United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 16, 2008 Decided October 6, 2008

No. 08-5357

COMMITTEE ON THE JUDICIARY OF THE UNITED STATES

HOUSE OF REPRESENTATIVES,

APPELLEE

v.

HARRIET MIERS AND JOSHUA B. BOLTEN, IN HIS CAPACITY AS

CUSTODIAN OF WHITE HOUSE RECORDS,

APPELLANTS

On the Motion for Stay Pending Appeal 

(No. 1:08-cv-00409-JDB)

Carl J. Nichols, Principal Deputy Associate Attorney

General, U.S. Department of Justice, argued the cause for

appellants. With him on the motion for stay pending appeal and

reply were Gregory G. Katsas, Assistant Attorney General,

Jonathan F. Cohn, Deputy Assistant Attorney General, and Scott

R. McIntosh, Michael S. Raab, Mark R. Freeman, Sarang Vijay

Damle, and Henry Whitaker, Attorneys. 

Irvin B. Nathan, General Counsel, U.S. House of

Representatives, argued the cause for appellee. With him on the

opposition were Kerry W. Kircher, Deputy General Counsel, and
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Richard A. Kaplan, Assistant Counsel.

Before: GINSBURG, RANDOLPH and TATEL, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: On June 13, 2007, the Committee on the

Judiciary of the United States House of Representatives issued

a subpoena to Harriet Miers, former Counsel to President

George W. Bush, seeking to compel her to produce documents

and to appear and testify about the forced resignation of nine

United States Attorneys in late 2006. On the same day, the

Committee issued a subpoena to Joshua B. Bolten, President

Bush’s Chief of Staff, seeking documents regarding the same

subject. President Bush asserted executive privilege to block

the testimony and production of the documents, and Ms. Miers

and Mr. Bolten refused to comply with the subpoenas. On

February 14, 2008, the House of Representatives voted to hold

Ms. Miers and Mr. Bolten in contempt of Congress and passed

an accompanying resolution authorizing the Committee to

initiate an action in federal court seeking to enforce compliance

with the subpoenas. The Committee filed suit in the district

court on March 10, 2008.

The district court declared that Ms. Miers was legally

required to appear and testify in response to the Committee’s

subpoena, although she could invoke executive privilege in

response to specific questions. The district court further ordered

Ms. Miers and Mr. Bolten to produce all non-privileged

documents and to provide privilege logs describing any

documents not produced. The district court’s opinion did not

address whether executive privilege would bar the disclosure of

any particular communication or document. Ms. Miers and Mr.

Bolten filed a notice of appeal and moved for a stay pending

disposition of the appeal and for expedited briefing and oral
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argument. 

Although the Committee acknowledges that an order

granting an injunction is immediately appealable, see 28 U.S.C.

§ 1292(a), it argues that this court lacks jurisdiction because the

district court issued no such order. With respect to the

production of documents, the Committee is plainly incorrect.

The district court ordered Mr. Bolten and Ms. Miers to take

certain actions—to produce documents and a privilege log

despite their claim, at the President's behest, that executive

privilege shields them from legislative compulsion enforced by

the judiciary. Given that claim, the district court's order is

immediately appealable. See United States v. Nixon, 418 U.S.

683, 691 (1974); Carson v. Am. Brands, Inc., 450 U.S. 79, 84

(1981); cf. United States v. Phillip Morris, 314 F.3d 612,

617-618 (D.C. Cir. 2003). As to Ms. Miers’s testimony, the

court framed its decree as a declaratory judgment. But Ms.

Miers acted in compliance with the instruction of President

Bush, and we have long presumed that officials of the Executive

Branch will adhere to the law as declared by the court. As a

result, the declaratory judgment is the functional equivalent of

an injunction. See Sanchez-Espinoza v. Reagan, 770 F.2d 202,

208 n.8 (D.C. Cir. 1985) (citing Samuels v. Mackell, 401 U.S.

66, 73 (1971)). In addition, the Supreme Court has long held

that a district court's denial of a colorable claim of immunity

from process is immediately appealable. See, e.g., Mitchell v.

Forsyth, 472 U.S. 511, 525-26 (1985). We therefore find that

appellate jurisdiction exists. 

The present dispute is of potentially great significance for

the balance of power between the Legislative and Executive

Branches. But the Committee recognizes that, even if expedited,

this controversy will not be fully and finally resolved by the

Judicial Branch—including resolution by a panel and possible

rehearing by this court en banc and by the Supreme
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Court—before the 110th Congress ends on January 3, 2009. At

that time, the 110th House of Representatives will cease to exist

as a legal entity, and the subpoenas it has issued will expire.

See, e.g., United States v. Am. Tel. & Tel. Co. (AT&T I), 551

F.2d 384, 390 (D.C. Cir. 1976). In view of the above

considerations, we see no reason to set the appeal on an

expedited briefing and oral argument schedule. If the case

becomes moot, we would be wasting the time of the court and

the parties. See United States v. Munsingwear, 340 U.S. 36

(1950). If the case does not become moot despite the expiration

of the subpoenas, see Moore v. Ogilvie, 394 U.S. 814, 816

(1969); Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 448–49

(1977); Christian Knights of the Ku Klux Klan Invisible Empire,

Inc. v. Dist. of Columbia, 972 F.2d 365, 370 (D.C. Cir.

1992)—an issue we need not resolve at this time—there would

be no pressing need for an immediate decision. See Wilderness

Soc'y v. Morton, 479 F.2d 842, 886–87 (D.C. Cir. 1973) (en

banc). This course has the additional benefit of permitting the

new President and the new House an opportunity to express their

views on the merits of the lawsuit. See Nixon, 433 U.S. at

448–49; AT&T I, 551 F.3d at 390.

We therefore grant the motion for stay pending appeal and

deny the motion for expedition.

So ordered.
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TATEL, Circuit Judge, concurring in the disposition of the

motions: I agree that we have jurisdiction. The district court’s

order directing the defendants to produce a list of privileged

documents, relief the Committee specifically seeks in its

complaint, Compl. 83, operates as an appealable injunction

under 28 U.S.C. § 1292(a)(1). See Cobell v. Kempthorne, 455

F.3d 317, 322 (D.C. Cir. 2006). And because the challenge to

that order is “inextricably intertwined” with the other issues in

the case, we have pendent jurisdiction over the entire appeal.

United States ex rel. Long v. SCS Bus. & Technical Inst., Inc.,

173 F.3d 870, 873 (D.C. Cir. 1999). 

To show a likelihood of success on the merits sufficient to

obtain a stay pending appeal, an appellant who will suffer

serious irreparable injury need only raise “questions going to the

merits so serious, substantial, difficult and doubtful, as to make

them a fair ground for litigation and thus for more deliberative

investigation.” Wash. Metro. Area Transit Comm’n v. Holiday

Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977) (internal

quotation marks omitted). Except for the executive’s assertion

of absolute immunity from congressional process, see Comm. on

the Judiciary, U.S. House of Representatives v. Miers, 558 F.

Supp. 2d 53, 99–107 (D.D.C. 2008) (persuasively rejecting

claim of absolute immunity), the issues before us satisfy that

modest standard. 

Nonetheless, I am perplexed by the panel majority’s

willingness to grant a stay while hypothesizing that the

expiration of the 110th Congress might moot the case before it

is heard on the merits. Never have we granted a stay that would

have the effect of irrevocably depriving a party of its victory in

the district court. Nor have we authority to do so, for a stay in

such circumstances would necessarily cause

“substantial”—indeed, overwhelming—harm. See United States

v. Philip Morris, Inc., 314 F.3d 612, 617 (D.C. Cir. 2003)
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(explaining that a stay is inappropriate where it would cause

“substantial harm” to a non-moving party). 

For the reasons stated by committee counsel at oral

argument, however, I am convinced the case will survive this

Congress. Whether or not the case would otherwise be capable

of repetition yet evading review, the successor Congress can

assert the prior Committee’s investigatory interest, as it did in

United States v. AT&T Co. (AT&T II), 567 F.2d 121 (D.C. Cir.

1977). See also Conyers Decl. That being the case, the

Committee’s concession that this matter will continue into the

111th Congress, regardless of whether we grant a stay, tips the

balance of harms in favor of giving the courts due time for

“more deliberative investigation.” Holiday Tours, 559 F.2d at

844. 

The Committee has asked us to expedite this appeal if we

grant a stay, but the fact that the case will in any event continue

into next year counsels against rushing our deliberations. In

another parallel to the AT&T litigation, abiding by the usual

briefing schedule has the advantage of allowing the input “not

only [of] a new House but [of] a new President.” United States

v. AT&T Co. (AT&T I), 551 F.2d 384 (D.C. Cir. 1976); see also

AT&T II, 567 F.2d at 127 (“The framers, rather than attempting

to define and allocate all governmental power in minute detail,

relied, we believe, on the expectation that where conflicts in

scope of authority arose between the coordinate branches, a

spirit of dynamic compromise would promote resolution of the

dispute in the manner most likely to result in efficient and

effective functioning of our governmental system.”).