In making this determination, the Court is mindful of the dangers inherent in overstating this doctrine. See Gregg v. Barrett, 248 U.S. App. D.C. 347, 771 F.2d 539, 543 (D.C. Cir. 1985). Nevertheless, the Court is of the opinion that the instant suit represents yet another in a long line of recent cases in which "individual members of Congress seek to vent their frustration with their colleagues, or with the executive branch, or both, by appeals to the courts." Id. Although Representative Leach argues quite strenuously that the doctrine of remedial discretion should not be applied in this case because he has a clear statutory right to judicial review, a brief examination of the legal question actually presented reveals that judicial abstention is neither inappropriate nor an improper abdication of the judicial responsibility to undertake statutory review.
Although it is true that the doctrine of remedial discretion is not generally applied in cases in which a Plaintiff seeks to exercise a statutory right to judicial review, the particular issue presented by this case is one best left to the discretion of the legislative branch. In asking the judiciary to rule upon the proper interpretation of "Congress" pursuant to the Congressional savings clause, the Plaintiff has asked the Court to enter into a theoretical debate over whether individual members of Congress are entitled to the same rights of access the legislative branch preserved for itself in passing FOIA. Congress both drafted and enacted the statute, specifically providing that such information not be withheld from "Congress." The Court therefore finds that the question of who constitutes "Congress" for this purpose is largely a matter of self-definition that should best be determined by the legislature itself.
In addressing this issue, the Court notes that the Plaintiff has argued very persuasively that the use of the word "Congress" in the Congressional savings clause must mean something -- and that Representative Leach has a statutory right to seek adjudication of this issue in court. However, although such questions of statutory interpretation are undeniably within the traditional province of the judiciary, the Court finds that, due to the particular nature of the question posed, the Court need not, and should not, decide this issue on the facts presented by the case at bar.
Essentially, Representative Leach has asked the Court to rule upon whether individual members of Congress fall within the meaning of "Congress" as used by the legislative branch in this section of FOIA. The consequences of any such determination would most likely be limited to Congress itself, as this provision affects the rights of no other parties. The Court therefore believes that Congress itself should make the determination as to whether individual members also possess the additional rights of access guaranteed to Congress by the Congressional savings clause.
Indeed, the Court finds it "a 'startlingly unattractive' idea, given our respect for a coequal branch of government" for the judiciary to rule upon this issue -- as it would require examination of the legislature's own intent in specifically granting these rights of access to "Congress." See Vander Jagt v. O'Neill, 226 U.S. App. D.C. 14, 699 F.2d 1166, 1176 (D.C. Cir. 1982), cert. denied, 464 U.S. 823, 78 L. Ed. 2d 98, 104 S. Ct. 91 (1983). As with all questions of statutory interpretation, the debate over this issue began in the legislature. In this instance, however, given the particular nature of the question presented, the Court believes that the debate should end in the legislature as well.
Lest there be any misunderstanding, though, it is important to emphasize that the Court's decision in this respect is a very narrow one. In concluding that the judiciary should refrain from deciding a matter that deals only with the appropriate meaning and application of this statutory provision vis a vis Congress, the Court does not in any way suggest that the Congressional savings clause is per se immune from judicial review. Although the Court believes that the question of whether individual members should be covered by the Congressional savings clause is a matter best left to the discretion of the legislative branch, it is not difficult to conceive of a situation in which the judiciary would properly be called upon to adjudicate a matter pursuant to this section of FOIA.
In the instant case, however, because a determination as to the legal issue presented would have only "intra-congressional" consequences, the Court deems it appropriate to decline review of this dispute.
For this same reason, the Court must also emphasize that Representative Leach has available an additional "collegial remedy" not yet discussed: the ability to propose an amendment to FOIA, clarifying Congress' intent with respect to the scope of the Congressional savings clause and the rights of individual members of Congress thereunder. As neither the instant dispute, nor the general legal question presented, is a matter that affects the rights of any other party under FOIA, the Court believes that it is entirely appropriate to leave the resolution of this matter to Congress itself. Fortunately, the doctrine of remedial discretion permits the Court to do just that. See Moore v. U.S. House of Representatives, 236 U.S. App. D.C. 115, 733 F.2d 946, 954 (D.C. Cir. 1984) (noting that the doctrine of remedial discretion "permits the court to exercise judicial self-restraint in particular matters intruding upon a coordinate branch of government"), cert. denied, 469 U.S. 1106, 83 L. Ed. 2d 775, 105 S. Ct. 779 (1985).
III. The Doctrine of Remedial Discretion is still the law of this Circuit, and the Court believes that it would be an abuse of discretion to entertain the Plaintiff's suit.
Although the Plaintiff urges the Court to refrain from invoking the doctrine of remedial discretion by questioning its continuing validity, it is clear that the doctrine first set forth in Riegle is still the law in this Circuit. See Gregg v. Barrett, 248 U.S. App. D.C. 347, 771 F.2d 539, 544 (D.C. Cir. 1985) ("Since Riegle, the court has firmly established the doctrine of remedial discretion as the preferred method for coping with separation-of-powers concerns in suits by congressional plaintiffs where the ill in question could clearly be rectified by congressional action.").
Indeed, in cases such as this where Representative Leach can "obtain substantial relief from his fellow legislators through the legislative process itself," it would be "an abuse of discretion for a court to entertain the legislator's action." Melcher v. Federal Open Market Committee, 266 U.S. App. D.C. 397, 836 F.2d 561, 565 (D.C. Cir. 1987), cert. denied, 486 U.S. 1042, 100 L. Ed. 2d 619, 108 S. Ct. 2034 (1988). See also Humphrey v. Baker, 270 U.S. App. D.C. 154, 848 F.2d 211, 214-215 (D.C. Cir. 1988) ("Under the doctrine of equitable discretion, the availability of an internally available remedy to Members of Congress means that it would be an abuse of discretion for the judiciary to entertain the action."), cert. denied, 488 U.S. 996 (1988).
Finally, the Court also notes that the Plaintiff's challenge to the validity of the doctrine of remedial discretion is especially misplaced given his substantial reliance upon the cases of Murphy v. Department of the Army, 198 U.S. App. D.C. 418, 613 F.2d 1151 (D.C. Cir. 1979) and FTC v. Owens-Corning Fiberglas Corp., 200 U.S. App. D.C. 102, 626 F.2d 966 (D.C. Cir. 1980), both of which were decided prior to the emergence of the doctrine of remedial discretion in 1981, and certainly prior to its growth and development over the past decade.
IV. There is no merit to the Plaintiff's contention that application of the doctrine of remedial discretion would "deprive members of Congress of a right to judicial review available by statute to all other citizens."
Lastly, it is important to clarify one final point. The Plaintiff has argued that the Defendants' allegedly "expansive" reading of the political question and equitable discretion doctrines would deprive Representative Leach of his statutory right to judicial review -- a right guaranteed to all citizens -- merely because he is a Member of Congress. This is not, however, the case.
Both the Complaint and the Plaintiff's Motion for Summary Judgment make clear that Representative Leach has filed the instant suit in his capacity as a Member of Congress and as the Ranking Minority Member of the House Banking Committee. The legal question presented is unquestionably a function of his official status, and it is equally clear that the relief he seeks is that to which he claims he is entitled by virtue of his official position and pursuant to his reading of the Congressional savings clause. It is only in response to these claims, then, that the Court invokes its remedial discretion to decline review of the Plaintiff's suit.
There is no question that, when acting as a private citizen, Representative Leach possesses the same rights as all other members of the public to seek access to the documents in question, and nothing in this Opinion should be construed to the contrary. The instant Complaint, however, does not suggest that these materials have been improperly withheld from public disclosure. Rather, the Plaintiff alleges that as a Member of Congress he has been improperly denied access to these documents. As demonstrated above, the Court finds the Plaintiff's claim that he has a right to review these materials pursuant to the Congressional savings clause to be an "intra-congressional" dispute into which the judiciary should decline to intervene.
The question of whether these materials are properly exempt from public disclosure, however, is a separate matter not currently before the Court, and as to which Representative Leach has the same right as any other citizen to seek judicial review. No similar separation-of-powers concerns would be implicated if the Plaintiff were to challenge the Defendants' withholding decisions as a member of the general public, rather than as a Member of Congress allegedly entitled to greater statutory rights of access. As such, the Court sees no need for the Plaintiff's concern that application of the doctrine of remedial discretion would improperly deprive him of his statutory rights as a citizen merely because he is also a Member of Congress.
Nevertheless, in order to ensure that Representative Leach's rights are fully and fairly protected, the Court shall dismiss his Complaint, but shall do so without prejudice to any claims he may wish to assert acting in his individual rather than his official capacity. Thus, as a private citizen, Representative Leach remains free to seek access to these documents should he so choose.
Upon consideration of the parties' cross-motions for judgment, the oral arguments of counsel at the July 14, 1994 hearing, the applicable law, the entire record in this case, and for all of the reasons articulated herein, the Court has determined that, although Representative Leach's Complaint is not subject to dismissal pursuant to the political question doctrine, the Court must exercise its remedial discretion to decline review of this case.
Representative Leach's dispute is primarily with his fellow legislators and he has available a number of viable "collegial remedies" through which to obtain access to the documents he seeks. Moreover, to the extent that the Plaintiff seeks a judicial determination regarding the proper interpretation and application of the Congressional savings clause, the Court believes that resolution of this matter is best left to the legislative branch, and that prudential concerns weigh heavily in favor of judicial abstention.
Accordingly, pursuant to the doctrine of remedial discretion, the Plaintiff's Complaint shall be dismissed, without prejudice to Representative Leach's right to assert any claims he might have as a member of the public with regard to the issues raised herein. The Court shall thus issue an Order of even date herewith consistent with the foregoing Memorandum Opinion.
August 18, 1994
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
Upon consideration of the parties' cross-motions for judgment, the applicable law, the oral arguments of counsel, the entire record herein, and for all of the reasons articulated in this Court's Memorandum Opinion issued of even date herewith, the Court has determined that the doctrine of remedial discretion counsels against judicial review of the instant dispute.
Accordingly, it is, by the Court, this 18th day of August, 1994,
ORDERED that the above-captioned case shall be, and hereby is, DISMISSED, without prejudice to the right of the Plaintiff to assert any claims he may wish to pursue in his individual capacity as a member of the general public; and it is
FURTHER ORDERED that any and all other pending motions are hereby rendered and declared MOOT.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE