2

arguments of counsel, the applicable law, and the entire record herein, the Court has determined that it would be improvident for the judiciary to enter into this dispute and, pursuant to the doctrine of remedial discretion, the Court shall thus decline to entertain review of the issues presented by the Plaintiff's Motion for Summary Judgment. Accordingly, for the reasons set forth in greater detail below, the Defendants' Motion to Dismiss shall be granted.

BACKGROUND

case.

The parties do not dispute most of the essential facts in this. Acting in his capacity as a Member of Congress and as the Ranking Minority Member of the House Banking Committee, Representative Leach has requested that the Defendants produce all documents in their possession, custody, or control pertaining to the Madison Guaranty Savings & Loan Association and its affiliates and subsidiaries. Both Defendants treated this request as one made pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.c. S 552, and processed Representative Leach's case accordingly.'

In responding to the Plaintiff's request, the RTC and the OTS released over 8,000 pages of documents, withholding only those materials deemed exempt from public disclosure under FOIA. See

The Defendants do not dispute that Representative Leach has exhausted his administrative remedies in seeking such documents, and the parties are also in agreement that no documents have been withheld on the basis of a claim of executive privilege. See Joint Statement of Undisputed and Material Facts at ¶¶ 3-5.

Defendants' Motion for Summary Judgment at 2.

Representative Leach, however, has challenged this withholding as a matter of law, asserting, inter alia, that individual members of Congress are entitled to receive even confidential or otherwise privileged documents pursuant to 5 U.S.C. $ 552(d).

Section (d) of the Freedom of Information Act, otherwise known as the "Congressional Savings Clause," explicitly provides that:

This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.

5 U.S.C. S 552(d) (emphasis added). At the heart of this dispute, then, is the meaning of "Congress" under this section of FOIA and the applicability of the Congressional savings clause to individual members of Congress seeking access to documents generally exempt from public disclosure.

The Defendants contend that section 552 (d) is inapplicable to this case because, although the Plaintiff has requested these documents in his official capacity as a Member of Congress and as the Ranking Minority Member of the Banking Committee, there is no indication that Representative Leach is acting on behalf of Congress itself, or a duly authorized committee thereof. Indeed,

2 The Defendants urge the Court to find that "Representative Leach has not provided any evidence that the House of Representatives, the Committee, or its Chairman, have delegated any oversight or investigative authority to him." See Defendants' Motion for Summary Judgment at 9-10. Defendants thus argue that "because Representative Leach does not have the necessary Congressional authorization for his demand for confidential and

have

the Defendants argue that there is ample evidence to suggest that Congress and the Banking Committee in particular specifically not authorized the Plaintiff's request.

Representative Leach, however, challenges the Defendants' decision to process his request as if he were a private citizen rather than an official member of Congress. The Plaintiff maintains that his request was designed to enable him to perform his legislative oversight responsibilities as the Ranking Minority Member of the House Banking Committee.' Representative Leach thus contends that he is authorized by the Congressional savings clause to receive such information despite the fact that it is otherwise exempt from public disclosure.

The legal question squarely presented, then, is what rights of access individual members of Congress possess under FOIA, when acting in an official capacity, but without the authorization of Congress as a whole, or a duly authorized committee thereof. For reasons set forth below, however, the Court shail decline to undertake review of this matter in view of the important separation-of-powers concerns implicated by the specific context in which this case arises.

privileged documents exempt from disclosure under FOIA, his claims should be denied." Id. at 10.

"The House Banking Committee has legislative oversight responsibility for the activities of RTC, OTS, the Financial Institutions Reform, Recovery, and Enforcement Act ("FIRREA") and other banking statutes, including the manner in which the Defendants have dealt with the failure of Madison." Joint Statement of Undisputed and Material Facts at 1 6.

Federal News Service, JUNE 30, 1994

Page 4

no American should be considered above the law or above public accountability.
And so the fact that the White House was clearly, by record, intimately involved
in a decision-making process within the governmental structures, is something
that is eyebrow raising at the least.

On the other hand, with regard to the individuals, you know, it's the assumption
when you work for someone you try to protect them, particularly the president of
the United States. And so, I have gone out of my way to suggest, frankly at the
time, for example, if you remember when George Stephanopoulos was covered on
Time Magazine, that maybe that was an exaggerated story.
And I think it was.
And so, there are reasons to have some sympathy for the individuals involved,
and then there are reasons to raise a question whether the precise propriety was
observed, and that's why you have very defined ethical guidelines. We've laid
them out in the past, very precisely what they how they apply to the White
House, to the Treasury, to the RTC. And I think these are questions that
committees of jurisdiction as well as the various agencies themselves are going
to look at. And I'd be surprised if Lloyd Cutler doesn't draw some strong
conclusions on this subject. But we'll have to wait and see.

Q Since there were 20 meetings instead of three, what do you think the White
House might have been up to, if there were that many meetings?
REP. LEACH: Well, it's a little unfair to draw conclusions without knowing the
content of the meetings. But the report does indicate 20 meetings or contacts
or more on the subject. And there is a time frame in which a series of criminal
referrals came from the professional criminal investigative team in Kansas City
to Washington, and then immediately thereabouts or thereupon, the RTC appears
to notify Treasury, Treasury appears to notify the White House, and a series of
very unusual decisions were made in which for the first time a regional office
of the federal independent regulatory agency was placed under certain kinds of
guidelines that had never occurred before.

How serious this is, I think we're going to have to wait for a full unfolding of
descriptions, but it is of note that more contacts appear to have taken place
than had previously been reported.

Q Do you anticipate that when the House Banking Committee hearing is held next month, that you will be able to get to the bottom of these questions of propriety? Will you be given the leeway that you think you need to examine it thoroughly?

REP. LEACH: I would stress that and again, as strongly as I can that what
is at issue with the hearings coming up potentially in the latter part of July,
as well as this interim report of the special counsel, relates to a very small
percentage of the issue called Whitewater, and it relates to events after the
fact rather than the circumstance that the events after the fact are designed to
either protect or obfuscate.

I would think that a hearing would be helpful in bringing some of that out, but
I do not look for a swashbuckling hearing. I think this is going to be one of
those hearings that's going to be of a kind of a nitty-gritty,
who knew-what-when variety that relates to governmental process more than
serious conflict of interest. And so I would not suggest in any way whatsoever
that, given the prescribed mandate of this hearing and the fact that literally
virtually all questions of terrific interest will be ruled out of order because
of the design of the hearing, that this hearing will be of very, very modest
significance.

Q It's your understanding that you will get your day in court, so to speak, that
at the hearing you will be allowed to bring in your own witnesses and have a
full day

REP. LEACH: That's not fully understood.

LEXIS NEXIS LEXIS NEXIS LEXIS NEXIS

in a political dispute best left to a coordinate branch of government, the Court is ultimately unable to conclude that the Plaintiff's Complaint is technically nonjusticiable under the political question doctrine.

Both parties agree that the Court's determination as to whether the instant suit presents a political question must be guided by the Supreme Court's decision in Baker Y. Carr, 369 U.S. 186 (1962), in which the Supreme Court explicitly considered the "contours of the political question' doctrine." Id. at 210. Providing guidance in the identification of nonjusticiable "political questions," the Supreme Court declared that

Id. at 217.

each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Further relying on Justice Powell's concurrence in Goldwater Y. Carter, 444 U.S. 996 (1979), the Defendants urge the Court to consider three issues in deciding whether the Plaintiff's Complaint should be dismissed pursuant to the political question doctrine: