(vi) H.Rep. No. 1497, 89th Cong., 2d Sess. 11-12, 1966 U.S. Code Cong. & Admin. News 2418, 2429 H.Res. No. 394 TREATISES K. Davis & R. Pierce, Administrative Law Treatise (1994) OTHER Office of Legal Counsel, General Accounting Office United States House of Representatives, Rules X and XI U.S. Const., art. I § 1 14 5 27 14 26 5 Pursuant to Federal Rule of Civil Procedure 56(a), Plaintiff James A. Leach, in his capacity as the Ranking Minority Member of the Committee on Banking, Finance and Urban Affairs of the United States House of Representatives ("the Committee"), moves for summary judgment that Defendants have illegally refused to produce certain documents, and for entry of an order directing production of those documents forthwith. The crux of this dispute is that Defendants have, since their creation five years ago, consistently produced documents pertaining to failed savings and loan institutions to the Ranking Minority Member and his staff. Their refusal to do so in this instance not only impedes Plaintiff's ability to perform his established oversight responsibilities, but also is arbitrary, capricious, and contrary to law. INTRODUCTION AND SUMMARY This is an action by the Ranking Minority Member of the Committee to obtain documents from two government agencies, the Resolution Trust Corporation ("RTC") and the Office of Thrift Supervision ("OTS"), within the oversight responsibilities of the Committee. Plaintiff's responsibility and authority to oversee Defendants derives from the power of Congress to legislate as set forth in Article I of the Constitution, from statutes, and from the Rules of the United States House of Representatives. Plaintiff is a Ranking Minority Member serving in a Congress controlled by the same party that controls the Executive Branch. For that reason, Plaintiff's rigorous discharge of his oversight responsibilities is particularly important to the citizens' confidence in their governmental institutions. - 2 When the same political party controls both Houses of Congress as well as the Presidency, the duty of the minority party to be vigilant in performing its oversight function is enhanced, not diminished. When Executive Branch agencies depart - apparently at the instruction and with the approval of a Committee Chairman -- from a longstanding precedent of providing information to the minority party, and when that change comes during an investigation that touches upon senior Administration officials, it would be a dereliction of duty for Plaintiff to ignore his oversight responsibilities by acquiescing. Accordingly, Plaintiff has no alternative but to seek judicial intervention. The documents at issue pertain to Madison Guaranty Savings & Loan Association of Little Rock, Arkansas ("Madison Guaranty"), which was placed in conservatorship and resolved by federal regulators at a cost to United States taxpayers of approximately $67 million. As with their supervision of other failed thrift institutions -such as Lincoln Savings & Loan Association of Irvine, California; Silverado Savings & Loan Association of Denver, Colorado; Centrust Savings & Loan Association of Miami, Florida; Columbia Savings & Loan Association of Beverly Hills, California; and others -Defendants' handling of Madison Guaranty has come under the scrutiny of the Committee in the performance of the Committee's oversight responsibilities. In the oversight matters described above, Defendants provided their most sensitive documents upon request to the Ranking Minority Member of the Committee and his staff. In the present case, however, Defendants have improperly asserted numerous grounds for refusing to provide critical documents concerning Madison Guaranty. Defendants' refusal to produce these documents after numerous written - 3 requests by the Ranking Minority Member of the Committee with oversight responsibilities for their activities is not only unprecedented, but also contrary to law, arbitrary, capricious, and an abuse of discretion. If countenanced, Defendants' refusal to provide the requested documents would undermine the ability of Plaintiff to perform the responsibilities imposed on him by the Constitution, statutes, and House Rules. In this action, Plaintiff seeks a declaration that Defendants' actions have violated Section 552(b) of the Freedom of Information Act, 5 U.S.C. § 552(b) ("FOIA"); have violated the Federal Home Loan Bank Act, as amended by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, 12 U.S.C. § 1441a(k) ("FIRREA"); and are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. § 706 ("APA"). In addition, Plaintiff seeks an order requiring that Defendants immediately produce the requested documents. BACKGROUND RTC, OTS, and Madison Guaranty Defendant RTC is charged by statute with managing and resolving all cases involving depository institutions insured by the Federal Savings & Loan Insurance Corporation for which a conservator or receiver was appointed between 1989 and 1995. One of those institutions is Madison Guaranty, which was placed in conservatorship by federal regulators in March 1989 and resolved by the RTC in November 1990. Defendant OTS is charged by statute with providing for the examination, safe and sound operation, and regulation of savings associations. One of the savings 4. associations regulated by the predecessor of Defendant OTS (the Federal Home Loan Bank Board) was Madison Guaranty. By admission of their most senior officials, both the RTC and the OTS have in their possession, custody, or control nonpublic documents concerning Madison Guaranty. As early as 1984, federal regulators noted severe problems with Madison Guaranty's management and financial condition, but Arkansas state regulators who then had supervisory authority over Madison Guaranty took no action. As a consequence, Madison continued its questionable practices, and grew from a $49 million thrift in 1984 to a $125 million institution in 1986, with a consequential increase in exposure to United States taxpayers. From the time Madison Guaranty was placed in conservatorship to date, its insolvency has cost United States taxpayers approximately $67 million. A number of questions have been raised by state and federal regulatory authorities, the media, and Congress concerning the practices of James and Susan McDougal, who controlled Madison Guaranty from approximately 1980 to 1986. Additional questions have been raised concerning the propriety of certain extensions of credit to persons closely affiliated with Madison Guaranty or its subsidiaries; the diversion of funds from Madison Guaranty for political and other illegal purposes; regulatory delays in closing Madison Guaranty; potential conflicts of interest in the representation of the Federal Deposit Insurance Corporation by the Rose Law Firm of Little Rock, Arkansas in a suit against Madison Guaranty's accountants, Frost & Company; and other matters that fall squarely within the oversight obligations of Plaintiff and the Committee. (Declaration of Joseph L. Seidel ("Seidel Decl.") ¶ 4.) |