Jason Leopold v. J. Thomas Manger, Chief, United States Capitol Police

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.

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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)).

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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.

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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

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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-

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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.

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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

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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

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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,”

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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

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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

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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.

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