C. Exhaustion of Administrative Remedies
Defendants contend that this Court is barred from hearing this suit since plaintiffs have not followed the administrative procedure set forth in the Act for asserting their privacy or constitutional claims. Plaintiffs argue they should not be forced to comply with illegal procedures developed by a Congress which exerted pressure via the unconstitutional legislative veto. They seek to have this Court rule on the constitutionality of the regulations; if the regulations are invalidated, they will not be required to comply with the administrative procedure established thereunder.
There are three purposes served by requiring exhaustion of administrative remedies: 1) it allows the agency to apply its expertise and to exercise its discretion in appropriate circumstances; 2) it aids the court by allowing the agency to make a factual record; 3) it prohibits repeated interruption of the agency proceeding and increases the possibility that an individual's rights may ultimately be vindicated at the agency level. Athlone Industries v. Consumer Product Safety Commission, 228 U.S. App. D.C. 80, 707 F.2d 1485 (D.C.Cir.1983). This Circuit has recently explained that "When the reasons supporting the doctrine [of exhausting administrative remedies] are found inapplicable, the doctrine should not be blindly applied." Athlone Industries, supra, at 1488, citing, Committee for GI Rights v. Callaway, 171 U.S. App. D.C. 73, 518 F.2d 466, 474 (D.C.Cir.1975). Not only must the purposes of the doctrine be considered but there must be a consideration of the particular administrative scheme involved. McKart v. United States, 395 U.S. 185, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969). It is also true that one of the recognized exceptions to the general rule requiring exhaustion of administrative remedies is when resort to the nonjudicial remedy would "clearly and unambiguously violate statutory or constitutional rights." Republic Industries, Inc. v. Central Pennsylvania Teamsters Pension Fund, 693 F.2d 290, 293 (3rd Cir.1982). This is the gravamen of plaintiffs' complaint. The Act's administrative scheme permits the agency to rule on an individuals' claim that release of certain documents will infringe his or her constitutional rights. This is not the type of claim presented to this Court and therefore there is not a need to defer to the agency for purposes of its developing an adequate record. Plaintiffs challenge the effect which the exercise of the legislative veto had on the promulgation of regulations. This is a far different claim than would or could be presented before the GSA. Plaintiffs' position is buttressed by the statute's express provision in Section 105(a) for this Court's jurisdiction to hear challenges to the constitutionality of the Act or its regulations.
A distinction made by the Third Circuit Court of Appeals in Republic Industries, supra, is relevant. There the Court discussed the type of constitutional tasks delegated to an agency and those delegated to the courts. "[While] we commit to administrative agencies the power to determine constitutional applicability, [but] we do not commit to administrative agencies the power to determine constitutionality of legislation." Id. at 295, citing, 3 K. Davis, Administrative Law Treatise § 20.04 at 74 (1958). In this case, the agency would be asked to determine whether the release of specific documents would violate certain privacy or constitutional rights. The agency's expertise does not extend, however, to determining the constitutionality of the Act or its regulations.
While reluctant to jump into the briarpatch of constitutional questions, this Court believes that a ruling on the constitutionality of these regulations, in light of plaintiffs' claims, is necessary to the proper disposition of the case. Harmon v. Brucker, 355 U.S. 579, 78 S. Ct. 433, 2 L. Ed. 2d 503 (1958). The fact that there is a possibility of alternative relief does not detract from this Court's decision. See Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983). Furthermore there would be no purpose served by delaying consideration of this issue. Cf. Griffin v. County Sch. Bd., 377 U.S. 218, 229, 84 S. Ct. 1226, 1232, 12 L. Ed. 2d 256 (1964); Lister v. Lucey, 575 F.2d 1325, 1331 (7th Cir.), cert. denied, 439 U.S. 865, 99 S. Ct. 190, 58 L. Ed. 2d 175 (1978).
The Courts' ruling that plaintiffs need not first exhaust their administrative remedies is not inconsistent with Nixon v. Sampson, 188 U.S. App. D.C. 251, 580 F.2d 514 (D.C.Cir.1978), a case cited by defendant in support of its position. In that case the Court of Appeals considered the district court's granting of a summary judgment in favor of Rose Mary Woods who sought solely to recover her personal materials and papers collected from the White House. Chief Judge Bazelon explained that since there was an elaborate regulatory scheme that would provide her with access to her papers that she should follow that scheme and not bypass it by initially bringing suit in the District Court. Id. at 520 n. 11. The distinction between the basis of Ms. Wood's suit and this suit needs no further elaboration.
Plaintiffs seek to have this Court apply Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983), retroactively to invalidate the one-house veto provision and the public access regulations promulgated thereunder. In Chadha, the Supreme Court held that Section 244(c)(2) of the Immigration and Nationality Act was unconstitutional. Pursuant to that section, either house of Congress could pass a resolution stating that it did not favor suspending the deportation of an alien. By exercising a legislative veto in this manner it could overrule the Attorney General's recommendation that deportation be suspended. The Supreme Court held that the provision for a one-house legislative veto violated the presentment clauses and the bicameral requirements found in Article I of the Constitution. Because the Supreme Court was silent on whether its ruling should be applied retroactively, and because the Constitution neither prohibits nor requires retrospective relief, Linkletter v. Walker, 381 U.S. 618, 629, 85 S. Ct. 1731, 1737, 14 L. Ed. 2d 601 (1965) each court must make that determination based on an analysis of the case and statute before it.
Generally, a court must evaluate three factors when it considers whether to apply a rule retroactively. Chevron Oil v. Huson, 404 U.S. 97, 106-110, 92 S. Ct. 349, 355-357, 30 L. Ed. 2d 296 (1971). The first of these considerations is whether the decision has announced a new principle of law. Chevron Oil, supra at 106, 92 S. Ct. at 355. A new principle of law has been announced when there "is such an abrupt and fundamental shift in doctrine so as to constitute an entirely new rule which in effect replaced an older one." Hanover Shoe Inc., v. United Shoe Machinery Corp., 392 U.S. 481, 498-99, 88 S. Ct. 2224, 2234-35, 20 L. Ed. 2d 1231 (1968). Similarly, a new rule is announced when a court decides an issue of first impression whose resolution was not clearly foreshadowed. Chevron Oil, supra 404 U.S. at 106, 92 S. Ct. at 355.
Applying the first factor, the Court finds that although Chadha was undoubtedly a controversial decision with far-reaching consequences, it was not the type of decision that constituted an entire break with the past or one that was not foreshadowed. As the Supreme Court recognized and the parties conceded, the validity of the one-house veto has long been debated among lawyers. Those who expressed concern over its validity before Chadha did so for precisely the same reasons on which the Supreme Court relied in ruling it unconstitutional. See e.g. American Fed. of Gov. Employees v. Pierce, 225 U.S. App. D.C. 61, 697 F.2d 303 (D.C.Cir.1982) (per curiam); Consumer Energy Council of America v. FERC, 218 U.S. App. D.C. 34, 673 F.2d 425 (D.C.Cir.1982), aff'd sub nom. Process Gas Consumers Group v. Consumer Energy Council of America, 463 U.S. 1216, 103 S. Ct. 3556, 77 L. Ed. 2d 1402 (1983).
Plaintiffs urge that this Circuit's decision in Zweibon v. Mitchell, 196 U.S. App. D.C. 265, 606 F.2d 1172 (D.C.Cir.1979), cert. denied, 453 U.S. 912, 101 S. Ct. 3147, 69 L. Ed. 2d 997 (1981) should control the analysis on this factor. In that case, members of the Jewish Defense League who had protested the Vietnam War, sued for damages they sustained from the warrantless wiretapping of their offices. The District Court failed to apply the rule announced in United States v. United States District Court (Keith), 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972) retroactively to the suit and thereby precluded plaintiffs from relief. In Keith, the Supreme Court held that the requirement of a warrant to conduct a wiretap was not excused because the government sought to protect national security. The United States Court of Appeals for the District of Columbia reversed the District Court. The Court of Appeals did not consider that Keith announced a new rule; rather it only extended the constitutional warrant requirement to national security situations. Zweibon, supra, at 1179. The Keith decision did not represent a new application of a requirement that was not already clear from the four corners of the Constitution. Rather, it announced a rule that had been explained by many decisions interpreting the same requirement. Clearly, while the Keith decision addressed an issue of first impression, it was not one whose resolution was not clearly foreshadowed under Chevron Oil supra, nor one that constituted an abrupt and fundamental shift in doctrine so as to constitute an entirely new rule under Hanover Shoe. Therefore, the Zweibon decision is not totally analogous to this case where there is a mandate from the four corners of the Constitution but a paucity of subsequent but pre- Chadha decisions interpreting that requirement to invalidate portions of statutes containing a one-house veto provision. However, the distinction between the application of the Keith rule in the Zweibon case from the Chadha rule in this case on the grounds that there were intervening judicial decisions anticipating Keith does not counsel a different result. In this case there is a statute which on its face, directly contradicts the presentment and bicameral requirements of the Constitution. Legal scholars had long advanced this position. Intervening decisions could only have served to underscore what was already apparent from a comparison of the constitutional requirements and the terms of the statute. For this reason, the Court cannot find that Chadha really represents new law. In place of judicial decisions holding that the legislative veto was unconstitutional, there had been sufficient discussion well known to the defendants of precisely those considerations that the Supreme Court found persuasive in deciding Chadha.
Under Chevron Oil, a court must secondly consider whether applying a rule retroactively would further the purpose of the rule. Defendants suggest that this Court examine the Supreme Court's recent, far-reaching decision in Northern Pipeline Constr. Co. v. Marathon Pipeline Co., 458 U.S. 50, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982), in which the Supreme Court held that bankruptcy courts are unconstitutionally organized but declined to apply its ruling retroactively to invalidate prior decisions of the bankruptcy courts. The Court instead held that its ruling should only apply prospectively. The Court agrees with plaintiff that Northern Pipeline is not particularly instructive.
First, it is clear that the Supreme Court was very concerned about the substantial inequitable result that retroactive application of its holding in Northern Pipeline would generate. Under Chevron Oil, the effect of retroactive application is a separate factor to consider and one which the Court will address infra. Second, in Chadha, the Supreme Court did not discuss whether its ruling would be applied either retroactively or prospectively; it was silent. From this silence this Court infers that the Supreme Court intended that the decision of whether to apply Chadha retroactively should be made on a case-by-case basis. The Court finds that in the context of these particular proceedings, a retroactive application of the Chadha decision would further its purposes. The Court is presented here with a case in which exercise of the one-house veto was considerably more pervasive than it had been in Chadha. In this case, over the course of five years, regulations proposed by the Administrator underwent revisions directly as a result of the exercise of the veto and Congressional direction during the agency's preparation of the regulations. Anyone who even briefly reviews the legislative record filed by the defendants and supplemented by the plaintiffs cannot conclude otherwise. In essence, Congress through the action of one house or the other, continually rewrote the regulations at issue here. While the one-house veto provision undoubtedly was useful in allowing Congressional oversight to ensure that the purposes of the Act were furthered, "the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution." Chadha, 103 S. Ct. at 2780.
The Court's finding on this factor is bolstered by its consideration of the third Chevron Oil factor. For the Court to find that there would be substantial inequitable results from applying Chadha retroactively, it would have to ignore the prior challenge to this Act by former President Nixon in Nixon v. Freeman. During the discovery phase of that case, GSA essentially admitted that the one-house veto provision was unconstitutional. Additionally, it admitted that the content of the regulations were influenced by the House of Representatives members and House staff members and that the fourth set of regulations were, "in part or in whole," the product of the exercise of the Congressional one-house veto provided by Section 104(b) of the Act. See, Fed. Defendants' Response to Plaintiffs First Request for Admissions, Nixon v. Solomon, Civ. No. 77-1395 and Answer, paragraphs #13-15; Plaintiffs' Exhibits on Cross-Motions for Summary Judgment A, D and E respectively. Despite its acknowledgment, it nevertheless continued to process materials under the Act. Additionally, the Court has earlier found that there is no credible evidence presented by the defendants that if the regulations were invalidated, completed screening and processing would have to be undone. For this reason, the Supreme Court's analysis of the prejudice from its decision in Northern Pipeline is distinguishable. Based on this Court's ruling, what will have to be revamped are the regulations themselves unfettered by any untoward Congressional influence because of the one-house veto provision.
A. Vitality of the Regulations
Defendants contend that regulations promulgated under Section 104 are not constitutionally void because the legislative veto provision is severable from the Act. While the Court finds that the one-house veto provision is severable from the Act, see IV B, infra, this finding does not save the regulations which were thrice revised by virtue of the exercise of that unconstitutional provision.
As the Court has previously mentioned in its discussion of retroactivity, GSA has admitted in Nixon v. Solomon, supra, that the different sets of regulations had been influenced by Congress and that the fourth set of regulations were "in part or in whole" the product of the exercise of the one-house veto. Defendants have in this case admitted that Congress had an in-put into the modification of the regulations. See Defendants' Responses to Plaintiffs' First Set of Requests for Admission, numbers 6, 8, and 13. As in Chadha, the actions of the House and the Senate regarding the public access regulations had the "purpose and effect of altering legal rights, duties and relations of persons, . . . all outside the legislative branch." Chadha, 103 S. Ct. at 2784. In the absence of the repeated exercise of the legislative veto, the regulations would not have undergone the changes they did. Indeed, Congress clearly intended to retain complete control over the writing of the regulations. Congressman Brademus stated prior to passage,
. . . it is precisely because we shared that apprehension that those regulations would not go into effect without an opportunity for both the House and Senate to review the regulations and to exercise a veto if we disapprove of them.
See 120 Cong.Rec. 37903.
The repeated exercise of the one-house veto provision, which is apparent from the legislative record submitted by the parties, distinguishes this case from EEOC v. All-state Ins. Co., 570 F. Supp. 1224 (S.D.Miss.1983). In that case, the District Court invalidated a statute which reorganized Executive Branch responsibilities because it contained a one-house veto provision, even though the one-house veto was never exercised. This case involves a continued and deliberate exercise of the power to redraft regulations in much the same way that legislation would be molded. The exercise of the veto has tainted all sets of regulations. Since the method by which they were modified is void, the by-product must as well be invalidated.
B. Severability of Section 104(b)
When one provision of a statute is declared invalid, a court must determine whether that provision is severable from the remainder of the statute. The Supreme Court has announced that "unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976), citing, Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 52 S. Ct. 559, 76 L. Ed. 1062 (1932).
The Supreme Court has stated that where a statute contains a severability provision "that discusses an intention to make the Act divisible and creates a presumption that, eliminating invalid parts, the legislature would have been satisfied with what remained . . ." Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 235, 52 S. Ct. 559, 565, 76 L. Ed. 1062 (1932). The Supreme Court applied the same analysis in Electric Bond and Share Co. v. SEC, 303 U.S. 419, 58 S. Ct. 678, 82 L. Ed. 936 (1938) when it was asked to review a challenge to an injunction entered pursuant to two sections of the Public Utility Holding Act of 1935, 49 Stat. 803. One section of that Act required holding companies to file a detailed registration statement; pursuant to the other section, holding companies that failed to register were prohibited from using the mails and instrumentalities of interstate commerce. In that case, petitioners had argued to the Court that these two sections were "purely auxiliary" to other "control" provisions of the Act the intent of which was to simplify and eliminate holding company systems; they therefore urged that the entire Act be invalidated. The Supreme Court found that Congress had expressed its intent regarding separability by including such a provision of the Act. It explained
Congress has thus said that the statute is not an integrated whole, which as such must be sustained or held invalid. On the contrary, when validity is in question, divisibility and integration is the guiding principle. Invalid parts are to be excised and the remainder enforced. When we are seeking to ascertain the congressional purpose, we must give heed to this explicit declaration.