Fins-IPG-20 _Schreibman v. Holmes et al_, No. 1:96CV01287, slip op., (D. DC, August 18, 1997) (Urbina, DJ) (Memorandum order granting defendants' motion to dismiss). UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Vigdor Schreibman, Plaintiff, Civil Action No. 1:96CV01287 (RMU) v. David W. Holmes, et al., Defendants. M E M O R A N D U M O R D E R GRANTING DEFENDANTS' MOTION TO DISMISS I. INTRODUCTION This matter comes before the court upon the defendants' motion to dismiss plaintiff's action made pursuant to Federal Rule of Civil Procedure 12(b)(6). The defendants maintain that plaintiff's action presents this court with a nonjusticiable question. They also assert that plaintiff's complaint fails to state a claim upon which relief can be granted because it does not allege facts that amount to a violation of plaintiff's constitutionally protected rights. The plaintiff, Mr. Schreibman, brings this suit against the defendants for their alleged breach of his First and Fifth Amendment rights. He asserts that the defendants wrongfully refused him access to the Periodical Press Galleries of the United States thereby infringing on the constitutional guarantees of freedom of the press and procedural due process. Mr. Schreibman applied for membership in the Press Galleries because of his work with the Federal Information News Syndicate (FINS), a biweekly Internet news publication that reports on federal legislation and governmental policies. He seeks declaratory, injunctive, and other appropriate relief for the defendants' rejection of his application. The defendants in this case are the Executive Committee of Correspondents (Executive Committee or Committee), the Committee members, and its secretary [1] They control access to the Periodical Press Galleries 1. Defendants Richard Dunham, Richard Cohen, Sean Ford, Rick Maze, Alexis Simendinger, Karen Tumulty and Craig Winneker are the members of the Committee. Defendant David W. Holmes is the Secretary of the Committee. pursuant to authority granted to them by the Speaker of the House and the Senate Committee on Rules and Administration. The defendants argue that because their authority has been delegated to them by the House and Senate, any action they take in their official capacity is immune from suit under the Speech or Debate Clause of the United States Constitution. They also claim that even if they has erroneously rejected Mr. Schreibman's application, such an action does not amount to a violation of the right to freedom of the press. Finally, the defendants assert that the Committee's administrative proceedings have not infringed upon Mr. Schreibman's right to procedural due process. After considering the parties' submissions and relevant law, the court concludes that Mr. Schreibman's complaint shall be dismissed because it presents a nonjusticiable question. Where the Executive Committee acts within the scope of its delegated authority by denying, in good faith, an application to the press galleries, the Committee and its members are immune from suit under the Speech or Debate Clause of the United States Constitution. Because Mr. Schreibman has failed to allege that the defendants were acting outside the scope of their powers when they reviewed and rejected his application, and because he has not alleged that the defendants acted in bad faith, the court shall grant the defendants' motion to dismiss. II. BACKGROUND The Executive Committee of Correspondents is an administrative body established under the authority of the Speaker of the House and the Senate Committee on Rules and Administration [2]. Its function is to determine 2. The Executive Committee is elected by members of the Periodical Correspondents' Association at the start of each Congress. The Association consists of employees of publications that have been accredited to the Periodical Press Galleries by the Executive Committee. For a more complete discussion of the Committee's origins and functions, _see Consumers Union v. Periodical Correspondents' Ass'n_, 515 F.2d 1341, 1343-46 (D.C. Cir 1975). members of the Periodical Correspondent's Association and thereby obtain access to the Press Galleries of the United States Congress. Accreditation by the Association results in certain privileges such as special seating in the galleries and use of various other facilities including telephones and typewriters. Membership is governed by criteria set forth in The Rules for the Periodical Press Galleries of the U.S. Senate and House of Representatives (Press Gallery Rules) [3]. The Committee rejects any 3. The Press Gallery Rules are promulgated by the Speaker of the House and the Senate Committee on Rules and Regulations. publication or employee thereof that does not meet the criteria set forth in these rules. A rejected candidate is entitled to a public hearing before the Executive committee. Mr. Schreibman is the sole owner, publisher, editor and writer for the FINS publication. In August 1995, Mr. Schreibman submitted an application to the Executive Committee of Correspondents requesting access to the Periodical Press Galleries. The Executive Committee denied his request for admission on the grounds that the FINS publication failed to meet Press Gallery Rules 1 and 2 [4]. The Committee provided no further reasons for its denial, but 4. Rule 1 of the Press Gallery rules states in relevant part that: Persons eligible for admission to the Periodical Press Galleries must be bona fide resident correspondents of reputable standing, giving chief attention to the gathering and reporting of news... [they] will not become engaged or assist, directly or indirectly, in any lobbying, promotion, advertising, or publicity activity intended to influence legislation or any other action of the Congress[.] Rule 2 of the Press Gallery rules states in relevant part that: Applicants must be employed by periodicals that regularly publish a substantial volume of news material of either general, economic, industrial, technical, cultural or trade character. The periodical must require such Washington coverage on a continuing basis and must be owned and operated independently of any government, industry, institution, association, or lobbying organization. Applicants must also be employed by a periodical that is published for profit and is supported chiefly by advertising or by subscription[.] upon Mr. Schreibman's request, it held a public hearing to reconsider his application. At the hearing, Mr. Schreibman and the Committee entered into an extensive review of the Press Gallery Rules. The Committee again rejected his application [5]. Mr. Schreibman then appealed the Committee's decision 5. Mr. Schreibman maintains that he never received formal notification as to the reasons why the Executive Committee concluded that FINS does not meet the requirements of the Press Gallery Rules. The defendants have stated that their decision was based on the Committee's findings that FINS is not published for profit that Mr. Schreibman does not receive a salary from FINS, and that Mr.Schreibman is not a full-time journalist. to the Speaker of the House and the Senate Committee on Rules and Administration. At the time Mr. Schreibman filed this lawsuit no action has been taken on that appeal. Mr. Schreibman claims that the defendant's refusal to issue him press credentials is a violation of the First Amendment's guarantee of freedom of the press. He asserts that FINS meets all the criteria set forth in the Press Gallery Rules and that the defendants erroneously rejected his application. In support of this assertion, Mr. Schreibman states that FINS is a for profit publication that is supported chiefly by voluntary subscription fees, that its area of reporting require Washington coverage, that it operates independently of any lobbying or other related organization, and that he is a full-time resident journalist [6]. Mr. Schreibman further 6. Mr. Schreibman transmits FINS free of charge over the Internet to subscribers who are interested in telecommunications legislation, federal policies concerning access to government information, funding for federal library programs, and federal economic priorities. claims that the defendants' failure to inform him of the reasons for his application's rejection has resulted in a violation of his constitutional due process rights. He avers that during the application process he received no formal notification of any conclusions that the Executive Committee had reached, and that this lack of notification prevented him from initiating a meaningful administrative appeal. The defendants maintain that Mr. Schreibman and his publication do not meet the requirements specified in the Press Gallery Rules. Specifically, they state that FINS is not published for profit, that Mr. Schreibman does not receive a salary from FINS, and that Mr. Schreibman does not earn his livelihood as a journalist. The defendants argue that their interpretation of the Press Gallery Rules is immune from judicial review under the Speech or Debate Clause of the Constitution. Alternatively, they assert that because Mr. Schreibman neither alleged that the defendants acted in bad faith nor set forth facts sufficient to established a due process violation, his action should be dismissed for failure to state a claim upon which relief can be granted. III. DISCUSSION A. Legal Standard The defendants' argue that Mr. Schreibman's claim presents a nonjusticiable question. In evaluating whether a claim is justiciable, the court must address two issues: First, [it] must decide whether the claim presented and the relief sought are of the type which admit of judicial resolution. Second, [it] must determine whether the structure of the Federal Government renders the issue presented a 'political question' that is, a question which is not justiciable in federal court because of the separation of powers provided by the Constitution. _Powell v. McCormack_, 395 U.S. 486, 516-17 (1969). "[A] case may involve a nonjusticiable political question if, among other things, a textually demonstrable constitutional commitment of the issue to a coordinate political department is involved." _Consumers Union v. Periodical Correspondents' Ass'n_, 515 F.2d 1341, 1347 (D.C. Cir 1975) (internal citations omitted). The United States Court of Appeals for the District of Columbia Circuit has held that a suit brought against the Executive Committee for its rejection of a press gallery application raises a nonjusticiable political question. Id. at 1346. In _Consumers Union_, the plaintiff brought an action against the Committee for failing to accredit the plaintiff's publication and its designated representative to the Periodical Press Galleries. Id. at 1342. The Executive Committee had rejected the plaintiff's application on the grounds that the publication, Consumer Reports, was not "independent" within the meaning of Rule 2 of the Press Gallery Rules. Id. at 1345. The plaintiff, in turn, alleged that the Committee had interpreted and applied the Press Gallery Rules in a discriminatory, arbitrary, capricious and unreasonable manner. Id. at 1346. They maintained that Rule 2 of the Press Gallery Rules, both on its face and as applied to Consumer Reports, violated the constitutional guarantees of freedom of the press and procedural due process. Id. 1345-46. The Court of Appeals began its analysis by noting that the Rulemaking Clause in Article I, sec. 5, cl. 2 of the United States Constitution established a "broad grant of authority" under which "each House has exercised power to extend to those members of the press determined eligible, and otherwise to deny, admission to the floors and galleries of Congress." Id. at 1342 [7]. Given this traditional practice, the court concluded that 7. Article I, sec. 5, cl. 2 of the Constitution provides that "[e]ach House may determine the Rules of it Proceedings[.]" The Supreme Court in _United States v. Ballin_, 144 U.S. 1, 5 (1892), described the Rulemaking Clause in the following manner: The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method or proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different use has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal. More recently, the U.S. Court of Appeals for the District of Columbia Circuit stated that "the Rulemaking Clause ... clearly reserves to each House of the Congress the authority to make its own rules." _United States v. Rostenkowski_, 59 F.3d 1291, 1306 (D.C. Cir. 1995). the Press Gallery Rules are a legitimate exercise of the Rulemaking Power that facilitates the reporting of news while taking account of necessary space limitations. Id. at 1347. However, with respect to the alleged misapplication of those rules, the court declined to determine whether the Rulemaking Clause by itself established the nonjusticiability of the plaintiff's claims. Id. at 1347-48. Instead, it held that the Speech or Debate Clause rendered the case nonjusticiable because the Executive Committee was "acting by virtue of an express delegation of authority as aides or assistants of Congress" and was "enforcing internal rules of Congress validly enacted under authority specifically granted to Congress and within the scope of authority appropriately delegated by it." Id. at 1350 [8]. By "performing delegated functions [which] were an integral part of 8. The Speech or Debate Clause is found in Article I, sec. 6, cl. 1 of the United States Constitution, which states: The Senators and Representatives should receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of thee United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same, and for any Speech or Debate in either House, they shall not be questioned in any other place. the legislative machinery," the Executive Committee was entitled to the same protection accorded to a Member of Congress. Id. at 1350-51; _see also Doe v. McMillan_, 412 U.S. 306, 312 n.7 (1973) (congressional committee members, including members of their staff are absolutely immune under the Speech or Debate Clause insofar as they engage in legislative acts such as computing a report or voting for its publication); _Gavel v. United States_, 408 U.S. 606, 618 (1972) ("the Speech or Debate Clause applies not only to a Member [of Congress] but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the member himself"); _Pettingell v. Executive Committee of Correspondents, 1986 WL 8569 (D.D.C. March 31, 1986) (Executive Committee of Correspondents' rejection of an application for admission to the Periodical Press Galleries is immune from suit under the Speech or Debate Clause). Thus, despite the fact that the Speech or Debate Clause does not create an absolute bar to holding agents of Congress responsible for their unconstitutional acts, _Consumers Union_ presented a nonjusticiable issue because it involved a challenge to acts that "were within the sphere of legislative power committed to the Congress and the legislative immunity granted to the Constitution." _Consumers Union_, 515 F.2d at 1351. As long as a lawsuit is not "concerned with claimed bad faith or illegal conduct," but rather with "acts that occur in the regular course of the legislative process," actions against the Executive Committee should be dismissed as nonjusticiable under the Speech or Debate Clause. Id. at 1348. B. Plaintiff's Action Nonjusticiable Mr. Schreibman asserts that his case is distinguishable from _Consumers Union_. He claims that, unlike the plaintiff in _Consumers Union_, he does not challenge the authority of Congress to promulgate the Press Gallery Rules, but only challenges the application of those rules to FINS. In actuality, however, the plaintiff in _Consumer's Union_ attacked both the constitutionality of the Rules and their application vis-a-vis Consumer Reports. Id. at 1346. The court in _Consumers Union_ rejected both the plaintiff's challenges, concluding that the Speech or Debate Clause rendered the Executive Committee's actions immune from suit so long as the Committee was acting within the scope of its authority and in good faith. Id. at 1348 [9]. Mr. Schreibman does not allege that the defendants were acting outside 9. Mr. Schreibman also maintains that he is in a different position than the _Consumers Union_ plaintiff because he was previously accredited by the Executive Committee. The Committee, however, accredited Mr. Schreibman for a different publication. Moreover, Mr. Schreibman chose not to seek a renewal of that accreditation. At issue in this case is Mr. Schreibman's application concerning FINS. the scope of their authority, nor does he allege that they rejected his application in bad faith. Mr. Schreibman's claims must therefore fail [10]. 10. Mr. Schreibman also attempts analogize this case to _Sherril v. Knight_, 569 F.2d 124 (D.C.Cir. 1977), where the Court of Appeals upheld an action against the Director of the Secret Service that challenged the denial of a White House press pass. Mr. Schreibman's reliance on _Sherril_ is misplaced. That case has no bearing on the justiciability of Mr. Schreibman's claim because _Sherril_ involved press access to the White House and therefore implicated neither the Rulemaking Clause nor the Speech or Debate Clause. Furthermore, in _Pettingell_, where a plaintiff brought suit against the Executive Committee for failing to accredit the plaintiff to the Periodical Press Galleries, this court followed the Court of Appeal's decision in _Consumers Union_ and dismissed the plaintiff's suit as nonjusticiable under the Speech or Debate Clause. _Pettingell_, 1986 WI 8569 at 1-2. V. CONCLUSION For the foregoing reasons, it is this 18th day of August 1997. ORDERED that the defendants' motion to dismiss be and is hereby GRANTED; and it is FURTHER ORDERED that this case be DISMISSED from the docket of this court. SO ORDERED. (s) Ricardo M. Urbina __________________________ Ricardo M. Urbina United States District Judge