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SYMONS v. CHRYSLER CORP. LOAN GUAR. BD.

May 14, 1980

Howard SYMONS, Plaintiff,
v.
CHRYSLER CORPORATION LOAN GUARANTEE BOARD, Defendant.



The opinion of the court was delivered by: PARKER

MEMORANDUM OPINION

The Government in the Sunshine Act, 5 U.S.C. § 552b (Sunshine Act), enacted in 1976, provides that meetings of government executive agencies shall be open to the public. The Act further provides for public announcement of meetings, § 552b(e), and for the maintenance of a complete transcript or electronic recording of meetings that are closed upon the agency's invoking any of the Act's exemptions, § 552b(f). Agencies covered by the Act must publish regulations implementing the requirements of the Act. § 552b(g).

 In January, 1980, Congress enacted the Chrysler Corporation Loan Guarantee Act, 15 U.S.C. §§ 1861 et seq. (Chrysler Act), creating the Chrysler Corporation Loan Guarantee Board (Board). As an executive agency of the federal government with decision-making authority, the Board was empowered to issue up to $ 1.5 billion in loan guarantees to the Chrysler Corporation under specified conditions. *fn1" The decision of the Board to issue its guarantee is conclusive, 15 U.S.C. § 1864(b), subject only to the right of Congress to consider the matter for 15 days after the Board has reported to it. Congress' sole recourse is the passage of legislation to prevent the Board from acting.

 In this proceeding, plaintiff Howard Symons, a staff attorney and lobbyist with Congress Watch, a public interest organization, seeks declaratory and injunctive relief against the Board. He asserts that the Board is an agency within the meaning of the Sunshine Act and seeks to enjoin its noncompliance with the statutory requirements. Symons had previously sought to attend the Board's meetings or to have transcripts or minutes of closed meetings made available to him. The Board refused on grounds that it was not an agency for purposes of the Sunshine Act and thus not required to comply with its terms.

 Plaintiff's complaint and application for temporary injunctive relief were filed on April 25, 1980, and on that date a temporary restraining order was issued enjoining the Board from holding any meeting inconsistent with the provisions of the Sunshine Act. *fn2" A briefing schedule was developed for a prompt and final disposition of the matter on the merits. The plaintiff filed points and authorities in support of a preliminary injunction. The defendant opposed the grant of such relief and also moved to dismiss. The matter was otherwise fully briefed and oral argument was heard on May 9, 1980.

 For the reasons set forth below, the Court determines that the Chrysler Board is an "agency" under 5 U.S.C. § 552b(a)(1) and is subject to the Government in the Sunshine Act. *fn3"

 The Sunshine Act specifies that to come within its coverage, an agency must be an agency as defined in section 552(e) of Title 5, *fn4" and in addition must be:

 
headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate . . . .

 5 U.S.C. § 552b(a)(1) (emphasis added).

 The Chrysler Board consists of the Secretary of the Treasury, the Chairman of the Board of Governors of the Federal Reserve System, and the Comptroller General of the United States as voting members together with the Secretaries of Labor and Transportation as non-voting members. All of the members are thus Presidential appointees who have been confirmed by the Senate. They were not, however, technically "appointed to such position" on the Board by the President but rather by the Congress in the enactment of the Chrysler Act. The Act itself specifies that the Board shall be comprised of these five Presidential appointees. The five Board members have served on it since January, 1980. Prior to that time and prior even to the commencement of the congressional hearings on the Chrysler Act, these individuals were appointed to their respective executive positions as Secretary of the Treasury, Chairman of the Board of Governors of Federal Reserve System, and the like.

 In its report on the bill that was eventually enacted as the Sunshine Act, the Senate Government Operations Committee emphasized the breadth of the Act's coverage:

 
Section 201(a) (defining covered agencies) covers all multiheaded agencies, because the principle of openness applies to all such agencies regardless of the particular nature of its responsibilities. While many of those covered are regulatory, others have more general policymaking roles. The decisions of one may involve no less important policy questions than the decisions of the other. Opening one type of meeting to the public is as important as opening another type. The notion of including some multiheaded agencies in section 201 and excluding others would do violence to the fundamental purpose of the legislation, which is to open Government to the people wherever and whenever possible.

 S.Rep. No. 354, 94th Cong., 1st Sess. 17 (1975). *fn5" ...


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