future hearings, is contradicted by his own repeated assertions that his sole reason for requesting the documents at issue is to prepare for any hearings that may ultimately be held concerning Madison Guaranty Savings & Loan ("Madison"). Rep. Leach's entire argument regarding his purported "oversight obligations" under FIRREA is based on an alleged nexus between oversight 3 hearings and the need for documents to prepare for those hearings. Thus, if anything is confused, it is Rep. Leach's own arguments.* Second, Rep. Leach argues that Defendants have misread the seemingly plain language of H.R. Res. 394. Opposition at 4. Rep. Leach's interpretation of H.R. Res. 394 is that it does not apply to requests for documents, and does not provide the exclusive mechanism through which Madison issues may be investigated. Id. However, Rep. Leach has acknowledged in his 2 See Complaint at ¶ 24 ("For Plaintiff to be able to fulfill his statutory and constitutional responsibilities as Ranking Minority Member of the Committee, it is imperative that he receive well in advance of the statutory oversight hearing and the hearings required by House Resolution No. 394 all documents in Defendants' possession concerning Madison Guaranty."). Accord Plaintiff's Memorandum in Support of Motion for Summary Judgment ("Plaintiff's Memorandum") at 6 ("Plaintiff strongly believes that the documents at issue in this case will be a central focus of that hearing."); Id. at 8 ("[I]t is in preparation for those [proposed Madison] hearings and the hearings mandated by FIRREA that [Rep. Leach] has requested the documents at issue here."). 3 Opposition at 34-36. Defendants originally provided Rep. Leach with more than 8,000 pages of non-exempt documents. Subsequently, Defendant OTS learned of some additional nonexempt documents that had not yet been provided, and on June 15, those additional documents were provided to Rep. Leach as well. * Rep. Leach's assertion that Independent Counsel Fiske has not expressed concern regarding the premature release of documents is contradicted by the very statement of Mr. Fiske that Rep. Leach quoted in his brief: "Such interviews [by the Committee of witnesses central to the Fiske investigation] could jeopardize our investigation in several respects, including... the premature disclosures of the contents of documents . . . ." Letter from R. Fiske to Hon. J. Leach, dated March 7, 1994. Rep. Leach's interpretation of that statement as applying only to hearings is directly refuted by a subsequent letter from the Independent Counsel to Senator D'Amato, which states: "Because of the risk of such documents becoming public prior to the completion of our investigation, I would prefer that you defer obtaining those documents at this time." Letter from R. Fiske to Hon. A. D'Amato, dated May 26, 1994 (attached as Ex. A) (emphasis added). own Complaint that H.R. Res. 394 establishes the procedures for oversight hearings on Madison. Complaint at 22. Further, Rep. Leach's interpretation of H.R. Res. 394 is contradicted by the actions to implement the Resolution recently taken by the bipartisan House Leadership, which has agreed to hold limited hearings, "consistent with the provisions of H.R. Res. 394," noting that the Independent Counsel "has specifically asked the bipartisan leadership to refrain from Congressional inquiry into the other aspects of his investigation for now." See Joint Statement entitled House Hearings on Whitewater, dated June 15, 1994 ("Joint Statement") (attached as Ex. B). Third, Rep. Leach argues that, in prior legislative investigations of other failed savings institutions where there were ongoing criminal and civil investigations, Defendants did not withhold documents from the Ranking Minority Member of the House Banking Committee. Opposition at 5. However, even if true, that assertion is not material in this case, because the factual situation in which Rep. Leach's request for documents arises here is different. In each of the prior instances cited by Rep. Leach, the request from the Ranking Minority Member was made after a request by the Committee Chairman, or in connection with a Committee hearing or investigation that was already in progress. See Joint Statement of Facts at I., ¶¶ 11, 12, 13, & 14. In those instances, 5 U.S.C. § 552(d) was applicable, because the request was a Committee request, and Defendants had no discretion to consider withholding documents under FOLA. In contrast, in this case, it is undisputed that neither the House Banking Committee nor the House as a whole has yet scheduled any hearings relating to Madison or issues raised by the documents requested, and Defendants have not received any authorized request for documents from the Committee Chairman or the House as a whole. Joint Statement of Facts at II.A., ¶¶ 1, 2, & 4. Therefore, Section 552(d) does not apply, and the statutory FOLA exemptions are applicable. Fourth, Rep. Leach asserts that "Defendants have been unable to unearth a single example of their refusal to grant the Ranking Minority Member of the Committee access to the documents concerning a specific failed thrift institution." Opposition at 5-6. However, that assertion misses the point. The real point is that Rep. Leach has been "unable to unearth a single example" of an instance in which Defendants have produced documents exempt from disclosure under FOLA to a Member of Congress without some evidence that they had been requested pursuant to the authority of the Committee, to obtain information necessary to fulfill the oversight responsibilities delegated to that particular Committee under the House Rules. In all of the prior instances cited by Rep. Leach, there was a Congressional authorization in the form of a formal investigation or other official action duly authorized and commenced by the Committee, and Defendants understood that the documents requested were within the authorized scope of the Committee action. In this case, although Rep. Leach asserts in his Opposition, at 6, that he has requested the documents in connection with "the House Banking Committee's statutorily mandated, semi-annual RTC Oversight Hearing," his Committee Chairman has expressly stated that Madison and related subjects will not be a part of any such hearing. See Letters to R. Altman and J. Fiechter from Hon. H. Gonzalez, dated March 14, 1994 (Exs. 25 & 26 to Plaintiff's Memorandum). Further, it is undisputed that no RTC Oversight Hearing has been scheduled, and that, as of this date, no hearings relating to Madison have been scheduled by the Committee. Joint Statement of Facts at I., 10. Thus, if the facts relating to prior requests by a Ranking Minority Member are relevant to this case at all, they unequivocally support Defendants, not Rep. Leach. DC01:35006 In his Opposition, Rep. Leach contends that dismissal of his suit would effectively "preclude any Member of Congress from ever seeking judicial review of any agency action." Opposition at 7. In this case, however, no one has argued that a Member of Congress cannot obtain judicial review of an agency's application of particular FOIA exemptions to particular documents. However, that is not what Rep. Leach's Complaint is about. Rather, the issues in this case, as defined by Rep. Leach himself, are: "Who is Congress?" and "Who speaks for Congress?" Those are the issues that Rep. Leach is asking this Court to decide, and they would require this Court to referee one of the most hotly contested political disputes of recent times. Rep. Leach now attempts to downplay those questions by arguing that he has asked the Court only to determine his rights under FOIA, the APA, and FIRREA, and that a decision on his rights under those statutes will not interfere with the activities of Congress. Opposition at 7-8. However, once again, that argument by his lawyers ignores Rep. Leach's own prior characterization of this dispute: 5 In a footnote, Rep. Leach asserts that if his motion for summary judgment is denied, he intends to challenge Defendants' application of the specific FOLA exemptions in this case. Opposition at 1 n.1. However, Rep. Leach's Complaint never raises that issue. Therefore, if Defendants' motion for summary judgment is granted, the Complaint should be dismissed. 6 See Statements of Rep. Leach, reported in Glenn R. Simpson, Leach Files Lawsuit Over Right To Files, Roll Call, May 12, 1994 (attached as Ex. C); Letter from Hon. J. Leach to J. Barker, dated May 11, 1994, at 3 (Ex. 4 to Defendants' Memorandum). See also Plaintiff's Memorandum at 17 ("with one party controlling both Houses of Congress as well as the Executive Branch, a ruling that the Ranking Minority Member of a Committee can perform his or her oversight responsibilities only to the extent that the Chairman of the Committee is willing to allow issuance of subpoenas or other process in the Committee's name would create a truly untenable situation."). It should be noted that the Minority is currently engaged in one of See Letter from Rep. Leach to J. Barker, dated May 11, 1994 at 4 (Ex. 4 to Defendants' Memorandum). It is well known that the issue of the timing and scope of Congressional oversight of Madison and related matters is currently the subject of an intense political debate between the Majority and Minority parties in Congress.' This Court may take judicial notice of that fact." 7 See 140 Cong. Rec. S6819 (daily ed. June 14, 1994) (statement of Sen. Mitchell) ("the issue today is whether the Senate will meet its constitutional obligations in a serious and responsible manner, or whether the Senate will participate in a political circus.") (attached as Ex. D); 140 Cong. Rec. S6680 (daily ed. June 9, 1994) (statement of Senator D'Amato) ("I also think in fairness to the whole congressional body, we should recognize there are politics at play here. It would be fallacious for one to say, however, that one side is engaged in politics and the other is not.") (attached as Ex. E); David E. Rosenbaum, Washington Talk: Play It Again. Congress. This Time. Whitewater, The New York Times, June 17, 1994, at A17 ("The hearings on the Whitewater affair in the Senate and House of Representatives this summer will not be fact-finding sessions so much as a political scrimmage.") (attached as Ex. F); Charles V. Zehren, Whitewater Sequel; Hearings Loom on Issue Clintons Would Like To Kill, Newsday, May 31, 1994 at 17 ("We all know what is going on... ... This is raw partisan politics, trying to embarrass the President . . . . ") (statement of Senate Majority Leader George Mitchell) (attached as Ex. G); Helen Dewar, Dole Wars Democrats on Whitewater, The Washington Post, June 22, 1994 at A5 (reporting political tensions arising in Senate over scope of Whitewater hearings) (attached as Ex. H). * Under Fed. R. Evid. 201, judicial "notice may be taken of facts... where the fact is 'not subject to reasonable dispute,' either because it is 'generally known within the territorial jurisdiction,' or is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Castillo-Villagra v. INS, 972 F.2d 1017, 1026 (9th Cir. 1992) (quoting Fed. R. Evid. 201(b)). See also Nationalist Movement v. City of Cumming, 913 F.2d 885, 893 (11th Cir. 1990) ("The district judge's observations [of violent protest (continued...) |