banc or the Supreme Court.") (Edwards, J., concurring). The two cases cited by Rep. Leach are simply examples of instances in which the doctrine does not apply.

In Michel v. Anderson, 817 F. Supp. 126 (D.D.C. 1993), aff'd, 14 F.3d 623 (D.C. Cir. 1994), as Rep. Leach acknowledges, Members of Congress challenged the constitutionality of a House Rule. See 817 F. Supp. at 140. As explained in Vander Jagt v. O'Neill, 699 F.2d 1166, 1173 (D.C. Cir.), cert. denied, 464 U.S. 823 (1983), unlike the situation presented here, courts always retain jurisdiction to decide whether a House Rule is constitutional. 699 F.2d at 1173; see also Cable News Network v. Anderson, 723 F. Supp. 835, 838 (D.D.C. 1989) ("internal rules of the House of Representatives are not immune from judicial review for compliance with constitutional requirements"). Further, the court declined to dismiss the action under the remedial discretion doctrine because non-Congressional parties were involved, and their interests were also at issue. See Michel, 14 F.3d at 628.10 In this case, Rep. Leach does not argue that the House Rules, H.R. Res. 394 or the Joint Statement are unconstitutional, and in this case, no private parties are involved. Therefore, the exception to the remedial discretion doctrine enunciated in Michel is irrelevant.

Similarly, in Bliley v. Kelly, No. 92-7112, slip op. (D.C. Cir. May 20, 1994) (Ex. I to the Opposition), the D.C. Circuit did not apply the remedial discretion doctrine because there was no collegial remedy available to the Congressional plaintiffs. See slip. op. at 6.11

10 Rep. Leach contends that "Courts are hesitant to dismiss Congressional-plaintiff actions in situations in which no private plaintiff could bring a similar claim." Opposition at 16 n.8. That argument has already been rejected by the D.C. Circuit. Melcher, 836 F.2d at 565 ("Lest there be any lingering doubt, we expressly disapprove Riegle's intimation in dicta that the standing of private plaintiffs to bring a particular action affects the propriety of our entertaining the same challenge when brought by a legislator.").

"In Bliley, the Congressional plaintiffs challenged the implementation of legislation in the District of Columbia without prior review by Congress. Slip op. at 5. The D.C. Circuit (continued...)

DC01:35006

-12

Conversely, in this case, Rep. Leach can obtain a collegial remedy simply by persuading the House Leadership, or the Chairman of his Committee, or the Committee as whole, to authorize his request. Therefore, the Court should exercise its discretion to decline to review Rep. Leach's Complaint, and should leave this political dispute to be resolved internally by the House of Representatives.

SECTION 552(d) _DOES NOT APPLY BECAUSE REP LEACH IS NOT "CONGRESS."

As Section II.A.1. of Defendants' Memorandum in Support of Summary Judgment points out, the plain language of 5 U.S.C. § 552(d), as well as its legislative history, make clear that the statute refers to "Congress" as an institution, not to individual "Members." In his Opposition, Rep. Leach argues that the plain language of the statute does not mean what it says, and that the word "Congress" should be interpreted broadly to include Members of Congress who are acting individually. Opposition at 17. Rep. Leach thus asks this Court to adopt an interpretation of the statute that has no limiting principle, and simply makes no sense in the real world. Rep. Leach would have this Court hold that the statute provides every Member of Congress who purports to act in an official capacity with unhindered access to every government document, including for example, information about political opponents, or law enforcement

affirmed the district court's refusal to dismiss the Complaint under the remedial discretion doctrine because it agreed with the district court that the collegial remedy of introducing legislation to repeal the earlier enactment would not restore to "the plaintiffs their right to prior approval of it."" Id. at 6 (quoting Bliley v. Kelly, 793 F. Supp. 353, 355 (D.D.C. 1992), aff'd, No. 92-7112, slip op. (D.C. Cir. May 20, 1994)). In Bliley, unlike this case, there was no way that Congress itself could provide the plaintiff with a remedy.

information relating to the Member requesting the information. 12 The clear language of the statute and the legislative history demonstrate that Congress did not intend that result.

As the Supreme Court has consistently held, in cases turning upon statutory construction, the first inquiry is whether the plain language of the statute is unambiguous. If so, then the court must give effect to the plain language. Deal v. United States, U.S. 113 S. Ct. 1993, 1998 (1993) ("Once text is abandoned, one intuition will serve as well as the other. We choose to follow the language of the statute. . . ."); Mertens v. Hewitt Assocs.. U.S. , 113 S. Ct. 2063, 2070 (1993) ("The authority of courts... is not the authority to revise the text of the statute.").

1

Thus, before a court sets out to interpret a statutory provision, it must first determine whether the statutory language, "at least to some degree, [is] open to interpretation." United States v. Ron Pair Enters., 489 U.S. 235, 245 (1989). Where the language is clear, and not open to interpretation, "[t]here is no reason to suspect that Congress did not mean what the language of the statute says." Id. at 246. As the Supreme Court has instructed:

We have stated time and again that courts must presume that a
legislature says in a statute what it means and means in a statute
what it says.... When the words of a statute are unambiguous,
then, this first canon is also the last: "judicial inquiry is
complete."

Connecticut Nat'l Bank v. Germain, U.S. 112 S. Ct. 1146, 1149 (1992). In this case,

the plain language of Section 552(d) refers only to "Congress," not "Members of Congress."

While the plain language of Section 552(d) is clear on its face, any possible question about its meaning is eliminated by the legislative history. In the legislative history, Congress expressly stated that "Congress," as an institution, has "additional," i.e., greater, rights of access

12 In addition, Rep. Leach's interpretation would allow an individual Member of Congress to circumvent the restrictions on disclosure under the Privacy Act and the Trade Secrets Act.

than individual "Members of Congress," who have the same rights of access as the general public. See H.R. Rep. No. 1497, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2429 ("Members of the Congress have all of the rights of access guaranteed to 'any person' by [FOIA], and the Congress has additional rights of access to all Government information which it deems necessary to carry out its functions.") (emphasis added). The Opposition does not address the legislative history, which directly and expressly contradicts the Opposition's argument that "Members of Congress" have the same access to information as

"Congress."

In its Rules, Congress has provided direction regarding its own access to government information, and that direction is consistent with the statutory language and legislative history of Section 552(d). Among other things, the Rules of both the Senate and of the House delegate authority to Standing Committees to exercise certain powers and functions of Congress as a whole, including the power to request agency information. See House Rule X.1 and Senate Rule XXV.1 (Exs. 5 and 9 to Defendants' Memorandum). The House Banking Committee's authority to require production of agency information is, therefore, derived from the express delegation of authority in the House Rules.

Rep. Leach argues that if the term "Congress" as used in Section 552(d) is interpreted to include Committees of the Senate and the House, then the term "Congress" must also be interpreted to include individual "Members." Opposition at 17. However, that argument ignores the fact that, in their Rules, the House and Senate have expressly delegated authority to request agency information to Committees. In contrast, neither the House nor the Senate have delegated that authority to any individual Member, acting alone. If Rep. Leach's interpretation were correct, the House and Senate Rules defining the rights of access to government

information would be rendered meaningless, because each of the 535 Members of Congress would have unfettered access to agency documents.

Rep. Leach asserts that Defendants do not "reconcile" their alleged "willingness to provide documents to the Chairman, acting unilaterally without a Committee vote or a subpoena, with their unwillingness to provide requested documents to Plaintiff." Opposition at 20. However, the Committee Rules do not require a subpoena or a majority vote of the Committee Members to seek the production of documents. Rather, the Committee Rules authorize the Committee "to require, by subpoena or otherwise," the production of documents. See Committee Rule 2.2(c) (emphasis added). Moreover, contrary to Rep. Leach's assertion, Defendants have never expressed any "willingness" to provide documents to the Chairman of the Committee "acting unilaterally." Rather, Defendants' position is (as it has always been) that documents may be provided to the Chairman, acting on behalf of the Committee, in compliance with Committee Rules. 13 If the Chairman requests documents, citing a connection to the Committee's business, Defendants presume, unless informed otherwise, that the Chairman is not acting in his capacity as an individual Member, but rather is acting on behalf of the Committee. Indeed, the same documents would be provided in response to a request by the Ranking Minority Member, if it were clear that the request was authorized by the Chairman or the full Committee.

Exactly the contrary is true in this case, however, where it is undisputed that Rep. Leach is not acting on behalf of the Committee. Rep. Leach concedes that "the House Banking Committee has not voted to authorize an investigation or hearings on Madison," nor has the Committee Chairman "made any request to Defendants for any information on Madison . . .

13 Under the House Rules and Rules of the Banking Committee, the Chairman has the authority to schedule hearings, determine the scope of committee investigations and request documents on behalf of the committee. See House Rules X1.2(c)(1), X1.2(k)(1); XI.2(m)(2)(A); Rules of House Banking Committee 3.2; 4.6(a); 2.3(a).