United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed On: August 8, 2022

No. 18-5305

CAROLYN MALONEY, ET AL.,

APPELLANTS

VAL DEMINGS,

APPELLEE

v.

ROBIN CARNAHAN, ADMINISTRATOR, GENERAL SERVICES

ADMINISTRATION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-02308)

On Petition for Rehearing En Banc

BEFORE: Srinivasan, Chief Judge; Henderson***, Rogers,

Millett**, Pillard, Wilkins, Katsas*, Rao***, 

Walker***, and Childs*, Circuit Judges****
2

O R D E R

Appellee Kale's petition for rehearing en banc and the

response thereto were circulated to the full court, and a vote was

requested. Thereafter, a majority of the judges eligible to

participate did not vote in favor of the petition. Upon

consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

* Circuit Judges Katsas and Childs did not participate in this

matter.

** A statement by Circuit Judge Millett, joined by Senior

Circuit Judge Tatel, concurring in the denial of rehearing en

banc, is attached. 

*** Circuit Judge Rao would grant the petition for rehearing en

banc. A statement by Circuit Judge Rao, joined by Circuit

Judges Henderson and Walker, and Senior Circuit Judge

Ginsburg, dissenting from the denial of rehearing en banc, is

attached. 

**** A statement by Senior Circuit Judge Ginsburg is attached.
MILLETT, Circuit Judge, with whom Senior Circuit Judge 

TATEL joins, concurring in the denial of rehearing en banc: 

While much still remains to be litigated in district court, the 

court rightly denies rehearing en banc on the narrow issue

before us. The only question in this case is whether Plaintiffs, 

who are individual Members of Congress, have standing to 

enforce an information request as authorized by a statute, 5 

U.S.C. § 2954, that confers on certain legislators a right to 

obtain information from federal agencies. This court held that 

the Plaintiffs’ injury—“[a] rebuffed request for information to 

which the requester is statutorily entitled”—has long been held 

to be “a concrete, particularized, and individualized personal 

injury, within the meaning of Article III.” Maloney v. Murphy, 

984 F.3d 50, 54 (D.C. Cir. 2020). Further, applying Raines v. 

Byrd, 521 U.S. 811 (1997), the court rejected the General 

Services Administration’s (“GSA”) contention that the injury 

of which the Plaintiffs complain was to Congress rather than to 

themselves as individual lawmakers. See Maloney, 984 F.3d at 

62–70. I write to respond briefly to the views of my colleagues

who thoughtfully dissent from the denial of rehearing en banc.

I

As Judge Ginsburg did in his opinion dissenting from the 

court’s decision, Judge Rao characterizes the Plaintiffs’ injury 

as institutional, not personal. She reasons that their power to 

request documents from GSA is a delegation of Congress’s 

power of inquiry, which is “an adjunct to the legislative 

process.” Watkins v. United States, 354 U.S. 178, 197 (1957); 

see Rao Dissent 10. Viewing the Plaintiffs’ statutory right as 

one that really belongs to Congress, she argues that the injury 

that resulted from GSA’s noncompliance is also institutional.

Not at all. The source of the Plaintiffs’ informational right

is not Congress’s inherent power to obtain information in aid 

of legislation—as, say, a committee subpoena authorized by 

House rules would be. Rather, it is the express provision of a
2

federal law—5 U.S.C. § 2954—duly enacted by both Houses 

of Congress and signed into law by President Coolidge. See

Act of May 29, 1928, Pub. L. No. 70-611, 45 Stat. 986, 996. 

Their right to information, in other words, is the outcome of

bicameralism and presentment, not an implicit constitutional 

power. 

Beyond that, while the power of inquiry vests in “each 

House[,]” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 

(2020), and is exercised by “Congress, a Chamber of Congress, 

or a committee[,]” Section 2954 applies to members as 

individuals, Maloney, 984 F.3d at 55, 64. Not only that, but 

Section 2954 extends an informational right to individuals in a 

committee minority, underscoring that, by its very design, the 

statute’s right to information is entirely independent of any 

congressional or committee decision to investigate anything. 

So an individual’s exercise of that specific statutory right to 

request information is neither derived from nor an exercise of 

the implicit investigative power. See id. at 55–56.

Instead, the statutory right the Plaintiffs are enforcing is a 

product of Congress’s Article I authority to ensure the proper 

functioning of government through accountability and 

transparency. See U.S. CONST. Art. I, § 8, cl. 18. That 

authority includes the power to create an individual right to 

obtain information, including from federal agencies. The 

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, the 

Federal Advisory Committee Act, 5 U.S.C. app. 2 § 10(b), the 

Federal Election Campaign Act, 52 U.S.C. § 30104(b), the 

Endangered Species Act, 16 U.S.C. § 1539(c), the Government 

in the Sunshine Act, 5 U.S.C. § 552b, and the Privacy Act, 5 

U.S.C. § 552a(d)(1), are all examples of statutes that create 

such a right. And under these statutes, “[a]nyone whose 

request for specific information has been denied has standing 

to bring an action[.]” Zivotofsky ex rel. Ari Z. v. Secretary of 
3

State, 444 F.3d 614, 617–618 (D.C. Cir. 2006) (discussing 

FOIA, Government in the Sunshine Act, and Federal Advisory 

Committee Act); see also, e.g., Public Citizen v. Department of 

Justice, 491 U.S. 440, 449 (1989) (Federal Advisory 

Committee Act); FEC v. Akins, 524 U.S. 11, 21 (1998) (Federal 

Election Campaign Act); Friends of Animals v. Jewell, 824

F.3d 1033, 1040–1041 (D.C. Cir. 2016) (Endangered Species 

Act); cf. Doe v. Chao, 540 U.S. 614, 624–625 (2004) 

(observing that anyone who suffers an “adverse effect” from a 

violation of the Privacy Act “satisfies the injury-in-fact and 

causation requirements of Article III standing”). 

Section 2594 “is on all fours, for standing purposes, with 

the informational right conferred by those other statutes.” 

Maloney, 984 F.3d at 61. And there is no dispute that Plaintiffs 

are among those in whom Section 2954 invests an 

informational right. So their Article III standing is no different 

from the standing of individuals to enforce other statutory 

rights to information in the federal government’s possession. 

In other words, Section 2954 fits the tradition of numerous 

other information-disclosure statutes and, like many of them, is 

a product of Congress’s Article I authority to enact statutes 

creating a right to obtain information from federal agencies

about their taxpayer-funded activities, not some exercise of an 

implicit power to investigate.1 

1

 Judge Rao contends that Maloney “assume[d] the most 

important question—whether a statute can constitutionally grant 

members of Congress a personal right, enforceable in federal court, 

to information from the Executive Branch.” Rao Dissent 11. But 

Judge Rao does some assuming of her own in suggesting that 

Congress’s power to command disclosure “stems exclusively from 

the legislative power[,]” Rao Dissent 2, despite the rich history of 

disclosure statutes that do not arise from Congress’s inherent power

of inquiry.
4

Judge Rao suggests that this statutory injury is not 

“grounded in historical practice[.]” Rao Dissent 5 (quoting 

Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)). To be sure, 

that the informational right in this case arises from a statute is 

not alone enough to decide the standing question because 

“Congress cannot erase Article III’s standing requirements by 

statutorily granting the right to sue to a plaintiff who would not 

otherwise have standing.” Raines, 521 U.S. at 820 n.3. But the

precedential basis for Congress’s creation of such 

informational injuries is longstanding. Binding precedent from 

the Supreme Court and this court has long held that 

informational injuries give rise to standing. See Spokeo, 578 

U.S. at 342 (citing Akins and Public Citizen as cases in which, 

consonant with the “common law * * *, the violation of a 

procedural right granted by statute” was sufficient “to 

constitute injury in fact”); see also, e.g., Public Citizen, 491 

U.S. at 449; Akins, 524 U.S. at 21; Zivotofsky, 444 F.3d at 617–

618; Friends of Animals, 824 F.3d at 1040–1041.

To be sure, Section 2954’s informational right vests in 

individuals who are members of Congress, rather than in the 

general public. See Rao Dissent 17. But for standing purposes, 

that is beside the point. Article III standing depends on a 

plaintiff demonstrating an injury in fact, causation, and 

redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 

555, 560–561 (1992). The only prong at issue here is the 

injury-in-fact requirement, and reams of precedent has 

recognized that an informational injury is a “quintessential”

injury in fact. Maloney, 984 F.3d at 59; see also, e.g., 

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2214 (2021) 

(reiterating that plaintiffs who “allege that they failed to receive 

* * * required information” under a disclosure statute have 

standing). And Article III has never required that an otherwise 

qualifying injury in fact be shared with others—let alone the 

general public—before it counts. There is no noscitur a sociis 
5

canon for Article III injuries; their existence does not depend 

on the company they keep. 

What is more, Plaintiffs’ injury is materially identical to 

an injury any member of the public could suffer: the denial of 

a FOIA request. Indeed, if these Plaintiffs had requested the 

same information under both FOIA and Section 2954, they 

would have standing to vindicate that informational injury. 

Spokeo, 578 U.S. at 342; Zivotofsky, 444 F.3d at 617–618. And 

their status as members of Congress would not change things:

Under FOIA, “the requester’s circumstances—why he wants 

the information, what he plans to do with it, what harms he 

suffered from the failure to disclose—are irrelevant to his 

standing.” Zivotofsky, 444 F.3d at 617. The government 

agrees. Oral Arg. Tr. 26 (GSA Counsel: “[W]e’re not disputing 

that the Plaintiffs can invoke FOIA.”). And courts have long 

entertained FOIA actions brought by members of Congress 

even though, as Judge Rao observes, FOIA can “be used for 

any purpose[,]” legislative or otherwise. Rao Dissent 17; see 

id. 18–19 n.6; EPA v. Mink, 410 U.S. 73, 75 (1973) 

(adjudicating FOIA action brought by 33 members of 

Congress). 

If Congress may, under 5 U.S.C. § 552, confer on 

Plaintiffs a right to this very same information, the denial of 

which gives rise to standing, it may do the same under 5 U.S.C. 

§ 2954. Article III’s standing inquiry does not change based 

on the section of Title 5 in which Congress houses the 

informational right.

Of course, Section 2954’s scope is narrower than FOIA in 

that the informational right vests only in members of two 

congressional committees, and extends only to “information 

* * * relating to any matter within the jurisdiction of the 

committee.” 5 U.S.C. § 2954. But even if a Section 2954 
6

request has a relationship to “official congressional 

responsibilities,” Rao Dissent 19, that does not change the 

standing analysis. 

After all, “personal, particularized” injuries suffered by 

legislators, and legislators alone, can affect prerogatives 

essential to the legislative role and yet still confer standing. 

Maloney, 984 F.3d at 62. For instance, Congressman Adam 

Clayton Powell had standing when he complained of the loss 

of his seat and his salary—both of which were entitlements 

meant solely to enable him to participate in legislating. See 

Raines, 521 U.S. at 821 (explaining that although members 

hold their seats “as trustee[s] for [their] constituents,” “they 

personally are entitled” to them for standing purposes)

(emphasis in original). The congressional seat for which he 

sued “pertained directly to his fulfillment of his role as a 

legislator,” and yet its loss was still a concrete, individual harm 

that gave him Article III standing. See Maloney, 984 F.3d at 

66.

Likewise, even if legislators are denied the right to engage 

in core legislative acts—like voting—on a particularized basis, 

they would have standing to remedy that denial. See Kerr v. 

Hickenlooper, 824 F.3d 1207, 1216 (10th Cir. 2016); Alaska 

Legis. Council v. Babbitt, 181 F.3d 1333, 1338 n.3 (D.C. Cir. 

1999); cf. Raines, 521 U.S. at 824 n.7. 

This is all to say that an injury is not institutional simply 

because it trenches on a right that exists to enable legislators to 

perform their individual jobs. Even injuries that “pertain[] to 

the official, legislative powers of members” may be personal 

for standing purposes. Rao Dissent 16; see id. 9 n.3 (“[I]n 

narrow circumstances a private harm, like the denial of a salary, 

may result from an official position.”). What matters is that the 

Plaintiffs complain of an injury that “befell them and only 
7

them[,]” rather than “all Members of Congress[,]” “both 

Houses of Congress equally[,]” or the successor to the 

requester’s committee seat. Maloney, 984 F.3d at 64 (internal 

quotation marks omitted) (quoting Raines, 521 U.S. at 821). 

Because Plaintiffs’ informational injury “zeroes in on the 

individual[,]” it confers standing. Kerr, 824 F.3d at 1216.

Judge Rao is correct that Congress enacted Section 2954 

to aid committee members’ work and the legislative process as 

a whole. See Rao Dissent 17–19. The statute’s text and 

legislative history confirm as much. See 5 U.S.C. § 2954; H.R.

REP. NO. 1757, 70th Cong., 1st Sess. 3, 6 (1928); Maloney, 984 

F.3d at 55–56. But Congress’s subjective policy goals in 

passing a law have no role in the standing analysis. With 

FOIA, Congress likewise sought to make oversight of the 

executive branch work better by “pierc[ing] the veil of 

administrative secrecy and * * * open[ing] agency action to the 

light of public scrutiny[.]” Department of Air Force v. Rose, 

425 U.S. 352, 361 (1976) (citation omitted). That underlying 

purpose, however, does not mean that FOIA requests are 

somehow a delegation of Congress’s oversight powers. And

(it bears repeating) that remains true even when members of 

Congress seek information germane to their legislative work 

under FOIA. Maloney, 984 F.3d at 69. Indeed, if Congress 

had simply amended FOIA to expressly include members of 

the two legislative committees listed in Section 2954 seeking

information relevant to their job as “person[s]” who may obtain 

information, 5 U.S.C. § 552(a)(3)(A), the informational right 

and injury would be identical to that of any other FOIA 

claimant for standing purposes. That Congress accomplished 

that same end through two statutes rather than one has no 

bearing on Article III’s injury-in-fact analysis.
8

II

Judges Rao and Ginsburg anticipate that the court’s 

decision will have “ruinous” consequences. Ginsburg Dissent 

2; see Rao Dissent 21–26. That concern does not stand up 

either practically or legally.

Their practical concern that the Executive Branch will be 

overwhelmed by Section 2954 lawsuits is misplaced. For one 

thing, Section 2954 has been on the books since 1928 without 

causing any such flood of litigation. Or even a puddle. 

Compare Pls.’ Opening Br. at 19–20 (documenting a handful 

of occasions dating back three decades on which members have 

requested information under Section 2954), with Rao Dissent 

23 n.8. For another thing, FOIA and a host of other federal 

laws already subject federal agencies to informational demands 

from the public—legislators included—and lawsuits if the 

agencies fail to comply. And remember, more Members of 

Congress can obtain more information of interest to them as 

legislators under FOIA than under Section 2954 because 

FOIA’s right lacks Section 2954’s limitations. That has been 

true since 1966, “with no hint of such untoward results.” 

Maloney, 984 F.3d at 69. In any event, Article III is not a 

roadblock to suits judges happen to find uncongenial as a 

policy matter. 

To the extent the dissenters are concerned about “whether 

a statute can constitutionally grant members of Congress a 

personal right, enforceable in federal court, to information from 

the Executive Branch[,]” Rao Dissent 11 (emphasis omitted), 

they are getting ahead of this case. This court has not yet even 

decided if Section 2954 creates a cause of action. More 

generally, questions about Section 2954’s scope and 

constitutionality are for another day. See Maloney, 984 F.3d at

70 (“[T]he existence of a cause of action, the appropriate 
9

exercise of equitable discretion, [and] the merits of the 

[Plaintiffs’] claims * * * remain to be resolved by the district 

court in the first instance.”); Defs.’ Mot. to Dismiss at 36, 

Cummings v. Murphy, 321 F. Supp. 3d 92 (D.D.C. 2018) (No. 

17-2308), ECF No. 8 (asserting that Plaintiffs’ use of the statute 

could “raise serious constitutional concerns.”). The only 

question before the court in this case was whether the Plaintiffs 

have suffered an informational injury in fact for Article III 

standing purposes. In answering that question, we assume that 

the Plaintiffs are correct on all merits questions in the case, 

including the existence of a cause of action and the 

constitutionality of the statute that provides the source of their 

asserted legal claim. See NB ex rel. Peacock v. District of 

Columbia, 682 F.3d 77, 82 (D.C. Cir. 2012); Maloney, 984 

F.3d at 58. 

The central mistake that the dissenting opinions make is 

trying to force the injury-in-fact prong of the Article III 

standing analysis to take on the substantive merits work of 

resolving their constitutional qualms about this statutory 

scheme, facially or as applied. The en banc court rightly 

recognizes today that there is no need for Article III to get out 

over its skis. Those constitutional questions and more await 

resolution on remand. All we have held in this case is that the 

agency’s denial of a statutorily conferred right to information 

inflicted an injury in fact on the requesting Plaintiffs.

* * *

For those reasons and with the greatest respect for my 

colleagues’ dissenting views, I concur in the denial of rehearing 

en banc.
RAO, Circuit Judge, with whom Circuit Judges HENDERSON

and WALKER and Senior Circuit Judge GINSBURG join,

dissenting from the denial of rehearing en banc:

Disputes between Congress and the Executive over 

documents have occurred since the Founding but have seldom 

involved the Judiciary. In concluding that individual members 

of Congress have standing to sue when an executive agency 

rejects their requests for information, the panel majority clears 

the way for the federal courts to referee ordinary informational 

disputes between the political branches. The panel’s rationale 

has no logical stopping point and would permit standing to 

even a single member of Congress suing the Executive. To 

reach this unprecedented holding, the panel relies on a nearly 

100-year-old statute that allows members to request

information from executive branch agencies and finds that 5 

U.S.C. § 2954 creates a personal “informational right” for 

members exercising their “professional” legislative duties.

Maloney v. Murphy, 984 F.3d 50, 64–65 (D.C. Cir. 2020). The 

Members’ claim in this case, however, has no historical 

analogue. The panel’s recognition of a personal injury to

legislative power clashes with the fundamental constitutional 

principles that limit congressional standing, upends the balance 

of power between Congress and the Executive, and drags 

courts into disputes wholly foreign to the Article III “judicial 

Power.”

Perhaps this is a logical culmination of this court’s recent 

decisions on congressional standing, which continue to invoke 

the Supreme Court’s decision in Raines v. Byrd, 521 U.S. 811 

(1997), while steadily moving away from its substantive 

foundation.

1 By recognizing standing for members of Congress 

1 See Comm. on the Judiciary of the U.S. House of Representatives 

v. McGahn, 968 F.3d 755, 782 (D.C. Cir. 2020) (en banc) (Griffith, 

J., dissenting) (explaining that “[t]he majority returns this circuit to 

the prudential approach to standing that we experimented with 
2

based on harms that are simultaneously personal and

legislative, the panel decisively breaks with the structural 

constitutional limits articulated in Raines. 

I would revisit the panel decision because, first, the text 

and structure of the Constitution, historical practice, and the 

Supreme Court’s decisions all establish that individual 

members of Congress cannot bring suit to assert injuries to the 

legislative power. The federal courts do not superintend 

disputes between the political branches because such disputes 

are outside the traditional understanding of an Article III

“Case” or “Controversy.” Second, the power of members of 

Congress to investigate the Executive Branch stems 

exclusively from the legislative power. Section 2954 cannot 

convert that institutional legislative power into a personal

“informational right” for members that is vindicable in federal 

court. Finally, allowing standing for members of Congress 

under Section 2954 not only expands the judicial power, but 

otherwise unbalances the Constitution’s separation of powers.

The novel questions presented here are of exceptional 

importance, particularly because the D.C. Circuit has an 

effective monopoly over lawsuits between Congress and the 

Executive Branch. These questions should be resolved by the 

decades ago and that the Supreme Court rejected in Raines”); U.S. 

House of Representatives v. Mnuchin, 976 F.3d 1 (D.C. Cir. 2020) 

(extending the McGahn majority’s prudential approach to conflicts 

over appropriations), vacated as moot, 142 S. Ct. 332 (2021); In re 

Comm. on the Judiciary, U.S. House of Representatives, 951 F.3d 

589, 617–18 (D.C. Cir. 2020) (Rao, J., dissenting) (“[A]llowing 

standing in this context would run against historical practice and the 

limited role of the federal judiciary in our system of separated 

powers.”) (citing Raines, 521 U.S. at 819), vacated as moot sub nom. 

Dep’t of Justice v. House Comm. on the Judiciary, 142 S. Ct. 46 

(2021).
3 

full court to realign our decisions with the Constitution and 

longstanding Supreme Court precedent. 

I. 

Seventeen members of Congress brought this suit under an 

extraordinary statute, one that permits “any seven members” of 

the House Committee on Oversight and Reform or “any five 

members” of the Senate Committee on Homeland Security and 

Governmental Affairs—less than a majority of each 

committee—to compel executive agencies to disclose 

information. Act of May 29, 1928, Pub. L. No. 70-611 § 2, 45 

Stat. 986, 996 (codified as amended at 5 U.S.C. § 2954). Upon 

such a request, “[a]n Executive agency ... shall submit any

information requested of it relating to any matter within the 

jurisdiction of the committee.” 5 U.S.C. § 2954. 

This case concerns requests made under Section 2954 to 

the General Services Administration (“GSA”) by members of 

the House Committee on Oversight and Reform (the 

“Committee”). The Members sought records relating to GSA’s 

lease of the Old Post Office building to a company owned by 

President Donald Trump and members of his family. GSA did 

not provide the requested information, and members of the 

Committee who made the rebuffed requests brought this action 

seeking to compel disclosure. In particular, the Members 

pleaded that “numerous issues” concerning the lease 

“requir[ed] congressional oversight,” including “potential 

conflicts of interest” and “GSA’s ongoing management of the 

lease.” The complaint repeatedly referenced the official 

oversight responsibilities of Congress and the Committee. The 

Members claimed the deprivation of information “thwart[ed]” 

their ability “to carry out their congressionally-delegated duty 

to perform oversight” and impeded the fulfillment of their 

“legislative responsibilities.” 
4 

The district court dismissed the complaint on the 

jurisdictional ground that the Members lacked standing. 

Cummings v. Murphy, 321 F. Supp. 3d 92 (D.D.C. 2018). A 

divided panel of this court reversed, holding that Section 2954 

confers an individual right to information on members of 

Congress, and that members have standing in federal court to 

assert those rights against an executive branch agency. 

Maloney, 984 F.3d at 54. Judge Ginsburg dissented, explaining 

that “[b]ecause the legislative power and the attendant power 

of investigation are committed to the House and not to its 

[m]embers, a legislator does not suffer a personal injury when

the denial of information ... impedes the oversight and

legislative responsibilities of the House.” Id. at 76.

II.

The Members here allege they have standing to sue an

executive branch agency for information because Section 2954 

gives them a personal right to exercise the official legislative 

powers of investigation. Their claims are foreclosed by the 

Constitution, longstanding precedent, and historical practice,

which dictate that harms to official legislative powers cannot 

be vindicated in the federal courts by individual legislators. 

Article III of the Constitution extends the federal judicial 

power only to “Cases” or “Controversies.” U.S. CONST. art. III, 

§ 2. “No principle is more fundamental to the [J]udiciary’s

proper role in our system of government than the constitutional

limitation of federal-court jurisdiction to actual [C]ases or

[C]ontroversies.” Raines, 521 U.S. at 818 (cleaned up). While

the panel majority recites these constitutional limitations, it

rests its standing analysis entirely on Section 2954, which

purportedly “confers [an] informational right directly

on ... specific legislators so that they personally can properly
5 

perform their roles on the oversight committees.” Maloney, 984 

F.3d at 61.

But “[i]t is settled that Congress cannot erase Article III’s 

standing requirements by statutorily granting the right to sue to 

a plaintiff who would not otherwise have standing.” Raines, 

521 U.S. at 820 n.3; see also Lujan v. Defs. of Wildlife, 504 

U.S. 555, 577–78 (1992). The standing inquiry, therefore, 

cannot simply begin and end with the so-called informational 

right created by Section 2954. To determine whether the 

Members’ claim is judicially cognizable, we must consider 

whether the alleged harm is “grounded in historical practice” 

and “has a close relationship to a harm that has traditionally 

been regarded as providing a basis for a lawsuit in English or 

American courts.” Spokeo, Inc. v. Robins, 578 U.S. 330, 341 

(2016); see also TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 

2204 (2021) (a concrete injury requires plaintiffs to “identif[y]

a close historical or common-law analogue for their asserted 

injury”); id. at 2219 (Thomas, J., dissenting) (explaining that 

the requirement of concreteness developed with respect to

public rights and interests). 

Members of Congress seeking standing in the federal 

courts must satisfy particularly stringent requirements because 

of the serious separation of powers concerns raised by judicial 

resolution of disputes between the political branches. See 

Raines, 521 U.S. at 819–20; Ariz. State Legislature v. Ariz. 

Indep. Redistricting Comm’n, 576 U.S. 787, 803 n.12 (2015); 

see also id. at 854 (Scalia, J., dissenting); Chenoweth v. 

Clinton, 181 F.3d 112, 114 (D.C. Cir. 1999) (explaining that 

separation of powers concerns “are particularly acute [ ] when 

a legislator attempts to bring an essentially political dispute 

into a judicial forum”). As a result, the Supreme Court has 

established a narrow set of circumstances in which individual 

legislators can sue in federal court.
6 

“Raines is our starting point when individual members of 

the Congress seek judicial remedies.” Blumenthal v. Trump, 

949 F.3d 14, 19 (D.C. Cir. 2020) (per curiam). In Raines, the 

Supreme Court recognized the novelty of the question of 

legislative standing presented for review and explained why 

“historical practice” did not support legislative standing 

because “in analogous confrontations between one or both 

Houses of Congress and the Executive Branch, no suit was 

brought on the basis of claimed injury to official authority or 

power.” 521 U.S. at 826 (emphasis added). Instead, 

constitutional challenges to the respective powers of the 

political branches had been adjudicated primarily in lawsuits in 

which a private individual had suffered a personal, 

particularized, and concrete harm. Canvassing the historical 

record, the Court pointed to numerous instances where, if it had 

been possible, the President or a member of Congress might 

have sued to vindicate their respective constitutional powers

but never had. Id. at 826–28. 

The Court concluded that the Judiciary serving as referee 

between the political branches “is obviously not the regime that 

has obtained under our Constitution to date.” Id. at 828.

Moreover, the Constitution vests the Article III courts with a 

restricted role, primarily that of protecting individual rights and 

liberties, not providing “some amorphous general supervision 

of the operations of government.” Id. at 829 (quoting United 

States v. Richardson, 418 U.S. 166, 192 (1974) (Powell, J., 

concurring)). The Judiciary should hesitate to adjudicate

“dispute[s] involving only officials, and the official interests of 

those, who serve in the branches of the National Government” 

because such disputes lie “far from the model of the traditional 

common-law cause of action at the conceptual core of the caseor-controversy requirement.” Id. at 833 (Souter, J., concurring 

in the judgment). 
7 

Raines also clarified that members of Congress may not

circumvent the Judiciary’s limited role in interbranch disputes 

by bringing suit as individuals to vindicate harms to the 

legislative power. Because the legislative power is vested in 

Congress as a whole, not in individual representatives and 

senators, injuries to the legislative power are not injuries to the 

individual members. Therefore, a suit by members of Congress 

challenging the Line Item Veto Act could not be maintained in 

federal court because the “claim of standing [was] based on a 

loss of political power, not loss of any private right, which 

would make the injury more concrete.” Id. at 821 (majority 

opinion) (emphasis added). In subsequent cases, the Supreme 

Court adhered closely to Raines and emphasized that 

“individual members lack standing to assert the institutional 

interests of a legislature.” Va. House of Delegates v. BethuneHill, 139 S. Ct. 1945, 1953 (2019); Ariz. State Legislature, 576 

U.S. at 802. 

After Raines decisively closed the door on this circuit’s 

expansive congressional standing decisions,2 we have 

consistently denied standing to legislators seeking to sue the 

2 We have recognized that Raines was the culmination of a long 

period of tension between this court’s approach to standing and the 

Supreme Court’s. Chenoweth, 181 F.3d at 115. In the 1970s, this 

court was “receptive to the idea that we had jurisdiction to hear” 

complaints brought by members of Congress “seek[ing] judicial 

relief from allegedly illegal executive actions that impaired the 

exercise of their power as legislators.” Id. at 114 (citing Kennedy v. 

Sampson, 511 F.2d 430 (D.C. Cir. 1974), and Goldwater v. Carter, 

617 F.2d 697 (D.C. Cir.) (en banc) (per curiam), vacated on other 

grounds, 444 U.S. 996 (1979)). Even as the Supreme Court clarified 

that standing was an essential aspect of the separation of powers,

Allen v. Wright, 468 U.S. 737, 752 (1984), this court continued to 

analyze standing apart from separation of powers concerns. See 

Chenoweth, 181 F.3d at 114. 
8

Executive Branch to vindicate legislative powers or to enforce 

the requirements of a statute. See Chenoweth, 181 F.3d at 113 

(holding that members of Congress lacked standing to 

challenge an executive order they claimed “denied them their 

proper role in the legislative process”); Campbell v. Clinton, 

203 F.3d 19 (D.C. Cir. 2000) (holding that legislators lacked 

standing to challenge presidential actions they alleged violated 

the War Powers Resolution). We recently explained that the 

Supreme Court’s “as well as this court’s precedent confirm that 

Raines stands for the proposition that whereas a legislative 

institution may properly assert an institutional injury, an 

individual member of that institution generally may not.” 

McGahn, 968 F.3d at 775. Individual lawmakers lack standing 

to assert the official, institutional interests of Congress because 

of the “mismatch” problem, i.e., congressmen cannot assert

injuries on behalf of Congress. Bethune-Hill, 139 S. Ct. at 

1953; McGahn, 968 F.3d at 767.

The only two Supreme Court decisions recognizing 

legislator standing similarly do not support standing for 

members of Congress asserting harms to a purportedly personal 

legislative power. First, Congressman Powell was allowed to 

sue for backpay in connection with the salary he was denied

when the House unlawfully prevented him from taking his seat.

Powell v. McCormack, 395 U.S. 486 (1969). In Raines, the 

Court contrasted Congressman Powell’s injury, which was 

claimed in a “private capacity” and for which there could be 

standing, with an “institutional injury (the diminution of 

legislative power)” claimed by a member of Congress in an 

“official capacit[y],” for which there was no standing. 521 U.S. 

at 821 (emphases added). The Constitution guarantees that 

members of Congress shall be paid. U.S.CONST. art. I, § 6. This 

is plainly a private and personal right of individual members of 

Congress, the invasion of which inflicts a paradigmatic Article 

III injury. See TransUnion, 141 S. Ct. at 2204 (“[C]ertain 
9

harms readily qualify as concrete injuries under Article III. The 

most obvious are traditional tangible harms, such 

as ... monetary harms.”). An unpaid salary was not a harm to 

the legislative power, but rather an injury to Powell’s 

pocketbook.

3 Moreover, in Powell, the claim for backpay was 

not made against the Executive Branch, but the agents of 

Congress, and therefore did not implicate the same type of 

conflict between the branches. See 395 U.S. at 550.

The only other case recognizing individual legislator 

standing, Coleman v. Miller, 307 U.S. 433 (1939), involved 

state legislators and has been cabined to its facts. See Raines, 

521 U.S. at 823–24, 824 n.8 (explaining Coleman’s limited 

application and noting that the case involved state legislators, 

which would not raise the same separation of powers concerns 

as suits between the federal political branches); Bethune-Hill, 

139 S. Ct. at 1954 (repeating Raines’s characterization of 

Coleman).

3 The panel majority takes from Powell that some official harms may 

be personal. Maloney, 984 F.3d at 65–66. It is true that Powell’s 

monetary harms flowed from his election as a congressman. That 

simply means that in narrow circumstances a private harm, like the 

denial of a salary, may result from an official position. See, e.g.,

Humphrey’s Executor v. United States, 295 U.S. 602, 618 (1935)

(deciding the extent to which Congress may insulate a commissioner 

of a so-called independent agency from presidential removal in the 

context of a suit in the Court of Claims for the unpaid salary of a 

fired executive official). Powell cannot be read to recognize a 

category of personal legislative injuries because Powell’s injuries 

were not to his exercise of legislative power. Indeed, Raines

recognized that Coleman v. Miller is the only case upholding 

“standing for legislators (albeit state legislators) claiming an 

institutional injury,” further reinforcing that Powell is not a case 

about institutional or official harms. Raines, 521 U.S. at 821.
10

* * *

A legislator may have standing in the federal courts only 

if his affected “interest ... [is] of a personal and not of an 

official nature.” Braxton Cnty. Ct. v. West Virginia ex rel. State 

Tax Comm’rs, 208 U.S. 192, 197 (1908). Injuries to the official

interests of a member of Congress, like other harms to 

institutional legislative power, lie outside the traditional 

understanding of the “Cases” and “Controversies” cognizable 

by the Article III courts. 

III.

The foregoing provides the constitutional backdrop for 

assessing the panel majority’s conclusion that Section 2954 

grants members of Congress a personal right to information 

from executive branch agencies that is no different from any 

other private informational injury that may be vindicated in 

court. Maloney, 984 F.3d at 64. The investigative power of 

Congress is not and cannot be personal, because it is “justified 

solely as an adjunct to the legislative process.” Trump v. 

Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020) (cleaned up). 

Section 2954 cannot create a personal right to information

for the Members, because Congress cannot constitutionally 

convert its institutional legislative power to investigate into a 

personal right of its members. Nor can the official and 

institutional injuries alleged by the Members under Section 

2954 be analogized to the private informational injuries under 

statutes such as the Freedom of Information Act (“FOIA”) and 

the Federal Advisory Committee Act (“FACA”). Therefore, 

the denial of information under Section 2954 does not provide 

members of Congress with the type of concrete and 

particularized injury cognizable by the Article III courts. 
11

A.

The panel majority frames this case generically as simply 

a question of whether the denial of information to which a 

“person” or “requester” is statutorily entitled constitutes an 

injury sufficient to invoke Article III jurisdiction. It concludes 

a concrete injury exists because “Section 2954’s plain terms 

invest the informational right in legislators, not the legislature.

Which makes the deprivation of requested information an 

injury personal to the requesting legislators.” Maloney, 984 

F.3d at 67. But framing the case this way assumes the most 

important question—whether a statute can constitutionally 

grant members of Congress a personal right, enforceable in 

federal court, to information from the Executive Branch.

Section 2954 cannot create such a personal right because any 

power to investigate belongs to the House and Senate as part of 

their institutional legislative powers, and Congress cannot

delegate these institutional powers in a way that creates rights 

in individual members.

Congress’ power to investigate the Executive Branch 

derives solely from the legislative power. As the Supreme 

Court recently reiterated, “Congress has no enumerated 

constitutional power to conduct investigations[,] ... but we 

have held that each House has power ‘to secure needed 

information’ in order to legislate.” Mazars, 140 S. Ct. at 2031 

(quoting McGrain v. Daugherty, 273 U.S. 135, 161 (1927)). 

The panel’s so-called informational right is merely an 

“auxiliary to the legislative function.” McGrain, 273 U.S. at 

174. Just as the legislative power is vested in Congress, U.S. 

CONST. art. I, § 1, the auxiliary power to investigate also 

belongs to Congress and is inextricably linked to the need to 

gather information in order to “legislate ‘wisely or

effectively.’” Mazars, 140 S. Ct. at 2031 (quoting McGrain, 

273 U.S. at 175). Perhaps in recognition of these principles, the 
12

Members pleaded that the informational right in Section 2954 

was “congressionally-delegated” and that they were exercising 

necessary “congressional” oversight.

The power to legislate, however, “is not personal to the 

legislator,” so “the legislator has no personal right to it.” Nev. 

Comm’n on Ethics v. Carrigan, 564 U.S. 117, 126 (2011).

Injuries to “political power” are not judicially cognizable 

because the legislator exercises legislative power “as trustee for 

his constituents, not as a prerogative of personal power.” 

Raines, 521 U.S. at 821; see also United States v. Ballin, 144 

U.S. 1, 7 (1892) (“The two houses of Congress are legislative 

bodies representing larger constituencies. Power is not vested 

in any one individual, but in the aggregate of the members who 

compose the body.”). While members of course undertake

myriad lawmaking functions, legislators have no personal right 

to the legislative power and therefore have no personal right to 

the incidents of that power, such as investigation and 

oversight.4

4 The principle that a legislator has no personal right to the legislative 

power follows from the text and structure of the Constitution, which 

confers no power on representatives and senators that may be 

exercised individually. The Constitution recognizes individual 

members primarily with regard to their selection and compensation. 

See U.S. CONST. art. I, § 2, cl. 1; id. § 3, cl. 1; id. § 6, cl. 1. The 

Constitution vests the legislative power in Congress as a whole. U.S. 

CONST. art. I, § 1; see also Neomi Rao, Why Congress Matters: The 

Collective Congress in the Structural Constitution, 70 FLA. L. REV.

1, 71 (2018) (“Congress can take no binding action against the other 

branches except through legislation or through impeachment and 

removal.”). Members share a part of the legislative power and 

exercise an important public trust, but the legislative power does not 

belong to them individually.
13

Because investigation is an institutional prerogative and 

exists only insofar as it is a legitimate adjunct to the legislative 

power, Section 2954 cannot confer an informational right on

individual members to sue the Executive Branch in federal 

court. The Supreme Court has consistently invalidated statutes 

that attempt to reallocate the legislative power to Congress’ 

constituent parts. See John F. Manning, Textualism as a 

Nondelegation Doctrine, 97 COLUM. L. REV. 673, 715–18 

(1997) (discussing these cases).

For instance, a single house of Congress cannot exercise 

the legislative power because legislative power must be 

exercised through bicameralism and presentment. See INS v. 

Chadha, 462 U.S. 919, 955 (1983) (explaining that when the 

Constitution permits “either House of Congress to act alone,” 

it “narrowly and precisely define[s] the procedure for such 

action”). The prohibition, recognized in Chadha, against 

Congress reassigning legislative power to a single house 

applies a fortiori to reassigning legislative powers to individual 

members of Congress. Similarly, Congress cannot assign a 

subset of its members the power to veto decisions made by an 

agency, because “Congress may not delegate the power to 

legislate to its own agents or to its own [m]embers.” Metro. 

Washington Airports Auth. v. Citizens for the Abatement of 

Aircraft Noise, Inc., 501 U.S. 252, 275 (1991). Indeed, “[i]f 

Congress were free to delegate its policymaking authority to 

one of its components, or to one of its agents, it would be able 

to evade the carefully crafted restraints spelled out in the 

Constitution.” Bowsher v. Synar, 478 U.S. 714, 755 (1986) 

(Stevens, J., concurring in the judgment) (cleaned up).

Furthermore, the Court has specifically held that Congress 

cannot by statute convert a “generalized grievance” about 

government into a judicially cognizable personal injury. See

Lujan, 504 U.S. at 573–76 (discussing cases). In Lujan, the 
14

Court reviewed a citizen-suit provision and recognized that the 

relevant question was “whether the public interest in proper 

administration of the laws ... can be converted into an 

individual right by a statute that denominates it as such, and 

that permits all citizens (or, for that matter, a subclass of 

citizens who suffer no distinctive concrete harm) to sue.” Id. at 

576–77. The Court answered that question with a resounding 

no: “To permit Congress to convert the undifferentiated public 

interest in executive officers’ compliance with the law into an 

‘individual right’ vindicable in the courts is to permit Congress 

to transfer from the President to the courts the Chief 

Executive’s most important constitutional duty, to ‘take Care 

that the Laws be faithfully executed.’” Id. at 577 (quoting U.S. 

CONST. art. II, § 3). 

Interpreting Section 2954 to confer standing on individual 

members of Congress would raise parallel constitutional 

problems because it would allow Congress to convert the 

collective legislative power, and the accompanying power to 

investigate, into an “individual right” of lawmakers that could 

be vindicated in the federal courts. To allow such actions 

“would enable the courts, with the permission of Congress, to 

assume a position of authority over the governmental acts of 

another and co-equal department, and to become virtually 

continuing monitors of the wisdom and soundness of Executive 

action. We have always rejected that vision of our role.” Id.

(cleaned up).

Just as Congress cannot transfer bits of the President’s 

executive power to the general public, it similarly cannot 

transfer bits of Congress’ legislative power to individual 

legislators. Statutory say-so is insufficient to expand the 

powers of individual legislators and the reach of the federal 

courts.
15

The unsuitability of judicial review is further highlighted 

by the fact that Section 2954 accomplishes by statute what 

would ordinarily be addressed by the internal rules or orders of 

the House and Senate, which frequently assign investigative 

authority to committees and subcommittees. See U.S. CONST.

art. I, § 5, cl. 2. Such rules, however, do not create any personal 

rights in members enforceable in federal court. Internal 

allocations of congressional power generally cannot be 

vindicated in court by any legislator or groups of legislators. 

See Metzenbaum v. FERC, 675 F.2d 1282, 1287 (D.C. Cir. 

1982) (per curiam) (concluding that the question of whether the 

House observed its own rules was political and therefore 

nonjusticiable); Vander Jagt v. O’Neill, 699 F.2d 1166, 1181 

(D.C. Cir. 1983) (Bork, J., concurring in the judgment)

(“[F]ederal courts should firmly refuse to enter upon the wholly 

inappropriate task of ensuring absolute equity in Congress’s 

legislative procedures. It is absurd to think that courts should 

purge the political branches of politics.”); id. at 1176 (majority 

opinion) (calling adjudication of such disputes a “startlingly 

unattractive idea”) (cleaned up); Chadha, 462 U.S. at 955 n.21 

(emphasizing that the rulemaking power “only empowers 

Congress to bind itself”). Judicial review of House and Senate 

rules of proceeding would likely exceed the Article III “judicial

Power” and encroach on the independence of Congress. This 

further suggests that Congress lacks the authority to vest 

individual members with judicially enforceable investigative 

rights that would ordinarily be allocated by non-reviewable 

internal rules.

5

5 A further constitutional difficulty is that each house of Congress 

has an independent power to make internal rules of proceeding. U.S.

CONST. art. I, § 5. Section 2954, however, purports to allocate (or 

delegate) some investigative authority to a subgroup of committee 

members in both the House and Senate. If Congress by statute may 

allocate power to individual representatives and senators, that could 
16

I would also note that there is no evidence that Congress 

created individual member standing when enacting Section 

2954. Given the total absence of any historical precedent for 

such lawsuits in 1928, the establishment of a judicially 

cognizable informational right would have been an exceptional 

expansion of federal court jurisdiction to decide informational 

disputes between Congress and the Executive. In light of the 

novelty of the statute and the fact that it makes no mention of a 

cause of action or of standing for individual members, we 

should not readily assume Section 2954 creates the type of right 

and injury that is cognizable by the federal courts. Cf. Whitman 

v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (“Congress, 

we have held, does not ... hide elephants in mouseholes.”); 

FEC v. Akins, 524 U.S. 11, 30 (1998) (Scalia, J., dissenting) 

(“Because this provision is so extraordinary, we should be 

particularly careful not to expand it beyond its fair meaning.”).

The Members’ complaint and the panel majority’s 

reasoning recognize that the “informational right” in Section 

2954 pertains to the official, legislative powers of members. 

See Maloney, 984 F.3d at 64 (“[T]he Requesters sought the 

information covered by Section 2954 in this case to inform and 

equip them personally to fulfill their professional duties as 

Committee members.”) (emphasis added). What the panel 

majority fails to explain, however, is how Congress may 

convert the institutional legislative power of investigation into 

a personal right of individual legislators.

Congress cannot self-delegate a piece of the legislative 

power to individual representatives and senators in a way that 

frustrate the independent constitutional power of each house to make 

its own rules, because one house of Congress would be unable to 

promulgate a rule of proceeding contrary to a statute without the 

consent of the other house and the President.
17

creates judicially cognizable rights. Section 2954 should not be 

read to create standing for members of Congress asserting their 

investigative, i.e., legislative, powers when such an 

interpretation would contravene the Constitution’s separation 

of powers.

B.

The panel’s analogy to private informational injuries under 

FOIA and FACA is similarly inapposite. Those statutes create 

certain informational rights against the government, and 

individuals may sue in federal court to challenge an agency’s 

failure to provide information to which the person is entitled. 

See 5 U.S.C. § 552(a)(4)(B); 5 U.S.C. app. 2 § 10(b). The 

Supreme Court and this court have held that the deprivation of 

such information can constitute a private, particularized, and 

concrete injury that gives rise to standing. See Pub. Citizen v. 

U.S. Dep’t of Justice, 491 U.S. 440, 449–50 (1989); Prisology, 

Inc. v. Fed. Bureau of Prisons, 852 F.3d 1114, 1117 (D.C. Cir. 

2017).

The informational right created by Section 2954 is 

different. FOIA and FACA create a private right to information

to be used for any purpose. By contrast, Section 2954 gives 

legislators a right to information specifically for legislating, as 

evidenced by the fact that information requests must “relat[e] 

to any matter within the jurisdiction of the committee.” 5 

U.S.C. § 2954. Only by glossing over this material distinction

can the majority avoid the salient constitutional questions. See

Concurring Op. 3–6. 

While in the context of private plaintiffs the court properly 

looks to whether the withholding of information has harmed 

the plaintiff “in a personal and individual way,” Spokeo, 578

U.S. at 339, the inquiry is entirely different for members of 
18 

Congress seeking to exercise their legislative powers.6 The 

panel states that “[a] personal injury ... refers to an injury 

6 Members of Congress sometimes use FOIA to seek information 

from the Executive Branch, and there are a few cases in which they 

have litigated an agency’s failure to release information under FOIA. 

But these cases have recognized a distinction between individual 

informational rights held by private citizens and the official 

prerogatives of members of Congress. FOIA suggests that Congress’ 

power to investigate and to seek information from the Executive is 

distinct from and perhaps greater than private citizens’ FOIA rights. 

See 5 U.S.C. § 552(d) (“This section is not authority to withhold 

information from Congress.”); see also Murphy v. Dep’t of the Army, 

613 F.2d 1151, 1157 (D.C. Cir. 1979) (explaining that “when a 

document is released for official congressional purposes, a waiver of 

[a] FOIA exemption is not implied”).

The courts have struggled, however, with distinguishing FOIA

requests made by a member in his or her private capacity and those 

made in an official capacity. See Leach v. Resol. Tr. Corp., 860 F. 

Supp. 868, 880 (D.D.C. 1994) (refusing to decide whether a member 

could assert the rights of Congress as an institution and dismissing 

the case without prejudice to the representative’s “right to assert any 

claims he might have as a member of the public”). We have, for 

instance, distinguished a FOIA request by a representative made as a 

private citizen from his receipt of that same information as a member 

of a committee. See Aspin v. Dep’t of Def., 491 F.2d 24, 26 & n.14 

(D.C. Cir. 1973). In EPA v. Mink, the Supreme Court treated a FOIA 

request by 33 representatives as a request made by private citizens. 

See 410 U.S. 73, 75 (1973). It is notable that the district court in Mink

dismissed the action “insofar as plaintiffs seek to maintain the action 

in their capacity as [m]embers of Congress on the ground that 

plaintiffs have failed to present a justiciable [C]ase or [C]ontroversy 

and they may not maintain the action in that capacity by reason of 

the Separation of Powers provisions of the Constitution.” Mink v.

EPA, No. 1614-71, 1971 U.S. Dist. LEXIS 15238 at *1–2 (D.D.C. 

Aug. 27, 1971). The D.C. Circuit did not reach that issue, so it was 

not before the Supreme Court. Mink, 410 U.S. at 73 n.2. 
19

suffered directly by the individual legislators to a right that they 

themselves individually hold.” Maloney, 984 F.3d at 62. But 

legislators have no individual right to information from the 

Executive Branch in the exercise of their official legislative 

duties. Rather, as already discussed, any investigative rights a 

member has may be exercised only as part of the institutional, 

legislative power of the House or the Senate. 

When members make a request under Section 2954, they 

are exercising their official, congressional responsibilities and 

therefore are not acting as private individuals. In other 

contexts, the Supreme Court has rebuffed the claim that 

members of Congress act as individuals when exercising 

congressional responsibilities. For example, even when a 

statute designated members of Congress as serving on a Board 

“in their individual capacities” the Court noted this fact “does 

not prevent this group of officials from qualifying as a 

congressional agent exercising federal authority for separationof-powers purposes.” Metro. Washington Airports Auth., 501 

U.S. at 267. Because the Members were exercising 

“congressional responsibilities,” it “belie[d] the ipse dixit that 

the Board members will act in their individual capacities.” Id.

(cleaned up). Section 2954 limits information requests to 

official congressional responsibilities, namely those within the 

jurisdiction of the Committee, which belies the panel 

The few decisions allowing members to bring suit under FOIA

have generally proceeded as though the requests for information

were made by private individuals. None of these decisions have held 

that members of Congress may sue to vindicate personal 

informational injuries to the exercise of their official legislative

powers.
20

majority’s claim that members have a personal right to the 

information.7

Characterizing the exercise of congressional 

responsibilities as personal and individual only further 

unmoors this Circuit’s law from Raines, Chenoweth, 

Campbell, and other congressional standing cases. Members of 

Congress acting in their official capacity are not like private 

parties. As we noted in Chenoweth, the idea that “congressional 

and private plaintiffs should be treated alike for the purpose of 

determining their standing” is “untenable” after the Supreme 

Court’s decision in Raines. 181 F.3d at 114–15. Analogies to 

private injuries of private persons do not bear on our inquiry in 

congressional standing cases where the branches are suing each 

other. See, e.g., Joint Anti-Fascist Refugee Comm. v. McGrath, 

341 U.S. 123, 150 (1951) (Frankfurter, J., concurring) (“[A] 

court will not decide a question unless ... the relationship 

between the parties [is] such that judicial determination is 

consonant with what was, generally speaking, the business of 

7 The panel majority maintains that the Members’ informational right 

does not run with their Committee seats and therefore must be a 

personal injury, similar to Congressman Powell’s claim for loss of 

salary. Maloney, 984 F.3d at 65–66. But Congressman Powell would 

have been entitled to backpay even after leaving office because he 

was entitled to the salary in his “private capacity.” Raines, 521 U.S. 

at 821. By contrast, upon leaving office, the Members here would 

not be entitled to information under Section 2954, as the panel 

majority recognizes. Maloney, 984 F.3d at 66 (“If one of the 

Requesters were to leave the Committee, the injury sued upon would 

end with her service.”). This difference shows the flaw in the panel 

majority’s analogy. Unlike Congressman Powell, the Members’ 

claimed injury is to official powers because it is wholly dependent 

upon the Members’ current service in the House (and on a particular 

committee). An injury cannot be “personal” and “individual” if it is 

extinguished when a member leaves office.
21

the Colonial courts and the courts of Westminster when the 

Constitution was framed.”) (emphasis added). 

The analogy between Section 2954 and private 

informational harms fails because members of Congress are not 

acting as private persons when exercising official, legislative 

powers, such as investigating the Executive Branch.

* * *

Section 2954 cannot create a so-called “informational 

right” in members of Congress because the investigative 

powers of Congress belong to the House and the Senate as an 

adjunct of their legislative powers and may not be delegated to 

individual members. Interpreting Section 2954 to allow

congressional standing in a suit against an executive branch 

agency strays far afield of the historical understanding of the 

“Cases” and “Controversies” cognizable by the Article III

courts.

IV.

Within the Constitution’s carefully calibrated structure of 

separated powers, the expansion of one federal power 

inevitably distorts the others. The panel’s assertion of 

jurisdiction to decide this lawsuit not only exceeds the Article 

III limits on the federal courts, but it also implicates additional

constitutional concerns that cannot be swept under the rug. 

Contra Maloney, 984 F.3d at 69 (“Nor does this case implicate 

any potentially special circumstances.”). The Supreme Court

has cautioned that courts must scrutinize novel attempts by

Congress to enlist the courts in disputes against the Executive. 

See Mazars, 140 S. Ct. at 2033–34 (rebutting the conclusion of 

the D.C. Circuit that a subpoena for the President’s papers 

presented “no direct interbranch dispute”); id. at 2036 

(concluding that the courts of appeal “did not take adequate 
22

account” of the “special concerns regarding the separation of 

powers”). In that vein, I highlight some of the constitutional 

concerns implicated by allowing standing to members of 

Congress in informational disputes with executive agencies.

First, this case pits Congress and the President against each 

other. Although the panel majority places weight on the fact 

that this is “not a suit against the President or a claim for 

information from him,” Maloney, 984 F.3d at 69, the Members 

requested information about the former President’s lease with 

GSA and potential conflicts of interest. And while this lawsuit 

is nominally between members of Congress and the GSA, these 

parties are simply subcomponents of Congress and the 

Executive. An investigation of the President by Congress may 

present the most profound separation of powers concerns, but 

the balance of power may be unsettled even in a less direct 

“clash between rival branches of government over records of 

intense political interest for all involved.” Mazars, 140 S. Ct. 

at 2034.

Second, allowing standing for members of Congress to sue 

the Executive for information would substantially and 

unnecessarily change the “‘established practice’ of the political 

branches.” Id. (quoting NLRB v. Noel Canning, 573 U.S. 513, 

524 (2014)). Committees, subcommittees, and individual 

members of Congress frequently request information or 

documents from executive branch agencies. Such requests are 

ordinarily dealt with through negotiation and the give and take 

between the branches. See id. at 2029. Indeed, despite the 

thousands of requests by members of Congress that sally forth 

each year to executive branch agencies and officials, plaintiffs 

can identify no case, and I am aware of none, allowing a 

member of Congress to sue an executive agency for the failure 
23

to release documents pursuant to such a request.8 If individual 

members of Congress can bring such lawsuits in the federal 

courts, “[i]nstead of negotiating over information requests, 

Congress could simply walk away from the bargaining table 

and compel compliance in court.” Mazars, 140 S. Ct. at 2034. 

Nothing in the Constitution’s text or structure or our historical 

practice suggests that members of Congress can resort to the 

courts in order to shake documents loose from the Executive 

Branch.

Moreover, in the disputes between the political branches 

Congress is already vested with substantial powers to pressure

the Executive to disclose information. Congress may conduct 

oversight hearings, drawing attention to problems of 

administration. Congress may reduce or eliminate agency 

funding, or it may create or abolish programs. Congress may 

eliminate the statutory authority of an agency or mandate 

specific agency actions by statute. Congress may impeach and 

remove executive branch officials and may create new offices 

within the Executive Branch. The existence of these and other 

formidable powers strongly weighs against judicial review of 

ordinary informational disputes. Having delegated substantial 

authority and discretion to agencies, members of Congress 

understandably seek new ways to hold those agencies 

accountable. But Congress may provide accountability only 

8 That includes requests under Section 2954, which has never been 

successfully invoked in litigation since its passage in 1928. One 

district court, in a decision later vacated as moot, allowed such a suit 

to go forward, Waxman v. Evans, 2002 WL 32377615 (C.D. Cal. Jan. 

18, 2002), rev’d and vacated, 52 F. App’x 84 (9th Cir. 2002). The 

only other case to consider the question of standing under Section 

2954 held that the legislators had no standing to sue. Waxman v. 

Thompson, 2006 WL 8432224, at *6–12 (C.D. Cal. July 24, 2006).
24 

through the exercise of its legislative powers.

9

It cannot 

dragoon the federal courts into its investigations.

Third, finding disputes under Section 2954 to be 

justiciable encourages congressional aggrandizement because

Congress may deputize small subgroups of members to 

conduct investigations, not through the traditional legislative 

process, but through the federal courts. Empowered cabals may 

thus take aim at executive branch agencies.

10 Ordinary political 

squabbling will now entitle members of Congress to proceed to 

court. The Executive Branch then must face not one political 

rival, Congress, but countless combinations of lawmakers, as 

Section 2954 requires only seven members of a 45-person 

House committee or five members of a 14-person Senate 

committee. Furthermore, the panel majority’s reasoning 

provides no limit to Congress’ ability to assign such legislative 

powers to even smaller groups or a single member.

Consequently, members of Congress may enlist the courts in 

9 The Constitution vests the President with all executive power and 

therefore responsibility and accountability for the execution of the 

laws. U.S. CONST. art. II, § 1. Agency accountability to Congress 

exists only as an incident of the legislative power.

10 The Framers of the Constitution frequently expressed concern 

about legislation by “cabal” or “junto,” by which small selfinterested groups could corrupt the legislative power. See Rao, supra, 

at 29–30; see also JAMES MADISON, NOTES OF DEBATES IN THE 

FEDERAL CONVENTION OF 1787 376–77 (Gaillard Hunt & James 

Brown Scott eds., 1987) (warning of dangers by a “juncto” if a small 

number of legislators were permitted to govern); THE FEDERALIST 

NO. 55, at 288 (James Madison) (George W. Carey & James 

McClellan eds., 2001) (“[I]n all cases, a certain number at least 

seems to be necessary ... to guard against too easy a combination for 

improper purposes.”). 
25

their political conflicts and strategically threaten executive 

agencies with protracted litigation. 

Finally, dispersing the investigative power to small groups

of representatives or senators who may then bring lawsuits 

allows Congress to duck responsibility for oversight and 

investigations. While the House and the Senate regularly 

delegate authority to committees and subcommittees, the 

hierarchical structure of those committees creates a certain type 

of accountability in the leadership of the House and Senate. If

Section 2954 creates standing, a few representatives or senators

on their respective committees need not persuade the chairman 

or a committee majority; instead they need just a few likeminded and zealous members willing to go to court to obtain 

information from the Executive. Allowing standing could be 

“ruinous” and “[j]udicial enforcement of requests under § 2954 

will allow the minority party (or even an ideological fringe of 

the minority party) to distract and harass Executive agencies 

and their most senior officials.” Maloney, 984 F.3d at 75 

(Ginsburg, J., dissenting). The panel’s decision not only 

empowers small groups of lawmakers, it also frees House and 

Senate leadership from taking responsibility for their more 

fractious members or from being tasked with negotiating the 

requests of such members with the Executive Branch. 

The legislative power often expands in imperceptible 

ways. As James Madison warned, Congress ultimately has the 

upper hand and can “mask under complicated and indirect 

measures, the encroachments which it makes on the coordinate departments.” THE FEDERALIST NO. 48, at 257 (James 

Madison) (George W. Carey & James McClellan eds., 2001). 

Allowing standing under Section 2954 both empowers 

individual legislators and expands the reach of congressional 

investigations, while at the same time undermining Congress’ 

responsibility and accountability for incursions against the 
26

Executive. Such aggrandizement without accountability 

contravenes the Constitution’s vesting of the legislative, 

executive, and judicial powers in three separate and distinct 

departments of the federal government.

* * *

By holding that Section 2954 creates an informational 

right that may give rise to standing for members of Congress

against the Executive Branch, this court has conscripted the 

Judiciary in an inter-branch dispute far afield of the traditional 

domain of the Article III courts. For the foregoing reasons, I 

respectfully dissent from the denial of rehearing en banc.
GINSBURG, Senior Circuit Judge, statement regarding the 

court's denial of en banc review: 

Today the court declines to rehear a panel decision 

holding a nearly century-old statute, 5 U.S.C. § 2954, never 

before successfully invoked in court, grants any seven 

members of the House Oversight Committee a personal 

right to investigate the Executive – a right they have 

standing to enforce in court. Until now, before going to 

court, Committee Members seeking to force an Executive 

Branch official to produce documents had to get the full 

Committee to approve and, if that was not enough, get the 

House to issue a subpoena, which is enforceable in court. See 

Comm. on Judiciary of U.S. House of Representatives v. 

McGahn, 968 F.3d 755, 764-66 (D.C. Cir. 2020) (en banc). 

In the panel majority’s view, that is not, and for a century has 

not been, necessary: When seven Members of the Committee 

request documents pursuant to this statute, they are acting – 

oxymoronically – on their own behalf “to inform and 

equip them personally to fulfill their professional 

duties as Committee members.” Maloney v. Murphy, 

984 F.3d 50, 64 (D.C. Cir. 2020) (emphasis added). 

Therefore, the plaintiff-Members here each suffered a personal

injury when the General Services Administration limited his 

or her ability to peruse Executive Branch files for any “conflict 

of interest, mismanagement, or irregularity in federal 

contracting” and hence to recommend remedial legislation. 

As explained in my dissent, Id. at 70-76, the panel’s 

decision flies in the face of the Supreme Court’s clear teaching 

that “individual members lack standing to assert 

the institutional interests of a legislature.” Virginia 

House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 

1950, 1953-54 (2019) (citing Raines v. Byrd, 521 U.S. 811, 

829 (1997)). The upshot of this judicial affrontery is that a 

few members of the Oversight Committee can wield the 

investigative powers of the House and prevent a majority of 

the Committee and of the House from blocking an illadvised lawsuit. As the district 
2

court said, it will subject the Executive to “the caprice of a 

restless minority of Members,” Cummings v. Murphy, 321 F. 

Supp. 3d 92, 115 (D.D.C. 2018), who may represent no more 

than “an ideological fringe of the minority party.” Maloney, 

984 F.3d at 76 (Ginsburg, J., dissenting). This is sure to have 

ruinous consequences for the orderly functioning of 

government; it will require the courts to referee the daily 

disagreements, sure to multiply under this ruling, that arise 

over the production of documents to the Congress. For these 

reasons, I believe the en banc court should vacate the panel’s 

opinion and affirm the judgment of the district court rather than 

burden the Supreme Court with the obvious necessity of doing 

so.