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FDA has found to lack evidence of effectiveness? Such
questions are a matter of legitimate public concern, espe-
cially since Congress voted to increase OAP's budget by 20
percent this year at the same time it was slashing health
care to the public. The NNMC can provide useful informa-
tion on these issues without compromising the personal

privacy of individual Members. (Id. at 10] Finally, the plaintiff maintained, even if he was not entitled to judgment, summary judgment for the Navy was improperly granted and the case should be remanded. In support of this contention, Mr. Arieff argued that: (1) the district court erred in ruling for the Navy without allowing him to respond fully to Dr. Cary's in camera affidavit; and (2) the district court erred in allowing all the NNMC records to be withheld even though there were “plainly" some portions which could be disclosed without implicating any legitimate privacy interest.

On July 30, 1982, the defendant-appellee Navy filed its brief in the appeals court arguing that the district court correctly held that the prescription drug records were nondisclosable under FOIA Exemption 6. Initially, the defendant asserted that the lower court properly balanced the conflicting interests in its ruling, since disclosure of the requested information would result in a "substantial invasion” of individual Members' personal privacy. Because this finding of the lower court was not "clearly erroneous," the Navy continued, it should be sustained. In any event, the defendant contended, the record amply supported the finding:

Dr. Cary's affidavits establish that the threat to Members' privacy interests posed by disclosure of the prescription drug records in question is far more than the “mere possiblity” referred to in Department of the Air Force v. Rose, supra, 425 U.S. at 380 n. 19. See Appellant Br. 9.

In addition to Dr. Cary's affidavits, the district court's finding was supported by other evidence in the record. In particular, the court's emphasis upon the limited population served by the OAP was fully warranted. Individuals for whom the drugs listed on the NNMC records are prescribed and distributed to the OAP are part of a discrete group of about 600 public officials (J.A. 48, 132). That the patient population for whom the drugs listed on the NNMC records are prescribed is limited to these readily identifiable individuals would, as the district court recognized, greatly assist any effort to connect a specific drug with a particular Member.

Furthermore, the district court properly relied upon the fact that the Members are public officials subject to national attention and intense scrutiny concerning every detail of their lives (J.A. 135). This consideration heightens the potential degree of instrusion into their personal privacy resulting from disclosure of the requested information. [Appellee's Brief, July

at 28-29 (footnote omitted)]

[graphic]

The Members' interest in maintaining their privacy concerning their medical care and use of prescription drugs was not forfeited upon their election to public office, the defendant insisted.

In contrast to the substantial privacy interests of the Members, the defendant stated, the public interest in disclosure of the records was “slight.” Indeed, the Navy argued, non-disclosure is essential to protect the public interest in ensuring that Members continue to rely upon OAP physicians for primary medical care.(Id. at 34 (emphasis in original)] There was, said the defendant, ample information already in the public record to satisfy any legitimate public interest in the operations of the OAP. Finally, the defendant characterized the plaintiff's interest in determining whether controlled substances prescribed by OAP physicians were being improperly used by Members as an attempt "to elevate his personal curiosity to the level of a legitimate public interest.” (Id. at 36)

Turning to the plaintiff's arguments in support of remand, the defendant maintained that: (1) the district court's ex parte review of Dr. Cary's in camera affidavit was within its discretion and entirely proper, and a full adversary exchange on the affidavit's contents was unnecessary; and (2) the district court's decision to allow all NNMC records to be withheld was correct because the drug records were not susceptible to "reasonable segregation."

On August 16, 1982, Mr. Arieff submitted a reply brief reiterating many of his previous arguments. He emphasized again that in his view the only way that Exemption 6 could properly be invoked was if the requested documents "confirmed that a particular Member was taking a particular drug for a particular condition, something these documents do not and cannot do because they only show bulk amounts shipped to OAP and contain no information about how or whether the listed drugs are actually dispensed.” [Reply Brief of Appellant, August 16, 1982, at 6)

On February 2, 1983, the case was argued before a panel of the appeals court. (Oral argument had originally been scheduled for October 19, 1982, but was postponed at the request of the appellees.)

Status—The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit. As of March 1, 1983, the court had not handed down its decision.

The complete text of the April 27, 1982 memorandum order of the district court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1982.

XI. The Congressional Contempt Power United States v. The House of Representatives of the United States

Civil Action No. 82-3583 (D.D.C.) On December 16, 1982, the House of Representatives passed a resolution (H. Res. 632, 128 Cong. Rec. H10061) citing the Administrator of the Environmental Protection Agency (“EPA”), Anne M. Gorsuch, for contempt of Congress pursuant to 2 U.S.C. $$ 192 et seq.1 The contempt resolution was based on Ms. Gorsuch's failure to comply with a subpoena for documents issued by the Subcommittee on Investigations and Oversight (Subcommittee") of the House Committee on Public Works. The subpoena had been issued to obtain information within EPA relating to the Agency's administration of the so-called “Superfund” law, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (P. L. 96-510, codified at 42 U.S.C. § 9604 (Supp. V 1981)), the purpose of which was to provide for the clean-up of abandoned hazardous waste sites.2 Under the law, a $1.6 billion trust fund was established to be administered by EPA, along with an enforcement mechanism for recovery of the costs of clean up against the parties responsible for creating wastesites. The Subcommittee investigation which generated the subpoena was commenced to determine whether EPA was carrying out its enforcment responsibilities under the statute.

Shortly after the House concluded voting on the contempt resolution in the late evening of December 16, the Department of Justice, on behalf on the "United States of America,” filed a complaint in the U.S. District Court for the District of Columbia seeking to enjoin the House from taking any further action to enforce the subpoena 3 and to declare the subpoena unconstitutional. (Civil Action No. 82-3583] Named as defendants were: the House of Representatives; the Committee on Public Works and Transportation; Rep. James J. Howard, Chairman of the Committee; the Subcommittee on Investigations and Oversight; Rep. Elliott J. Levitas, Chairman of the Subcommittee; Rep. Thomas P. O'Neill, Jr., Speaker of the

The text of the Congressional contempt statute (2 U.S.C. § 192, 194) reads as follows: § 192. Refusal of witness to testify or produce papers

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed 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. § 194. Certification of failure to testify or produce; grand jury action

Whenever a witness summoned as mentioned in section 102 (2 USCS $ 192] fails to appear to testify or fails to produce any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session, or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action. 2 The subpoena required Administrator Gorsuch to appear before the Subcommittee on De cember 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 except shipping papers and other commercial or business documents, contractor and/or other technical documents, for those sites listed as national priorities pursuant to Section 10518%B) of P.L. 96-510, the "Comprehensive Environmen

tal Response, Compensation and Liability Act of 1980." 3 At the time the complaint was filed the Speaker of the House had not yet certified the reso lution of contempt to the United States Attorney for the District of Columbia for presentment to the grand jury as directed by 2 U.S.C. $ 194. This was done on December 17, 1982.

4

House; and House officers Edmund L. Henshaw, Clerk, Benjamin J. Guthrie, Sergeant-at-Arms, and James Molloy, Doorkeeper.

The complaint sought relief on the ground that "efforts to compel production of the documents ... are unconstitutional because the dissemination of such documents, which are part of open investigatory law enforcement files and deliberative decisionmaking materials, outside of the Executive Branch would impair the President's constitutional obligation to ensure that the laws be faithfully executed. United States Constitution, Art. II, Sec. 1. See United States v. Nixon, 418 U.S. 683, 711 (1974).” (Complaint, December 16, 1982, 113] Production of the subpoenaed documents would therefore "contravene the executive privilege," the complaint asserted. (Id., 138] Further, it averred, the subpoena was defective because it was "overbroad" and the Subcommittee had “not demonstrated a specific need for the documents in question.” [Id., 139) Moreover, the complaint alleged, "Administrator Gorsuch has been instructed by the President to withhold such privileged documents from the public and the Congress and therefore she has the right not to be subject to criminal prosecution for contempt under 2 U.S.C. $ 194.” (Id., | 40]

In addition to asking the court to enjoin the defendants from taking any further action to enforce the subpoena, the Justice Department sought a declaration that: (1) dissemination of the documents would unconstitutionally impair the President's obligation to ensure the confidentiality of its law enforcement files; (2) 2 U.S.C. § 194 could not be constitutionally invoked against an Executive branch official; and (3) the subpoena was unconstitutional on its face and as applied.

On December 29, 1982, an amended complaint was filed in the case which added Ms. Gorsuch as a plaintiff (in her official capacity as EPA Administrator) and omitted the House Sergeant-at-Arms as a defendant. Because the Speaker of the House had certified the contempt resolution to the U.S. Attorney, the amended complaint sought only declaratory relief, specifically a judgment that Ms. Gorsuch had complied with all the requirements of the subpoena, or alternatively a declaration that, insofar as she did not comply with the subpoena, her non-compliance was lawful.

On January 5, 1983, the House defendants filed a motion to dismiss the complaint and for expedited consideration of their motion. (The motion and supporting memorandum discussed infra were actually submitted conditionally on December 30, 1982, but were not formally filed until the court granted permission for the memorandum to exceed the page limitation set by local rules.) The defendants also asked the court to rule on what they alleged to be "serious and fatal” jurisdictional flaws in the complaint before proceeding to consider any other issues on the merits. In a memorandum accompanying their motion, the House defendants argued that: (1) injunctive and declaratory relief were “inappropriate” in this case; (2) the court lacked jurisdiction to entertain the action; and (3) the complaint failed to state a claim upon which relief could be granted.

* By memorandum dated November 30, 1982, President Reagan instructed Administrator Gorsuch to withhold from the Subcommittee any documents from open law enforcement files assembled as part of the Executive branch's efforts to enforce the Superfund law.

Preliminarily, the House defendants attacked the case as “an unprecedented and historic first" in that the “United States" was suing a constituent part of one of the three coordinate branches of which it was composed. Further, said the defendants, the case was also the “first instance in which the Executive Branch . . . seek[s] the aid of the federal judiciary to be excused from either the application or performance of federal statutes that the Executive Branch is sworn to obey and execute” and the “first modern instance in which the Executive Branch seeks invalidation of a statute on an advisory basis, prior to its enforcement or application.' [House of Representatives Memorandum of Points and Authorities in Support of Motion to Dismiss, January 5, 1983, at 2]

First addressing the propriety of the relief sought by the Justice Department in the original complaint, the House defendants argued that the Speech or Debate Clause 5 barred the request for an injunction or a declaratory judgment. The defendants pointed out that the complaint averred a number of strictly legislative acts clearly coming within the protective ambit of the Clause. They elaborated:

The "plaintiff's” complaint makes no pretense in alleging anything but "pure” legislative acts taken in the chamber and in committee in relation to the issuance of a subpoena. See, e.g., Complaint 26 (subcommittee vote); | 27 (full committee vote); || 31 (service of subpoena by subcommittee of the Committee on Energy and Commerce), and | 35 (subcommittee vote). It is beyond doubt that voting, reporting and debating or anything done in the chamber or committee cannot serve as a basis for suit. United States v. Brewster, 408 U.S. 501, 527 (1972) (a court cannot inquire into how a legislator "spoke, how he debated, how he voted, or anything he did in the chamber or in committee").

Members and staff are acting within the legislative sphere when conducting investigations, Tavoulareas v. Piro, 93 F.R.D. 11, 18 (D.D.C. 1981); 527 F. Supp. 676, 682 (D.D.C. 1981), and when authorizing or preparing subpoenas, McSurely v. McClellan, 521 F. 2d 1024, 1037 (D.C. Cir. 1975) affd en banc by an equally divided court, 553 F.2d 1277, 1284 (1976); Eastland v. United States Servicemen's Fund, 421 U.S. 491, 505 (1975). The "plaintiff" avers the power to perform, and the actual performance of, these very legislative acts in the action. See, e.g., Complaint s 4-5 (Committee on Public Works and Transportation has power to issue subpoenas and to vote to cite a witness for contempt); Complaint ( 21 (service of subpoena); Complaint | 27 (committee voted to cite Administrator for contempt); and Complaint | 28 (House passed a resolution).

5 The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, (U.S. Senators and U.S. Representatives) shall not be questioned in any other Place." (art. I, § 6, cl. 1]

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