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Docket Number

Civ. A. No. 82-3583.

Motions

Motion to dismiss : Granted

Attorney(S)

J. Paul McGrath, Asst. Atty. Gen., Richard K. Willard, Deputy Asst. Atty. Gen., Betsy Gray, Lewis K. Wise, Andrew M. Wolfe, Dept. of Justice, Civ. Div., Washington, D.C., for plaintiffs. Stanley M. Brand, Gen. Counsel to the Clerk, Steven R. Ross, Deputy Counsel to the Clerk, Michael L. Murray, Asst. Counsel to the Clerk, Washington, D.C., for defendants.

Judges

John Lewis Smith

Acts

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Smart Summary

Memorandum Summary — United States v. House of Representatives (D. D.C., Feb. 3, 1983) — John Lewis Smith, Jr., District Judge

Factual and Procedural Background

The plaintiffs are the United States of America and Anne M. Gorsuch, in her official capacity as Administrator of the Environmental Protection Agency (EPA). Plaintiffs brought a civil action under the Declaratory Judgment Act, 28 U.S.C. § 2201, seeking a judicial declaration that Administrator Gorsuch lawfully refused to release certain documents subpoenaed by a House Subcommittee.

On November 22, 1982, the Subcommittee on Investigations and Oversight of the House Committee on Public Works and Transportation served a subpoena on Administrator Gorsuch requiring her to appear on December 2, 1982 and to produce a broad array of books, records and other documents relating to certain national priority sites under the Comprehensive Environmental Response, Compensation and Liability Act of 1980. On November 30, 1982, President Reagan sent a memorandum instructing the Administrator to withhold from the Subcommittee any documents from open law enforcement files assembled in connection with enforcement of that Act. On December 2, 1982, Administrator Gorsuch appeared but informed the Subcommittee that "sensitive documents found in open law enforcement files will not be made available."

The Committee reported the matter to the full House on December 10, 1982, and the full House cited Administrator Gorsuch for contempt on December 16, 1982. Plaintiffs filed the initial complaint in this civil action on December 16, 1982, one day before the contempt resolution was certified to the United States Attorney for presentment to the grand jury. The United States Attorney had not presented the contempt citation to the grand jury as of the time of the opinion. Defendants include the House of Representatives and various House officers and committee chairs, all sued in their official capacities.

Defendants moved to dismiss the plaintiffs' complaint. The motion to dismiss raised, among other contentions, lack of subject matter jurisdiction, lack of standing, absence of an Article III "case or controversy," and immunity asserted under the Speech and Debate Clause. Plaintiffs opposed those threshold challenges.

Legal Issues Presented

Whether the Court should entertain a civil declaratory judgment action seeking a determination that Administrator Gorsuch lawfully withheld documents from a congressional subcommittee under a claim of executive privilege, or whether the Court should defer to the statutory criminal contempt procedures provided to Congress.
Whether plaintiffs' suit satisfies Article III's "case or controversy" requirement and whether the Court has subject matter jurisdiction and plaintiffs have standing to seek the requested declaratory relief.
Whether defendants are immune from this civil suit under the Speech and Debate Clause of Article I, § 6, cl. 1.
Whether executive privilege may be asserted as a basis for affirmative civil relief (a declaratory judgment) prior to any criminal contempt prosecution or other enforcement action by Congress.

Arguments of the Parties

Defendants' Arguments

Defendants moved to dismiss on multiple threshold grounds, specifically asserting lack of subject matter jurisdiction, lack of standing, absence of a cognizable "case or controversy" under Article III, and immunity under the Speech and Debate Clause.

Plaintiffs' Position

Plaintiffs opposed the defendants' threshold challenges and sought immediate declaratory relief that Administrator Gorsuch lawfully withheld certain documents under a claim of executive privilege. The opinion states only that plaintiffs "have addressed and opposed each of these threshold challenges"—no further detailed argumentation is recited in the memorandum.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sanders v. McClellan, 463 F.2d 894 (D.C. Cir. 1972)	Statutory contempt provisions (2 U.S.C. §§ 192, 194) constitute an orderly and often approved means of vindicating constitutional claims arising from legislative investigations.	Used to support the proposition that constitutional objections to congressional investigatory procedures ordinarily are addressed within the statutory contempt scheme rather than by preemptive civil actions.
Barenblatt v. United States, 360 U.S. 109 (1959)	Constitutional claims and other objections to congressional investigatory procedures may be raised as defenses in criminal prosecutions arising from contempt citations.	Cited as authority for the statement that constitutional claims can be litigated within the criminal contempt process rather than by antecedent declaratory suits.
Ansara v. Eastland, 442 F.2d 751 (D.C. Cir. 1971)	Courts are reluctant to interfere with Congress' statutory contempt scheme; constitutional objections can be raised in contempt prosecutions.	Relied upon to emphasize judicial hesitancy to entertain civil actions by persons resisting compulsory legislative process and to support deferral to contempt procedures.
United States v. Tobin, 306 F.2d 270 (D.C. Cir. 1962)	Constitutional defenses to congressional investigatory demands may be asserted in subsequent criminal proceedings.	Cited alongside other circuit authority to show the established practice of adjudicating such claims in criminal contempt proceedings.
Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975)	Courts have been extremely reluctant to interfere with Congress' statutory contempt scheme by entertaining preemptive civil suits brought by recalcitrant witnesses seeking declaratory or injunctive relief.	Invoked to support the admonition against judicial intervention in interbranch disputes when statutory remedies exist.
United States v. American Telephone and Telegraph Co., 551 F.2d 384 (D.C. Cir. 1976)	The D.C. Circuit entertained a civil action by the Executive Branch to prevent compliance with a congressional subpoena where the Executive could not raise executive privilege as a defense in contempt proceedings; such circumstances are atypical.	Distinguished from the present case: the court noted that in AT&T the Executive could not later assert privilege as a defense, whereas here the Executive could raise privilege in contempt proceedings.
United States v. Rumely, 345 U.S. 41 (1952)	Courts have a duty to avoid unnecessarily deciding constitutional issues.	Applied to underscore the principle of judicial restraint and delay of judicial intervention until necessary.
Hanes Corp. v. Millard, 531 F.2d 585 (D.C. Cir. 1976)	The Declaratory Judgment Act confers discretion on courts, and courts may decline to exercise jurisdiction where appropriate.	Cited to support the court's conclusion that exercising its discretion to entertain this declaratory judgment action would be improper.

Court's Reasoning and Analysis

The court began from the undisputed factual record: a congressional subpoena was issued and served; the President directed withholding of open law enforcement files; Administrator Gorsuch appeared and announced she would not produce sensitive law enforcement documents; the House cited her for contempt; plaintiffs filed a declaratory judgment action before any grand jury presentation of the contempt citation.

The court framed the primary threshold question as whether the judicial branch should resolve the interbranch constitutional controversy now in a civil action or defer to the statutory contempt procedures Congress may employ (2 U.S.C. §§ 192, 194). The court reviewed established authority showing that the statutory contempt procedures constitute an "orderly and often approved means" for addressing constitutional objections to congressional investigations and that constitutional claims are customarily raised as defenses in a criminal contempt prosecution.

The court emphasized the general principle of judicial restraint: courts should avoid deciding constitutional issues unnecessarily and delay intervention in disputes between co-equal branches until settlement efforts and available statutory remedies have been exhausted. The court noted that the D.C. Circuit has entertained a civil suit by the Executive in atypical circumstances (United States v. AT&T) where the Executive could not later raise privilege as a defense, but found that circumstance distinguishable here because the Executive's privilege claim in the present case could be asserted in any subsequent contempt prosecution.

Critically, the court observed that plaintiffs seek affirmative relief—that is, to assert executive privilege as a basis for a declaratory judgment prior to any criminal contempt prosecution—rather than reserving the privilege as a defense to a contempt action. The court stated that judicial resolution of the executive-privilege claim would not become necessary unless Administrator Gorsuch were actually prosecuted (i.e., became a defendant in criminal contempt proceedings or other legal action by Congress).

Given the availability of the statutory contempt process, the longstanding reluctance of courts to permit preemptive civil suits by those resisting congressional process, and the policy favoring interbranch accommodation, the court concluded that exercising its discretion under the Declaratory Judgment Act to entertain this action would be inappropriate. Because the court dismissed the action on that discretionary ground, it expressly declined to address the other threshold grounds for dismissal raised by defendants (e.g., Article III standing, Speech and Debate Clause immunity).

Holding and Implications

Holding: The Court granted defendants' motion to dismiss. The core ruling may be stated as: Defendants' motion to dismiss is GRANTED.

Implications:

The declaratory judgment action seeking a preemptive judicial ruling on Administrator Gorsuch's claim of executive privilege was dismissed as an improper exercise of the court's discretion under the Declaratory Judgment Act.
The practical effect is that the court will not decide the merits of the executive-privilege claim in this civil action at this time; any constitutional objections may be litigated as defenses in the statutory contempt process or other enforcement proceedings initiated by Congress.
The court did not reach or decide the other threshold issues raised by defendants (subject matter jurisdiction, standing, Article III case-or-controversy, Speech and Debate Clause immunity), and the dismissal does not constitute an adjudication on the merits of the executive-privilege claim nor does it establish new precedent resolving the substantive privilege question.

This summary is based exclusively on the text of the provided opinion and does not add information beyond that opinion.

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UNITED STATES of America, and Anne M. Gorsuch, Plaintiffs, v. The HOUSE OF REPRESENTATIVES OF the UNITED STATES; the Committee on Public Works and Transportation of the House of Representati

MEMORANDUM

JOHN LEWIS SMITH, Jr., District Judge.

The United States of America and Anne M. Gorsuch, in her official capacity as Administrator of the Environmental Protection Agency (EPA), bring this action under the Declaratory Judgment Act, 28 U.S.C. § 2201. Plaintiffs ask the Court to declare that Administrator Gorsuch acted lawfully in refusing to release certain documents to a congressional subcommittee. Defendants in the action are: The House of Representatives of the United States; The Committee on Public Works and Transportation; The Honorable James J. Howard, Chairman of the Committee on Public Works and Transportation; The Subcommittee on Investigations and Oversight of the Committee on Public Works and Transportation; The Honorable Elliott J. Levitas, Chairman of the Subcommittee on Investigations and Oversight of the Committee on Public Works and Transportation; The Honorable Thomas P. O'Neill, Speaker of the House of Representatives; Edmund L. Henshaw, Jr., Clerk of the House of Representatives; Jack Russ, Sergeant at Arms of the House of Representatives; and James T. Molloy, Doorkeeper of the House of Representatives. The individual defendants are sued only in their official capacities. The case is now before the Court on defendants' motion to dismiss.

The essential facts are undisputed. On November 22, 1982, a subpoena was served upon Anne Gorsuch by the Subcommittee on Investigations and Oversight (the Subcommittee) of the Committee on Public Works and Transportation (the Committee). The subpoena required Administrator Gorsuch to appear before the Subcommittee on December 2, 1982, and to produce at that time the following documents:

all books, records, correspondence, memorandums, papers, notes and documents drawn or received by the Administrator and/or her representatives since December 11, 1980, including duplicates and excepting shipping papers and other commercial or business documents, contractor and/or other technical documents, for those sites listed as national priorities pursuant to Section 105(8)(B) of P.L. 96-510, the "Comprehensive Environmental Response, Compensation and Liability Act of 1980."

On November 30, 1982, President Reagan sent a Memorandum to Administrator Gorsuch instructing her to withhold from the Subcommittee any documents from open law enforcement files assembled as part of the Executive Branch's efforts to enforce the Comprehensive Environmental Response, Compensation and Liability Act of 1980. On December 2, 1982, the return date of the subpoena, Administrator Gorsuch appeared before the Subcommittee. She advised the Subcommittee that the EPA had begun to gather for production all documents responsive to the subpoena, but ". . . sensitive documents found in open law enforcement files will not be made available to the Subcommittee." 149 Cong.Rec. H10037. The Committee passed a Resolution reporting the matter to the full House of Representatives on December 10, 1982. The full House cited Administrator Gorsuch for contempt of Congress on December 16, 1982. The initial complaint in this case was filed on the same day, one day before the contempt resolution was certified to the United States Attorney for the District of Columbia for presentment to the grand jury. To date, the United States Attorney has not presented the contempt citation to the grand jury for its consideration.

Section 192 of Title 2 of the United States Code provides that a subpoenaed witness who refuses "to produce papers upon any matter under inquiry before either House . . . or any committee of either House of Congress", shall be guilty of a misdemeanor "punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months." Once an individual has been found in contempt by either House of Congress, a contempt order is presented to the President of the Senate or the Speaker of the House of Representatives for certification. 2 U.S.C. § 194. The President or Speaker in turn delivers the contempt citation to the appropriate United States Attorney. The United States Attorney is then required to bring the matter before the grand jury. Id.

The Executive Branch, through the Justice Department, has chosen an alternate route, however, in bringing this civil action against the House of Representatives and individual members of the Legislative Branch. Plaintiffs ask the Court to resolve the controversy by deciding whether Administrator Gorsuch acted lawfully in withholding certain documents under a claim of executive privilege.

Defendants raise several challenges to the propriety of plaintiffs' cause of action. Included among defendants' grounds for dismissal are lack of subject matter jurisdiction, lack of standing, and the absence of a "case or controversy" as required by Article III, § 2 of the United States Constitution. In addition, defendants claim that they are immune from suit under the Speech and Debate Clause, Article I, § 6, cl. 1. Plaintiffs have addressed and opposed each of these threshold challenges.

The Legislative and Executive Branches of the United States Government are embroiled in a dispute concerning the scope of the congressional investigatory power. If these two co-equal branches maintain their present adversarial positions, the Judicial Branch will be required to resolve the dispute by determining the validity of the Administrator's claim of executive privilege. Plaintiffs request the Court to provide immediate answers, in this civil action, to the constitutional questions which fuel this controversy. Defendants, however, have indicated a preference for established criminal procedures in their motion to dismiss this case. Assuming there are no jurisdictional bars to this suit, therefore, the Court must initially determine whether to resolve the constitutional controversy in the context of a civil action, or defer to established statutory procedures for deciding challenges to congressional contempt citations.

The statutory provisions concerning penalties for contempt of Congress, 2 U.S.C. § 192 and § 194, constitute "an orderly and often approved means of vindicating constitutional claims arising from a legislative investigation." Sanders v. McClellan, 463 F.2d 894, 899 (D.C. Cir. 1972). Under these provisions, constitutional claims and other objections to congressional investigatory procedures may be raised as defenses in a criminal prosecution. See Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959); Ansara v. Eastland, 442 F.2d 751 (D.C. Cir. 1971); United States v. Tobin, 306 F.2d 270, 276 (D.C. Cir. 1962). Courts have been extremely reluctant to interfere with the statutory scheme by considering cases brought by recalcitrant witnesses seeking declaratory or injunctive relief. See, e.g., Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Ansara v. Eastland, 442 F.2d at 754. Although the Court of Appeals for this Circuit has entertained one civil action seeking to block compulsory legislative process, that action was brought by the Executive Branch to prevent a private party from complying with a congressional subpoena. See United States v. American Telephone and Telegraph Company, 551 F.2d 384 (D.C. Cir. 1976). Significantly, therefore, in that case the Executive Branch was not able to raise its claim of executive privilege as a defense to criminal contempt proceedings.

Courts have a duty to avoid unnecessarily deciding constitutional issues. United States v. Rumely, 345 U.S. 41, 45-46, 73 S.Ct. 543, 545-546, 97 L.Ed. 770 (1952). When constitutional disputes arise concerning the respective powers of the Legislative and Executive Branches, judicial intervention should be delayed until all possibilities for settlement have been exhausted. See United States v. American Telephone and Telegraph, 551 F.2d at 393-395. Judicial restraint is essential to maintain the delicate balance of powers among the branches established by the Constitution. See id. Since the controversy which has led to United States v. House of Representatives clearly raises difficult constitutional questions in the context of an intragovernmental dispute, the Court should not address these issues until circumstances indicate that judicial intervention is necessary.

The gravamen of plaintiffs' complaint is that executive privilege is a valid defense to congressional demands for sensitive law enforcement information from the EPA. Plaintiffs have, thus, raised this executive privilege defense as the basis for affirmative relief. Judicial resolution of this constitutional claim, however, will never become necessary unless Administrator Gorsuch becomes a defendant in either a criminal contempt proceeding or other legal action taken by Congress. See, e.g., Ansara v. Eastland, 441 F.2d at 753-754. The difficulties apparent in prosecuting Administrator Gorsuch for contempt of Congress should encourage the two branches to settle their differences without further judicial involvement. Compromise and cooperation, rather than confrontation, should be the aim of the parties. The Court, therefore, finds that to entertain this declaratory judgment action would be an improper exercise of the discretion granted by the Declaratory Judgment Act, 28 U.S.C. § 2201. See Hanes Corp. v. Millard, 531 F.2d 585, 591 (D.C. Cir. 1976). In light of this determination, the Court will not address the additional grounds for dismissal raised by defendants.

Accordingly, defendants' motion to dismiss is granted.

U.S. v. HOUSE OF REPRESENTATIVES OF UNITED STATES, (D.D.C. 1983)