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PENTAGEN TECHS. INT'L v. COMMITTEE ON APPROPRIATIO

July 30, 1998

PENTAGEN TECHNOLOGIES INT'L, LTD., et al., Plaintiffs,
v.
COMMITTEE ON APPROPRIATIONS OF THE UNITED STATES HOUSE OF REPRESENTATIVES, et al., Defendants.



The opinion of the court was delivered by: KESSLER

MEMORANDUM OPINION

 Plaintiffs Pentagen Technologies Int'l Ltd. ("Pentagen") and Russell Varnado *fn1" seek to review and copy a series of investigative reports prepared for the House Appropriations Committee ("Appropriations Committee" or "Committee") of the United States House of Representatives. The reports relate to a federal government program, the Department of Defense's Sustaining Base Information Services ("SBIS") program, for which the Committee recommended appropriate funding levels. The reports have not been released to the public, and the Committee has refused to release them to Plaintiffs. Defendants claim that the reports are protected from disclosure. *fn2" Plaintiffs bring this action under the common-law right to inspect and copy public documents and seek a court order compelling Defendants to release the reports.

 This matter is now before the Court upon Defendants' Motion to Dismiss [# 7]. Upon consideration of the Defendants' Motion, Plaintiffs' Opposition, Defendants' Reply, and the entire record herein, Defendants' Motion to Dismiss [# 7] is hereby granted.

 I. STANDARD OF REVIEW

 "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The factual allegations of the complaint must be presumed true and liberally construed in favor of the plaintiff. Shear v. National Rifle Ass'n of Am., 196 U.S. App. D.C. 344, 606 F.2d 1251, 1253 (D.C. Cir. 1979).

 II. BACKGROUND

 The Appropriations Committee is responsible for, among other things, "appropriation of the revenue for the support of the Government". Rule X.1(b)(1), Rules of the House of Representatives (105th Cong.) ("House Rules"). The Committee has authority to "conduct such studies and examinations of the organization and operation of executive departments and other executive agencies . . . as it may deem necessary to assist it in the determination of matters within its jurisdiction." House Rules X.2(b)(3). The Congressional Survey and Investigation Staff ("Investigation Staff") performs this investigative function for the Committee. (Defs.' Mem. Mot. to Dismiss at 3; Pls.' Opp'n at 14.)

 Defendants state that the Appropriations Committee's Subcommittee on National Security ("Subcommittee") *fn3" asked the Investigation Staff to examine the SBIS program. In response, the Investigation Staff compiled several reports between 1994 and 1996 evaluating the program. (Defs.' Mem. Mot. to Dismiss at 4.)

 Plaintiffs seek to review and copy the investigative reports relating to the SBIS program prepared by the Investigation Staff after June 1993. Plaintiffs claim that they have a right to receive the reports pursuant to the "historic common-law right to inspect and copy public records" articulated in Schwartz v. United States Dept. of Justice, 435 F. Supp. 1203, 1204 (D.D.C. 1977). The Appropriations Committee has refused to provide Plaintiffs with copies of the reports.

 III. ANALYSIS

 Defendants argue that the reports fall within the legislative sphere and are thus protected from disclosure by the Speech or Debate Clause of the Constitution of the United States, as well as its Rulemaking and Journal Clauses, U.S. Const. art. I, § 6, cl. 1 and § 5, cls. 2 & 3.

 The Speech or Debate Clause protects legislators from being "questioned in any other Place", "for any Speech or Debate in either House". U.S. Const. art. I, § 6, cl. 1

 The Supreme Court has read the Clause broadly, reasoning that "a private civil action . . . creates a distraction and forces Members to divert their time, energy, and attention from their legislative tasks to defend the litigation." Eastland v. United States Servicemen's Fund, et al., 421 U.S. 491, 503, 44 L. Ed. 2d 324, 95 S. Ct. 1813 (1975). For that reason, the Court has held that once a court determines that Members are acting within the "'legitimate legislative sphere' the Speech or Debate Clause is an absolute bar to interference." Id.

 The "legislative sphere" includes activities that are "an integral part of the deliberative and communicative processes by which Members [of Congress] participate in committee and House proceedings. . . " Id. at 504 (quoting Gravel v. U.S., 408 U.S. 606, 624-25, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972)). Activities other than literal speech or debate can fall within that definition. 421 U.S. at 503. For instance, the Supreme Court has concluded that the power to investigate falls within the legislative sphere because a "legislative body cannot legislate wisely or effectively in the absence of information respecting the ...


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