CAN THE GENERAL ACCOUNTING OFFICE SUE VICE-PRESIDENT CHENEY FOR POSSIBLY ENRON-RELATED DOCUMENTS?
Not According To Federal Judge Bates So What's Next For GAO?

By JOHN W. DEAN
Friday, Dec. 20, 2002

On December 9 of this year U.S. District Court Judge John Bates dismissed the high profile lawsuit filed by David Walker, the Comptroller of the General Accounting Office, against Vice President Dick Cheney.

Walker filed the lawsuit when Cheney refused to turn over information requested about the names of those who were involved with his National Energy Policy Development Group. (My prior column on this suit describes in more detail the particulars and relevance of the requests - the responses to which might well have implicated Cheney in the Enron scandal.)

Walker said he was acting for Congress, which under its oversight powers had a right to the information. Did Congress really have such a right, and could Walker sue to vindicate it? Cheney said let's find out - sue me.

Walker did, and lost. What does this mean, and what's next?

Judge Bates's Ruling: No Standing To Sue

The first sentence of Judge Bates's opinion summarizes the situation: "This case raises compelling statutory and constitutional questions concerning the authority of the Comptroller General, and hence Congress, to require the Vice President to produce information relating to the President's decision-making on national energy policy."

If it is at all possible, however, federal courts seek to avoid such "compelling" statutory and constitutional questions; they'd rather interpret settled law than make new law. So avoid the question is exactly what Judge Bates did. He found an out. He simply tossed the Comptroller out of court.

Judge Bates held that under the U.S. Supreme Court precedent Raines v. Byrd, the Comptroller has no standing to sue the Vice President (and by implication no standing to sue anyone else in the Executive Branch). "Standing" is legal parlance for the right of a particular plaintiff to sue a particular defendant; a suit not only must be authorized by law, it must also be brought by the proper plaintiff if it is to proceed.

Judge Bates said, in essence, Mr. Comptroller, you are only an agent for the Congress; therefore, you have suffered no real injury by the Vice President's refusal to produce information. In addition, Mr. Comptroller, you have provided the court no information suggesting that the folks you work for on Capitol Hill, my constitutional co-equals known as the Congress, are in any way injured by your failing to get the requested information from the Vice President. And unless plaintiffs (or those they stand in for) have suffered injury, they have no standing to sue.

The Impact Of Judge Bates's Ruling

Judge Bates has virtually gutted the enforcement authority of the Comptroller General under the General Account Office's authorizing statute. Although the judge did not rule that the statute was unconstitutional, he drained it of virtually all of its force.

The Comptroller filed his lawsuit pursuant to a 1980 law in which Congress authorized him to bring such an action against "the head of [an] agency to produce a record." As prelude to such a lawsuit, the Comptroller is required to follow a number of formal procedures (make the request in writing, plus notify the President, the Director of the Office of Management and Budget, the Attorney General, and the Congress). Comptroller Walker followed all the necessary steps to the letter.

The Vice President's lawyers (no less than the Solicitor General and his deputies) strongly argued that the Vice President was not the "head" of any "agency," as set forth in the statute authorizing the lawsuit, and thus that the statute did not authorize actions against the Vice President. Judge Bates did not address this question, as was proper since he held the GAO had no right to raise it in the suit.

The Comptroller also argued that he was an agent authorized by the Congress to gather such information for the Congress, and that Congress had the power to delegate this function of gathering information to the Comptroller. Judge Bates similarly ignored this contention as well - again properly, since he'd held that the GAO was not properly in court on this issue.

Judge Bates looked through all these arguments to the Supreme Court's ruling in Raines. On the strength of Raines, he decided he did not need to do any statutory interpretation, or resolve the constitutional powers of Congress to delegate its oversight authority. The case, he concluded, was simple: The Comptroller did not have standing, so none of these arguments even had to be considered by the court.

A Closer Look At Standing: Raines v. Byrd

Was Judge Bates right on the standing issue? To decide that, a closer look at standing doctrine is necessary.

Under Article III of the Constitution, federal courts can only deal with "cases" and "controversies." To go to court, a person must have a personal stake in the case. As noted above, that is called standing.

The law of standing for committees and members of Congress to sue in federal court was largely controlled by decisions of the U.S. Court of Appeals for the District of Columbia Circuit, until the U.S. Supreme Court stepped into the fray in 1997 with its ruling in Raines v. Byrd, which now provides the last word on the subject

That Rehnquistian ruling seeks to turn the relationship between the branches of government back toward the mid-Nineteenth Century, a time with which the Chief Justice is apparently more comfortable.

In Raines, Senator Robert Byrd (D. WVA), joined by five colleagues from the Senate and two from the House of Representatives, filed an action against Fred Raines, the Director of the Office of Management and Budget and others. The purpose of the suit was to test the constitutionality of the Line Item Veto Act after it was adopted by Congress.

Senator Byrd and the other plaintiffs were proceeding pursuant to an expressed grant of authority to file the lawsuit - a grant which was set forth in the Line Item Veto Act itself. But Chief Justice Rehnquist disposed of the notion that Congress could willy nilly provide jurisdiction by statute.

Indeed, Rehnquist had so little respect for this argument that he dismissed it in a footnote.

Rehnquist Relies on the Gladstone Case - and On His Own Historical Account

The case that Rehnquist relies on in his footnote is Gladstone, Realtors v. Village of Bellwood. Gladstone is a civil rights ruling to which Rehnquist himself dissented. In his dissent, while disagreeing with the result, Rehnquist agreed, at least, with the Court's reaffirming its position on standing: "In no event ... may Congress abrogate the Art. III minima: A plaintiff must always have suffered 'a distinct and palpable injury to himself.'" Put more simply, Congress can never lower the requirements for standing beyond the floor the Constitution imposes.

In Raines, Rehnquist said that Byrd and the other members of Congress had suffered no personal injury by the passage of the Line Item Veto Act, which they had all opposed. Nor had Congress done anything to them personally, Rehnquist suggested.

When Congressman Adam Clayton Powell lost his seat (thus losing his salary) he'd had standing to challenge the loss - as Powell v. McCormack had held. But, Rehnquist reasoned, Byrd and the others, in contrast, had lost neither seat nor salary - nor, apparently, much else..

Rehnquist writes in Raines that, based on his study, that "[i]t is evident from several episodes in our history that 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."

It may be that Rehnquist is saying to Congress: don't come crying to the federal courts when the Executive Branch doesn't proceed as wanted. Impeach the bastards! That is certainly one way to read Raines, and one that is consistent with the Chief Justice's philosophy that federal courts should not resolve political disputes between the other branches of government

Few would object to reasoning that keeps federal courts out of politics. But the problem is that truly doing so, in all cases, would give the courts nothing to do. Virtually every matter of public policy and the administration of government is, reduced to its basics, political.

What Can, Or Should, The Comptroller Do Next? Appeal!

As I wrote in the prior column on GAO v. Cheney, the standing argument was the Vice President's strongest. It did not take a crystal ball to see this ruling coming, after reading Raines and other cases evidencing how eager the High Court's majority is to neuter the Congress.

Clearly, the Comptroller must appeal. As he stated in his brief, the dismissal of his lawsuit against the Vice President, should it stand, would permanently "shackle Congress's [investigative] power in a [remarkable] and unprecedented manner."

The focus of the appeal will be on the applicability of Raines to the Comptroller and the GAO. Although Judge Bates ultimately rejected the arguments made by the Comptroller that Raines does not require that GAO v. Cheney be dismissed, they are solid arguments that the appeals court may well accept.

If Congress cannot delegate its oversight powers to the GAO, as it has in the Budget Act of 1921, then it cannot operate by its committee system either - after all, committees, too, are a structure to delegate authority.

It is true that there are radical conservative constitutional scholars who contend that Congress's committee system is unconstitutional. But so far, the U.S. Supreme Court has dared not push the envelope that far, and it is very unlikely to do so in the future..

For this reason, Congress, for its own institutional sake, must insist that the Comptroller vigorously appeal this lower court ruling all the way to the Supreme Court, if necessary.

The present situation is absurd. Under Judge Bates's ruling, every reader of this column has more power under the Freedom of Information Act to compel information from the Vice President, and the entire executive branch - via the federal courts if necessary - than the Comptroller General of the United States. Surely that can't be right.

The decision whether to appeal Judge Bates's ruling is for David Walker, as Comptroller, to make. In making the decision, he should pay no heed to a partisan Congress that many not want the Vice President embarrassed by producing documents. Instead, he should dust himself off, and head back to the U.S. Court of Appeals for the District of Columbia Circuit for the next round.


John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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