Robert Schilling v. United States House of Representatives

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 13, 2023 Decided May 28, 2024
No. 22-5290
R OBERT S CHILLING,
APPELLANT
v.
UNITED S TATES H OUSE OF R EPRESENTATIVES , ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-00162)
Matthew D. Hardin argued the cause and filed the briefs
for appellant. Christopher C. Horner entered an appearance.
Bradley Craigmyle, Associate General Counsel, U.S.
House of Representatives, argued the cause for appellees. With
him on the brief were Matthew B. Berry, General Counsel,
Todd B. Tatelman, Deputy General Counsel, and Rachel A.
Jankowski, Assistant General Counsel.
Before: P ILLARD , W ILKINS and C HILDS , Circuit Judges.
Opinion for the Court filed by Circuit Judge C HILDS .

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C HILDS , Circuit Judge: In the federal courts, “the common
law bestows upon the public a right of access to public records
and documents.” Wash. Legal Found. v. U.S. Sent’g
Comm’n (“WLF II”), 89 F.3d 897, 902 (D.C. Cir. 1996). This
case arises from journalist Robert Schilling’s efforts to obtain,
pursuant to the common law right of access, certain records
related to the Committee on Oversight and Reform of the
United States House of Representatives’ (“the Committee”)
use of outside consultants as part of a congressional
investigation. Schilling filed a petition in the district court,
seeking to compel the release of the requested records under
the common law right of access. The district court dismissed
his amended petition as jurisdictionally barred by the
Constitution’s Speech or Debate Clause. He now appeals.
We do not reach the question of whether the Speech or
Debate Clause bars Schilling’s claim, however, because we
affirm the district court’s dismissal on sovereign immunity
grounds. As we explain in Leopold v. Manger, No. 22-5304,
slip op. at 9 (D.C. Cir. May 28, 2024), the Larson-Dugan
exception to sovereign immunity is triggered when a defendant
is alleged to have violated their duty under the common law
right of access. See WLF II, 89 F.3d at 901–02. But here,
Schilling’s claim lacks merit because the documents he seeks
are not “public records.” Thus, there is no duty imposed on
Congress to grant Schilling’s request, the Larson-Dugan
exception does not apply, and Schilling’s claim is barred by
sovereign immunity.
I. FACTS AND PROCEDURAL HISTORY
Appellant Robert Schilling is the host of “The Schilling
Show” radio program and podcast, and he is the founder and
editor of a “news, analysis, and commentary website,
‘SchillingShow.com.’” First Amended Petition for a Writ of

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Mandamus (“Pet.”) ¶ 7 (Joint Appendix (“J.A.”) 8). In late
2021, Schilling, relying on the common law right of access,
sought records related to work performed by external
consultants in connection with Committee hearings on climate
change. Schilling alleged that the hearings were the “latest in
a series of public-private collaborations” to target “political
opponents of the climate policy agenda” and that the requested
records would show that the Committee used unpaid consulting
services to prepare for the hearings, in violation of federal law
and the House of Representative (“House”) rules. Pet. ¶¶ 19,
52–59, 63 (J.A. 14, 23–25, 27). In particular, Schilling asked
the Committee for: 1) emails and messages between two
Committee leaders, a staff member, and private individuals
whom Schilling believes acted as consultants, 2) emails and
messages of individuals who used certain email address
domains, and 3) recordings of any meetings including those
same parties.
In January 2022, Schilling filed what was styled as a
petition for writ of mandamus and declaratory relief against
then-Speaker of the House Nancy Pelosi, the Clerk of the
House, and the Chief Administrative Officer of the House in
the district court. Schilling sought to compel the release of the
records under the common law right of access. In May 2022,
Schilling filed an amended petition that added the House and
the Committee as defendants (collectively, “the House
defendants”). He again asserted that the House defendants had
violated their obligations under the common law right of access
by failing to grant his request and accurately compile or
maintain the requested materials. The House defendants
moved to dismiss the amended petition, arguing that the district
court lacked jurisdiction because sovereign immunity and the
Speech or Debate Clause of the Constitution bar any claim of a
common law right of access to the Committee’s records. The
district court granted the House defendants’ motion to dismiss,

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holding that the Speech or Debate Clause “acts as an absolute
jurisdictional bar to suits seeking compelled disclosure of
materials related to legislative activity.” Schilling v. Speaker
of the U.S. House of Representatives, 633 F. Supp. 3d 272, 273
(D.D.C. 2022). Schilling timely appealed.
II. ANALYSIS
We have jurisdiction to review the district court’s final
order dismissing Schilling’s complaint under 28 U.S.C. § 1291.
We review the district court’s dismissal de novo, and we may
affirm on the alternate ground of sovereign immunity. See
Rangel v. Boehner, 785 F.3d 19, 22 (D.C. Cir. 2015).
Absent an applicable exception, claims against the federal
government and its actors are jurisdictionally barred by
sovereign immunity. Sovereign immunity is derived from the
British common law doctrine that the King was infallible. See
Edwin M. Borchard, Government Liability in Tort, 34 Yale L.J.
1, 2, n. 2 (1924). A suit is against the sovereign if “the
judgment sought would expend itself on the public treasury or
domain, or interfere with the public administration,” Land v.
Dollar, 330 U.S. 731, 738 (1947), or if the effect of the
judgment would be to “restrain the Government from acting, or
compel it to act.” Larson v. Domestic & Foreign Commerce
Corp., 337 U.S. 682, 704 (1949). Today, the doctrine stands
for the proposition that the government cannot be sued without
its consent, i.e., without a waiver of immunity. United States
v. Mitchell, 463 U.S. 206, 212 (1983).
Typically, a “waiver of the Federal Government’s
sovereign immunity” is demonstrable through clear statutory
text. Lane v. Pena, 518 U.S. 187, 192 (1996). On more rare
occasions, however, we reject the assertion of sovereign
immunity if a plaintiff brings a suit for “injunctive [or]

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declaratory relief” against a federal officer for an ultra vires
act. See Pollack v. Hogan, 703 F.3d 117, 120 (D.C. Cir. 2012).
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); see also Larson,
337 U.S. at 689; Dugan v. Rank, 372 U.S. 609, 621–22 (1963);
Leopold, slip op. at 6, 8–9. This exception to sovereign
immunity is known as the Larson-Dugan exception. Larson-
Dugan is triggered here because Schilling alleges that by
failing to produce the records he requested, the House
defendants acted outside of the scope of their duty of disclosure
imposed by the common law. See Leopold, slip op. at 9.
A viable common law right of access claim must satisfy a
two-part test. First, we determine whether the requested
document is a “public record.” Wash. Legal Foundation v. U.S.
Sent’g Comm’n (“WLF I”), 17 F.3d 1446, 1451 (D.C. Cir.
1994). A public record “is 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.” WLF II, 89 F.3d at 905. If
we find that the document qualifies as a public record, then we
must “balance the government’s interest in keeping the
document secret against the public’s interest in disclosure.”
WLF I, 17 F.3d at 1451–52. Our Court has recognized that the
public’s interest “in keeping a watchful eye” is “fundamental
to a democratic state.” WLF II, 89 F.3d at 905 (internal
quotation marks omitted).
The district court queried whether the common law right
of access “applies to Congress at all.” Schilling, 633 F. Supp.
3d at 284 n.2 (emphasis in the original). Following this
Circuit’s precedent, we reiterate that this right “extends . . . to
the ‘public records’ of all three branches of government,” Ctr.
for Nat’l Sec. Stud. v. Dep’t of Just., 331 F.3d 918, 936 (D.C.

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Cir. 2003) (quoting WLF II, 89 F.3d at 903); see also Nixon v.
Warner Commc’ns Inc., 435 U.S. 589, 597 (1978), including
the Legislative Branch. See Leopold, slip op. at 9–10.
However, we need not answer whether the common law right
of access applies to the House itself as opposed to merely
certain entities within the Legislative Branch (i.e., the U.S.
Capitol Police, the Government Accountability Office, the
Architect of the Capitol, the Library of Congress, and other
entities and offices that support Congress), because we hold on
the merits that even if Larson-Dugan is satisfied under these
circumstances, Schilling’s claim fails, as the documents he
seeks are not public records.
Schilling requests access to emails and recordings of
meetings between Members of Congress, Committee staff, and
outside consultants in preparation for a hearing on climate
change. As in WLF II, these records “were not created and kept
for the purpose of memorializing or recording an official
action, decision, statement, or other matter of legal
significance.” 89 F.3d at 906. Rather, the emails and meeting
recordings were preparatory materials for a committee hearing
and are therefore informal preliminary steps in a congressional
investigation, not the recording of an “official … decision.” Id.
Because the documents are not public records, we need not
balance the House defendants’ interest in the records’
confidentiality against the public’s interest in their disclosure.
We hold that Schilling has not alleged a viable claim of a
common law right of access, so there is no Larson-Dugan duty
imposed on Congress. The claim is thus barred by sovereign
immunity.
*****
For the foregoing reasons, we affirm the district court’s
dismissal of Schilling’s petition.
So ordered.

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