Drug. Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005)). If the court
determines that it lacks jurisdiction because a claim is moot, it must dismiss the claim. FED. R.
CIV. P. 12(b)(1), 12(h)(3).
III. DISCUSSION
Defendants argue that, because they provided plaintiff “with the only two documents that
his amended complaint seeks,” plaintiff’s claims are “moot because there is no longer a live case
or controversy” and no exception to mootness applies. Defs.’ Mem. at 2, 6–8. Specifically, they
contend that in opposing the Senate and House defendants’ original motions to dismiss, plaintiff
submitted “substantial excerpts from the 2018 version of the Senate Security Manual and the
2017 House Security Policy Manual.” Id. at 1; see Pl.’s Mem. in Opp’n to Motions to Dismiss,
Exs. 3, 4, ECF Nos. 20-3, 20-4 (excerpted copies of the House and Senate manuals,
respectively). Defendants then released the 2020 versions of the manuals “to avoid consuming
any more of the Court’s or the defendants’ time needlessly litigating over two documents that
plaintiff appears to already possess.” Defs.’ Mem. at 2. Plaintiff admits that he “has been
provided with the only two documents that he requested”—the House and Senate security
manuals—but counters that his case is not moot because the voluntary cessation doctrine applies
and his request for a declaratory judgment remains. Pl.’s Mem. in Further Supp. of Pl.’s Cross-
5 Mot. for Partial Summ. J. & in Opp’n to Sen. and H. Defs.’ Joint Mot. to Dismiss Pl.’s Claims
Against Them as Moot (“Pl.’s Opp’n”) at 8–10, ECF No. 36. Plaintiff’s counterarguments fail.
A. Mootness
Defendants aver that plaintiff’s case is moot and the voluntary cessation exception does
not apply because “it is not likely that plaintiff will seek and be denied a copy of the Senate or
House manuals that have now been provided to him” and defendants’ release of the manuals
“eradicated the effect of the alleged injury – that is, the denial of his access to the manuals.”
Defs.’ Mem. at 10. Plaintiff does not dispute those arguments. Instead, he claims that “under the
doctrine of voluntary cessation,” the case is not moot because defendants are still free to deny
future requests for similar documents by citing “a total legislative immunity to the common law
right of access.” Pl.’s Opp’n at 9; see also id. at 10. Defendants respond that, “[w]hile a plaintiff
may avoid mootness under the voluntary cessation doctrine in FOIA [Freedom of Information
Act] cases by pleading that a specific agency FOIA policy violates the terms of FOIA,” that
doctrine is inapplicable, and thus should not be extended, to the common law right of access,
“which lacks the statutorily defined requirements for agency processing and responding to
requests for records prescribed by FOIA.” Defs.’ Mem. at 10; accord id. at 11–12. Regardless
of the applicability of a “policy or practice” claim in the common law right of public access
sphere, plaintiff’s claim is insufficiently pled.
The parties agree that plaintiff received the only two documents he requests, Pl.’s Opp’n
at 8–9; Defs.’ Mem. at 10, so this case is moot unless an exception applies. On that score,
plaintiff’s position seems to be that his case is not moot because defendants have a “policy or
practice” of asserting legislative immunity to ward off common-law-right-of-access requests,
which plaintiff may challenge pursuant to Payne Enterprises, Inc. v. United States, 837 F.2d 486
(D.C. Cir. 1988). The D.C. Circuit in Payne applied the voluntary cessation doctrine to render a 6 FOIA request not moot, even though the government provided the documents in dispute, because
the plaintiff presented a ripe challenge to the government’s practice of delaying the release of
documents without justification. Id. at 488. The panel held that “even though a party may have
obtained relief as to a specific request under the FOIA, this will not moot a claim that an agency
policy or practice will impair the party’s lawful access to information in the future.” Id. at 491
(quoting Better Gov’t Ass’n v. Dep’t of State, 780 F.2d 86, 91 (D.C. Cir. 1986)) (emphases in
original).
Assuming, arguendo, that plaintiff could assert a “policy or practice” claim in the
common-law-right-of-access sphere, plaintiff fails to allege sufficient facts that defendants have
a policy or practice of asserting legislative immunity to ward off common-law-right-of-access
requests. In denying plaintiff’s request for the House Security Policy Manual, House defendants
said that the common law right of access does not apply to the manual because that manual is a
“permanent record of the House” and so “not a public record subject to the common law right of
access,” as plaintiff alleged. See Amended Compl. ¶ 50, 52. Senate defendants responded
similarly. They denied plaintiff’s request for the Senate Security Manual because “even if the
common-law right applied and the Senate Security Manual were considered to be a public record
as that doctrine defines such records, any public interest in disclosure would be outweighed by
the significant national security interests implicated by its release.” Id. at ¶ 55 (quoting Sen.
Defs.’ MTD, Ex. C).
All that plaintiff’s allegations reveal is that defendants twice engaged in a document-
specific analysis that does not lend itself to a routine policy or practice. Defendants examined
each manual’s contents and balanced the government’s interest in keeping that information
internal with the public’s interest in disclosure. Plaintiff fails to allege that defendants’
7 balancing analysis goes any further than these two manuals, or that government and public
interests in the release of another record in defendants’ possession would result in an identical, or
even similar, result. Plaintiff may disagree with defendants’ factual conclusion that the manuals
are not public records or that defendant incorrectly balanced the interests at play. Those
contentions do not amount to a factual allegation that defendants had a policy to assert legislative
immunity over the documents or all those like them.
Plaintiff strains to supplement his argument with conclusory statements that such a policy
or practice exists, but this effort fails to defeat dismissal. Plaintiff’s request in the Amended
Complaint’s Prayer for Relief for a declaration and direction “that the common law right of
access applies” to defendants without more falls far short of a sufficient factual showing. See
Amended Compl. at 14. See also Pl.’s Opp’n at 9–10 (asserting a similarly conclusory claim that
defendants’ employ “a total legislative immunity to the common law right of access”). What’s
more, the D.C. Circuit disfavors “imput[ing] such manipulative conduct to a coordinate branch
of government” or suggesting that government agencies will disingenuously cease challenged
actions only to later resume them, see Alaska, 17 F.4th at 1227, and plaintiff has proffered no
factual basis to disrupt that theory. As such, plaintiff has not met his burden that an exception to
mootness applies here.
B. Declaratory relief
Plaintiff attempts to thwart dismissal by arguing that declaratory relief is still in
controversy because his Amended Complaint requests that the Court “declare that the common
law right of access applies to the [House and Senate defendants] and direct those entities to
develop standardized processes for the handling of such requests.” Pl.’s Opp’n at 9 (citing
Amended Compl. at 14). Defendants deem that request “insufficient” to salvage a live
controversy because, in their opinion, granting declaratory relief would result in “opining on the 8 general applicability of a common law doctrine to Congress” or an advisory opinion, which
Article III prohibits. Defs.’ Mem. at 8–9. Defendants are correct and plaintiff’s attempt fails.
While the Declaratory Judgment Act permits another avenue for relief, see 28 U.S.C.
§ 2201, the Act still requires a case or controversy in line with Article III of the Constitution.
California v. Texas, 141 S. Ct. 2104, 2115–16 (2021). That said, a plaintiff may seek declaratory
relief, despite the mooting of his challenge to a specific agency action, to “forbid[] an agency
from imposing a disputed policy in the future, so long as the plaintiff has standing to bring such a
forward-looking challenge and the request for declaratory relief is ripe.” City of Houston v.
Dep’t of Hous. & Urb. Dev., 24 F.3d 1421, 1429 (D.C. Cir. 1994). “This includes, inter alia,
demonstrating an injury-in-fact that is both ‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical,’” Hemp Indus. Ass’n v. Drug Enf’t Admin., 36 F.4th
278, 290 (D.C. Cir. 2022) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)), and
presenting a request for declaratory relief that is fit for judicial decision and presents hardship to
the plaintiff if review is not immediate, City of Houston, 24 F.3d at 1430.
Having dispelled of plaintiff’s contention that defendants have an ongoing and
impermissible policy of blocking document disclosure using legislative immunity, no dispute
remains for which a declaration could provide relief. Asking at this juncture to opine on
whether, at some date in the unknown future, such a similar request on similar grounds for
similar documents is far too conjectural and too closely resembles an advisory opinion, which
Article III bars. See, e.g., Pl.’s Resp. to Order of the Court at 3–4, ECF No. 28; Pl.’s Opp’n at 9–
10 (“[T]here is no question that a future request from Musgrave or any other requester will be
met with the exact same response citing the exact same reasons.”); see also Hemp Indus. Ass’n,
36 F.4th at 290 (“In other words, a plaintiff cannot simply rest on some abstract desire to know
9 his rights or status under a statute.”). In short, though plaintiff’s predictions may come true, he
nonetheless lacks standing to assert an ongoing policy claim for declaratory relief because his
injuries are too speculative. Nor is such a claim ripe because no similar requests for future
documents has come to fruition.
IV. CONCLUSION
For the foregoing reasons, the instant action is moot. Accordingly, it is hereby
ORDERED that defendants’ Joint Motion to Dismiss Plaintiff’s Claims Against Them as
Moot, ECF No. 26, is GRANTED; it is further
ORDERED that plaintiff’s Amended Complaint, ECF 22, against Secretary of the Senate
Sonceria Ann Berry, the Office of the Secretary of the Senate, the U.S. House of
Representatives, Sergeant at Arms of the U.S. House of Representatives William Walker, and the
Office of the House Sergeant at Arms, is DISMISSED as moot; it is further
ORDERED that Senate defendants’ Motion to Dismiss, ECF No. 11, House defendants’
Motion to Dismiss for Lack of Jurisdiction, ECF No. 12, and plaintiff’s Motion for Partial
Summary Judgment, ECF No. 21, be DENIED as moot; it is further
ORDERED that the Clerk of Court is directed to close this case.
SO ORDERED.
This is a final and appealable Order.
Date: August 24, 2022 __________________________ BERYL A. HOWELL Chief Judge