Jason Leopold v. J. Thomas Manger

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 13, 2023 Decided May 28, 2024

No. 22-5304

JASON LEOPOLD,

APPELLANT

v.

J. THOMAS MANGER, CHIEF, UNITED STATES CAPITOL POLICE

AND RONALD GREGORY, ACTING INSPECTOR GENERAL OF THE

UNITED STATES CAPITOL POLICE,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-00465)

Jeffrey Light argued the cause and filed the briefs for

appellant.

Thomas Pulham, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were

Brian M. Boynton, Principal Deputy Assistant Attorney

General, and Michael S. Raab, Attorney.

Before: PILLARD, WILKINS and CHILDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

2

WILKINS, Circuit Judge:

Jason Leopold is an investigative reporter who seeks to

access the written directives of the United States Capitol

Police, as well as audits and reports prepared by the Inspector

General of the Capitol Police. To that end, he sued and

invoked the District Court’s mandamus jurisdiction under 28

U.S.C. § 1361 to bring two claims that are relevant here. The

first claim arose under the common law right to access public

documents and applies to both the written directives along with

the documents prepared by the Inspector General. His second

claim arose under 2 U.S.C. § 1909(c)(1) and applies to only the

reports and audits prepared by the Inspector General. The

District Court dismissed these claims holding that sovereign

immunity barred suit. This appeal followed. We affirm the

District Court’s dismissals for lack of jurisdiction, although for

reasons different from those relied on by the District Court.

I.

In Nixon v. Warner Communications, Inc., the Supreme

Court found it “clear,” as a matter of federal common law, that

there is a “right to inspect and copy public records and

documents.” 435 U.S. 589, 597 (1978). But what was less

clear, the Court conceded, were the “precise[] contours of the

common-law right.” Id. at 599. Since Nixon, we have

attempted to fill some of the gaps.

Beginning with Washington Legal Foundation v. United

States Sentencing Commission, we explained that where a

plaintiff asserts the common law right to access, the court must

determine whether the document sought is a public record. 17

F.3d 1446, 1451 (D.C. Cir. 1994) (Washington Legal

Foundation I). And if the document is a public record, then

the court must balance the government’s “specific” interest in

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secrecy against the public’s “specific” interest in disclosure,

“as well as the general public interest in the openness of

governmental processes.” Id. at 1452. There, we also made

clear that sometimes a list with a description of the withheld

documents (akin to a “Vaughn index”) is necessary to aid the

district court’s analysis. Id. (citing Vaughn v. Rosen, 484 F.2d

820, 827–28 (D.C. Cir. 1973)). Because the district court had

not adequately familiarized itself with the documents at issue

and did not apply the proper balancing test, we remanded. Id.

at 1452–53.

The case then returned to our Court. See Washington

Legal Found. v. U.S. Sent’g Comm’n, 89 F.3d 897 (D.C. Cir.

1996) (Washington Legal Foundation II). With the benefit of

a more developed record, we provided a concrete definition of

a public record—“a government document created and kept for

the purpose of memorializing or recording an official action,

decision, statement, or other matter of legal significance,

broadly conceived.” Id. at 905. This definition, we explained,

was not “limited to records that are similar to court

documents,” but applies to “all three branches of government.”

Id. at 903 (internal quotation marks and modifications

omitted).

In this case, Mr. Leopold invoked the District Court’s

Section 1361 mandamus jurisdiction to access records held by

the Capitol Police. His complaint alleges that, under Nixon and

Washington Legal Foundation I & II, he has a common law

right to access 101 Capitol Police directives that were in effect

during the January 6, 2021 attack on the United States Capitol,

along with audits and reports that the Inspector General of the

Capitol Police prepared and submitted to the Capitol Police

Board. Additionally, his complaint alleges that the Inspector

General of the Capitol Police must “post” all audits and reports

“making a recommendation for corrective action on the

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website of the Office of Inspector General” under 2 U.S.C. §

1909(c)(1). See J.A. 9.

Of course, the Capitol Police disagrees. In response to Mr.

Leopold’s common law claims, the Capitol Police argues that

sovereign immunity bars suit. Broadly, the Capitol Police

contends that federal courts have no authority to hear a suit

based on an allegation that a government officer has violated

federal common law. More narrowly, in its view, none of the

records that Mr. Leopold requested fall within Washington

Legal Foundation II’s definition of a public document.

The Capitol Police further argues that Mr. Leopold’s

common law right to access does not extend to sixty-five of the

101 written directives, nor to any of the audits and reports

prepared by the Inspector General. That is because, the Capitol

Police argues, 2 U.S.C. § 1979 governs; and it prevents the

“release[]” of “any security information” absent certain

determinations made by the Capitol Police Board. 2 U.S.C. §

1979.

As for Section 1979’s application here, the Capitol Police

asserts that the sixty-five written directives cannot be disclosed

because one of its review teams designated these directives as

“security information.” The Capitol Police advances a similar

argument regarding its Inspector General’s audits and reports:

in late 2017, the Capitol Police Board designated all of the

Inspector General’s “audit reports, investigation[] reports,

analyses, reviews, evaluations, [and] annual work plans” as

“security information” in Order 17.16. J.A. 19.

The District Court accepted many of the Capitol Police’s

arguments and held that sovereign immunity barred Mr.

Leopold’s suit. See Leopold v. Manger, 630 F. Supp. 3d 71

(D.D.C. 2022). This appeal followed.

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II.

We begin with the “first and fundamental question” of

subject-matter jurisdiction. Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94 (1998) (quoting Great S. Fire Proof

Hotel Co. v. Jones, 177 U.S. 449, 453 (1900)). Mr. Leopold

invoked Section 1361, which provides district courts with

“original jurisdiction of any action in the nature of mandamus

to compel an officer or employee of the United States or any

agency thereof to perform a duty owed to the plaintiff.” 28

U.S.C. § 1361.

In a footnote, the Capitol Police cites a few decisions from

other courts of appeal that limit Section 1361 jurisdiction to

Executive Branch officials. Capitol Police Br. 53 n.9; see

generally Liberation News Serv. v. Eastland, 426 F.2d 1379,

1384 (2d Cir. 1970) (concluding that the legislative history

supports limiting Section 1361 to executive branch officials);

Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1247 (10th Cir. 2007)

(holding that the Supreme Court of the United States is not an

“agency” under Section 1361); Semper v. Gomez, 747 F.3d

229, 250 (3d Cir. 2014) (holding that Section 1361 does not

allow courts to issue writs of mandamus against federal

judges). We assume without deciding that these decisions are

correct, and construe Mr. Leopold’s invocation of Section

1361 as an application for a mandatory injunction under the

federal-question statute, 28 U.S.C. § 1331. See Wren v.

Carlson, 506 F.2d 131, 133 (D.C. Cir. 1974). As we have

previously held, and as Mr. Leopold’s counsel acknowledged

at oral argument, Oral Arg. 8:15–9:13, a “request for [a]

mandatory injunction [is] generally judged by the same

principles as [a] request for mandamus.” Swan v. Clinton, 100

F.3d 973, 976 n.1 (D.C. Cir. 1996) (citing P. Bator et al., HART

& WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL

SYSTEM 998–99 (4th ed. 1996)).

6

Though we construe Mr. Leopold’s claim as a request for

mandatory injunction under Section 1331, the sovereign

immunity issue remains, as it is not waived by Section 1331 or

Section 1361. See Swan, 100 F.3d at 981. Under the “Larson-

Dugan” exception, however, federal courts may enjoin federal

officers from taking actions that the sovereign has not

“empowered [the officer] to do or [the officer] is doing [] in a

way which the sovereign has forbidden.” Larson v. Domestic

& Foreign Com. Corp., 337 U.S. 682, 689 (1949); see also

Dugan v. Rank, 372 U.S. 609, 620–23 (1963); Schilling v. U.S.

House of Representatives, No. 22-5290, slip op. at 4–5 (D.C.

Cir. May 28, 2024). That is because these “actions are ultra

vires [the delegated] authority and therefore may be made the

object of specific relief.” Larson, 337 U.S. at 689. In these

circumstances, “there is no sovereign immunity to waive—it

never attached in the first place.” Chamber of Com. v. Reich,

74 F.3d 1322, 1329 (D.C. Cir. 1996).

We have already explained the relationship between the

Larson-Dugan exception and sovereign immunity in

Washington Legal Foundation II, which presented nearly

identical circumstances. There, the plaintiff sought a writ of

mandamus to force the government to allow access to

government documents based on the common law right to

access public records and documents. Washington Legal

Found. II, 89 F.3d at 900. And there, as is the case here, the

government asserted sovereign immunity as it denied that it

had any duty to disclose the documents. Id. at 901. Thus, to

determine whether we could issue a writ of mandamus under

the Larson-Dugan exception, we explained “that the question

of jurisdiction merges with the question on the merits.” Id. at

902. Unsurprisingly, Mr. Leopold argues that here, too, the

jurisdictional inquiry merges with the merits.

7

The Capitol Police, however, asks us to chart a new path.

It argues that Washington Legal Foundation II missed an

antecedent issue: whether Larson applies to common law

duties. Larson, the Capitol Police asserts, has but two

applications: (1) if a federal officer takes an action that exceeds

a power defined by statute and (2) if a statute or order that

authorizes a federal officer to act in the sovereign’s name is

unconstitutional. Capitol Police Br. at 17–19. Ultimately, the

Capitol Police argues that we cannot follow Washington Legal

Foundation II while remaining faithful to Larson. But this

argument misconstrues Washington Legal Foundation II and

reads Larson too narrowly.

To start, Washington Legal Foundation II’s reasoning

rejected the Capitol Police’s approach—and we are bound by

Washington Legal Foundation II’s reasoning, just as we are

bound by its holding. Citizens for Resp. and Ethics in Wash.

v. Dep’t of Justice, 846 F.3d 1235, 1244 (D.C. Cir. 2017)

(“[W]e are bound ‘not only by the result’ of a prior opinion

‘but also by those portions of the opinion necessary to that

result.’”) (quoting Seminole Tribe of Fla. v. Florida, 517 U.S.

44, 67 (1996) (modifications omitted)).

Before merging the jurisdictional inquiry with the merits,

Washington Legal Foundation II directly quoted the relevant

passage from Larson that explains ultra vires actions “may be

made the object of specific relief.” 89 F.3d at 901 (quoting

Larson, 337 U.S. at 689). In this same passage, Larson

concluded that, “[w]here the officer’s powers are limited by

statute, his actions beyond those limitations are considered

individual and not sovereign actions.” Larson, 337 U.S. at

689. By merging the jurisdictional inquiry with the merits,

Washington Legal Foundation II read Larson to acknowledge

that exceeding statutory limitations is just one example of an

ultra vires act—not the only example of an ultra vires action;

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the linchpin to whether sovereign immunity applies is the

presence, or absence, of an ultra vires action. And we did not

limit ultra vires acts to those that exceed an authorization in

statute or the Constitution.

Washington Legal Foundation II’s application of Larson

to ultra vires acts is also consistent with other courts of appeals

that have held that sovereign immunity does not prevent an

injunction against a state officer who abridges a common law

duty without statutory authorization. See, e.g., Salt River

Project Agric. Improvement & Power Dist. v. Lee, 672 F.3d

1176, 1182 (9th Cir. 2012) (“Ex parte Young is not limited to

claims that officials are violating the federal Constitution or

federal statute; it applies to federal common law as well.”).

And make no mistake, Larson and Ex parte Young, 209 U.S.

123 (1908), share indistinguishable doctrinal underpinnings.

See Vann v. U.S. Dep’t of Interior, 701 F.3d 927, 928 (D.C.

Cir. 2012) (citing Ex parte Young and Larson as the “standard

approach” to obtaining “injunctive relief with respect to a

sovereign entity notwithstanding sovereign immunity”). Thus,

a natural question arises: Why does Ex parte Young apply to

common law duties, but not Larson? The Capitol Police does

not provide a response.

Instead, the thrust of the Capitol Police’s argument, which

cherry picks portions of one paragraph in Larson to create a

new immunity rule, confuses the forest for the trees. Sure, the

Capitol Police is correct that Larson recognizes that an

officer’s tortious action is not “ipso facto beyond his delegated

powers.” 337 U.S. at 695. But there’s more to it: “if the

actions of an officer do not conflict with the terms of his valid

statutory authority, then they are the actions of the sovereign,

whether or not they are tortious under general law.” Id.

Actions done with statutory authority “cannot be enjoined or

directed, since it is also the action of the sovereign.” Id. Put

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into context, Larson’s instruction is clear: Courts can enjoin or

direct the actions of a government official, so long as that

action is not “also the action of the sovereign.” Id. Larson

does not suggest, as the Capitol Police argues, that the

Constitution and statutes are the only determinants for whether

an act is “of the sovereign.” Id.

As to the Capitol Police’s suggestion that our previous

discussions of the Larson-Dugan exception without

referencing common law duties lessens Washington Legal

Foundation II’s force—we are not persuaded. Capitol Police

Br. at 19–20. In those cases, the plaintiff did not argue that the

government abridged a federal common law duty. See Pollack

v. Hogan, 703 F.3d 117, 120 (D.C. Cir. 2012) (rejecting the

government’s argument that the Larson-Dugan exception

applies to only statutory violations and applying it to a

constitutional duty); Swan, 100 F.3d at 981 (applying the

Larson-Dugan exception to an alleged statutory violation

where no common law duty is alleged); Clark v. Libr. of Cong.,

750 F.2d 89, 102 (D.C. Cir. 1984) (applying the Larson-Dugan

exception to alleged constitutional and statutory violations

where no common law duty applied); Joint Anti-Fascist

Refugee Comm. v. McGrath, 341 U.S. 123, 140 (1951)

(applying the Larson-Dugan exception based on an alleged

violation of an executive order); Vann v. Kempthorne, 534

F.3d 741, 750–52 (D.C. Cir. 2008) (applying the Larson-

Dugan exception based on an alleged violation of a treaty).

Thus, any discussion of the Larson-Dugan exception applied

to federal common law would have been inappropriate. The

question was not presented.

So, the mere fact that Mr. Leopold alleges a violation of

federal common law does not foreclose application of the

Larson-Dugan exception. Neither does the fact that he invokes

a right to access to documents. In Virginia Office for

10

Protection and Advocacy v. Stewart, 563 U.S.247 (2011), the

Supreme Court held that allegations of a violation of a federal

statutory right of access to certain documents could satisfy the

Ex parte Young exception to sovereign immunity. As the

Court explained, “there is no doubt [the agency’s] suit satisfies

th[e] straightforward inquiry [of Ex parte Young]. It alleges

that [the officials’] refusal to produce the requested medical

records violates federal law; and it seeks an injunction

requiring the production of the records, which would

prospectively abate the alleged violation.” Id. at 255–56. It

stands to reason that, if a statutory right of access claim can

satisfy the officer-suit exception to sovereign immunity, an

analogous officer suit based on a common law right of access

also marks an exception to sovereign immunity. Again, the

Capitol Police provides no basis to conclude otherwise.

Last, the Capitol Police argues that we need not merge the

merits with jurisdiction because the right to access public

documents does not extend to the Legislative Branch’s records.

Precedent says otherwise. As Nixon explained, “[i]t is clear

that courts of this country recognize a general right to inspect

and copy public records and documents, including judicial

records and documents.” 435 U.S. at 597 (emphasis added).

This “clearly implies that judicial records are but a subset of

the universe of documents to which the common law right

applies.” Washington Legal Found. II, 89 F.3d at 903. Thus,

the right “extends beyond judicial records to the ‘public

records’ of all three branches of government.” Ctr. for Nat’l

Sec. Studs. v. Dep’t of Just., 331 F.3d 918, 936 (D.C. Cir. 2003)

(citing Washington Legal Found. II, 89 F.3d at 903–04);

Schilling, slip op. at 6.

Having peeled back the layers, what’s left of the

government’s argument is eerily familiar. “[T]he only basis

upon which [the government] resists application of the Larson-

11

Dugan exception” is the denial of the duty to provide “access

to certain government records.” Washington Legal Found. II,

89 F.3d at 901–02. Therefore, “the question of jurisdiction

merges with the question on the merits, to which we now turn.”

Id. at 902.

III.

On the merits, now merged with jurisdiction, Mr. Leopold

must clear three high hurdles. See Swan, 100 F.3d at 976 n.1;

see also Illinois v. Ferriero, 60 F.4th 704, 714 (D.C. Cir. 2023)

(“Few legal standards are more exacting than the requirements

for invoking mandamus jurisdiction.”). First, he must show

that he has “no other adequate means to attain” the desired

relief. Cheney v. U. S. Dist. Ct. for D.C., 542 U.S. 367, 380

(2004) (internal quotation marks omitted). Second, he must

show that his “right to issuance of the writ is clear and

indisputable,” id.. at 381 (cleaned up), and that its issuance will

compel the government official to perform a “ministerial

duty,” Swan, 100 F.3d at 976 n.1. If Mr. Leopold’s claim

survives those two bars, yet another awaits: he must convince

the issuing court “that the writ is appropriate under the

circumstances.” Cheney, 542 U.S. at 380.

Mr. Leopold seeks mandamus-style relief to compel two

actions. To vindicate his common law right of access to public

records, he seeks to compel the Capitol Police and its Inspector

General to provide access to the withheld records. Mr.

Leopold’s other claim is pursuant to a statute that is applicable

to the Inspector General of the U.S. Capitol Police. See J.A.

8–9. For this claim, Mr. Leopold seeks a court order

mandating that the Capitol Police post certain documents on

the Inspector General website, and that the Inspector General

produce various permit applications, reports, financial

statements, audits, policies, and related records. J.A. 9–10.

12

But here’s Mr. Leopold’s big problem: Even though Mr.

Leopold asks for mandamus based on various alleged breaches

of duties, he has not pled nor briefed how or why each form of

relief that he seeks is ministerial. See Steel Co., 523 U.S. at

104 (“the party invoking federal jurisdiction bears the burden

of establishing its existence”). This oversight effectively kills

Mr. Leopold’s claims: Mandamus jurisdiction lies only to

compel ministerial, as opposed to discretionary, duties. See

generally Kendall v. U.S. ex rel Stokes, 37 U.S. 524, 610

(1838) (discussing the “ministerial act” requirement); Stern v.

South Chester Tube Co., 390 U.S. 606, 608 (1968) (defining

mandamus as “a suit against a public officer to compel

performance of some ‘ministerial’ duty”); see also Swan, 100

F.3d at 976 n.1 (a writ of mandamus seeks “to compel federal

officials to perform a statutorily required ministerial duty”).

Briefing on the duty issue was particularly necessary here.

Mr. Leopold raises a novel mandamus issue. See, e.g., Judicial

Watch, Inc. v. Schiff, 998 F.3d 989, 996 (D.C. Cir. 2021)

(Henderson, J., concurring in judgment) (“We have never

applied the second-step balancing test to a common law right

of access claim seeking non-judicial records.”). And courts

have taken differing approaches when it comes to determining

whether the decision to provide access to a public document is

ministerial or discretionary.

Sometimes the driving factor is the substantive basis for

relief. Compare, e.g., Booth v. Mitchell, 176 S.E. 396, 399

(Ga. 1934) (where court clerk had discretion to allow

inspection of records under the relevant statute, duty was

discretionary rather than ministerial), and Fla. Soc. of

Newspaper Eds., Inc. v. Fla. Pub. Serv. Comm'n, 543 So. 2d

1262, 1265 (Fla. Dist. Ct. App. 1989) (an official’s

determination whether disclosure is precluded due to statutory

exemption for confidential proprietary information is

13

discretionary, not ministerial), with Pressman v. Elgin, 50 A.2d

560, 563 (Md. 1947) (where the legislature has mandated that

specific records be kept open to public inspection, disclosure

of those records is a “ministerial duty”), and Womack

Newspapers, Inc. v. Town of Kitty Hawk ex rel. Kitty Hawk

Town Council, 639 S.E.2d 96, 105 (N.C. App. 2007) (where

the state Public Records Act has been held to apply to subject

documents, the town had no discretion as to whether to release

the record and mandamus would lie).

Other times the conclusion is based on the types of records

involved or the precise relief sought. See 55 C.J.S. Mandamus

§ 293 (2021) (while “[m]andamus is the proper remedy to

compel compliance with public records law,” it is also true that

“[a] requester cannot obtain a writ of mandamus for public

records where the writ would require the performance of a

discretionary duty, rather than a ministerial duty”); but see

Mathews v. Pyle, 251 P.2d 893, 897 (Ariz. 1952) (trial court

has duty to review records to determine whether they are

confidential or whether disclosure would be detrimental to the

interests of the state, and if neither, it should grant mandamus;

no mention of ministerial versus discretionary issue); State ex

rel. Youmans v. Owens, 137 N.W.2d 470, 476 (Wis. 1965)

(same), reh'g denied and opinion modified, 139 N.W.2d 241

(Wis. 1966); Sheridan Newspapers, Inc. v. City of Sheridan,

660 P.2d 785, 798 (Wyo. 1983) (whether public interest in

disclosure outweighs the harms from disclosure is a question

of law to be determined by the trial court) (citing Newspapers,

Inc. v. Breier, 279 N.W.2d 179, 184 (Wis. 1979)).

In all events, there are sound arguments cutting in all

directions. We express no views on these issues, other than to

observe that mandamus petitioners have the burden to address

this jurisdictional prerequisite, like all others, in their petitions

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and briefs in the future. With that, we turn to Mr. Leopold’s

arguments.

A.

We begin with Mr. Leopold’s claims rooted in the

common law right to access public documents recognized in

Nixon v. Warner Communications, Inc. See 435 U.S. at 597.

At issue here are two categories of documents. In one category

are thirty-six written directives that the Capitol Police argues

are not public documents as defined in Washington Legal

Foundation II. In the other category are documents held by

the Capitol Police (another sixty-five directives) and reports

and audits prepared by the Inspector General, all of which have

been designated as security information under 2 U.S.C. § 1979.

Though the parties agree that Section 1979 supplants the

common law right to access, Mr. Leopold persists that these

directives—either in full or in part—are not “security

information.” Without Section 1979 as a barrier, the common

law right remains, Mr. Leopold posits. We independently

analyze each category. See Washington Legal Found. I, 17

F.3d at 1452 (explaining that each category of document

requested must be analyzed to determine whether it is

“reasonably likely to contain publicly accessible documents”).

1.

Mr. Leopold invokes a common law right of access to

thirty-six directives that the Capitol Police have not designated

as “security information” under 2 U.S.C. § 1979. To prevail

on this mandamus claim, Mr. Leopold must show that he has

“no other adequate means to attain” these directives. Cheney,

542 U.S. at 380 (emphasis added). That implies, of course, that

his asserted means of obtaining the records—the common law

right of access—are themselves adequate. So, if the directives

are not public documents, it is inconceivable that any

15

mandamus could issue—Mr. Leopold would have no right to

the records at all. Washington Legal Found. I, 17 F.3d at 1451

(“in determining whether a public right of access exists a court

should first decide whether the document sought is a ‘public

record’”).

In Washington Legal Foundation II, we defined a public

record as “a government document created and kept for the

purpose of memorializing or recording an official action,

decision, statement, or other matter of legal significance,

broadly conceived.” 89 F.3d at 905. We further explained that

this definition was “narrow enough to avoid the necessity for

judicial application of the second-step balancing test to

documents that are preliminary, advisory, or, for one reason or

another, do not eventuate in any official action or decision

being taken.” Id.

Mr. Leopold argues that a straightforward application of

Washington Legal Foundation II proves that these directives

are public documents. That is because these directives are the

Capitol Police’s official policies and cover myriad topics (from

“Bias-Based Profiling” and “Search of Persons” to

“Acceptable Use of the Internet, Email, and Information

Technology Equipment,” and “Employee Use of Electronic

Social Media,” see J.A. 28). As such, they record an official

action, decision, or other matter of legal significance.

In response, the Capitol Police rests on the District Court’s

reasoning, which rejected Mr. Leopold’s application of

Washington Legal Foundation II. In the District Court’s view,

these directives are “preliminary material” and an “advisory

guidance that may only eventually lead to an official action.”

Leopold v. Manger, 630 F. Supp. 3d 71, 84 (D.D.C. 2022).

That is because, from the District Court’s perspective, these

directives do not “memorialize or record any official action,”

16

but concern internal “administrative matters.” Id. (first

quoting Pentagen Techs. Int’l Ltd. v. Comm. on

Appropriations, 20 F. Supp. 2d 41, 45 (D.D.C. 1998); and then

quoting Washington Legal Found. II, 89 F.3d at 900).

We disagree. As final policies, these directives

memorialize an official action (the creation and adoption of a

policy) and are public documents under Washington Legal

Foundation II. Take the directive on “Search of Persons” as

an example. J.A. 28. To construe this directive as merely an

advisory guidance that officers can consult before determining

whether to comply is mistaken. This policy operates to ensure

that the Capitol Police, and its officers, are behaving in a

manner that is consistent with the Constitution. And as Mr.

Leopold points out, a Capitol Police officer’s failure to comply

with the directives, may lead to disciplinary action. See, e.g.,

Moran v. U.S. Capitol Police, 82 F. Supp. 3d 117, 126 (D.D.C.

2015).

Nor is it the case that these directives “may only

eventually lead to an official action.” Leopold, 630 F. Supp.

3d at 84. True enough, policy documents are forward-facing,

but so are newly enacted, and unenforced, statutes. We would

not limit official actions to those that enforce a statute—rather,

we would recognize that a statute is, itself, an official action

that marks the end of a legislative process. We think that

analogy is apt here: the adoption of a policy marks the end of

an official process; thus, these directives—as binding

policies—are official actions. Therefore, we conclude that the

District Court erred when it concluded that the thirty-six

directives were not public documents.

Because we hold that these directives are public records,

we turn to Mr. Leopold’s next argument: whether we should

remand the case so that the District Court can reconduct the

17

balancing test with the aid of a Vaughn index. Once again, Mr.

Leopold raises strong points.

Washington Legal Foundation I made clear that the

balancing inquiry is a “precise,” not “an abstract inquiry.” 17

F.3d at 1452. It also empowered district courts to order a

Vaughn index when there is ambiguity as to whether the

common law right should extend to the records sought. Id.

And here, there are directives covering a wide range of topics,

including substantive law enforcement polices (“Bias-Based

Profiling, “Handling Interactions with Transgender

Individuals,” or “Communicating With the Deaf/Hard of

Hearing during Arrest, Stops, and Contacts,” to name a few).

J.A. 28. But the District Court focused on solely the

“administrative and personnel-related” directives. Leopold,

630 F. Supp. 3d. at 85. Thus, it appears that the District Court

failed to analyze “each category of document requested,” and

rejected Mr. Leopold’s request “without knowing precisely

what records were at issue.” Washington Legal Found. I, 17

F.3d at 1452. So we take Mr. Leopold’s point that a Vaughn

index likely would have aided the District Court’s analysis.

See also Washington Legal Found. II, 89 F.3d at 906

(acknowledging “the benefit of a comprehensive index of the

specific documents at issue”).

But we go no further. As we have already explained, Mr.

Leopold failed to brief a necessary element to receive the

extraordinary remedy that he seeks: that the Capitol Police

abridged a “clear and indisputable” duty to provide access to

these records. Ferriero, 60 F.4th at 714–15 (cleaned up); see

also Lovitky v. Trump, 949 F.3d 753, 759–60 (D.C. Cir. 2020)

(explaining that the petitioner has the burden of establishing

jurisdiction); In re Bluewater Network, 234 F.3d 1305, 1315

(D.C. Cir. 2000) (“Our consideration of any and all mandamus

actions starts from the premise that the issuance of the writ is

18

an extraordinary remedy, reserved for the most transparent

violations of a clear duty to act.”). Accordingly, Mr. Leopold’s

request is one of the many that have been denied even though

the petitioner advances an argument “packing substantial

force, [but] is not clearly mandated by statutory authority or

case law.” Ferriero, 60 F.4th at 714–15 (quoting In re Al

Baluchi, 952 F.3d 363, 369 (D.C. Cir. 2020) (quoting In re

Khadr, 823 F.3d 92, 99–100 (D.C. Cir. 2016)) (internal

quotation marks and alterations omitted).

Without the benefit of any briefing as to whether the

Capitol Police has any clear and indisputable, non-

discretionary duty, we have no choice but to affirm the District

Court’s dismissal of this suit. We cannot say that Mr.

Leopold’s right to relief is “clear and indisputable” when he

does not say so himself. Again, courts take myriad approaches

when asked to determine whether the duty to provide access to

records is ministerial or discretionary, and we have yet to

decide this question. If Mr. Leopold chooses to refile his

claim, he must identify the clear and indisputable non-

discretionary duty that the Capitol Police are legally required

to fulfill. His failure to make the necessary arguments here

means that we do not have jurisdiction to issue the requested

injunction.

2.

We now turn to Mr. Leopold’s argument that he has a

common law right to access documents that the government

has designated as “security information” under 2 U.S.C. §

1979. This statute forbids the release of “any security

information in the possession of the Capitol Police … to

another entity, including an individual” without the Capitol

Police Board’s approval. 2 U.S.C. § 1979(b). Section 1979

defines “security information” as information that:

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(1) is sensitive with respect to the policing,

protection, physical security, intelligence,

counterterrorism actions, or emergency

preparedness and response relating to Congress,

any statutory protectee of the Capitol Police, and

the Capitol buildings and grounds; and

(2) is obtained by, on behalf of, or concerning the

Capitol Police Board, the Capitol Police, or any

incident command relating to emergency

response.

Id. § 1979(a). Applied here, a Capitol Police document review

team designated sixty-five written directives as “security

information,” see J.A. 23, and the Capitol Police Board, in

Order 17.16 designated all audits and reports prepared by the

Capitol Police Inspector General as “security information,”

see J.A. 17. Nonetheless, Mr. Leopold argues that there is

insufficient evidence in the record that supports designating

these documents as “security information.”

Mr. Leopold does not dispute that the Capitol Police need

not—indeed, may not—release information that is properly

designated as “security information” under 2 U.S.C. § 1979.

In his view, however, Section 1979 applies to only “security

information,” but the Capitol Police and Inspector General are

withholding entire documents. And to the extent that the

documents contain security information, he argues, the

common law right of access requires the Capitol Police and

Inspector General to release the portions of these documents

that do not contain security information.

But it is far from clear what this Section 1979-specific

argument achieves. Even if we were to conclude that

designating entire documents as “security information”

exceeds the authority provided under Section 1979, Mr.

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Leopold would still need to show that the Capitol Police have

a clear, indisputable, and ministerial duty to segregate the

portions of the documents that are not security information. To

the extent that duty exists, it comes from the common law right

of access. So he would also have to prove that the common

law right to public access extends to a document that contains

non-public information, but somehow has public portions,

which are accessible. But see Kamakana v. City and Cnty. of

Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (recognizing

that the right to access public documents does not extend to

records that “have ‘traditionally been kept secret for important

policy reasons’”) (quoting Times Mirror Co. v. United States,

873 F.2d 1210, 1219 (9th Cir. 1989)); In re WP Co., 201 F.

Supp. 3d 109, 128 (D.D.C. 2016).

The pathway to the necessary conclusions is not intuitive.

It is also unbriefed even though necessary to invoke mandamus

jurisdiction. Thus, we reject Mr. Leopold’s request for a

remand to the District Court where the government would be

ordered to segregate and disclose those portions of the

withheld documents that do not contain security information.

We accordingly affirm the dismissal of his common law claim

as to these sixty-five directives and the withheld reports and

audits prepared by the Inspector General.

B.

Finally, we turn to Mr. Leopold’s statutory claim. Mr.

Leopold also seeks mandamus-style relief under Section 4 of

the Inspector General Act, as it requires an Inspector General

to publish all documents issuing a “recommendation for

corrective action … on the website of the Office of the

Inspector General.” 5 U.S.C. § 404(e)(1)(C). Mr. Leopold

argues that this provision of the Inspector General Act governs

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the Inspector General of the Capitol Police under 2 U.S.C. §

1909(c)(1). It provides:

The Inspector General shall carry out the

same duties and responsibilities with respect

to the United States Capitol Police as an

Inspector General of an establishment carries

out with respect to an establishment under

section 404 of Title 5, under the same terms

and conditions which apply under such

section. Id.

Applied here, Mr. Leopold argues that the Inspector

General of the Capitol Police has breached his “clear duty” to

publish all audits and reports that recommend corrective

action. Even if publishing audits on the website is a ministerial

duty, the conclusion that the failure to publish these reports

breached this duty is not as straightforward as Mr. Leopold

suggests. That is because when Congress enacted Section

1909(c)(1), the Inspector General Act did not include the

public posting requirement that Mr. Leopold seeks to apply

today. Mr. Leopold is correct only if Section 1909(c)(1)

dynamically incorporates all amendments to the Inspector

General Act absent congressional action.

Mr. Leopold’s reading, the Capitol Police responds, is

foreclosed by Jam v. International Finance Corporation, 586

U.S. 199 (2019). There, the Court explained that when courts

rely on “the reference canon … to harmonize a statute with an

external body of law,” the rule is “a statute that refers to

another statute by specific title or section number in effect cuts

and pastes the referenced statute as it existed when the

referring statute was enacted, without any subsequent

amendments.” Id. at 209–10. Applied here, Section

1909(c)(1), which directly references “section 404 of Title 5,”

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would not incorporate Section 404’s subsequent amendments,

i.e., the posting requirement.

We need not resolve the parties’ disagreement on whether

Jam and the reference canon apply because Mr. Leopold’s

argument fails on its own terms. Reading Section 1909

dynamically to incorporate the public posting requirement, the

government directs us to Section 404(e)(2) of the Inspector

General Act: “Nothing in this subsection shall be construed as

authorizing an Inspector General to publicly disclose

information otherwise prohibited from disclosure by law.” 5

U.S.C. § 404(e)(2). And recall that in Order 17.16, the Capitol

Police Board designated all reports and audits prepared by the

Capitol Police Inspector General as “security information”

under 2 U.S.C. § 1979. Although Mr. Leopold resisted the

conclusion that Order 17.16 is “law” at oral argument, he did

not present this counterargument in his reply brief. Oral Arg.

23:45–23:58. Therefore, the argument is conceded, see Tax

Analysts v. IRS, 117 F.3d 607, 610 (D.C. Cir. 1997), and we

conclude that Section 404(e)(2) forbade the Inspector General

from publishing the audits and reports that Mr. Leopold seeks.

***

In conclusion, we affirm the District Court’s dismissal on

each claim without prejudice. Thus, Mr. Leopold is free to

refile his complaint with the requisite allegations to satisfy the

mandamus standard if he so desires and if he plausibly believes

that he can prove those allegations.

So ordered.