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For S.B. 8, AG Garland Reversed DOJ's Longstanding Position About Equitable Causes of Action

In June 2021, the Garland DOJ agreed with the proper reading of Grupo Mexicano. But that position changed for S.B. 8.


During the prior administration, the House Judiciary Committee sought to compel WH Counsel Don McGahn to testify. District Court Judge Kentanji Brown Jackson ruled in favor of the House. There was not statutory cause of action. But the court found that the House had an equitable cause of action to compel McGahn's testimony. The district court did not even cite Grupo Mexicano.

On appeal, DOJ argued that the plaintiffs lacked a cause of action, based on Grupo Mexicano:

Moreover, Congress's grant of equity jurisdiction to the federal courts is limited to the relief that "was traditionally accorded by courts of equity," and thus a "substantial expansion of past practice" is "incompatible with [the courts'] traditionally cautious approach to equitable powers, which leaves . . . to Congress" such policy judgments. Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S.308, 318-19, 329 (1999). Given the manifest separation-of-powers concerns here, Congress must decide whether to provide the Committee with the unprecedented right to sue to enforce a congressional subpoena seeking testimony from an individual on matters related to his duties as an Executive Branch official serving as a close advisor to the President.

The D.C. circuit panel agreed with DOJ that the plaintiffs lacked an equitable cause of action:

The Committee next suggests that—even if Article I alone doesn't provide a cause of action—the court may exercise its "traditional equitable powers" to grant relief. Ziglar , 137 S. Ct. at 1856. But even those equitable powers remain "subject to express and implied statutory limitations," Armstrong v. Exceptional Child Ctr., Inc. , 575 U.S. 320, 327, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015), and are further limited to relief that was "traditionally accorded  by courts of equity," Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc. , 527 U.S. 308, 319, 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999). Again, "implied statutory limitations" foreclose suits by the House and suits that implicate a governmental privilege; this one checks both boxes, so Congress itself has precluded us from granting the requested relief to the Committee.

In any event, there is also nothing "traditional" about the Committee's claim. The Committee cannot point to a single example in which a chamber of Congress brought suit for injunctive relief against the Executive Branch prior to the 1970s. True enough, the en banc court rejected McGahn's argument that "federal courts have not historically entertained congressional subpoena enforcement lawsuits," but the full court also recognized the "relative recency" of lawsuits to enforce subpoenas. McGahn , ––– F.3d at ––––, 2020 WL 4556761, at *14. When determining the scope of our equitable authority, however, "relatively recent" history isn't enough. In Grupo Mexicano , the Supreme Court explained that we "must ask whether the relief" that the Committee requests "was traditionally accorded by courts of equity ." 527 U.S. at 319, 119 S.Ct. 1961 (emphasis added). The relief requested here—an injunction issued against a former Executive Branch official in an interbranch information dispute—cannot possibly have been traditionally available in courts of equity, because the "separate systems of law and equity" in our federal system ceased to exist in 1938. SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC , ––– U.S. ––––, 137 S. Ct. 954, 960, 197 L.Ed.2d 292 (2017). The Committee's smattering of examples from the 1970s comes (at least) thirty years too late.

Ultimately, the dispute over McGahn's testimony settled. In June 2021, the Garland Justice Department reached a settlement with the Democratic-controlled House. But the filing stated that DOJ still agrees with the D.C. Circuit's finding that the plaintiffs lacked an equitable cause of action:

In the motion, the Committee will simultaneously ask the D.C. Circuit to vacate the three-judge panel opinion that it agreed to rehear en banc. See Committee on Judiciary of U.S. House of Representatives v. McGahn, 973 F.3d 121 (D.C. Cir. 2020). The Committee will represent in the motion that the Executive Branch believes that the panel opinion was correct but, in the interest of accommodation between the branches, agrees that the Court should vacate the panel opinion.

Here, both the Trump and Biden Administrations adopted the traditional view of Grupo Mexicano. With good reason, DOJ routinely argues that Plaintiffs lack an equitable cause of action to challenge federal actions.

Yet, in United States v. Texas, the Garland DOJ abruptly abandoned that position. Indeed, DOJ's motion for a preliminary injunction and response did not even cite Grupo Mexicano or Armstrong. Rather, it relied on a strained understanding of a cause of action based on In re Debs. Ultimately, Judge Pitman's ruling had to disregard Grupo Mexicano.

The Plaintiffs' lack of a cause of action provides the most straightforward path to stay the district court's injunction.