Report of the Select Committee on Congressional Operations, U.S. House of Representatives, pursuant to House Resolution ...

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Report of the Select Committee on Congressional Operations, U.S. House of Representatives, pursuant to House Resolution 420 Ninety-Fifth Congress identifying court proceedings and actions of vital interest to the Congress
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Table of Contents
    Front Cover
        Front Cover 1
        Front Cover 2
    Title Page
        Page i
        Page ii
    Table of Contents
        Page iii
        Page iv
        Page v
        Page vi
    Front Matter
        Page vii
        Page viii
    Introduction
        Page ix
        Page x
    I. Constitutional qualifications of members of Congress
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
    II. Constitutional immunity of members of Congress
        Page 7
        Page 8
        Page 9
        Page 10
        Page 11
        Page 12
        Page 13
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        Page 37
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        Page 39
        Page 40
        Page 41
        Page 42
    III. Powers of congressional committees
        Page 43
        Page 44
        Page 45
        Page 46
        Page 47
        Page 48
        Page 49
        Page 50
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        Page 64
        Page 65
        Page 66
        Page 67
        Page 68
        Page 69
        Page 70
    IV. Constitutional powers of the Congress
        Page 71
        Page 72
        Page 73
        Page 74
        Page 75
        Page 76
        Page 77
        Page 78
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        Page 108
        Page 109
        Page 110
        Page 111
        Page 112
    V. Officers, employees, and agents of the Congress
        Page 113
        Page 114
        Page 115
        Page 116
        Page 117
        Page 118
        Page 119
        Page 120
        Page 121
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        Page 138
        Page 139
        Page 140
    VI. Disputed elections
        Page 141
        Page 142
        Page 143
        Page 144
    VII. Other actions involving members in a representative capacity
        Page 145
        Page 146
        Page 147
        Page 148
        Page 149
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        Page 180
        Page 181
        Page 182
        Page 183
        Page 184
        Page 185
        Page 186
    Decisions
        Page 187
        Page 188
        Page 189
        Page 190
        Page 191
        Page 192
        Page 193
        Page 194
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        Page 342
    Appendix. Members of the 95th Congress parties to or directly concerned with litigation affecting Congress
        Page 343
        Page 344
        Page 345
        Page 346
    Index. Table of cases reported
        Page 347
        Page 348
        Page 349
        Page 350
        Page 351
        Page 352
        Page 353
        Page 354
    Back Cover
        Back Cover 1
        Back Cover 2
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95th Congress COMMITTEE PRINT { PART 6


REPORT
OF THE
SELECT COMMITTEE
ON CONGRESSIONAL OPERATIONS
U.S. HOUSE OF REPRESENTATIVES
PURSUANT TO
HOUSE RESOLUTION 420
NINETY-FIFTH CONGRESS
AND THE
COMMITTEE ON
RULES AND ADMINISTRATION
U.S. SENATE
PURSUANT TO
SENATE RULE XXV, (n)(2)
IDENTIFYING
COURT PROCEEDINGS AND ACTIONS OF VITAL
INTEREST TO THE CONGRESS


Current to December 31, 1978


Printed for the use of the House Select Committee on Congressional
Operations and the Senate Committee on Rules and Administration

U.S. GOVERNMENT PRINTING OFFICE
37-1480 WASHINGTON : 1978





























SELECT COMMITTEE ON CONGRESSIONAL OPERATIONS


U.S. HOUSE OF REPRESENTATIVES
JACK BROOKS, Texas, Chairman


ROBERT N. GIAIMO, Connecticut
JAMES L. OBERSTAR, Minnesota
JOHN L. BURTON, California
ADAM BENJAMIN, JR., Indiana


JAMES C. CLEVELAND, New Hampshire
JOHN M. ASHBROOK, Ohio


COMMITTEE ON RULES AND ADMINISTRATION
U.S. SENATE
CLAIBORNE PELL, Rhode Island, Chairman


HOWARD W. CANNON, Nevada
ROBERT C. BYRD, West Virginia
HARRISON A. WILLIAMS, JR.,
New Jersey
DICK CLARK, Iowa


MARK 0. HATFIELD, Oregon
ROBERT P. GRIFFIN, Michigan
HOWARD H. BAKER, JR., Tennessee












CONTENTS


COURT PROCEEDINGS AND ACTIONS OF VITAL INTEREST
TO THE CONGRESS
Page
Introduction ...................................................................................... ix
I. Constitutional Qualifications of Members of Congress:
Clancey v. A lbert ..................................................................... 1
Laxalt v. K im m itt ................................................................. 2
II. Constitutional Immunity of Members of Congress:
D avis v. Passm an.................................................................... 7
McSurely v. McAdams (formerly McClellan) .................... 14
Hutchinson v. Proxmire ......................................................... 23
United States v. Helstoski ..................................................... 28
Helstoski v. Meanor............................................................... 28
Chase v. K ennedy .................................................................... 37
R usack v. H arsha .................................................................. 38
Ill. Powers of Congressional Committees:
United States v. American Telephone and Telegraph Co. 43
Koniag Inc. v. Andrus (formerly Kleppe) .......................... 50
Exxon Corp. v. Federal Trade Commission........................ 55
Kerr-McGee Corp. v. Federal Trade Commission............... 55
Union Carbide Corp. v. Federal Trade Commission ......... 55
United States v. Berrellez...................................................... 62
United States v. Gerrity ......................................................... 63
Holy Spirit Association v. Fraser......................................... 64
In re Beef Industry Antitrust Litigation ............................ 65
Iowa Beef Processors, Inc. v. Bagley .................................... 66
United States v. Powell ........................................................ 68
Application of Senate Select Committee on Ethics ........... 69
Application of House Select Committee on Assassina-
tions ....................................................................................... 69
IV. Constitutional Powers of the Congress:
Chadha v. Immigration and Naturalization Service ....... 71
N ixon v. Sampson ................................................................... 73
N ixon v. Solom on ................................................................... 92
Citronelle-Mobile Gathering, Inc. v. Gulf Oil Corp .......... 93
Goland v. Central Intelligence Agency................................ 95
Daughtrey v. Carter......................................................... 101
Schwartz v. United States Department of Justice ............ 106
Goldwater v. Carter......................................................... 109
V. Officers, Employees, and Agents of the Congress:
Socialist Workers v. Henshaw (formerly Jennings) .......... 113
United States v. Elko ............................................................. 116
Brislin v. United States .................................................. 116


I 11






IV
Page
V. Officers, Employees, and Agents of the Congress-Continued
Common Cause v. Bolger (formerly Bailar, formerly
K lassen) ................................................................................ 117
Lewis v. Chisholm .................................................................. 135
Abney v. United States Capitol Hill Policeman ................ 136
Martin Tractor Co. v. Federal Election Commission ........ 136
VI. Disputed Elections:
Moreau v. Tonry ...................................................................... 141
VII. Other Actions Involving Members in a Representative
Capacity:
Dellums v. Powell ...........S........................................................ 145
Powell v. Dellums ................................................................... 145
Wilson v. Dellums .............................................................. 145
Sportservice Corp. v. Steiger .................................................. 149
R euss v. Balles ...................................................................... 150
United States v. Podell ........................................................... 155
Claty v. Baum an ...................................................................... 157
McRae v. Califano ... P...................................................... ... 158
R ay v. Proxm ire ...................................................................... 161
Young v. New York Times ...........................................,..... 162
R osen v. Young ........................................................................ 163
Gardner v. Young ................................................................... 164
Helstoski v. Goldstein ......................................................... 164
Cervase v. Rangel .................................................................... 165
United States v. Goldberg ..................................................... 167
United States ex rel. Joseph v. Cannon .............................. 172
United States v. Hanna ......................................................... 173'
United States v. Passman ..................................................... 174
United States v. Diggs ........................................................... 175
Community-Service Broadcasting of Mid-America, Inc. v.
Federal Communications Commission ............................. 176
Patterson v. Griffin ...... ..... .......................o...... ... ...................... 180
Littlejohn v. Talmadge ..... ........ ......... ........ .. ...... ................ 181
United Stoates v. Clark ........................................................... 182
cUnited States v. Flood .... ................... ......... ..... .............(..u 183
United States v. Eilberg .................................................... 184
In re Japanese Electronic Products Antitrust Litigation.. 184
DECISIONS
R usack v. H arsha ................................................ ................... 189
Exxon Corp. v. Federal Trade Commission ........................ 215
Kerr-McGee Corp. v. Federal Trade Commission ............... 215
Union Carbide Corp. v. Federal Trade Commission ......... 215
Iowa Beef Processors, Inc. v. Bagley (District Court,
February 13, 1978) ....................... ..................................... 237
Iowa Beef Processors, Inc. v. Bagley (District Court,
November 24, 1978) ........................................................... 249
Iowa Beef Processors, Inc. v. Bagley (Court of Appeals).. 251
Nixon v. Sampson ...................................................... .... 257
Schwartz v. United States Department of Justice (Au-
gust 30, 1977) o ................................................. ..... .............. 273
Schwartz v. United States Department of Justice (De-
cem ber 12, 1977) .............. ..................................... .... ........ 275







DECISIONS-Continued
Page
Schwartz v. United States Department of Justice (Febru-
ary 9, 1978) ........................................................................... 277
Lewis v. Chisholm .................................................................. 283
Martin Tractor Co. v. Federal Election Commission ........ 285
Dellums v. Powell ................................................................... 293
Cervase v. Rangel .................................................................... 313
United States v. Passman ..................................................... 321
United States v. Clark ........................................................... 335

APPENDIX
Members of the 95th Congress parties to or directly concerned
with litigation affecting Congress ............................................... 345

INDEX
Table of Cases Reported ..................................................................... 349




















Digitized by the Internet Archive
in 2013














http://archive.org/details/represetco00unit










HOUSE RESOLUTION 420 (95TH CONG., 1ST SESS.)

SELECT COMMITTEE ON CONGRESSIONAL OPERATIONS


FUNCTIONS OF SELECT COMMITTEE


SEC. 3. (a) The select committee shall continue the func-
tions of the Joint Committee on Congressional Operations
for the House, as follows:


(2) Identifying any court proceeding or action which, in
the opinion of the select committee, is of vital interest to the
Congress, or to the House of Representatives as a constitu-
tionally established institution of the Federal Government,
and calling such proceeding or action to the attention of the
House.


SENATE RULE XXV, (n)(2)

COMMITTEE ON RULES AND ADMINISTRATION


Such committee shall also-


(B) Identify any court proceeding or action which in the
opinion of the committee, is of vital interest to the Congress
as a constitutionally established institution of the Federal
Government and call such proceeding or action to the
attention of the Senate.


(VII












INTRODUCTION


In accordance with the provisions of House Resolution 420 of the
95th Congress and Senate Rule XXV, the Select Committee on
Congressional Operations and the Senate Committtee on Rules and
Administration are continuing the practice of reporting on court
cases and actions of importance to the Congress as a constitutionally
established institution of the Federal Government.
This report, the sixth report for the 95th Congress, provides case
briefs, accounts of the status of court proceedings and the full text of
decisions in cases which the committees have identified as being of
vital interest to the Congress. Major changes in the briefs of previ-
ously reported cases appear in bold type. Those filed before the
publication of the most recent preceding report but appearing in the
reporting series for the first time are described as "(Newly Reported
Cases)." Cases filed after the publication of the most recent preced-
ing report are designated as "(New Cases)."
The committees intend to continue the practice of publishing
reports of court proceedings and actions periodically throughout the
96th Congress. In addition, the committees also intend to publish a
complete collection of the cases which have appeared in this series.
We encourage comments from all Members of Congress and others
who use this report as an information source and research document.
We also would welcome and appreciate any information or sugges-
tions as to pending court proceedings and actions which do not
appear in this report.
JACK BROOKS, Chairman,
House Select Committee on
Congressional Operations.
CLAIBORNE PELL, Chairman,
Senate Committee on Rules
and Administration.
(IX)














COURT PROCEEDINGS AND ACTIONS OF VITAL
INTEREST TO THE CONGRESS

I. CONSTITUTIONAL QUALIFICATIONS OF MEMBERS OF CONGRESS
Clancey v. Albert
Civil Action No. 77-3010 (Ninth Cir.)
Brief.-Michael Patrick Clancey, a resident of the 40th Congres-
sional District of California, filed this complaint on March 25, 1976,
in the United States District Court for the Central District of
California. In it he named as defendants then-Representative Carl
Albert, individually and as Speaker of the U.S. House of Repre-
sentatives; Representative John J. Flynt, individually and as Chair-
man of the House Committee on Standards of Official Conduct;
then-Representative Andrew J. Hinshaw, individually and in his
official capacity as a Congressman in the U.S. House of Representa-
tives; Edmund L. Henshaw, Jr., individually and in his official
capacity as Clerk of the U.S. House of Representatives; and the
U.S. House of Representatives.
The complaint alleges that the defendants have denied plaintiff
and other U.S. citizens residing within the 40th Congressional Dis-
trict of California their constitutional right to be represented in
the House of Representatives by enforcement of a rule which pre-
cluded then-Congressman Andrew J. Hinshaw, who had been con-
victed in the California courts on two felony counts unrelated to
his service in Congress, from voting or participating in Congres-
sional matters. Rule XLIII, clause 10 of the U.S. House of Repre-
sentatives states:
A Member of the House of Representatives who has
been convicted by a court of record for the commission of a
crime for which a sentence of two or more years' imprison-
ment may be imposed should refrain from participation in
the business of each committee of which he is a member
and should refrain from voting on any question at a meet-
ing of the House, or of the Committee of the Whole House,
unless or until judicial or executive proceedings result in
reinstatement of the presumption of his innocence or until
he is reelected to the House after the date of such convic-
tion.
Mr. Clancey argues that Rule XLIII, clause 10, is unconstitution-
al in that it contravenes Article I, Section 5 and other provisions of
the U.S. Constitution and thereby results in taxation without rep-
resentation.
He also contends that the House Rule which barred participation
by Representative Hinshaw is defective and inappropriate, that it
should be replaced by a House proposal to amend the Constitution
to provide qualifications for Members of Congress in addition to







those prescribed in Article I, Section 5, and therein to establish a
Code of Ethics through which a Member can be expelled and
replaced for certain illegal or unethical activities.
On June 2, 1976, while this action was pending in the District
Court, Mr. Clancey filed in the U.S. Supreme Court a motion for
leave to file a petition for a writ of mandamus commanding the
defendants to vacate Rule XLIII, clause 10 and that a writ of
prohibition be issued prohibiting the defendants from enforcing
this provision. On July 16, 1976, the defendants fied an opposition,
stating that the Supreme Court had neither original nor appellate
jurisdiction in this matter. On October 4, 1976, the Court denied
Mr. Clancey's motion to file his petition.
On June 18, 1976, defendants Albert and Flynt filed in the Dis-
trict Court a motion to dismiss on the grounds that (1) the court
lacks jurisdiction over the subject matter of the complaint, (2) the
U.S. House of Representatives may not be sued in that name, (3)
this action as against the defendant Congressmen is barred by
virtue of the Speech or Debate clause of the Constitution, (4) the
action should be dismissed because venue is improper, and (5) the
court lacks personal jurisdiction over the defendant Congressmen.
On July 27, 1976, the District Court entered orders:
(1) dismissing the U.S. House of Representatives from this action
on the ground that the action as against the said defendant is
barred by the doctrine of sovereign immunity; and (2) dismissing
Congressmen Carl Albert and John J. Flynt, Jr., from the action on
the grounds that the action as against them is barred by the
Speech or Debate clause of the U.S. Constitution (Article I, Section
6, clause 1).
A motion to dismiss the Clerk of the House as a defendant was
filed on January 21, 1977.
On April 4, 1977, the District Court dismissed the action as moot.
On April 19, 1977, the plaintiff filed a notice of appeal. The cause
was docketed in the Court of Appeals on September 1, 1977.
Status.-The appeal is currently pending before the U.S. Court of
Appeals for the Ninth Circuit.

Laxalt v. Kimmitt
Nos. 78-1437 and 78-1438 (D.C. Cir.)
Brief.-On July 14, 1977, Senators Paul Laxalt, Barry Goldwater,
Carl Curtis, S. I. Hayakawa and Lowell Weicker filed this action in
the Federal District Court for the District of Columbia and asked
that a three-judge court be convened to hear the case. The Senators
were joined in the suit by the Committee for the Survival of a Free
Congress (hereinafter "CSFC") an unincorporated political commit-
tee which contributes to campaigns of candidates for public office.
The suit asks that Rule XLIV of the Senate Ethics Code, and if
necessary, the entire Ethics Code be declared null and void as
violative of several provisions of the Constitution. Named as de-
fendants are the Chairman of the Senate's Select Committee on
Ethics, Senator Adlai E. Stevenson III, and the Secretary of the
Senate, J. S. Kimmitt, who as the chief administrative officer of
the Senate, the plaintiffs assert, "causes the Ethics Code and all
reports, resolutions, and other actions of the Select Committee on







Ethics to be disseminated to Senators and elsewhere." [Laxalt v.
Kimmitt, No. 77-1230 (D.D.C.), Complaint at 6.] Additionally, the
plaintiffs allege that Senator Stevenson and Mr. Kimmitt are "re-
sponsible for and exercise ministerial jurisdiction over the enforce-
ment of the Ethics Code by said Committee and by the Senate."
[Complaint at 7.]
Particularly the plaintiffs attack the limits on outside earned
income prescribed by Rule XLIV. The Rule, which becomes effec-
tive in 1979 would, among other things, limit the amount of "out-
side earned income" a Senator could earn in a year to 15 percent of
the aggregate amount of base salary paid to Senators and disbursed
by the Secretary of the Senate.
The plaintiffs first allege that this limitation in fact constitutes a
qualification for membership in the Senate in addition to and
therefore in violation of Article I, Section 3, clause 3 of the Consti-
tution which reads in full:
"No person shall be a Senator who shall not have at-
tained to the Age of thirty Years, and been nine Years a
Citizen of the United States, and who shall not, when
elected, be an Inhabitant of that State for which he shall
be chosen."
Next the Senate plaintiffs assert that by limiting the compensa-
tion they can receive for speaking and by putting them in jeopardy
of "political ruin and personal vilification" if they violate Rule
XLIV, the Rule deprives them of their rights to freedom of speech
under the First Amendment. They also assert that their First
Amendment associational rights are denied by the Rule because
they are precluded from supporting without similar risk candidates
for the Senate who have earned, earn, or may earn in excess of the
"outside earned income" limit prescribed by the Rule.
The CSFC also asserts that the Rule deprives it of its First
Amendment right to support senatorial candidates "who have
earned, earn, or may earn such prescribed sums." [Complaint at 8.]
As a third count the Senate plaintiffs assert that the Rule's
limitation on "outside earned income" violates the Fifth Amend-
ment of the Constitution in that by prohibiting them from receiv-
ing such "outside earned income" it deprives them of liberty and
property without due process of law.
The Senate plaintiffs, in the fourth count of their complaint,
allege that Rule XLIV denies and disparages their Ninth Amend-
ment rights to earn "outside earned income" over the limit and to
support candidates for the Senate "who have earned, earn, or may
earn in excess of said limitation." [Complaint at 9.] Additionally,
they assert that the Rule is an unjustified intrusion of their priva-
cy in violation of the Fifth and Ninth Amendments. The CSFC also
asserts that the Rule violates its Ninth Amendment right to sup-
port candidates for the Senate who have earned, earn, or may earn
in excess of the "outside earned income limitation."
As a final count, the Senate plaintiffs assert that the Rule invi-
diously discriminates against them and denies them the equal pro-
tection of the laws in that the Rule limits "outside earned income,"
but places no limitation on inherited income, "unearned" income,
the income of a spouse, or income from a trust fund. They further







assert that the "outside earned income" limitation is "an improper
classification" because it "bears no reasonable relation to the pur-
ported purpose of the Senate Ethics Code." [Complaint at 10.]
The CSFC also asserts that it is invidiously discriminated against
and denied the equal protection of the laws in that Rule XLIV
effectively precludes it from supporting Senate candidates whose
"outside earned income" is in excess of the Rule's limitations.
On August 11, 1977, Common Cause, David Cohen, President of
Common Cause and Nan Waterman, Chairwoman of Common
Cause, citing Common Cause's "history of involvement in the en-
actment of ethics rules" including the Rule complained of by the
plaintiffs, filed a motion to intervene as defendants in the action.
On September 2, 1977, the motion to intervene as party defend-
ants filed by Common Cause, David Cohen, and Nan Waterman
was granted.
On December 21, 1977, the intervening defendants moved to
dismiss the action.
On December 23, 1977, plaintiffs filed an amended complaint in
which they deleted their prayer for convocation of a three-judge
District Court pursuant to the provisions of 28 U.S.C. 2282 and
2284.
The congressional defendants moved to dismiss the amended
complaint on January 9, 1978.
On January 30, 1978, the intervening defendants, Common
Cause, Mr. Cohen and Ms. Waterman, filed a memorandum in
opposition to defendants' motion to dismiss.
The congressional defendants' motion to dismiss was heard and
granted on March 3, 1978.
On March 13, 1978, an order dismissing the action was filed. The
court first found that the amended complaint sufficiently alleged
the requisite jurisdictional amount. The order declared that Rule
XLIV does not add to the constitutional qualifications for Senate
membership nor does it deprive the plaintiffs of their freedom of
speech. Additionally, the order stated that the Rule's differenti-
ation between earned and unearned income does not constitute
unlawful discrimination. Therefore, the Court further concluded,
the complaint fails to state a claim on which relief can be granted
and that the amended complaint does not allege a justiciable case
or controversy.
Finally, the Court declared that its disposition of the issues al-
ready mentioned made it unnecessary for the Court to address the
question of standing.
Plaintiffs filed a notice of appeal on March 24, 1978.
On April 6, 1978, defendants Kimmitt and Stevenson filed a
notice of cross-appeal from those portions of the final judgment of
the District Court which (1) hold that the first amended complaint
sufficiently alleges the requisite jurisdictional amount and (2) con-
clude that the disposition of other issues raised by the motions of
the defendants makes it unnecessary to dispose of the issues raised
with respect to the standing of the plaintiff, Committee for the
Survival of a Free Congress and the intervenors, Common Cause,
David Cohen and Nan Waterman.
The appeal and the cross-appeal were consolidated by order of
Circuit Judge Wright, sua sponte, on June 5, 1978.





5

On December 8, 1978, appellants moved to add Senator Mike
Gravel as a party appellant.
Status.-The case is pending before the U.S. Court of Appeals for
the District of Columbia Circuit.
The March 13, 1978 order of the District Court is printed in the
"Decisions" section of the report of Court Proceedings and Actions
of Vital Interest to the Congress, Part 4, May 15, 1978.














II. CONSTITUTIONAL IMMUNITY OF MEMBERS OF CONGRESS
Davis v. Passman
No. 78-5072 (U.S. Supreme Court)
Brief.-Plaintiff, Shirley Davis, served as deputy administrative
assistant on the staff of Representative Otto E. Passman from
February 1, 1974 through July 31, 1974, on which date her employ-
ment was terminated. She filed this complaint, naming then-Repre-
sentative Passman as defendant, in the U.S. District Court for the
Western District of Louisiana on August 7, 1974, alleging that she
had been discriminatorily dismissed from defendant's Congression-
al staff because of her sex, in violation of her constitutional rights
under the Fifth Amendment.
Plaintiff supplemented her complaint with a letter from the
defendant, in which Mr. Passman indicated, in dismissing her, that
he had concluded "it was essential that the understudy to my
Administrative Assistant be a man."
Representative Passman filed a motion to dismiss the complaint,
stating: (1) The alleged conduct of the defendant is not violative of
the Fifth Amendment; (2) the law affords no private right of action
to plaintiff; and (3) the doctrines of official and sovereign immunity
bar any action against the defendant.
In a hearing on February 24, 1975, U.S. District Judge Tom
Stagg, of the U.S. District Court for the Western District of Louisi-
ana, dismissed plaintiffs complaint on the grounds that it failed to
state a claim against Mr. Passman upon which relief could be
granted. The court held that the alleged sex discrimination by Mr.
Passman did not violate the Fifth Amendment to the Constitution
and that the law affords no private right of action to plaintiff. The
court further held, however, that Mr. Passman's defense of sover-
eign and official immunity was not well founded.
Mrs. Davis filed an appeal with the U.S. Court of Appeals for the
Fifth Circuit on March 20, 1975.
Representative Passman filed his response with the Court of
Appeals on June 9, 1976. While supporting the District Court's
decision to grant his motion to dismiss, he reasserted his conten-
tion that the doctrines of "sovereign and official immunity" are a
bar to Mrs. Davis' claim.
The Court of Appeals in its decision of January 3, 1977, rejected
Representative Passman's assertions of sovereign, official and
Speech or Debate clause immunity. After determining that the
allegations asserted by Mrs. Davis would, if proven, constitute a
violation of her constitutional rights, the majority took up the
question of whether the claim was one upon which relief could be
granted. The court noted that Mrs. Davis was seeking three types
of relief: specific relief, damages, and a declaratory judgment.
Turning first to the question of specific relief the court noted
that there were three remedies requested: Reinstatement, promo-







tion, and an injunction against unlawful discrimination. Of those
three remedies only the claim for an injunction "might raise a
sovereign immunity issue * *." [Davis v. Passman, 544 F.2d at
865, 871 (5th Cir. 1977).] The court further noted that Representa-
tive Passman's defeat in his bid for reelection has caused Mrs.
Davis' requests for reinstatement and a promotion to lose their
significance. "That the term is not yet completely over saves the
specific-relief claims from technical mootness * *." [544 F.2d at
872.]
As for Mrs. Davis' claim for damages the court found that dam-
ages would be an appropriate remedy for the allegation of constitu-
tional violation and that Representative Passman's assertions of
immunity were not well taken. As to whether sovereign immunity
would bar recovery, the court concluded that the damages sought
were against Representative Passman individually, not against the
United States. The court declared: "When, as here, an action seeks
to impose liability upon a Government official in an individual
capacity, sovereign immunity poses no bar. Although sovereign
immunity sometimes shields the U.S. Treasury from a plaintiffs
claims, it does not protect the personal checkbook of an individual
Government official to any extent at all." [544 F.2d at 877.]
Turning next to the question of whether Speech or Debate clause
immunity was an absolute shield against the action, the court
stated that such immunity was available only for actions taken in
the legislative process. The court concluded that "representatives
are not immune from inquiry into their decisions to dismiss staff
members. Such dismissal decisions certainly are not 'an integral
part of the deliberative and communicative processes by which
Members participate in committee and House proceedings with
respect to the consideration and passage or rejection of proposed
legislation or with respect to other matters which the Constitution
places within the jurisdiction of either House' * *." [544 F.2d at
880.]
The court then rejected Representative Passman's argument that
he was protected by the doctrine of official immunity. The court
further noted that its rejection of Speech or Debate clause immuni-
ty precluded Representative Passman from asserting an absolute
immunity. As for a qualified immunity, the court noted that such
immunity was generally limited to good faith, nonmalicious action.
The court concluded that "[i]n light of the settled, indisputable
principle that Federal Government sex discrimination not sup-
ported by rational (or perhaps compelling) legitimate justifications
are unconstitutional * *, the likelihood that Representative Pass-
man will be able successfully to maintain a good faith defense even
under the liberal standard governing Congressional staffing deci-
sions appears very remote." [554 F.2d at 881-882.]
As for the declaratory relief requested by Mrs. Davis, the court
declined to rule on the propriety of such relief, noting that "the
absence of any forward-looking scope of operation for any declara-
tion of Davis' rights as against Representative Passman, whose
Congressional tenure is virtually at its end, would make the propri-
ety of such a declaration questionable." [544 F.2d at 882.]







The dissent concluded that the doctrine of separation of powers
required that the dismissal of the action by the District Court be
affirmed.
The case was remanded to the District Court for further action.
On February 16, 1977, Mr. Passman filed a motion for rehearing
en banc.
On March 15, 1977, the Department of Justice filed a brief
amicus curiae with the Court of Appeals supporting the motion for
rehearing and asking leave to participate in oral argument if the
motion for rehearing were granted.
On March 31, 1977, a motion for leave to file an amicus brief in
opposition to the motion for rehearing was filed by individuals who
are members of the House Fair Employment Practices Committee.
According to the motion:
The House Fair Employment Practices Committee was
formed pursuant to the House Fair Employment Practices
Agreement. This committee is a voluntary organization; it
is not a Standing or Select Committee formed by resolu-
tion of the House of Representatives. It consists of six
elected members. Three of these members are the U.S.
Representatives filing this motion who were elected by the
Representatives signing the agreement. The other three
members are the congressional employees who are joining
in the filing of the motion and who were elected by the
employees of those Representatives signing the agreement.
[Motion by the Honorable Morris Udall, et al., for Leave to
File a Brief Amicus Curiae at 2, Davis v. Passman, No. 75-
1691 (5th Cir.).]
The three Members of the House of Representatives on the com-
mittee, Representatives Morris Udall, Patricia Schroeder, and
Charles Rose, and the three Congressional employees on the com-
mittee assert that the case was "competently and fully argued and
decided," [Id. at 3], and that the petition for rehearing should be
denied.
On April 18, 1977, Representative Don Edwards filed a letter
with the court in which he said that the Justice Department had
intervened in the matter without Congressional request or approv-
al and that in his view the court's decision was sound and reconsid-
eration or rehearing was not necessary. He also asserted that the
Justice Department s brief does not accurately describe the alleged
burdens this decision would place upon Members of Congress. He
asked that he be allowed to file an amicus brief if a rehearing were
granted.
On May 17, 1977, the court granted the petition for a rehearing
en banc.
On August 19, 1977, a letter was filed advising the court that the
United States would appear at the oral argument as amicus curiae.
On September 26, 1977, the case was reheard en bane.
On April 18, 1978, the U.S. Court of Appeals for the Fifth Circuit
rendered its decision en banc in an opinion reversing the earlier
panel opinion. In so doing, the earlier judgment of the U.S. District
Court dismissing Mrs. Davis' claim was affirmed on the ground
that the law affords her no private right of action in the Federal







courts for money damages. The en banc opinion vacated the deci-
sion of the District Court in regard to that court's holding that the
conduct of which Mrs. Davis complained did not violate the Consti-
tution.
To determine whether a cause of action for money damages
would lie for a violation of Fifth Amendment due process rights the
court first noted that the Supreme Court had found that such a
remedy was available to parties asserting a violation of their
Fourth Amendment rights [Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29
L.Ed.2d 619 (1971)]. Concluding that the award of money damages
in Bivens was implied as a matter of Federal common law, and as
such subject to the power of Congress to alter or withdraw, the
court set forth a two-step analysis to determine whether the money
damages sought by Mrs. Davis could be implied in the Federal
common law for a violation of Fifth Amendment due process
rights:
First, we look to the jurisprudence of statutory implication
to determine whether to imply a damage action of non-
constitutional dimensions. Second, if this initial inquiry
does not suggest that such an action should be implied, we
must determine whether the Constitution nevertheless
compels the existence of a remedy in damages to vindicate
the rights asserted. [Slip Opinion at 3511.]
The majority noted four factors which have been utilized in the
past to determine whether to imply a cause of action from a right
created by statute: (1) whether the provision asserted creates an
especial right in the plaintiff, (2) whether the action of Congress in
the field indicates an intent to allow such a remedy or at least an
intent not to deny the remedy, (3) whether implication of the
remedy would be consistent with the purpose of the right asserted,
and (4) whether the cause of action implied would be one appropri-
ate for Federal law. The court concluded that each of these factors
militated against Mrs. Davis' claim.
As to the question of an especial right, the opinion stated:
While the fifth amendment Due Process Clause surely
exists for the "especial benefit" of Davis, as Cort [Cort v.
Ash, 422 U.S. 66 (1975)] required, it does not exist with
equal certainty to protect her tenure in a non-competitive
personal aide position statutorily denominated as service
at will. 2 U.S.C.A. 92. [Slip Opinion at 3511.]
The court found that the action of the Congress in excluding
Congressional employees from the protection of Title VII of the
1964 Civil Rights Act and the 1972 amendments thereto coupled
with 2 U.S.C.A. 92 (which provides that Members of a Congress-
man's personal staff are removable by him "at any time * with
or without cause") was instructive as to Congressional intent.
The court further noted that:
Implying the cause of action asserted by Davis would
have the anomalous result of granting federal employees
in non-competitive positions, whom Congress did not
intend to protect, a remedy far more extensive than Con-








gress adopted for federal employees in the competitive
services, whom it did intend to protect. [Slip Opinion at
3512.]
As to the question of consistency of the implication of the
remedy of damages with the statutory purpose, the court noted
that substantial difficulties existed in providing money damages for
violation of Fifth Amendment due process rights which were not
present when the court implied such a remedy for violation of
Fourth Amendment rights. On this point the court stated:
Violations of fourth amendment rights occur in a well-
defined setting familiar to the courts. The relationship is
always one between law enforcement officials and citizens
suspected of possessing evidence of crime. The context in
which these violations may arise is sufficiently limited to
allow the court to determine that an action for damages
would be consistent with the purpose of the fourth amend-
ment in future instances in which such an action might be
invoked. The fifth amendment Due Process Clause pre-
sents no similarly focused remedial issue. To the contrary,
the breadth of the concept of due process indicates that
the damage remedy sought will not be judicially manage-
able and that there is simply no way a court can judge
whether this remedy will be appropriate for securing the
right in future situations where some plaintiff might
assert it. [Slip Opinion at 3513.]
Summarizing the holding of the court on whether to imply a
cause of action for money damages, the opinion stated:
Not only does this case fail to present special remedial
difficulties analogous to those faced by the court in dealing
with the fourth amendment, but also Congress avoided
creating an action for money damages for Congressional
aides in non-competitive positions. Moreover, implying this
damage action necessarily would draw into the Federal
judicial system a wide range of cases whose resolution
Congress has not committed to the Federal judiciary and
whose resolution is better suited to courts of general juris-
diction. These special considerations * eliminate any
question of our creating a remedial right under our federal
common law power. [Slip Opinion at 3514.]
Turning to the question of whether the remedy of damages might
yet be constitutionally compelled as indispensable to the effectu-
ation of the Fifth Amendment Due Process clause and thus not
subject to Congressional preclusion, the court noted:
Denying an implied cause of action for money damages
does not render meaningless any constitutional rights of
Congressional employees. A plaintiff might still seek equi-
table relief where the employer remained in office, al-
though Congressional employees in the non-competitive
service whose allegedly discriminating employers are not
in office may be left without a remedy for sex discrimina-
tion in employment unless Congress reverses its present







statutory stand. Other due process wrongs would either
continue to be remedied in traditional ways through tort
actions in courts of appropriate general jurisdiction or
through special statutory remedies provided by state legis-
latures or Congress. Admittedly, some not now covered
would remain inactionable. [Slip Opinion at 3514-15; (foot-
note omitted).]
The opinion also noted that Article III, Section 1 of the Constitu-
tion, pursuant to which Federal District and Circuit Courts of
Appeals are established, could be rendered meaningless by the
increased number of cases which might be brought in those courts,
"crushing an already precariously overloaded Federal judicial
system" were an implied cause of action for damages for violation
of Fifth Amendment due process rights held to be available.
In Circuit Judge Jones' special concurring opinion he declared:
I do not believe that the constitutional provisions here
pertinent are to be confined to the Speech and Debate
clause.1 The broader provisions by which all legislative
powers are vested in the Congress2 is relevant to the
cause.
IThe Senators and Representatives for any speech or debate in either
House shall not be questioned in any other place. U.S. Const. Art. I, Sec.
6(1).
2U.S. Const. Art. I, Sec. 1.
*
[T]he court should say that the hiring and firing of his
"alter ego" is a legislative activity and a part of the exer-
cise of the legislative power. The question is not one of
whether there is a judicial remedy. The question, as I see
it, is whether the controversy is one involving the exercise
of the legislative power and within the jurisdiction of the
Congress. Let it decide whether there should be absolute
immunity. Let it determine whether there is a right and if
so to fashion a remedy and designate a tribunal to declare
and enforce it. I think it should have been held that the
complaint does not state a claim upon which relief can be
granted. [Slip Opinion at 3515-3516.]
In dissent, Judge Goldberg, joined by Chief Judge Brown, reject-
ed the majority's conclusion that no private cause of action for
money damages could be implied from the Due Process clause of
the Fifth Amendment. As to the question of whether the Speech or
Debate clause served as a bar to the action, the dissent adopted the
original decision of the Appeals Court panel which had concluded
that it did not.
As to the majority's comment that equitable relief might be
available to Congressional employees discriminatorily dismissed
from their jobs, Judge Goldberg declared:
The majority's unelaborated suggestion of "equitable
relief" is oblivious to those constitutional values, critically
implicated in this case, underlying the speech or debate
clause and the doctrine of separation of powers. Congress
has spoken specifically to its views on the nature of the







working relationship between Congressmen and their per-
sonal staffs by classifying employees like Mrs. Davis as
removable "at any time * with or without cause." The
Supreme Court has accorded congressional staffers speech
or debate clause protections in certain circumstances, rec-
ognizing that staffers may act as congressional alter egos
in the performance of certain legislative tasks. Gravel v.
United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583
(1972). See Davis v. Passman, 544 F.2d at 877-81 (panel
opinion). Apparently the majority feels these values can be
better effectuated, consistent with the requirements of the
fifth amendment, not by actions for damages but by in-
junctive orders requiring Congressmen to employ particu-
lar individuals. This is not the occasion for a definitive
statement on the circumstances which might justify impli-
cation of a private action for equitable relief to vindicate
fifth amendment rights. But on the facts of the case before
us, I would have thought that such "special factors coun-
selling hesitation in the absence of affirmative action by
Congress," Bivens, 403 U.S. at 396, 91 S.Ct. at 2005, are
more germane to the implication of equitable relief than to
implication of an action for damages.
Similarly, it would seem to me that the special problems
of congressional immunity under the speech or debate
clause and the doctrine of separation of powers render this
case uniquely appropriate for adjudication in the federal
courts under a federal cause of action. Much of the Bivens
opinion concerns the difficulties and inadequacies of state
court or state law adjudications of federal immunities in
the context of constitutional claims; that reasoning is, if
anything, even more powerful with respect to the issues
presented here. [Slip Opinion at 3528; (footnote omitted).]
Mrs. Davis filed a petition for writ of certiorari with the United
States Supreme Court on July 17, 1978. The petition characterized
the issues upon which the writ was sought as whether a cause of
action for money damages may be implied directly from the Fifth
Amendment where there is no alternative remedy available and, if
so, whether the Speech or Debate clause bars the suit.
The petition for writ of certiorari was granted on October 30,
1978.
On December 14, 1978, the American Civil Liberties Union filed
a brief as amicus curiae urging reversal.
Twenty-nine Members of the House of Representatives and
three employees of the House of Representatives also filed a brief
as amicus curiae urging reversal on December 14, 1978. The Rep-
resentatives were Morris Udall, Patricia Schroeder, Charles Rose,
Les AuCoin, Berkley Bedell, David Bonior, William M. Brodhead,
George E. Brown, Jr., John H. Buchanan, Jr., Yvonne Brathwaite
Burke, Robert Carr, John Conyers, Ronald V. Dellums, Thomas
Downey, Robert F. Drinan, Don Edwards, Dante B. Fascell, Dale
E. Kildee, William Lehman, Edward J. Markey, George Miller,
Anthony Moffett, Richard Nolan, Leon Panetta, D. J. Pease, Fred
Richmond, Bruce F. Vento, Harold L. Volkmer, and Ted Weiss.







Mrs. Davis filed her brief on December 18, 1978.
Status.-The case is pending before the U.S. Supreme Court.
The complete text of the opinion of the Court of Appeals panel is
printed in the "Decisions" section of the report of Court Proceed-
ings and Actions of Vital Interest to the Congress, Part 1, April 15,
1977.
The full text of the en bane opinion of the Court of Appeals panel
is printed in the "Decisions" section of the report of Court Proceed-
ings and Actions of Vital Interest to the Congress, Part 4, May 15,
1978.
McSurely v. McAdams (formerly McClellan)
C.A. No. 516-69 (D.D.C.)
Brief.-On August 11, 1967, pursuant to warrants issued under a
State sedition statute, Kentucky officials arrested Alan and Marga-
ret McSurely and seized books and papers from their home. The
McSurelys filed a complaint in the District Court for the Eastern
District of Kentucky, challenging the constitutionality of the State
statute.
On September 11, 1967, the three-judge court which heard the
case issued an order directing that:
(1) the material seized in the raid on the McSurely home
be left in the custody of the Kentucky Commonwealth
Attorney, Thomas B. Ratliff;
(2) the material be made available to the U.S. Marshal
for the Eastern District of Kentucky;
(3) Ratliff and the U.S. Marshal make an inventory of
the seized material and file it with the record of the case;
and
(4) Ratliff return to the McSurelys such materials as he
determined were not relevant to the investigation and
prosecution of the McSurelys.
That same day the McSurelys were indicted by a Kentucky
grand jury.
On September 14, 1967, the three-judge Federal District Court
rendered its decision holding the Kentucky statute unconstitution-
al and enjoining prosecution of the McSurelys. The court directed
that Ratliff retain the seized materials "in safekeeping until final
disposition of this case by appeal or otherwise."
On September 25, 1967, Lavern Duffy, Assistant Counsel on the
staff of the Permanent Investigations Subcommittee of the Senate
Government Operations Committee, called Ratliff by phone to ask
about the seized documents. Subsequently, on October 8, 1967,
Committee Investigator John Brick went to Kentucky, talked with
Ratliff and confirmed that the seized material in Ratliff s posses-
sion contained information relating to the activities of a number of
organizations in which the subcommittee was interested.
Ratliff has claimed that at some point before Brick was first
given access to the seized material, he tried unsuccessfully to con-
tact all of the members of the three-judge court to obtain their
concurrence in his decision to allow Brick to inspect the docu-
ments. While he was unsuccessful in reaching two of the judges, he






15


has stated that he did talk to the third (Judge Moynahan). Ratliffs
testimony at trial on his discussion with the judge implied (accord-
ing to the opinion of the minority of the en banc Court of Appeals)
that Judge Moynahan agreed to Brick's examining and copying the
material. [McSurely v. McClellan, 553 F.2d 1277, 1307-1308 (D.C.
Cir. 1976).]
On October 12, 1967, Brick examined the material for about 4
hours. He took notes, made copies of 234 of the documents, and
then returned to Washington.
On October 16th, 4 days later, Senator McClellan directed Brick
to prepare subpoenas duces tecum for the seized material in Rat-
lift's custody, which the Senator had determined was relevant to
the subcommittee's investigations of an April 1967 riot in Nash-
ville, Tennessee. The next day, Brick, who had returned to Ken-
tucky, notified Judge Moynahan of the issuance of the Congression-
al subpoenas before serving Ratliff, the U.S. Marshal (cocustodian
with Ratliff of the seized materials), and the McSurelys. The next
day the McSurelys filed motions with the three-judge court seeking
orders blocking Ratliff from releasing the seized material to the
subcommittee and directing him to return the materials to them
(the McSurelys).
On October 30, 1967, the three-judge court issued an order in
response to the McSurelys' motions. The court overruled motions
that the materials in Ratliff's custody be returned to the McSure-
lys and that a restraining order be issued enjoining release of the
materials requested "by a Committee of the United States Senate."
Officers of the court and the parties to the action were directed "to
cooperate with the Senate committee in making available such of
the materials, or copies thereof, as the committee considers perti-
nent to its inquiry * *." [553 F.2d at 1308.]
On November 1, 1967, a motion for reconsideration and rehear-
ing of the October 30th order was denied. The court granted a 24-
hour stay to allow the McSurelys to apply to the Supreme Court
for review, and directed that pending such review the material not
be removed from Ratliff's custody and that "copies thereof shall
not be made on or before 2:00 p.m., Eastern Standard Time, No-
vember 2, 1967." [553 F.2d at 1308.]
On November 10, 1967, Mr. Justice Stewart, for the Supreme
Court, ordered that the documents remain in their then custody
until the three-judge court could hear and rule on the McSurelys'
objections to the Congressional subpoenas.
In an order issued on December 5, 1967, the three-judge court
overruled the McSurelys' objections to the subpoenas. The court
ordered Ratliff to comply with the Congressional subpoenas by
allowing committee representatives to make copies of the materials
in his possession pursuant to the court's order. A 5-day stay was
ordered in the compliance required by the order to allow the
McSurelys to seek Supreme Court review.
On January 20, 1968, Mr. Justice Stewart, again speaking for the
Supreme Court, stayed the three-judge court order "to the extent
that the seized documents shall remain in custody." [390 U.S. 914
(1968).] The stay was conditioned on the McSurelys filing an appeal
of the October 30th three-judge court order with the Supreme
Court.







On March 18, 1968, the Supreme Court declined to hear the case,
dismissing the appeal in a per curiam order [390 U.S. 914 (1968)],
but continued the stay to allow the McSurelys to apply to the Sixth
Circuit Court of Appeals for a stay. By the time the McSurelys'
appeal to the Sixth Circuit was taken, the time for the State to
appeal the three-judge court's order of September 14, 1967, finding
the Kentucky statute unconstitutional, had expired.
In July of 1968, the Sixth Circuit decided that since time for
appeal of the September 14th order had run, "the right of the court
to retain possession of the seized documents, which include no
contraband, has expired." [McSurely v. Ratliff, 398 F.2d 817, 819
(6th Cir. 1968).] The Appeals Court ordered that the materials be
returned to the McSurelys without prejudice to the subcommittee's
right to proceed with the enforcement of its subpoenas:
"[Q]uestions [as to the subpoenas] may be adjudicated under the
appropriate procedure for challenging subpoenas of Congressional
Committees." [398 F.2d 818, cited in 553 F.2d at 1309.]
On November 8, 1968, the seized materials were returned to the
McSurelys. The McSurelys, who were immediately served with new
subcommittee subpoenas similar to the original subcommittee sub-
poenas, refused to comply with the new subpoenas.
The McSurelys filed a civil action in the U.S. District Court for
the District of Columbia on the date named in the subpoenas for
their appearance before the subcommittee. They sought a declara-
tion that compliance with the subpoenas was not required, a pre-
liminary and permanent injunction against institution of criminal
proceedings against them for their failure to comply with the sub-
poenas, and monetary damages.
No action had been taken in this civil suit at the time the
McSurelys were indicted for contempt of Congress for failure to
comply with the subpoenas. Subsequently, in their civil action, they
filed an amended and supplemental complaint seeking only com-
pensatory and punitive damages. The McSurelys alleged that the
defendants, Senator McClellan, three members of the subcommit-
tee staff, and Ratliff the Kentucky Commonwealth Attorney who
initially seized from their home the documents which included
those later subpoenaed by the subcommittee, entered into a con-
spiracy to deprive them of their constitutional rights. They sought
damages "for the unlawful seizure, inspection and appropriation of
their personal and business papers and documents and other ob-
jects and articles, for the issuance of subpoenas based on illegally
obtained information and invalid on their face, for their humili-
ation and embarrassment, mental and emotional pain, loss of em-
ployment, disruption of personal privacy and safety caused thereby,
all in violation and derogation of their rights under the First,
Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitu-
tion and the laws of the United States." [Plaintiffs Amended and
Supplemental Complaint, at 13-14.]
In the criminal action for contempt of Congress, the McSurelys
were convicted and sentenced in June 1970. The convictions were
appealed to the Court of Appeals. The decision of the Court of
Appeals, reversing the contempt of Congress convictions of the
McSurelys, was filed on December 20, 1972. The majority of the
court took the position that the exclusionary rule of evidence ap-







plied to proceedings before Congressional committees as well as to
criminal prosecutions, and therefore, the court held that the sub-
committee's subpoenas were inadmissable as the fruit of an unlaw-
ful search and seizure. [United States v. McSurely, 473 F.2d 1178
(D.C. Cir. 1972).] The case was remanded to the U.S. District Court
for the District of Columbia with instructions to enter judgments of
acquittal in the matter of the contempt convictions. The Solicitor
General decided not to petition the Supreme Court for a writ of
certiorari.
In the civil proceedings brought by the McSurelys, Chairman
McClellan and three subcommittee staff members filed a motion to
dismiss, or, in the alternative, for summary judgment in the Dis-
trict Court on October 26, 1971.
The grounds claimed in support of the motion were:
(1) Defendants are immune from actions for damages
where as here it is clear that their conduct was within the
sphere of legislative activity. (2) The claimant fails to state
a claim upon which relief can be granted against defend-
ants who were a U.S. Senator or employees of the Senate
of the United States at all times material to this cause. (3)
Plaintiffs are barred by collateral estoppel from relitigat-
ing issues previously settled by the judgment of this court
in United States v. Alan McSurely and Margaret McSurely,
Criminal Nos. 1376-69, 1377-69. * [Defendants' Motion
to Dismiss or in the Alternative for Summary Judgment,
at 1.]
The motion to dismiss was denied on June 12, 1973, and after the
motion for reconsideration was rejected, the Federal defendants
filed notice of appeal.
In a 2 to 1 decision on October 28, 1975, the U.S. Court of
Appeals for the District of Columbia reversed the District Court's
ruling and remanded the case for further action consistent with its
holding.
The three-judge panel of the Appeals Court held that, as a
matter of law, the defendants were entitled to summary judgment
on all counts of the complaint relating to the inspection by the
committee investigator of the seized material, the transportation of
such material to Washington by the investigator, the utilization of
the information by the investigator as the basis for Congressional
subpoenas, and the issuance of Contempt of Congress citations
against the plaintiffs.
The Appeals Court left for the District Court on remand the
determination of whether the defendants actively collaborated in
the original raid on the McSurelys' home and, if so, whether there
was sufficient evidence of such collaboration to merit a trial on
that issue.
In addition, the Appeals Court remanded to the lower court the
question of whether the defendants distributed copies of documents
to individuals or agencies outside Congress-and, if so, whether
such distribution was actionable. [McSurely v. McClellan, 521 F.2d
1024 (D.C. Cir. 1975).]
The McSurelys filed a petition for a rehearing by the Court of
Appeals sitting en banc.







On December 10, 1975, the decision of the Court of Appeals was
vacated and the petition for a rehearing en bane was granted.
On December 21, 1976, the Court of Appeals en bane issued its
opinion.
A majority of the court held that as a matter of law the Federal
defendants were entitled to summary judgment on:
(1) allegations in the amended complaints pertaining to
the subcommittee staffs inspection of the 234 documents
that Brick the subcommittee investigator brought to the
subcommittee,
(2) the utilization of the information obtained by Brick
as the basis for congressional subpoenas, and
(3) the issuance of Contempt of Congress citations * *.
The majority further said that: "since no allegation has been
made as to conspiracy in the original raid of the McSurley's home,
appellants are entitled to dismissal on this point." [553 F.2d at
1299.]
As to the first three points the court found that the activities
complained of were done within the legislative process and were
protected by Speech or Debate clause immunity or legislative im-
munity.
Left for the District Court's consideration and initial determina-
tion on remand were:
(1) whether any cause of action against defendants Brick
and Alderman survives their deaths; (2) whether Brick's
inspection of the seized material put in Ratliff's possession
under the three-judge court's "safekeeping" directive, and
Brick's transport to Washington of copies of 234 docu-
ments, violated the McSurelys' rights under the Fourth
Amendment; (3) whether Brick selected and transported to
Washington copies of documents he knew to be wholly
unrelated to the legislative inquiry, and, if so, whether
such conduct was actionable under the applicable law; (4)
whether any other federal defendants acted in concert
with Brick in action for which he enjoys no legislative
immunity; (5) whether any of the federal defendants dis-
tributed copies of documents in the subcommittee's posses-
sion to individuals or agencies outside of Congress, and, if
so, whether such distribution was actionable under the
applicable law; and (6) other matters identified in this
opinion as requiring further development. [553 F.2d at
1299.]
As to the refusal to grant summary judgment on two allegations
relating to dissemination of some or all of the documents outside of
the subcommittee and the Congress, the Court of Appeals found
that such activity "is not legislative activity entitled to absolute
immunity by force of the Speech or Debate clause, in the absence
of a claim of legislative purpose." [553 F.2d at 1286.]
As to the inspection and transportation by Subcommittee Investi-
gator Brick of documents held in "safekeeping" by court order, the
refusal of the District Court to grant summary judgment was af-
firmed by an equally divided court. Five judges felt that on that








poi,,nt, "there is evidence in the record as it presently stands, 'which
affords more than merely colorable substance' to the claim of an
independent Fourth Amendment violation by Brick." [553 F.2d at
1289.1 They hypothesized that the District Court's "safekeeping"
order in effect at the time of Brick's inspection and transportation
of the documents to Washington for the subcommittee's use pre-
cluded Brick from having access to the documents.
Judge Wilkey, writing for himself and four other judges, disa-
greed These judges refused to accept that Brick's inspection and
transportation of the documents constituted an unlawful search
and seizure under the Fourth Amendment. They said that:
After a tangential approach to this basic underlying
issue, the majority opinion does refer to Brick's "search-
and-taking" (p. 30), the "search and seizure of Brick" (p.
32), and then asserts flatly "two separate, independent
search and seizures took place here" (p. 33).
With this holding our colleagues make new law. The
transfer from one investigating agency to another is not a
"separate, independent search and seizure," and, as we
show later, the rationale of all the Supreme Court "silver
platter" decisions and the recent en banc specific holding
of the Ninth Circuit in United States v. Sherwin [531 F.2d
at 1 (9th Cir. 1976)] are directly contrary.
New law it is, but law absolutely necessary to the major-
ity's holding that the McSurelys' Fourth Amendment
rights were violated here, for without an "unreasonable
search and seizure" by the Senate aide his investigative
activities and related acts by his superiors are admittedly
protected by the Speech or Debate clause. [553 F.2d at
1305.]
These five dissenting judges felt that the majority's reading of
the "safekeeping order" was inaccurate. The minority concluded
that the initial District Court order did not prohibit Brick's inspec-
tion and that subsequent orders by the District Court and eventual-
ly the Sixth Circuit Court of Appeals at least impliedly allowed
Brick access to the documents.
During the course of the McSurelys' contempt trial, Brick "con-
ceded that when 'he went to Pikeville to examine the documents in
the Court House,' he looked through the papers and books and
determined there were 'many' items that 'he didn't need at
all * "." [553 F.2d at 1294-1295.] The majority noted: "The fact
that Brick took and transported concededly extraneous material-
and it is significant that he seized 'some personal letters'-takes
this case outside the protection of legislative immunity." [553 F.2d
at 1295.] On this point the majority concluded: "Brick's testimony
at the contempt trial ultimately may be explained away to the
satisfaction of a jury. But it is plainly sufficient to preclude an
automatic dismissal of the lawsuit at the threshold, on the basis of
legislative immunity." [553 F.2d at 1296.]
To this majority conclusion the minority responded:
The majority holds that even if Brick did not violate the
Fourth Amendment in his "search and seizure" he may







have violated the right of privacy of the McSurelys by
taking private letters he believed to be irrelevant.
The most simple and complete answer to the majority's
position, which does not necessitate evaluating the facts as
to relevance or irrelevancy, is to point out the clear law in
the Supreme Court that, absent an illegal search and seiz-
ure by Brick, the charge of invasion of privacy does not
state a cause of action under the Constitution. Since the
McSurelys' amended complaint does not allege any inva-
sion of privacy on a statutory or common law basis, this
cause of action should be dismissed if there has been no
Fourth Amendment offense.
If undertaken without relevance to his official inquiry,
Brick's inspection and copying of the private papers of
Mrs. McSurely may amount to a cause of action at
common law for "intrusion" upon her privacy. McSurleys'
amended complaint, however, does not allege any such
common law or statutory violation, but alleges rather a
violation of the Fifth Amendment, which, of course, pro-
tects each person from deprivation by a federal official of
life, liberty or property, without due process of law. Pre-
sumably, the McSurelys are alleging that Brick impaired
the privacy interest that is implicit in the "liberty" pro-
tected by due process.
Does the Fifth Amendment provide liability under
[Bivens v. Six Unknown Agents of Federal Bureau of Nar-
cotics, 403 U.S. 388 (1971)] against federal officers for what
amount to common law torts? The Supreme Court appears
to have answered that question in the negative in the
recent case of Paul v. Davis [424 U.S. 693 (1976)]. [553 F.2d
at 1326.]
Turning to the question of whether the documents selected and
transported by Brick, "were needed by him for the performance of
his duties," the minority attacked the majority's conclusion that
the documents were irrelevant. While the minority agreed that
Brick had conceded that some of the documents might have been
irrelevant to the committee's inquiry, it stated: "This [the majority]
decision still amounts to 'second guessing' the legislative process
since it overrides an independent estimate of relevance that could
be 'plausibly interposed,' and it appears to override a judgment of
relevance inferable from the subpeonas [which were subsequently
issued by the Committee]." [553 F.2d at 1328.] The minority further
noted that the documents which were purported to be irrelevant
may in fact have been relevant to the committee's investigation.
The Senate investigator was required to take such documents to
the committee for its determination of relevance since "[t]he Sena-
tors or others on the staff may easily have seen something of
significance in any one of these letters, definitely relevant to the
inquiry of the committee, which might have escaped the knowledge
or attention of Brick." [553 F.2d at 1328.]
The minority continued:
Without deigning to give any reasons therefore, the ma-
jority blandly treats the Senate investigator Brick's testi-







mony that he did not "need that letter signed [sic] Dearest
Cucumber" as a final irrevocable concession binding on
the Senate Committee and this court that this particular
letter (and all other letters similarly characterized by the
McSurelys) were totally irrelevant to the Senate inquiry.
This is a rather astonishing assumption.
In the first place, Brick's testimony was only an expres-
sion of his own need for the letter, not that of the Commit-
tee's. Brick had read the letter and presumably remem-
bered any important features of its contents. Neither
Chairman McClellan nor Brick's staff superiors had seen
the letter and had had the opportunity to evaluate its
contents.
Secondly, we are at a total loss to understand by what
principle of law it can be held that a subordinate Senate
Committee staff member can bind the Senate Committee,
or indeed this court, on the question of relevance. Surely
the determination of the relevance of any of the docu-
ments which Brick had inspected was for the Senate Com-
mittee, or under its usual operating procedures, for the
Committee Chairman. The agreed facts are that "on Octo-
ber 16, 1967, at the personal direction of Senator John L.
McClellan, he prepared the subpoenas involved herein."
Brick took the subpoenas to McClellan, "with whom he
had conferred on the subject matter thereof since October
6, 1967," and McClellan signed the four subpoenas, two of
which were directed to the McSurelys. This action of the
Senate Committee Chairman, after a review of the copies
of the documents brought back by Brick, evidenced the
Committee Chairman's determination of what he thought
was relevant for the Senate's inquiry, i.e., the 234 docu-
ments. What Brick said he himself "needed for the per-
formance of [his] duties" is of little importance in deter-
mining what the Senate Subcommittee might reasonably
find relevant for its inquiries.
We would hold that, relevant or irrelevant, the Senate
investigator's actions in regard to the allegedly personal
letters of the McSurelys are in no way a ground for a
claim of constitutional significance, as the Supreme Court
held in Paul v. Davis, supra, and since the McSurelys have
alleged no other type claim on this basis, their action on
this point should be dismissed. [553 F.2d at 1330-1331 (foot-
notes omitted).]
In its conclusion, the minority objected strenuously to the major-
ity's decision to remand the case to the District Court for further
consideration of some of the actions taken by the Congressional
defendants. The court noted:
The purpose of an absolute immunity is to cut off claims
against protected parties at the outset. To be true to this
purpose, a court should make every effort to determine if a
claim is inside or outside the protection of the Speech or
Debate clause. A remand for further factual proceedings
on the issue of absolute immunity itself should be required





22


only in the case of clear need. Otherwise the "mini-trial"
that the defendant is forced to undergo constitutes an
erosion of the principle of absolute immunity. The major-
ity is engaging in such an erosion of the Speech or Debate
clause here.
The uncontroverted facts of this case, the logic of the
Fourth Amendment, and the available case law support
our conclusion here that the inspections and copying by
Brick did not amount to an unreasonable search and seiz-
ure. Not only does the majority err in its contrary conclu-
sions, but it abrogates its duty in deciding absolute immu-
nity by calling for a remand. [553 F.2d at 1332-1333.]
In a separate dissent, Judge Danaher, writing for himself and
three other judges, concurred in Judge Wilkey's opinion, but also
expressed a general dissent from those portions of the majority's
opinion which did not provide for complete dismissal of the com-
plaint. He stated that:
A Subcommittee of the U.S. Senate was engaged in the
truthfinding process which it had been commanded to ex-
ecute. So it is that the Chairman of that Subcommittee
and the members of its staff, under the circumstances
here, should be entitled to absolute immunity.
It is respectfully submitted that this case should be re-
manded to the District Court with directions to dismiss the
complaint. [553 F.2d at 1339.]
On May 19, 1977, the defendants filed a petition for a writ of
certiorari with the U.S. Supreme Court.
On October 11, 1977, the petition for a writ of certiorari was
granted.
Herbert H. McAdams, executor of the estate of the deceased
Senator McClellan, was substituted for him as party petitioner on
January 23, 1978.
The petition was argued before the Supreme Court on March 1,
1978.
In a one-sentence per curiam opinion, the writ of certiorari was
dismissed as improvidently granted on June 26, 1978.
On August 31, 1978, Herbert H. McAdams II, executor of Senator
McClellan's will, was substituted, by order of the District Court, as
defendant in lieu of John L. McClellan, without prejudice to his
right to claim that plaintiffs cause of action did not survive the
death of Senator McClellan.
On September 15, 1978, the McSurely's filed, in the District
Court, a motion for an order to show cause and for a stay, in order
to restrain Mr. McAdams from proceeding further in the Probate
Court of Pulaski County, Arkansas, where he had filed a petition
seeking a declaration that the McSurely's claim against Senator
McClellan's estate be rejected for failure to comply with a filing
provision of Arkansas probate law, or alternatively, that the maxi-
mum liability and reserve for the contingency of the claim be fixed
and that any distribution be made without personal liability of the
executor. The stay was denied on the same day by District Judge
Gasch.







On September 18, 1978, the McSurely's filed a notice of appeal
from the order denying the stay and also filed, in the U.S. Court
of Appeals for the District of Columbia Circuit, motions for emer-
gency relief by way of a stay pending appeal and for expedited
consideration of the motion for emergency relief. (78-1916, D.C.
Cir.). The motion for emergency relief was denied on November
13, 1978. On November 22, 1978, a stipulation and agreement for
voluntary dismissal of the appeal was filed and the appeal was
dismissed.
Status.-The case is pending in the U.S. District Court for the
District of Columbia.
The full text of the decision of the Court of Appeals in the
criminal action for contempt of Congress was printed in the "Deci-
sions" section of the report of Court Proceedings and Actions of
Vital Interest to the Congress, December 1972.
The full text of the decision of October 28, 1975, of the Court of
Appeals was printed in the "Decisions" section of the report of
Court Proceedings and Actions of Vital Interest to the Congress,
December 31, 1975.
The full text of the decision of December 21, 1976, of the Court of
Appeals en banc was printed in the "Decisions" section of the
report of Court Proceedings and Actions of Vital Interest to the
Congress, December 1976.

Hutchinson v. Proxmire
No. 78-680 (U.S. Supreme Court)
Brief.-On April 18, 1975, Senator William Proxmire, Chairman
of the Subcommittee on Housing and Urban Development and
Independent Agencies of the Senate Appropriations Committee,
which has jurisdiction over funds for the National Science Founda-
tion, the National Aeronautics and Space Administration, and the
Office of Naval Research, made a statement on the floor of the
Senate relating to certain research contracts awarded by those
agencies to Dr. Ronald R. Hutchinson, a Michigan research scien-
tist. A press release which consisted almost entirely of quotations
from the Senator's floor statement was authorized by Senator Prox-
mire's office and issued by the Senate Service Department, and at
about the same time, Morton Schwartz, an aide to Senator Prox-
mire, allegedly telephoned various Federal agencies in an attempt
to persuade those agencies to terminate grants or contracts for
research being performed by Dr. Hutchinson. Senator Proxmire
appeared, 7 months later, on a nationally syndicated television
show. During that appearance Senator Proxmire made statements
regarding the expenditure of Federal funds for study of certain
aspects of the behavior of monkeys, rats, and human beings. [Al-
though this was Dr. Hutchinson's project, he was not mentioned by
name during Senator Proxmire's appearance.]
On April 15, 1976, Dr. Hutchinson filed a $6 million slander and
libel action in the U.S. District Court for the Western District of
Wisconsin against Senator Proxmire and his aide alleging that
they "maliciously and with knowledge of the consequences of their
conduct interfered with the numerous valid contractual relation-
ships that the plaintiff had with the supporters of his research."


9__. I Aof ^i f






Dr. Hutchinson's complaint seeks relief based on the statements
made in the press release, on the television show, and by Mr.
Schwartz over the telephone to the various Federal agencies.
The defendants filed a motion with the court on June 10, 1976, to
have the case transferred to the District of Columbia.
On June 11, 1976, the court issued an order by U.S. District
Court Judge Doyle in which he disqualified himself from the
action. The case was transferred to the Northern District of Illi-
nois, since Judge Doyle was the only judge in the Western District
of Wisconsin. The case was still docketed in the Wisconsin court,
however, and was handled as if it were there.
Senator Proxmire filed a motion to dismiss or, alternatively, for
summary judgment on July 9. In it he claimed: (1) that the alleged
misconduct was legitimate legislative activity and, accordingly, ab-
solutely privileged; (2) that his statements and inquiries about the
use of public funds were privileged; and (3) that there is no factual
basis which will support a finding for the plaintiff.
On December 23, 1976, the court granted defendants' motion for
summary judgment, with a written opinion to be issued by January
23, 1977. Subsequently the court extended until April 27, 1977, the
date for filing its memorandum.
On April 22, 1977, the court issued its opinion. It concluded that
in order to determine whether Senator Proxmire should be granted
summary judgment three issues had to be resolved:
(1) Whether the investigative activities of a Senator in
connection with the duties as a Member of Senate subcom-
mittees were privileged.
(2) Whether a press release issued by the United States
Senate Service Department and containing the Substance
of a Senate floor speech by the United States Senator was
privileged under the Speech or Debate clause of the
United States Constitution;
(3) Whether the statements made by the United States
Senator to his constituents and in a television appearance
were libelous or defamatory. [Slip Opinion at 2.]
For purposes of determining the applicability of Speech or
Debate clause immunity to the allegations in the complaint the
court divided the actions of Senator Proxmire and Mr. Schwartz
into four phases:
(1) investigation into Federal funding of Dr. Hutchinson's re-
search;
(2) delivery of a speech on the Senate floor by the Senator and
issuance of a press release reciting the facts and content of the
Senate speech;
(3) followup investigation by the Senator and his staff at appro-
priation hearings; and
(4) the Senator's statement on the Mike Douglas Show, his news-
letter to constituents, and his other comments about the plaintiff.
Citing Eastland v. United States Servicemen's Fund, 421 U.S. 491,
503 (1975) and Doe v. McMillan, 412 U.S. 306, 314 (1973), the court
stated that:
The standard for involving congressional immunity under
article I, section 6 of the Constitution is the standard of






25


legitimate legislative activity. In the event of a suit, once
it is determined that the conduct complained of meets that
standard, the action must be dismissed. [Slip Opinion at
13.]
While noting that "considerable confusion exists as to what con-
stitutes legitimate legislative activity," the court concluded that as
to the aspects of the case related to the investigations conducted by
Senator Proxmire and his staff:
In this case, Senator Proxmire serves on several subcom-
mittees of the Senate Committee on Appropriations. These
subcommittees review the budgets of the various agencies
with which Dr. Hutchinson has contracted. As a member
of these subcommittees, Senator Proxmire votes on appro-
priations, makes recommendations regarding the distribu-
tion of government funds, and concerns himself with their
expenditure. Therefore, his inquiries, and those of his ad-
ministrative assistant, into how American taxpayers'
moneys are spent by the agencies over which the subcom-
mittees in question had jurisdiction were privileged as le-
gitimate legislative activity under the Kilbourn test [Kil-
bourn v. Thompson, 103 U.S. 168 (1881)] of "things general-
ly done in a session of the House by one of its members in
relation to the business before it." [Slip Opinion at 14.]
Addressing the problems of the speech on the floor of the Senate
and the authorization of the press release the court concluded that
in both instances Senator Proxmire was protected by Speech or
Debate clause immunity.
In regard to the press release, the court found Senator Prox-
mire's contention that his authorization of the press release was
entitled to immunity as an exercise of the "informing function" to
be compatible with the U.S. Supreme Court's holdings in Doe and
Gravel v. United States, 408 U.S. 606 (1972). In support of this view
the court noted the existence of the franking statute, 39 U.S.C.
3210 (1970), which "promotes the 'informing function' by authoriz-
ing free use of the mails" and cited two lower court cases dealing
with the use of the frank as an exercise of the "informing func-
tion." Hoellen v. Annunzio, 348 F. Supp. 305 (N.D. Ill. 1972), afffd
468 F.2d 522 (7th Cir. 1972), cert. denied, 412 U.S. 953 (1973) and
Bowie v. Williams, 351 F. Supp. 628 (E.D. Pa. 1972). The court
stated that: "that press release, in a constitutional sense, was no
different than would have been a television or radio broadcast of
his speech from the Senate floor." [Slip Opinion at 22.]
As to the remaining issue of whether Senator Proxmire's state-
ment on the Mike Douglas Show, his references in his newsletter to
Dr. Hutchinson's research and his comments to news reporters and
in interviews either mentioning Dr. Hutchinson by name or merely
alluding to the Doctor's work were libelous or defamatory, the
court concluded they were not.
The court first found that Dr. Hutchinson was, for purposes of
the suit, both a "public figure" and a "public official." Thus, for the
plaintiff to recover, it must be found that not only did Senator
Proxmire publish a defamatory falsehood about him, but also that
the publication was made with actual malice; that is, actual knowl-







edge of falsity or reckless disregard of the truth (New York Times
Co. v. Sullivan, 376 U.S. 254, 279-280 (1964)).
The court concluded that none of Senator Proxmire's statements
met the threshold requirements set forth in the New York Times
case.
The court next noted that: Even if for the purpose of this suit it
is found that Dr. Hutchinson is a private person so that First
Amendment protections do not extend to Senator Proxmire and his
administrative assistants, relevant State law dictates the grant of
summary judgment. Although the court was not certain which
State's law would be appropriately applicable to this case, the
District of Columbia's ("the place where the defendants work and
their allegedly wrongful conduct originated" [Slip Opinion at 34] or
Michigan's ("the plaintiff's domicile where the inquiry presumably
had effect" [Slip Opinion at 34]), it concluded that by applying the
relevant law of either jurisdiction Dr. Hutchinson would be unable
to recover in this action.
The court then granted Senator Proxmire's motion for summary
judgment. Additionally, the court stated that unless the plaintiff
could show why it should not so order, it would within 30 days
dismiss the complaint against Mr. Schwartz.
On May 20, 1977, Dr. Hutchinson filed notice of appeal. On June
22, 1977, the District Court dismissed the complaint against Mr.
Schwartz. The appeals were consolidated on July 29, 1977.
The appeals were argued on January 9, 1978.
The U.S. Court of Appeals for the Seventh Circuit issued its
opinion on June 30, 1978, affirming the judgment of the District
Court. Senior Circuit Judge Castle, writing for the court, described
the issues on appeal as whether the alleged acts complained of are
within the legitimate legislative sphere and hence absolutely
immune from suit and, to the extent not so immune, whether they
are protected by the qualified privilege of the First Amendment.
In analyzing the question of the possible applicability of absolute
legislative immunity under the Speech or Debate clause, the court
divided the allegations of the plaintiff into four parts: (1) the fol-
lowup telephone calls to administrative agencies; (2) the press re-
lease of the speech; (3) the newsletters; and (4) the television, radio,
and other interviews.
In considering the phone calls to NSF, NASA, and NIDA, the
court relied upon Gravel v. United States, 408 U.S. 606 (1978),
McSurely v. McClellan, 553 F.2d 1277 (D.C. Cir. 1976) (en banc),
cert. dismissed as improvidently granted sub nom., McAdams v.
McSurely, 438 U.S. 189 (1978), and especially United States v. John-
son, 383 U.S. 169 (1966). Specifically, the court held that:
[W]hile there may be cases where the postinvestigation
contact with administrative agencies is so integral to the
investigation or other protected activities that application
of absolute immunity would be compelled, the phone calls
to NSF, NASA, and NIDA in this case cannot be accorded
Speech or Debate protection.9

*The District Court did not specifically address the Speech or Debate
status of the followup phone calls. It appears, however, that the court
below viewed these actions as merely a part of the total investigation and







therefore absolutely privileged. 431 F. Supp. at 1321-22. In light of the
language in Gravel, we must disagree.
[Slip Opinion at 7.]
The press release was held to be protected by Speech or Debate
clause immunity. In reaching this holding, the court relied upon
the standard put forth in Doe v. McMillan, 412 U.S. 306 (1973),
wherein the Supreme Court held that the availability of legislative
immunity in a situation where distribution of information outside
Congress has occurred depends upon whether the legitimate legis-
lative needs" of Congress have been exceeded. Regarding the press
release in the instant case, Judge Castle's opinion stated:
Given the enormous amount of material addressed by Con-
gress each day, strategic press releases may serve to alert
a representative's colleagues about a matter of particular
importance as well as to inform the appropriate Federal
agencies and the public who can then comment on proper
legislative action. We find the limited facilitation of press
coverage of congressional action in this case to be protect-
ed by the Speech or Debate Clause. [Slip Opinion at 9.]
The Court of Appeals also found the newsletters mailed to Sena-
tor Proxmire's constituents to be protected by the Speech or Debate
clause, stating that:
If the informing function, even though limited, is to be
accorded any absolute immunity, it must be in a case such
as this. Senator Proxmire's newsletter informed his con-
stituents of his particular responsibilities as a member of
the Senate Committee on Appropriations. Denying a repre-
sentative protection for newsletters to his constituents in
circumstances such as this would effectively isolate the
legislator from the people who elected him. [Slip Opinion
at 10.]
Any defamatory remarks which may have been made by Senator
Proxmire in television, radio or other interviews, however, were
found by the court to be unprotected by the Speech or Debate
clause. Absent special circumstances, the court held, public dis-
semination of information in such manner must be viewed as too
far removed from serving legitimate legislative needs, since such
methods are not generally necessary to the carrying out of a legis-
lator's informing function and are more often used for political
purposes.
Having found the telephone calls to administrative agencies and
the interviews to be unprotected by the Speech or Debate clause,
the court then considered whether the statements made in those
communications were protected by the qualified privilege provided
by the First Amendment right to free speech. The opinion of the
Court of Appeals did not reach the issue of whether the statements,
if unprotected, would constitute defamation under the applicable
local law, since it went no further than to agree with the District
Court that summary judgment on First Amendment grounds was
proper. Dr. Hutchinson was correctly found by the District Court to
be a public figure and hence, Judge Castle stated he would have to
show that the statements were made with "actual malice," that is,







with actual knowledge that the statements were false or with
reckless disregard for their truth or falsity, in order to disallow the
qualified protection of the First Amendment. The District Court
was held to have correctly found that Dr. Hutchinson had shown
neither of these things.
Finally, the court rejected Dr. Hutchinson's contention that, even
if the defendants are shielded by the First Amendment from liabili-
ty for defamation, the District Court erred in not allowing a trial of
the other claims made in the complaint, interference with contrac-
tual relations, intentional infliction of emotional anguish, and inva-
sion of privacy. The Court of Appeals saw these as no more than
the results of defendant's statements, which must be privileged if
the statements themselves are privileged, since to hold otherwise
would defeat the privilege of the statements.
A petition for rehearing was filed on July 14, 1978, and denied on
July 26, 1978.
Dr. Hutchinson filed a petition for writ of certiorari in the
United States Supreme Court on October 20, 1978. As enumerated
in his petition, the issues presented are: (1) whether statements
made in press releases and newsletters are protected under the
Speech or Debate clause; (2) whether he is a "public figure"
within the meaning of Gertz v. Robert Welch, Inc., 418 U.S. 323
(1974); and (3) whether there is a genuine issue of fact as to the
issue of malice.
Senator Proxmire and Mr. Schwartz filed a brief in opposition
to Dr. Hutchinson's petition on November 22, 1978. In their brief,
they argued that the Court of Appeals had properly decided the
Speech or Debate issue and was correct in finding their actions
privileged under the First Amendment, in finding Dr. Hutchinson
to be a public figure, and in finding an absence of actual malice
in the record.
Status.-The petition for writ of certiorari is pending before the
Supreme Court.
The decision of the United States District Court for the Northern
District of Illinois is printed in the "Decisions" section of Court
Proceedings and Actions of Vital Interest to the Congress, Part 2,
August 15, 1977.
The opinion of the Court of Appeals is printed in the "Decisions"
section of Court Proceedings and Actions of Vital Interest to the
Congress, Part 5, September 15, 1978.

United States v. Helstoski
No. 78-349 (U.S. Supreme Court)
and,
Helstoski v. Meanor
No. 78-546 (U.S. Supreme Court)
Brief--On June 2, 1976, then-Representative Henry Helstoski
was indicted by a grand jury on three counts of soliciting and
accepting bribes from Chilean and Argentinean aliens in exchange
for introducing private citizenship bills in Congress, with the intent
of delaying the aliens' deportation. The indictment also included







three counts of conspiracy and obstruction of justice and four
counts of lying to a Federal grand jury. Indicted with Mr. Helstoski
were two members of his Congressional district staff and the trea-
surer of his reelection committee.
Before trial was scheduled to begin on 8 counts of a 12-count
indictment, Mr. Helstoski moved to dismiss the first 4 counts. His
dismissal motion was predicated upon the Speech or Debate clause,
Article I, Section 6 of the U.S. Constitution. As enunciated by the
court, in its opinion filed on February 18, 1977, "The defendant's
position is that since the Speech or Debate clause precludes inquiry
by a grand jury into the performance of his legislative acts, and
since the grand jury obviously made such an inquiry, the implicat-
ed counts of the indictment are vitiated." [United States v. Hel-
stoski, Criminal Action No. 76-201 (D.N.J.); Slip Opinion at 2.]
The Government opposed the dismissal motion asserting that an
indictment, valid on its face, may not be attacked on the ground
that incompetent or privileged evidence was presented to the in-
dicting grand jury. Alternatively, the Government argued that the
voluntary testimony about legislative activity given by the defend-
ant to the grand jury and during a prior trial of another individu-
al, alleged in the contested indictment to be a coconspirator of the
defendant, constituted a waiver of Speech or Debate clause rights.
Such waiver, the Government further argued, precluded Mr. Hel-
stoski from attacking the validity of the indictment and "renders
evidence of his legislative acts admissible at trial for the purpose of
establishing his guilt." [Slip Opinion at 2-3.]
As to Mr. Helstoski's motion to dismiss four counts of the indict-
ment, the court concluded that such dismissal was not required.
The court noted:
Defendant Helstoski's contention that Counts I through
IV of the indictment must be dismissed because the indict-
ing grand jury heard evidence regarding his legislative
acts is untenable. United States v. Johnson, 419 F.2d 56
(4th Cir. 1969). This is not because there is any question
that a Member of Congress may not be called to answer
for his legislative acts before a grand jury, Gravel v.
United States, 408 U.S. 606 (1972), but because courts
simply will not go behind the face of an indictment, once it
is returned, in order to test the competency of the evidence
adduced before the grand jury. United States v. Calandra,
414 U.S. 338 (1974); Lawn v. United States, 355 U.S. 339
(1958); Costello v. United States, 350 U.S. 359 (1956); Holt v.
United States, 218 U.S. 245 (1910); United States v. Blue,
384 U.S. 251, 255 n.3 (1966) (dictum). This rule governs
whether the evidence before the grand jury is attacked on
the ground it is hearsay, United States v. Costello, supra,
or on the ground the evidence was obtained and set before
the grand jury in violation of the Constitution, United
States v. Calandra, supra; Holt v. United States, supra;
United States v. Blue, supra. [Slip Opinion at 3.]
As to Mr. Helstoski's assertion that the four counts of the indict-
ment should be thrown out because of their "express reference" to
his legislative actions, the court, relying on Supreme Court deci-







sions in United States v. Johnson, 383 U.S. 169 (1966), and United
States v. Brewster, 408 U.S. 501 (1972), declared that the counts
involved did not violate the Speech or Debate clause "merely be-
cause they make reference to alleged legislative acts of defendant
Helstoski." [Slip Opinion at 8.]
While the court concluded that presentation of such material to
the grand jury was not a proper basis for dismissing the indict-
ment, it nonetheless rejected the Government's contention that Mr.
Helstoski's pretrial testimony waived the Speech or Debate clause
protection to which he was entitled at trial.
On this point the court stated:
[T]he purpose of the Speech or Debate Clause is to insu-
late the independent activities of the legislature from ex-
ecutive and judicial interference. This purpose can be
achieved only if the executive is barred from utilizing
evidence of legislative acts, and if the judiciary refuses to
receive evidence of such acts, in a criminal prosecution of
a legislator. I therefore believe that what the Speech or
Debate Clause does is to erect an absolute constitutional
immunity in favor of a member of Congress from having
evidence of his legislative acts used in litigation against
his interests. I am not certain whether a member of Con-
gress has the power to waive this immunity. But I am
certain that if such power exists, it is consistent with the
constitutional obligation of the judiciary to eschew interfer-
ence with the legislature that the courts employ a strin-
gent test before finding such a waiver in a given case. A
waiver of the Speech or Debate immunity ought not be
found by implication. Such a waiver may be found only
where it has been clearly demonstrated that a legislator
has expressly waived his Speech or Debate immunity for
the precise purpose for which the Government seeks to use
evidence of his legislative acts. A less stringent standard
would vitiate the prophylactic purpose underlying the
Speech or Debate Clause. It is clear that by the above
standard, Helstoski has not waived his Speech or Debate
immunity from having evidence of his prior legislative acts
used against him in the instant criminal prosecution. Ac-
cordingly, such evidence may not be admitted at trial on
the ground of waiver. [Slip Opinion at 16-17.]
Turning to the Government's motion seeking a pretrial ruling on
the admissibility of evidence the court stated the general proposi-
tion that:
[I]t is clear that the Speech or Debate Clause creates no
impediment to the introduction of evidence of an agree-
ment by Helstoski to perform in future a legislative act.
What is forbidden is the introduction of evidence of his
past performance of such an act. [Slip Opinion at 17.]
As to Mr. Helstoski's particular situation the court noted:
The Government argues, however, that Helstoski's state-
ments, both verbally and in writing, referring to the intro-
duction of private immigration bills, do not constitute leg-







islative acts and thus may be admitted. The argument is
beside the point. The offered evidence contains reference
to Helstoski's past performance of a legislative act, and the
Speech or Debate Clause forbids use of such evidence
during the Government's case-in-chief. The same is true of
the thesis that Helstoski's statements reciting the past
performance of a legislative act may be used, not to cor-
roborate the existence of a bribe, but on issues such as
motive, intent, knowledge and the like. This ignores the
absolute command of the Speech or Debate Clause as con-
strued and applied in Johnson and Brewster. The clause
does not say that evidence of a legislator's past perform-
ance of a legislative act may be used against him for some
purpose but not others. It is, rather, that such evidence
may not be used at all. If the Government, for whatever
reason cannot prove its case without reference to Helstos-
ki's past performance of a legislative act, then the prosecu-
tion will have to be foregone. [Slip Opinion at 17-18.]
The court concluded its opinion with a brief discussion of the
constitutional power of the House and Senate to "Determine the
Rules of Its Proceedings, punish its Members for Disorderly Behav-
ior, and with the Concurrence of two-thirds, expel a Member."
[U.S. Constitution, Article I, Section 5, clause 2.]
This power, the court declared would be an appropriate remedy
for those actions of Members of Congress "where it is necessary to
call into question their legislative acts in order to impose [punish-
ment]." [Slip Opinion at 18.]
Reading the rulemaking and enforcement powers and the Speech
or Debate Clause together the court concluded that:
The Speech or Debate Clause expressly permits a
member to be called into question before the House on
account of his performance of a legislative act. If the
House does not exercise the power conferred by the Consti-
tution to discipline its own members, such a failure pro-
vides no basis for the executive and the judiciary to inter-
fere, ignore the Constitution, and violate the doctrine of
separation of powers. [Slip Opinion at 19.]
On March 18, 1977, the Government filed a notice of appeal.
On June 6, 1977, the court granted Mr. Helstoski's motion to
have the Government's brief and appendix suppressed and ordered
the brief and appendix resubmitted so that matters not properly
subject to a disclosure at that time might be filed in camera. Mr.
Helstoski filed a petition for writ of mandamus/prohibition on
June 17, 1977, in the Court of Appeals, asserting again that the
indictment violated the Speech or Debate Clause. [Helstoski v.
United States, No. 77-1800 (3d. Cir.).] On June 28, 1977, the petition
and the appeal were consolidated for purposes of argument and for
disposition on the merits.
On October 6, 1977, the appeal and the petition were argued
before a three-judge panel of the United States Court of Appeals
for the Third Circuit.






32


On April 13, 1978, the Court of Appeals, in an opinion written by
Chief Judge Seitz, denied defendant's petition for writ of manda-
mus and affirmed the judgment of the District Court.
The opinion dealt first with the petition for writ of mandamus.
In describing the writ of mandamus, the court noted:
The Supreme Court recently has emphasized that, in
determining when it is "appropriate" to issue the writ we
must keep in mind that "[t]he remedy of mandamus is a
drastic one, to be invoked only in extraordinary situa-
tions." Kerr v. United States District Court, 426 U.S. 394,
402 (1976).
Generally, Federal courts have used the writ "to confine
an inferior court to a lawful exercise of its prescribed
jurisdiction or to compel it to exercise its authority when
it is its duty to do so." Roche v. Evaporated Milk Associ-
ation, 319 U.S. 21, 26 (1943), quoted in Kerr v. United
States District Court, 426 U.S. 394, 402 (1976). And while
the Supreme Court in Kerr noted that it had "not limited
the use of mandamus by an unduly narrow and technical
understanding of what constitutes a matter of 'jurisdic-
tion,'" the Court stressed that the writ should issue only
in extraordinary situations: "the fact still remains that
'only exceptional circumstances amounting to a judicial
"usurpation of power" will justify the invocation of this
extraordinary remedy.'" Kerr v. United States District
Court, 426 U.S. 394, 402 (1976), quoting Will v. United
States, 389, U.S. 90, 95 (1967).
In order to further the congressional determination that
appellate review should come only after final judgment
except in the most exceptional circumstances, the courts
also have required that even where circumstances amount
to a "judicial usurpation of power," the petitioner must
satisfy certain other conditions for issuance of the writ.
Thus, the party seeking the writ must have no other ade-
quate means to attain the relief he seeks. And petitioner
must also show that his right to issuance of the writ is
clear and indisputable. Id. at 403.
Finally, "it is important to remember that issuance of
the writ is in large part a matter of discretion with the
court to which the petition is addressed." [Slip Opinion at
9-10.]
Mr. Helstoski's argument that the District Court was without
jurisdiction to try him, because the indictment charged him with
legislative acts and so violated the Speech or Debate clause privi-
lege, was rejected by the court. In refuting the argument, the court
held that the indictment was not materially distinguishable from
that upheld by the Supreme Court in United States v. Brewster, 408
U.S. 501 (1972). The Court of Appeals noted that since the allega-
tions of the indictment charged a crime even without reference to
any acts protected from inquiry under the Speech or Debate clause,
Mr. Helstoski had not made sufficient showing to justify issuance
of the writ on Speech or Debate grounds. The opinion stated that,
in so holding, no opinion was expressed as to whether, or in what





33


circumstances, mandamus might be appropriate to prevent trial of
an indictment which depended upon proof of materials embraced
by the Speech or Debate clause.
Also rejected was the assertion by Mr. Helstoski that the District
Court's order prohibiting the introduction at trial of any evidence
by the Government of past legislative acts was an attempt by that
court to obtain jurisdiction over an indictment otherwise invalid
under the Speech or Debate clause. By modifying the proof to be
presented at trial, Mr. Helstoski charged, the District Court had
"constructively amended" the indictment, thereby depriving him of
his Fifth Amendment right to be tried only upon the indictment of
a grand jury. The Court of Appeals concluded that since a prima
facie case may be established under 18 U.S.C. 201(c) without any
showing of legislative acts by the defendant, as Brewster made
clear, the District Court's evidentiary limitation did not modify the
proof of an essential element of the offense from that found by the
grand jury. Hence, the order in question did not constitute a "con-
structive amendment" of the indictment changing the basic theory
of the offense or the facts considered by the grand jury.
The court specifically declared that it expressed no opinion as to
whether, or in what circumstances the "constructive amendment"
of an indictment might justify issuance of a writ of mandamus.
Mr. Helstoski, in seeking the writ of mandamus, had also argued
that presentation to the grand jury of evidence of his legislative
acts produced an indictment beyond the grand jury's power to
return, and beyond the court's jurisdiction to try. The Court of
Appeals held that the indictment charges an offense for which Mr.
Helstoski may be tried without violation of the Speech or Debate
clause, and the indictment is valid on its face. The Appeals Court
thus concluded that:
Even in light of the expansive definition of "jurisdiction"
that the Supreme Court has adopted in evaluating manda-
mus petitions, we do not believe that in these circum-
stances defendant's allegations concerning the grand jury
make out 'exceptional circumstances amounting to a judi-
cial "usurpation of power" [so as to] justify the invocation
of this extraordinary remedy.' "Kerr v. United States Dis-
trict Court, 426 U.S. 394, 402 (1976), quoting Will v. United
States, 389 U.S. 90, 95 (1967). We conclude that the district
court has jurisdiction to try the indictment returned
against the defendant in this case, and accordingly refuse
to grant the writ on grounds of grand jury abuse. [Slip
Opinion at 15.]
The court also declared that:
Any argument that the important policies underlying
the [Speech or Debate] Clause require dismissal of an in-
dictment returned by a grand jury that heard evidence in
violation of the Clause's principles does not go to the juris-
diction of the district court, but to the proper means that
this court should use to effectuate the Clause. As such, we
believe it is an argument better left for decision on appeal
from a final judgment.






34


We also note that it is far from "clear and indisputable"
that defendant could prevail on his arguments that presen-
tation to the grand jury of evidence in violation of the
Speech or Debate Clause requires dismissal of the indict-
ment. The Supreme Court consistently has refused to
countenance challenges to the competency of evidence pre-
sented to a grand jury, holding that a valid indictment
returned by a competent grand jury is enough to call for a
trial. United States v. Calandra, 414 U.S. 338, 342-45
(1974).
Moreover, in United States v. Johnson, 383 U.S. 169
(1966), the Court allowed retrial of the conspiracy count
even though it was clear from the specification of a legisla-
tive act in the overt acts supporting that conspiracy count
that the grand jury heard evidence that the Supreme
Court held was barred at trial by the Speech or Debate
Clause. And on appeal after the retrial, the Court of Ap-
peals rejected Johnson's argument that the indictment was
invalid because of the presentation of evidence of legisla-
tive acts to the grand jury. United States v. Johnson, 419
F.2d 56, 58 (4th Cir. 1969), cert. denied 397 U.S. 1010 (1970).
See United States v. Blue, 384 U.S. 251, 255 n.3 (1966). [Slip
Opinion at 16-17.]
The Government's arguments that Mr. Helstoski's petition was
untimely and that he had waived his Speech or Debate privilege
were not addressed by the Court of Appeals since his petition was
denied on the grounds noted above.
The opinion turned next to the Government's appeal of the Dis-
trict Court's order of February 23, 1977, prohibiting the introduc-
tion by the Government of evidence of the performance of past
legislative acts by Mr. Helstoski. The Government asserted that
the Court of Appeals had jurisdiction to review the order pursuant
to 18 U.S.C. 3731 which reads in pertinent part:
An appeal by the United States shall lie to a court of
appeals from a decision or order of a district courts [sic]
suppressing or excluding evidence or requiring the return
of seized property in a criminal proceeding, not made after
the defendant has been put in jeopardy and before the
verdict or finding on an indictment or information, if the
United States attorney certifies to the district court that
the appeal is not taken for purpose of delay and that the
evidence is a substantial proof of a fact material in the
proceeding.
Mr. Helstoski's contention that the order in question did not
suppress or exclude any specific items of evidence, and thus was
not of the type granting jurisdiction to the Court of Appeals, was
rejected, the court concluding:
In light of the congressional intent that we recognized in
Beck that 3731 be liberally construed, as well as in light
of the statute's specific command, we believe the district
court's order in this case fairly may be characterized as
one "suppressing or excluding evidence." The practical







effect of the district court's order is to prevent the Govern-
ment from introducing evidence of defendant's past legisla-
tive acts that it otherwise almost certainly would have
introduced at trial. Section 3731 was designed to allow
appeals from such orders to insure that prosecutions are
not unduly restricted by erroneous pretrial decisions to
exclude evidence. [Slip Opinion at 19.]
Turning to the substantive question, the Court of Appeals reject-
ed the Government's argument that it should be permitted to
introduce the private bills themselves and correspondence and con-
versations referring to Mr. Helstoski's legislative acts in order to
prove Mr. Helstoski's purpose in accepting the payments in ques-
tion as contrary to the Supreme Court's holding in Brewster, supra,
and United States v. Johnson, 383 U.S. 169 (1966). The opinion
stated that legislative acts may not be shown in evidence for any
purpose in this prosecution and that the Government may not
circumvent this prohibition by introducing correspondence and
statements which, while not themselves legislative acts, contain
references to past legislative acts on the part of Mr. Helstoski. The
Court of Appeals declared that to allow a showing of legislative
acts by such secondary evidence could render the absolute prohibi-
tion of Brewster meaningless and would drastically reduce the ef-
fectiveness of the Speech or Debate clause and discourage the
dissemination of information about legislative activities to the
public.
The Court of Appeals also found that Mr. Helstoski had not
waived his Speech or Debate privilege by testifying before the
grand jury about legislative acts. While noting that the question of
whether an individual legislator may waive his Speech or Debate
privilege is an open one, the court found it unnecessary to decide
that question in this case. Such a decision was found to be unneces-
sary since the Court of Appeals agreed with the District Court's
holding that the purpose of the Speech or Debate clause as a
protection for the legislature against encroachment by the other
two branches precludes the finding of a waiver in the context of a
criminal prosecution where the legislator has not expressly forfeit-
ed his privilege for the purposes for which the Government seeks
to use the evidence of his legislative acts. On the facts of this case,
the Court of Appeals found no such waiver.
A motion for rehearing en banc filed by the Government on June
14, 1978, on the issues raised in its appeal was denied on June 30,
1978.
The Government filed a petition for a writ of certiorari (No. 78-
349) in the United States Supreme Court on August 29, 1978,
seeking review of two questions. First, whether the Speech or
Debate clause bars the introduction by the Government of any
evidence which, although not a legislative act, refers to the defend-
ant's past performance of a legislative act. Second, whether Mr.
Helstoski's voluntary testimony and production of documents
before the grand jury constituted a waiver of that privilege in
regard to the use of the testimony and documents at trial.
On September 29, 1978, Mr. Heistoski also filed a petition for
writ of certiorari (No. 78-546) in the Supreme Court. His petition





36


sought review of the judgment of the Court of Appeals insofar as
it denied a petition for a writ of mandamus. In the petition, Mr.
Helstoski noted his opposition to the petition filed by the Govern-
ment and suggested to the Court the possibility of consolidation
of two petitions. Mr. Helstoski's petition presents the following
questions for review:
1. Does the United States District Court have jurisdic-
tion to try petitioner on an indictment which on its face
charges that as a Member of the Congress of the United
States he performed certain specific and identified legis-
lative acts, to wit, the introduction of bills in Congress,
with corrupt motivation? Under the Speech or Debate
Clause, does not Congress have exclusive jurisdiction to
inquire into its Members' performance of legislative acts?
2. May an indictment of a Congressman described
above, procured by calling into question before a grand
jury the legislative acts of that Congressman, proceed to
trial?
3. May an indictment offensive to the Speech or Debate
Clause on its face and in the means by which it was
procured, nevertheless be prosecuted by forbidding proof
at trial of the legislative acts alleged in the indictment?
Would not such a trial procedure amount to both an
impermissible manipulation of the Speech or Debate
Clause and a constructive amendment of the indictment,
in violation of the Fifth Amendment right to be tried
only upon the indictment voted by a grand jury?
(Petition for Writ of Certiorari at 2-3, Helstoski v. Meanor, No.
78-546.)
The Government filed a brief in opposition to Mr. Helstoski's
petition on November 21, 1978. In its brief, the Government listed
the following questions as being presented for review:
1. Whether an indictment charging a member of Con-
gress with bribery, in violation of 18 U.S.C. 201(c), is
invalid because it contains references to legislative acts
that are not themselves punishable due to the Speech or
Debate Clause.
2. Whether consideration by the grand jury of evidence
showing legislative acts deprives the district court of ju-
risdiction to try an indictment alleging a violation of 18
U.S.C. 201(c).
3. Whether the district court's restriction of the govern-
ment's proof at trial to prevent references to legislative
acts constitutes a constructive amendment of the indict-
ment.
(Brief for the United States in Opposition at 1-2, Helstoski v.
Meanor, No. 78-546.)
On November 21, 1978, Mr. Heistoski moved in the U.S. District
Court for the District of New Jersey to dismiss counts VII and
VIII of the indictment for failure to charge an offense and as the
product of the presentation to the grand jury of materials and
facts proscribed by the Speech or Debate clause.







The petitions for writ of certiorari were granted and consoli-
dated on December 11, 1978.
Status.-The cases are pending before the U.S. Supreme Court.
The full text of the memorandum and order of the District Court
is printed in the "Decisions" section of the report of Court Proceed-
ings and Actions of Vital Interest to the Congress, Part 1, April 15,
1977.
The opinion of the Court of Appeals is printed in the "Decisions"
section of Court Proceedings and Actions of Vital Interest to the
Congress, Part 5, September 15, 1978.

Chase v. Kennedy
Civil Action No. 77-2652 (Ninth Cir.)
Brief.-Trueman E. Chase, a resident of California, who had been
unable to resolve a dispute -with the Social Security Administra-
tion, sent a document styled "Congress of the United States of
America * Petition for Redress" to Senator Edward Kennedy of
Massachusetts, intending for Senator Kennedy to present the peti-
tion to the Congress or one of its committees. Instead, because Mr.
Chase is a resident of California, Senator Kennedy forwarded the
petition to Senator Alan Cranston of California.
Senator Kennedy advised Mr. Chase that he had forwarded the
petition to Senator Cranston. Mr. Chase then wrote to Senator
Adlai E. Stevenson III, Chairman of the Senate's Select Committee
on Ethics, protesting Senator Kennedy's action. Senator Stevenson
forwarded this letter to Senator Cranston and he also advised Mr.
Chase that he had done so. Upon receipt of Mr. Chase's petition at
his Washington, D.C. office, Senator Cranston forwarded it to his
San Francisco office.
Mr. Chase then filed this action asserting that Senators Kenne-
dy, Stevenson, and Cranston deprived him of his First Amendment
right to petition the Government for a redress of grievances.
On July 12, 1977, the U.S. District Court for the Southern Dis-
trict of California issued its decision. Judge Turrentine dismissed
the action concluding that Mr. Chase had not been denied his right
to petition the Government. Rather he "has confused his right to
petition with a supposed right to have his petition granted or acted
upon in a certain way. But no such right is found in the Constitu-
tion." [Chase v. Kennedy, Civil Action No. 77-305-T (S.D. Calif.,
July 12, 1977); Slip Opinion at 2.]
As to the actions of the Senators, the court concluded that what-
ever action a Senator determines to take with petitions is "abso-
lutely within his discretion and is not a proper subject of judicial
inquiry, even if it might appear that he may be grossly abusing
that discretion." [Slip Opinion at 3.]
On July 18, 1977, Mr. Chase filed a notice of appeal. He also filed
a notice of direct appeal to the United States Supreme Court on
September 7, 1977, but no further action has been taken in regard
to that appeal.
Status.-The appeal is now pending before the U.S. Court of
Appeals for the Ninth Circuit.







The complete text of the District Court's opinion is printed in the
"Decisions" section of Court Proceedings and Actions of Vital Inter-
est to the Congress, Part 2, August 15, 1977.
Rusack v. Harsha (Newly Reported Case)
No. 77-1137 (M.D.Pa.)
Brief.-On December 16, 1977, plaintiff, Samuel Rusack, a
United States Navy civilian employee working as a Supervisory
Contract Negotiator at the United States Navy Ships Parts Control
Center (hereinafter "SPCC") filed a defamation action in the U.S.
District Court for the Middle District of Pennsylvania. The action
named as defendants Representative William H. Harsha, Stanley
L. Bishop, P. J. Kanistros, and Poli-Com, Inc. All of the defendants
filed motions to dismiss. Representative Harsha filed a motion to
dismiss or alternatively for summary judgment.
On December 14, 1978, in a memorandum and order issued by
the District Court granted Congressman Harsha's motion to dis-
miss and rejected those of the other defendants.
The facts are reported in the court's memorandum and order,
which states in pertinent parts:
According to plaintiffs affidavit, he is a Supervisory
Contract Negotiator * at the SPCC. His authority is
derived from the Armed Forces Procurement Regulations,
* *. He is one of eleven individuals who have buying
and contracting officer authority at the SPCC. His duties
include solicitations and requests for proposals. Further-
more, as a contracting officer at a purchasing office such
as the SPCC * he is authorized to enter into contracts
in the name of and on behalf of the United States Govern-
ment * *.
Defendant Harsha is a Representative in the United
States House of Representatives from the Sixth Congres-
sional District of Ohio. He is the ranking minority member
* of the House Public Works Committee. He is in-
volved with and has a particular concern in regard to, the
spending policies of the United States Government. * *
In July of 1977, Mr. Harsha was contacted by Mr. Bishop
involving "military procurement irregularities and taxpay-
er waste." * Mr. Bishop presented Mr. Harsha with
material which, inter alia, dealt with plaintiff Rusack and
his involvement with a particular contract and award. The
material was reviewed by a member of Mr. Harsha's staff
who then forwarded a prepared speech to the Congress-
man, who reviewed it and approved it for delivery and
publication in the Congressional Record of August 3, 1977.
[Slip Opinion at 12-13; this report at 198-199. (Footnotes
omitted.)]
It was this August 3d speech which Mr. Rusack alleged contained
defamatory material, specifically that he was charged therein with
dishonest and illegal conduct, fraudulent and unethical practices
and collusion and conspiracy to defraud.
Following the speech Congressman Harsha wrote a letter to Ad-
miral T. J. Allhouse, commanding officer at the SPCC seeking






39


material concerning the award which was part of the basis for the
August 3d speech. The Admiral sent a substantial volume of mate-
rial to Congressman Harsha. This material was made available to
Mr. Bishop by Congressman Harsha for his determination of
whether it was responsive to the Congressman's request. Mr.
Bishop determined that the material was not fully responsive and
on August 31, 1977, Congressman Harsha sent a second letter to
Admiral Allhouse. In this letter Congressman Harsha sought addi-
tional material and made several statements about Mr. Rusack
which Mr. Rusack alleged were defamatory. Congressman Harsha
claimed, and Mr. Rusack did not contest that neither he nor his
staff distributed the letter to the general public.
The SPCC, responding to Congressman Harsha's letter sent addi-
tional information to the Congressman. The material was again
analyzed with Mr. Bishop's help.
After Mr. Bishop had analyzed the material and presented his
analysis to a member of Congressman Harsha's staff, that staff
member edited it and submitted it to the Congressman. The Con-
gressman made some final editorial changes and presented it to the
Clerk of the House for publication in the Congressional Record. Mr.
Rusack charges that the material inserted in the Record contained
defamatory material.
Mr. Rusack further alleged that after placing the two speeches in
the Record, Congressman Harsha maliciously distributed and
caused to be republished the text of the speeches. Congressman
Harsha responded that he sent copies of his correspondence with
the SPCC, and their responses along with copies of his speeches
from the Record to the U.S. Attorney for the District of Columbia,
the Attorney General, and the Office of the Secretary of Defense.
Other than that transmittal and the ordinary circulation of the
Congressional Record, Congressman Harsha denied any republica-
tion or distribution of the two speeches.
The court, in its opinion of December 14, 1978, noted three
categories into which the activities complained of by Mr. Rusack
could be divided: (1) the insertion of the two speeches into the
Congressional Record and the general distribution of those Congres-
sional Records; (2) the August 31, 1977 letter to Admiral Allhouse;
and (3) the forwarding by defendant Harsha of the copies of the
two Congressional Records and copies of the correspondence be-
tween himself and the SPCC to the United States Attorney Gener-
al, the United States Attorney and the District of Columbia, and
the Office of the Secretary of Defense.
The court further noted the grounds on which Congressman
Harsha sought dismissal:
Summary judgment was sought on the grounds: (1) that
all the activity is absolutely privileged under the Speech or
Debate clause; (2) that reports of alleged criminal behavior
to appropriate executive officials is constitutionally privi-
leged; and (3) that criticism of plaintiff Rusack is privileged
under the First Amendment because the plaintiff is a public
official and the record establishes that there is no "New
York Times malice." [Rusack v. Harsha (77-1127), Slip
Opinion at 16, this report at 203.]


37-1480 79 4





40


Turning first to the assertion that Congressman Harsha's actions
were protected by Speech or Debate clause immunity, the court
noted that Mr. Rusack conceded that congressman Harsha's
speeches and their publication in the Congressional Record were
activities which were absolutely privileged and protected by the
clause. The letter of August 31, 1977 to Admiral Allhouse, the
court concluded, was also protected by the Speech or Debate clause.
The court declared:
The August 31, 1977 letter to Admiral Allhouse is also
behavior which is encompassed by the Clause. It has long
been held that investigation by a Congressman regarding
issues over which legislation may be had is legitimate
legislative activity and, therefore, protected by the Speech
or Debate Clause. See Eastland v. United States Service-
men's Fund, 421 U.S. 491, 504 (1975), Doe v. McMillan, 412
U.S. 306 (1973); Watkins v. United States, 354 U.S. 178
(1957); McGram v. Daughterty, 273 U.S. 135 (1927), Mc-
Surely v. McClellan, 553 F.2d 1277, 1286-8 (D.C. Cir. En
Banc 1976); writ of cert. dismissed as improvidently grant-
ed 46 U.S.L.W. 4878 (June 26, 1978). The power over appro-
priations and expenditures is at the heart of the business
of Congress. Article 1, Section 8, Clause 13 of the United
States Constitution specifically gives Congress power over
the maintenance of the Navy. Knowing how the Navy
spends the money allotted to it by Congress is essential if
Congress is going to be able to exercise its power with any
competency. Defendant Harsha's letter to Admiral All-
house was an attempt to get needed information, and as
such, it must be afforded the protection of the Clause. [Slip
Opinion at 18-19, this report at 204-205. (Footnotes omit-
ted.)]
Further, finding that the forwarding of the copy of the letter to
Admiral Allhouse and the two Congressional Records to the United
States Attorney for the District of Columbia, the United States
Attorney General, and the Office of the Secretary of Defense is
protected under other constitutional provisions, the court decided
not to reach the question of whether it is encompassed by the
Speech or Debate clause.
The court declared that where the complaint alleged that plain-
tiff was defamed by defendant Harsha in regard to the perform-
ance of his (plaintiffs) official duty, specifically alleging that Mr.
Harsha accused plaintiff of violating 18 U.S.C. 1001, the whole
thrust of the complaint and the brief in opposition to the motion
was that defendant Harsha had accused plaintiff of criminal acts.
To this the court concluded:
The right to inform federal officials of possible violations
of federal law continues to be constitutionally protected.
See United States v. Guest, 383 U.S. 745, 771, 779 (1966),
Harlan, J., concurring in part and dissenting in part;
Brennan, J. concurring in part and dissenting in part;
Williams v. Allen, 439 F.2d 1398 (5th Cir. 1971). I believe
that the letter to Admiral Allhouse and the forwarding of
the materials to the United States Attorney for the Dis-







trict of Columbia, the United States Attorney General, and
the Office of the Secretary of Defense are protected by this
constitutional right to inform, afford defendant immunity,
and, hence, cannot form the basis of a defamation action.
[Slip Opinion at 21, this report at 207. (Footnotes omitted.)]
Finally the court addressed the question of whether Congress-
man Harsha's statements and letters were protected by the First
Amendment. The court first found that Mr. Rusack was a public
official. The court declared:
[i]t is * evident that he is intimately involved in the
expenditures of public funds, a matter of great importance
so that there is an interest in his qualifications and per-
formance beyond the interest which might be associated
with any governmental employee. He is, therefore, a
public official and since the allegedly defamatory remarks
dealt with his performance as such an official the New
York Times malice standard must be applied. [Slip Opinion
at 23-24, this report at 209.]
Reviewing the facts, the court concluded that, as a matter of law,
there could be no finding of malice against the Congressman.
In conclusion, the court declared:
In sum, legislative immunity protects defendant Harsha
from suit based on the two speeches, their insertion in the
Congressional Record, and the letter to Admiral Allhouse.
The right to inform creates a constitutional immunity
from suit for the letter to Admiral Allhouse and the for-
warding of the material to the United States Attorney
General, the United States Attorney for the District of
Columbia, and the Office of the Secretary of Defense, and
the Constitutional privilege of the First Amendment en-
compasses all the behavior upon which this action is based
because, as a matter of law, plaintiff is a public official
and there can be no showing of New York Times malice
based on the facts in the record. [Slip Opinion at 27, this
report at 212-213.]
Status.-The case is pending in the U.S. District Court for the
Middle District of Pennsylvania.
The opinion of the District Court is printed in the "Decisions"
section of this report at 189.













III. POWERS OF CONGRESSIONAL COMMITTEES


United States v. American Telephone and Telegraph Co.
Civil Action No. 76-1372 (D.D.C.)
Brief.-On July 22, 1976, the Justice Department filed this action
in the District Court for the District of Columbia, seeking a tempo-
rary restraining order enjoining American Telephone & Telegraph
(hereinafter "A.T. & T.") from complying with a subpoena issued
by the Chairman of the House Committee on Interstate and For-
eign Commerce, pursuant to a vote by the Subcommittee on Over-
sight and Investigations. The chairman of the subcommittee, Rep-
resentative John Moss, filed a motion to intervene as a party-
defendant which was granted. (Civil Action No. 76-1372 (D.D.C.).)
The information sought pursuant to the subpoena included let-
ters from the Federal Bureau of Investigation (hereinafter "FBI")
to subsidiaries of A.T. & T. requesting (1) that a leased telephone
line be provided at the usual commercial rate, (2) a statement that
the request was made upon a specific authorization of the Attorney
General for purposes of national security, (3) the phone number,
location, or other information relating to the lines to be intercept-
ed, and (4) the statement that A.T. & T. was not to disclose the
existence of the request because such disclosure would obstruct and
impede the investigation.
The request letter includes the phone number, address, or other
information identifying the object of the electronic surveillance.
Such a request is necessary because the information intercepted is
moved from the poi.L of interception (ie., the telephone line lead-
ing to the object structure) to the point of monitoring (which may
be the local FBI office) by way of a leased telephone line, which can
be installed only by A.T. & T. and its subsidiaries.
Paragraph 1 of the subpoena seeks such "national security re-
quest letters."
The return date on the subpoena was originally set for June 28,
1976, but because of continuing negotiations the compliance date
was extended to July 23, 1976.
The executive branch presented the committee with an alterna-
tive proposal which the court described thus: "Under this proposal,
following A.T. & T.'s preparation of an 'inventory' of the request
letters held at A.T. & T., the FBI would identify by date those
which were 'foreign intelligence surveillance' and those which
were 'domestic surveillances' In regard to the past domestic sur-
veillances, the FBI would furnish to the subcommittee the memo-
randa on which the Attorney General based his authorization for
such surveillance, with only minor deletions necessary to protect
ongoing investigations. From the 'foreign intelligence surveil-
lances, the subcommittee could select sample items for any 2
years, and representatives of the subcommittee would be given
access to the memoranda on which the Attorney General based his


(43)







authorization of those surveillance with names, addresses, or
other information identifying targets and sources deleted." [United
States v. American Telephone and Telegraph Co., 419 F. Supp. 454,
458-59 (D.D.C. 1976).]
President Ford "also proposed a procedure whereby verification,
and resolution of any questions, would be accomplished by the
direct participation of the Attorney General and if necessary by
the President himself." This proposal was rejected by Subcommit-
tee Chairman Moss. On July 22, 1976, President Ford wrote to
Representative Harley 0. Staggers, Chairman of the Committee on
Interstate and Foreign Commerce, stating:
I have determined that compliance with the subpoena
would involve unacceptable risks of disclosure of extremely
sensitive foreign intelligence and counterintelligence infor-
mation and would be detrimental to the national defense
and foreign policy of the United States and damaging to
the national security. Compliance with the Committee's
subpoena would, therefore, be contrary to the public inter-
est. Accordingly, I have instructed the American Tele-
phone and Telegraph Company, as an agent of the United
States, to respectfully decline to comply with the Commit-
tee's subpoena. [419 F. Supp. at 459.]
The suit was filed by the executive branch when it became clear
that notwithstanding the President's order, A.T. & T. was prepared
to turn over the subpoenaed documents to the committee.
Chairman Moss asserted that the Speech or Debate clause of the
Constitution was an absolute bar to judicial interference with a
Congressional subpoena issued in the conduct of a legitimate legis-
lative investigation.
The Justice Department countered that the suit should only be
considered one seeking to restrain a private party from releasing
documents in its possession. This argument was advanced, the
Justice Department said, so that the court could avoid dealing with
a constitutional confrontation between two of the three branches of
the Federal Government. The Department argued that by following
its approach the court need not consider the applicability of the
Speech or Debate clause, since the immunity provided by that
constitutional provision runs only to Members of Congress and
their close aides when defending against a lawsuit, and does not
afford any protection to a private entity such as A.T. & T.
On July 30, 1976, the court issued its decision. Rejecting the
Department's approach, the court said:
[T]o take this avenue would be to place form over sub-
stance. The effect of any injunction entered by this court
enjoining the release of materials by A.T. & T. to the
Subcommittee would have the same effect as if this court
were to quash the Subcommittee subpoena. In this sense
the action is one against the power of the Subcommittee
and should be treated as such, assuming that Representa-
tive Moss has authority to speak for the Subcommittee.
[419 F. Supp. at 458.]





45


The court determined that it was confronted with a direct con-
test between the investigatory power of the Congress and the mvo-
cation of executive privilege. Rejecting the contentions of absolute
rights asserted by both Chairman Moss and the Justice Depart-
ment, the court determined that:
Here, by nature, the extent and the relative importance
of the power of one coordinate branch of government must
be balanced against that of the other. Neither can be
considered in a vacuum. [419 F. Supp. at 459.]
In balancing the competing interests the court noted several
factors which it concluded must be considered. These included:
(1) Whether the information requested is essential to "the re-
sponsible fulfillment of the committee's functions." Senate Select
Committee v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (concerning a
Congressional subpoena of executive documents not related to na-
tional security).
(2) Whether there is an available alternative" which might
provide the required information "without forcing a showdown on
the claim of privilege." United States v. Reynolds, 345 U.S. 1, 11
(1952).
(3) The circumstances surrounding and the basis for the Presi-
dential assertion of privilege. Id.: United States v. Nixon, 418 U.S.
683, 710-711 (1974).
The court concluded:
In the context of this case, and the court emphasizes
that this decision is limited to the circumstances of this
case, the court determines that there are alternative
means available for obtaining the information required by
the Subcommittee, that the particular form in which that
information is sought is not absolutely essential to the
legislative function, and that the President's determina-
tion that release of this material would present an unac-
ceptable risk of disclosure of matters concerning the na-
tional defense, foreign policy, and national security
outweighs the Subcommittee's showing of necessity. [419 F.
Supp. at 460.]
In deciding to grant the permanent injunction against compli-
ance with the subpoena, the court considered the likelihood that
the subpoenaed material if turned over to the subcommittee might
be made public. The court noted that the President had determined
that release of the material would present an unacceptable risk to
national security and foreign policy and that:
[I]f the materials were turned over to the Subcommittee,
the information could legally be released upon the major-
ity vote of a quorum (8 Members) of the Subcommittee
unless such a determination were reversed by the affirma-
tive action of the House. In addition, each of the 435
Members of the House of Representatives would have
access to such material pursuant to Rule XI(2Xe)(2) of that
Chamber's Rules. The potential for disclosure of this
highly sensitive information, if put into the hands of so
many individuals, has been determined by the President to





46


be an unacceptable risk. Such a determination is entitled
to great weight.
The court is not implying that the Members of the Sub-
committee, or of the House of Representatives, will act
negligently or in bad faith if they have access to these
documents. But it does appear to the court that if a final
determination as to the need to maintain the secrecy of
this material, or as to what constitutes an acceptable risk
of disclosure, must be made, it should be made by the
constituent branch of government to which the primary
role in these areas is entrusted. [419 F. Supp. at 460-61.]
Defendant-intervenors filed an appeal on August 2, 1976, with
the Court of Appeals for the District of Columbia Circuit, and
asked for an expedited briefing period. On August 6, 1976, the U.S.
Court of Appeals for the District of Columbia set an expedited
schedule and designated the case for hearing in the October 14 to
November 3 session of that court.
On August 26, 1976, the House of Representatives passed House
Resolution 1420, authorizing Chairman Moss to proceed in this
action on behalf of the House of Representatives and the House
Committee on Interstate and Foreign Commerce. Chairman Moss,
on September 1, filed a motion for substitution of parties to reflect
the change in his status pursuant to the House resolution. The
motion was granted on September 14 and the caption of the case
was changed by deleting the words "Member, United States House
of Representatives," and inserting in lieu thereof "Individually and
on behalf of the U.S. House of Representatives and the House
Committee on Interstate and Foreign Commerce."
In his suggestion that the Appeals Court hear the case en banc,
filed on September 17, 1976, Representative Moss set forth the
issues he felt were present in the appeal:
Appellant submits that the issues presented by this
appeal are of exceptional public and constitutional impor-
tance, and should be decided by the Court en banc. Among
such issues are the following:
a. Whether the District Court erred in holding that the
President has the unreviewable power to prevent Congress
from receiving documents from a private company pursu-
ant to an admittedly lawful Congressional subpoena,
merely by asserting that Congress' receipt of such docu-
ments would be detrimental to national security;
b. Whether the District Court erred in issuing an injunc-
tion that requires Congress to accept the opinion of the
District Court as to the manner in which Congress should
exercise its discretion in conducting an admittedly lawful
investigation; and
c. Whether, contrary to the decision of the District
Court, Congress has the constitutional power and responsi-
bility to inform itself as to the nature and extent of war-
rantless wiretapping by the executive branch within the
United States. [Suggestion of Appellant for Hearing En
Banc, filed September 17, 1976, at 4.]







In its response to the suggestion for a hearing en bane, the
Justice Department noted:
The issue upon which this case turns is whether, under
our system of government, the President of the United
States, or the House Committee on Interstate and Foreign
Commerce, ultimately must determine the acceptability of
recognized risks to the national security. [Response to Ap-
pellant's Suggestion for Hearing En Bane, filed September
23, 1976, at 1.]
On October 8th, Chairman Moss' petition for a hearing en bane
was denied.
On December 30, 1976, the Court of Appeals issued its opinion.
The court, noting that both a new House and a new President
would be in office early in 1977, remanded the case to the District
Court without decision on the merits. The Appeals Court expressed
the hope that through further negotiations the parties could reach
agreement "without requiring a judicial resolution of a head-on
confrontation * [United States v. American Telephone and
Telegraph Co., 551 F.2d 384 (D.C. Cir., 1976)]; between the legisla-
tive and executive branches of Government. The Court of Appeals
further ordered that the District Court report to the appeals panel
within 3 months on the progress of the negotiations.
Although the Court of Appeals stated that it was not ruling on
the merits of the injunction against compliance with the Congres-
sional subpoena, it did direct the District Court to modify the
injunction which it (the District Court) had issued so as "to exclude
request letters pertaining to taps classified by the FBI as domestic,
since there was no contention by the Executive nor any finding by
the District Court, of undue risk to the national security from
transmission of those letters to the subcommittee." [551 F.2d at
395.]
The parties met before U.S. District Judge Gasch for calendar
calls on February 18, March 21, and April 6, 1977, to report on the
progress of their negotiations. In a memorandum dated May 16,
1977, Judge Gasch reported to the Court of Appeals that the negoti-
ations had not resulted in a resolution of the problem and that the
District Court had no suggestions as to how the disputes could be
resolved. Supplemental argument was heard by the Court of Ap-
peals on June 3, 1977.
On October 20, 1977, the Court of Appeals issued an opinion in
which it mandated a procedure to be supervised by the District
Court in an effort to facilitate a compromise between the Subcom-
mittee and the executive. Additionally, the Court of Appeals con-
tinued the injunction against A.T. & T., at least until the procedure
it proposed has been tried and found inadequate.
Before setting forth the procedure to be followed, the court ad-
dressed two issues: (1) was judicial abstention warranted on "politi-
cal question" grounds, and (2) whether judicial interference with
the investigatory actions of the Subcommittee was barred by the
Speech or Debate clause of the Constitution.
The court first determined that judicial abstention on political
question grounds was not warranted in the circumstances of this
case, noting generally that the judicial branch abstains on political







question grounds when it concludes that either the legislative or
executive branches has the constitutional authority to make a
decision that is dispositive of the dispute. Two factors were indicat-
ed in the opinion as militating against abstention. First, the dis-
pute involved a conflict between two branches of the Government,
neither of which could be said to have an unequivocal and unilater-
al constitutional right to decide the matter in question. Further-
more, the court felt, effective judicial settlement of the issue was a
possibility and judicial abstention would not lead to an orderly
resolution of the dispute.
The court next rejected the contention that judicial interference
with the actions of the investigation being conducted by the Sub-
committee was barred by the Speech or Debate clause. The court
concluded that:
What the cases establish is that the immunity from judi-
cial inquiry afforded by the Speech or Debate Clause is
personal to Members of Congress. Where they are not
harassed by personal suits against them, the clause cannot
be invoked to immunize the congressional subpoena from
judicial scrutiny. [Slip Opinion at 18.]
The court then set forth its plan which it characterized as a
"gradual approach * consistent with our view that the present
dispute should be regarded as a concerted search for accommoda-
tion between the two branches." [Slip Opinion at 21.]
As enunciated by the court:
Under our approach, the Subcommittee staff would
select at random a sample of 10 unedited memoranda for
the two sample years, and compare these with the corre-
sponding expurgated ones. On the issue of notes, still a
bone of contention, our approach would permit the staff to
take notes on their impressions concerning the accuracy of
the classification of the memoranda as relating to foreign
intelligence surveillance and use of generic terms, but the
notes would have to be left at the FBI under seal. The
Subcommittee staff could report their conclusions orally to
the Subcommittee. The Subcommittee would then decide
whether to take a claim of inaccuracy-alleging, for exam-
ple, executive abuse of the "foreign intelligence" rubric-
to the District Court for resolution. If the District Court,
upon in camera inspection of the original and edited
memoranda and of the staff notes, found significant inac-
curacy, it would take remedial action. The specifics of its
actions are a matter for sound discretion. Relief might
involve, for example, providing the Subcommittee staff
access to a larger sample of unedited memoranda to deter-
mine whether any previously discovered inaccuracy was
isolated or systematic. If the initial inaccuracy suggested
deviousness, the District Court might conclude that the
cooperative approach is unfruitful and unmanageable, and
that the court should withdraw from its assistance to the
executive by dissolving the injunction. [Slip Opinion at 22.]





49


The executive would be permitted to employ a substitution proce-
dure, selecting at random another memorandum to be substituted,
if any of the randomly selected original memoranda would in the
opinion of the Attorney General, cause grave injury to the national
security or possibly result in physical harm to any person it dis-
closed. The procedure could be implemented,
[B]ut only upon an in camera showing of two things; the
accuracy and fairness of the edited memorandum, and the
extraordinary sensitivity of the contents of the original
memorandum to the national security. The determination
of the District Court will, of course, be subject to appellate
review. [Slip Opinion at 22-23.]
The court emphasized the provisional nature of the remedy it
ordered, and indicated that such an approach was required given
the negotiating positions of the parties and the court's desire to
accommodate their substantial needs and yet refrain, if possible,
from upholding either of the claims of absolute authority.
The Government filed a petition for rehearing on December 12,
1977, which was denied on the same day. In its petition for rehear-
ing the Government sought to have the Court of Appeals clarify, or
if necessary modify, its opinion of October 20, 1977, so as to indi-
cate that it is not the intent of the court to allow counsel for the
parties to participate in the in camera proceedings directed at
verifying the need for invoking the substitution procedure.
The Court of Appeals refused to so clarify or modify its opinion
and instead affirmed its intention to allow the District Court to
permit participation by counsel for the Subcommittee. The opinion
distinguished the facts in the instant case from those in cases
which have upheld ex parte proceedings in similar situations in-
volving private parties:
The present case does involve the additional considera-
tion that it is a body of the legislature that is seeking
access, and that it has not only threshold legal standing
but claims the high ground of seeking information for a
legislative purpose. [Slip Opinion at 3.]
The court further stated:
Counsel for a legislative committee may be subject to
the kind of security clearance that our decision contem-
plated for congressional staff, and may also be subject to a
District Court's conditions on access to in camera material.
In such respects, the participation of counsel is in aid of
the court, his primary position is as an officer of the court,
and he may even be precluded from consultation with his
client on the matters involved. * We have not accepted
the contention that the executive determination that na-
tional security may be involved is conclusive and not sub-
ject to any further inquiry, nor have we accepted the rival
claim that Congressional right of access to documents for
legislative purposes is at any time absolute. If in the inter-
est ot national security the executive seeks the aid of the
judicial branch, the courts are entitled to obtain, under







circumscribed conditions, the aid they need for their task.
[Slip Opinion at 3.]
On December 12, 1978, a joint motion to dismiss without preju-
dice, which indicated that the matter had been amicably resolved,
was filed in the District Court.
Status.-The case was dismissed without prejudice on December
21, 1978. No further action has been taken.
The full text of the July 30, 1976 memorandum and order of the
District Court is printed in the "Decisions" section of Court Pro-
ceedings and Actions of Vital Interest to the Congress, August 15,
1976.
The full text of the December 30, 1976 opinion of the Court of
Appeals is printed in the "Decisions" section of Court Proceedings
and Actions of Vital Interest to the Congress, December 1976.
The full text of the May 16, 1977 memorandum of the District
Court to the Court of Appeals is printed in the "Decisions" section
of Court Proceedings and Actions of Vital Interest to the Congress,
Part 2, August 15, 1977.
The full text of the October 20, 1977 and December 12, 1977
opinions of the Court of Appeals are printed in the "Decisions"
section of Court Proceedings and Actions of Vital Interest to the
Congress, Part 3, December 31, 1977.

Koniag, Inc. v. Andrus (formerly Kleppe)
No. 78-512 (U.S. Supreme Court)
Brief.-These actions were filed in the United States District
Court for the District of Columbia by 11 Alaskan communities
challenging decisions of the Secretary of the Interior which found
each of them ineligible to receive land and money under the
Alaska Native Claims Settlement Act (hereinafter "Claims Settle-
ment Act"), 43 U.S.C. 1601 et seq. (Supp. III, 1973.) [Civil Action
Nos. 74-1061, 74-1134, 74-1790 to 74-1795, 75-452, 75-485, and 75-
1097 (D.D.C.).]
The cases were consolidated in the District Court for resolution
of those questions which plaintiffs and the defendant agreed could
be adequately presented on cross-motions for summary judgment.
The Claims Settlement Act sought to accomplish a fair, and
rapid settlement of all aboriginal claims by Natives and Native
groups of Alaska without litigation. Under it, 40 million acres of
land and $962.2 million were to be disbursed to regional corpora-
tions and villages that qualified. The Secretary of the Interior was
given the responsibility of administering the program outlined in
the legislation. Among his responsibilities was the final determina-
tion of which applicants were "villages", as defined by the Claims
Settlement Act, which were eligible for participation in the distri-
bution. The Secretary's regulations required the Juneau, Alaska,
Area Office of the Bureau of Indian Affairs to make these determi-
nations not later than December 19, 1973. Prior to reaching a
decision, the Area Office was required to publish proposed deci-
sions, which became final unless appealed within 30 days. Upon
receipt of a protest the Area Director was to consider and evaluate
it and render a decision within 30 days. These decisions then







became final unless an "aggrieved party" appealed to the Secretary
of the Interior by filing a notice with the Alaska Native Claims
Appeal Board (hereinafter "Board"). The Secretary of the Interior
reserved to himself the right to make the ultimate decision in each
case.
If a case was appealed, however, a record was usually built by
assigning the case to an administrative law judge from Interior,
who would hear the case de novo in an adversary proceeding. At
these hearings the "aggrieved parties" were usually represented by
an attorney from the Interior Department's Solicitor's Office. The
administrative law judge would hear evidence and make his deci-
sion in camera. The decision was forwarded in camera to the Board
without being served on the communities. The Board made a
formal decision and submitted it to the Secretary of the Interior in
camera. The Secretary then consulted with his staff and reached a
final decision. Only then were the communities notified as to what
decisions had been reached.
In the.;e cases the Area Director issued decisions determining
that the 11 communities were "villages" eligible for benefits under
the Claims Settlement Act. The Fish and Wildlife Service, the
Forest Service, or the State of Alaska, and certain environmental
groups appealed one or another of the 11 decisions. After full de
novo proceedings before the administrative law judge and the
Board, the Secretary's decision was that three of the communities
were of one class of "villages" but not of another, thus reducing the
benefits to which the communities believed they were entitled. The
other eight plaintiffs were determined not to be "villages" as de-
fined by the Claims Settlement Act. The 11 communities brought
actions to obtain judicial relief from the Secretary's decisions.
While the village claims were being considered by the Secretary,
the Subcommittee on Fisheries and Wildlife Conservation and the
Environment of the House Committee on Merchant Marine and
Fisheries, chaired by Representative John Dingell, held hearings
which were described as oversight hearings on the implementation
of the Claims Settlement Act by the Department of the Interior.
Plaintiffs argued that these hearings adversely affected their
position on the issues in dispute and improperly influenced the
ultimate decisions by the Secretary. In particular, plaintiffs noted
the appearance of Kenneth Brown, "who served as legislative coun-
sel and chairman of the Alaska Task Force Working Committee of
the Department of the Interior and was one of the Secretary's two
principal advisers who reviewed the cases with him at the time he
made his decision in the plaintiffs' case." [Koniag, Inc. v. Kleppe,
405 F. Supp. 1360, 1371 (D.D.C. 1975).]
In a memorandum and order handed down on November 14,
1975, United States District Judge Gerhard A. Gesell ruled, inter
alia, that the Dingell hearings were an impermissible interference
with the administrative process, and that the Area Director's deci-
sions designating plaintiffs as eligible villages should be reinstated
since they were the last "untainted" decisions made before Decem-
ber 19, 1973, the date by which the Claims Settlement Act required
decisions to be made.







The stated purpose of the hearings, the court noted, was to
present a forum for discussing the implementation of the Claims
Settlement Act. But, said the court:
in fact the Committee, through its chairman and staff
members, probed deeply into details of contested cases
then under consideration indicating that there was "more
than meets the eye." The entire rule-making process was
re-examined, travel vouchers and other information were
sought to probe the adequacy of the investigations made,
all papers in the pending proceedings were demanded, the
accuracy of data and procedures followed was questioned,
and constantly the Committee interjected itself into as-
pects of the decision-making process. While representatives
of Interior indicated they were very concerned about preju-
dice to the quasi-judicial administrative process, and the
chair on several occasions denied that it was his purpose
to pressure the agencies involved, Representative Dingell
stated that he was obliged to confess that he had doubts as
to whether the law was being properly carried out. On key
issues now in dispute before the court, representatives of
the Government were obliged to take positions as to the
interpretation of the Act. A strenuous effort was made by
the chairman to encourage protest and appeals, coupled
with comments indicating his clear impression that all
that could be done was not being done and that some of
the results being reached were contrary to congressional
intent. It was following this experience that settlements
arranged with two of the plaintiffs * were abandoned
by the Department of the Interior because of the hearings.
It should also be noted again that when the Secretary
reached the crucial point of making his personal decision
on the merits of cases that were investigated and criticized
by the Committee he had as one of his two immediate
personal advisors Mr. Brown, who had been subjected to
the intervention and subtle harassment of the Legislative
Branch.
*( *K
The Dingell hearings constituted an impermissible con-
gressional interference with the administrative process.
This situation presents a disturbing conflict between the
Congress and the Executive Branch, and it is the responsi-
bility of the Judiciary in this instance to prevent an imper-
missible intrusion by one branch into the domain of the
other. It is no less the responsibility of the Court to protect
the procedural due process rights of litigants and 'to pre-
serve the integrity of the judicial aspect of the administra-
tive process." [Pillsbury Co. v. Federal Trade Commission,
354 F.2d 952, 964 (5th Cir. 1966).] It cannot be gainsaid
that the "appearance of impartiality-the sine qua non of
American judicial justice-" was sacrificed in this in-
stance. Id. "[P]rivate litigants [have a right] to a fair trial
and, equally important, [a] right to the appearance of im-
partiality, which cannot be maintained unless those who





53


exercise the judicial function are free from powerful exter-
nal influences," id. The appearance of justice was
breached and while the complaining party is not required
to shoulder the virtually impossible burden of proving
whether and in what way the outcome before the agency
was actually influenced by the congressional intrusion, the
evidence before the court indicates that the Dingell hear-
ings indeed had a direct and demonstrable effect at least
on the cases of [the two plaintiffs with whom the settle-
ment with the Interior Department was abandoned]. [405
F. Supp. at 1371-1372.]
The Department of the Interior appealed each of the cases to the
Court of Appeals and asked that the cases be consolidated for the
purpose of appeal. The motion to consolidate was granted.
On February 23, 1977, the new Secretary of the Interior, Cecil D.
Andrus, was substituted in place of Thomas S. Kleppe as a party to
these appeals.
The case was argued on March 24, 1977.
The U.S. Court of Appeals for the District of Columbia Circuit
issued an opinion on April 28, 1978, affirming in part and reversing
in part the ruling of the District Court. In the opinion, filed for the
court by Judge Robb, the Circuit Court agreed with the District
Court that the appellate procedure established for the determina-
tion of appeals made under the Claims Settlement Act did not meet
the requirements of due process. The Circuit Court concluded that
the original procedure established by the Secretary should have
permitted the parties to take exceptions to the recommended deci-
sions of the administrative law judge and to submit briefs to the
Board for its consideration. Rather than directing the reinstate-
ment of the Bureau of Indian Affairs decisions, as the District
Court had done, the Circuit Court remanded the cases to the Dis-
trict Court for remand to the Secretary for a redetermination of
the appeals.
The decision of the District Court was reversed by the Court of
Appeals in regard to the issues of standing and Congressional
interference. The Court of Appeals held that the State of Alaska
and Federal agencies concerned with the possible impact of deter-
minations made by the Bureau of Indian Affairs Area Office under
the Claims Settlement Act had standing under the Interior Depart-
ment's regulations.
The Circuit Court's opinion rejected the holding of the District
Court that the hearings "constituted an impermissible Congression-
al interference with the administrative process" the lingering ef-
fects of which made the usual remedy of remand to the Secretary
for redetermination impossible. It is unclear from the opinion
whether the Court of Appeals concluded that there was no "inter-
ference" with the administrative process, or whether on this point
the court only concluded that what "interference" there was was
not severe enough to preclude a redetermination by the Secretary.
The Appeals Court ruled that the decision in Pillsbury (supra) was
not controlling since in this action none of the individuals called to
testify before the Subcommittee was a decisionmaker as was the
case in Pillsbury. The only possible exception, said the court, was







Mr. Brown, who briefed the Secretary on the administrative ap-
peals before the Secretary made his determinations. About Mr.
Brown's appearance, the court said:
[E]ven if we assume that the Pillsbury doctrine would
reach advisors to the decisionmaker, Mr. Brown was not
asked to prejudge any of the claims by characterizing their
validity. See Pillsbury Co. v. FTC, supra, at 964. The worst
cast that can be put upon the hearings is that Brown was
present when the subcommittee expressed its belief that
certain villages had made fraudulent claims and that the
Bureau of Indian Affairs decisions were in error. This not
enough. [Slip Opinion at 19.]
The Court of Appeals also dealt with the question of whether a
letter sent by Congressman Dingell to the Secretary two days
before his determination of the ineligibility of eight of the villages
constituted an improper interference in the administrative process.
Terming the letter a "more serious matter", the court stated:
A more serious matter is a letter that Congressman
Dingell sent to the Secretary two days before he deter-
mined that eight of these villages were ineligible. The
letter requested the Secretary to postpone his decisions on
the cases pending a review and opinion by the Comptroller
General, because it "appears from the testimony [at the
hearings] that village eligibility and Native enrollment
requirements of ANSCA [Alaska Native Claims Settlement
Act] have been misinterpreted in the regulations and that
certain villages should not have been certified as eligible
for land selections under ANSCA." The letter did not
specify any particular villages, but we think it compro-
mised the appearance of the Secretary's impartiality.9 D.C.
Federation of Civic Assn's v. Volpe, 148 U.S. App. D.C. 207,
222, 459 F.2d 1231, 1246, cert. denied, 405 U.S. 1030 (1972);
see Pillsbury Co. v. FTC, supra, at 964. Nevertheless, a
remand to the Secretary, rather than a reinstatement of
the BIA decisions, is the proper remedy in this case. As-
suming the worst-that the letter contributed to the Secre-
tary's decision in these cases-we cannot say that 31/2
years later, a new Secretary in a new administration is
thereby rendered incapable of giving these cases a fair and
dispassionate treatment.
SWe of course intimate no view as to the validity of the Congressman's
criticism.
[Slip Opinion at 19-20.]
On April 28, 1978, the cases were remanded to the District Court
for remand to the Secretary for redetermination of the appeals.
The appeals were remanded by the District Court to the Secre-
tary on July 31, 1978.
On September 25, 1978, the villages filed a petition for writ of
certiorari in the U.S. Supreme Court.
In their petition, the villages noted several questions as being
presented, including, inter alia, whether a District Court, having







found that administrative proceedings have (a) violated plaintiffs'
rights to due process and (b) been tainted by Congressional intru-
sion into the administrative process, exceeds the bounds of its
discretion in fashioning a remedy by reinstating the last untaint-
ed determination where Congress has required that the matter
before the agency be resolved rapidly and with certainty.
Petitioners sought review of the appellate court's decision with
respect to (1) standing, (2) the remedy fashioned by the District
Court, (3) the authority of the Secretary to redetermine residence
for purposes of village eligibility, and (4) the propriety of the
appellate court's remand order in the case of Salamatof Village.
Among the reasons to grant certiorari put forth by petitioners is
the assertion that the court has the responsibility to mark the
appropriate limits of the investigatory power of Congressional
committees and to assure the proper functioning of the Federal
judiciary.
A brief in opposition to the petition for writ of certiorari was
filed for the Secretary of the Interior on November 16, 1978. In
the brief it was argued that the decision of the Court of Appeals
was correct and was not in conflict with any decision of the
Supreme Court, and that the issues presented were not of recur-
ring importance.
Status.-The petition for writ of certiorari was denied on De-
cember 11, 1978. No further action has been taken.
That portion of the District Court's opinion which is of interest
to the House of Representatives is printed in the "Decisions" sec-
tion of the report of Court Proceedings and Actions of Vital Interest
to the Congress, Part 1, April 15, 1977.
The opinion of the Court of Appeals is printed in the "Decisions"
section of the report of Court Proceedings and Actions of Vital
Interest to the Congress, Part 4, May 15, 1978.
Exxon Corp. v. Federal Trade Commission
No. 77-1302 (D.C. Cir.)
Kerr-McGee Corp. v. Federal Trade Commission
No. 77-1303 (D.C. Cir.)
and,
Union Carbide Corp. v. Federal Trade Commission
No. 77-1304 (D.C. Cir.)
Brief-On May 7, 1976, Union Carbide Corp. (hereinafter "Union
Carbide") filed a complaint for injunctive and declaratory relief
against the Federal Trade Commission (hereinafter "FTC"), and
the Chairman, Commissioners, and Secretary of the FTC, to pre-
vent the FTC from "releasing to two Congressional committees,
and thus to the public, commercially sensitive trade secrets relat-
ing to plaintiffs' coal and nuclear business, which the Commission
is required to keep confidential under Section 6 of the Federal
Trade Commission Act, 15 U.S.C. 46(f), and under common law
protections for trade secret information." [Verified Complaint for
Injunctive and Declaratory Relief, Union Carbide Corp. v. FTC,
Civil Action No. 760793 (D.D.C.).] Union Carbide states that pursu-







ant to an FTC subpoena dated January 31, 1975, they turned over
to the FTC commercially sensitive data and trade secrets, and
notified the FTC of the confidential nature of the data. The com-
plaint states that Union Carbide and the FTC entered into an
agreement that the FTC would give Union Carbide 10 days' notice
before releasing any information. On May 5, 1976, the FTC notified
Union Carbide that it was considering releasing the data to the
Senate Judiciary Committee's Antitrust and Monopoly Subcommit-
tee and to the House Interstate and Foreign Commerce Commit-
tee's Subcommittee on Oversight and Investigations, and that the
commissioners expected to vote unanimously to release the materi-
al by May 7, 1976. Furthermore, despite the 10-day notice agree-
ment, the FTC said that Union Carbide might not receive any
further notice. Union Carbide asserted that on numerous previous
occasions commercially sensitive trade secret data submitted to
Congressional committees and subcommittees had become public.
They also alleged that if the FTC released this information it
would be in violation of 15 U.S.C. 46(f), which says the FTC may
make public information it obtains "except trade secrets and the
names of customers," and that the release of the data would also
violate Union Carbide's common law right of confidentiality of its
trade secrets. Union Carbide asked the court to enjoin the defend-
ants from releasing the information to anyone outside the FTC,
including, but not limited to, any committee or subcommittee of
Congress, and to issue a declaratory judgment that the release of
such data would violate 15 U.S.C. 46(f) and Union Carbide's
common law right to preserve its trade secrets.
U.S. District Judge John H. Pratt issued an order on May 7,
1976, enjoining the FTC from releasing the information to any
person outside the FTC until 10 days after the disposition of Ash-
land Oil Co. v. FTC, No. 76-1174 (D.C. Cir.), since it appeared to
the court that the same issue was before the U.S. Court of Appeals
in that case. [For a brief of Ashland Oil Co. v. FTC, see Court
Proceedings and Actions of Vital Interest to the Congress, Part 2,
August 15, 1977, at 25.]
Separate complaints were filed on May 11, 1976, by Exxon Corpo-
ration (hereinafter "Exxon") [Exxon Corp. v. FTC, Civil Action No.
76-0812 (D.D.C.)] and Kerr-McGee Corporation (hereinafter "Kerr-
McGee") [Kerr-McGee Corp. v. FTC, Civil Action No. 76-0814
(D.D.C.)] against the same defendants as in Union Carbide, stating
that they had turned over to the FTC certain confidential data
relating to uranium mining, milling, exploration and production
pursuant to FTC subpoenas issued in early 1975. Their complaints
state that they emphasized to the FTC the confidential nature of
the information when the materials were turned over to the FTC.
They further state that on May 5, 1976, the staff of the FTC
notified them that the Commission was considering the imminent
release of the data to the Senate Judiciary Committee's Antitrust
and Monopoly Subcommittee and/or individual members of the
committee. On May 10, 1976, the staff of the FTC advised them
that the material would be turned over on May 11, 1976. Both
Exxon and Kerr-McGee assert that "the record of commercially
sensitive trade secret information finding its way into the public
domain from Congress" shows that there mis a high probability that







submission of the data to a Congressional subcommittee would
result in their release to the public. Both alleged that release of the
information by the FTC would violate 15 U.S.C. 46(f), 18 U.S.C.
1905, and plaintiffs' common law right to protection of confiden-
tiality of trade secrets. Both asked the court to enjoin the defend-
ants from releasing the information to anyone outside the FTC,
including, but not limited to, any committee or subcommittee of
Congress, and to issue a declaratory judgment that the release of
such information would violate 15 U.S.C. 46(f), 18 U.S.C. 1905,
and plaintiffs' common law right to preserve their trade secrets.
The plaintiffs also filed motions for injunctive order similar to the
one granted in Union Carbide.
On May 11, 1976, Judge Pratt issued injunctions in these cases
similar to the one issued on May 7, 1976, in Union Carbide.
On July 8, 1976, the court granted the defendants motion for an
extension of time to file an answer until 20 days after a decision by
the U.S. Court of Appeals in Ashland Oil.
On September 20, 1976, the U.S. Court of Appeals issued its
decision in Ashland Oil Co. v. FTC, essentially affirming the deci-
sion of the District Court that the materials could be turned over
to a committee of Congress, without violating 15 U.S.C. 46(f). The
Court of Appeals in Ashland then entered a stay of its order until
it could rule on a motion for rehearing.
On October 1, 1976, Judge Pratt continued the temporary re-
straining orders in Union Carbide, Exxon, and Kerr-McGee until
either he disposed of Union Carbide's motion for a preliminary
injunction or the Appeals Court removed its stay in Ashland Oil.
On October 15, 1976, defendants filed their motions to dismiss,
based upon the disposition in Ashland Oil.
On March 2, 1977, the Appeals Court denied the motion for
rehearing in Ashland Oil.
On March 29, 1977, the court in Union Carbide, Exxon, and Kerr-
McGee concluded that the transmission of data from the FTC to a
Congressional committee "does not constitute public disclosure
within the meaning of * 15 U.S.C. (Supp. V) 46(f); and that
such transmission in this case would not cause irreparable harm to
the plaintiff," citing Ashland Oil. The court denied the motions for
summary judgment, granted defendants' motions to dismiss and
dismissed the cases with prejudice, denied as moot the plaintiffs'
motions for a preliminary injunction, and denied the plaintiffs'
requests to stay the orders pending appeal.
On March 29, 1977, all three plaintiffs filed notices of appeal.
On March 30, 1977, the U.S. Court of Appeals for the District of
Columbia consolidated the appeals of Exxon (No. 77-1302), Kerr-
McGee (No. 77-1303), and Union Carbide (No. 77-1304) for purposes
of appeal, and stayed the order of the District Court. In addition,
the Senate Judiciary Committee was asked to advise the court
whether it still sought the data originally requested.
On May 3, 1977, a motion by the three companies to expedite the
proceedings was denied.
On May 6, 1977, the Appeals Court denied the companies mo-
tions for injunctions or stay pending appeals and vacated its stay of
March 30, 1976 of the District Court's order. Chief Judge George E.
MacKnnon considered it improper to surrender this material to







any Member of Congress on a mere request, but felt he was bound
by the decision in Ashland Oil.
On August 26, 1977, a per curiam order was filed dismissing
appellant's motion for injunction pending appeal as moot.
On September 30, 1977, Congressman John E. Moss filed a
motion for leave to file a brief as amicus curiae.
On October 25, 1977, a Clerk's order was filed granting Congress-
man Moss' motion for leave to file a brief as amicus curiae and
giving appellants 14 days to file a brief in response.
Congressman Moss' brief as amicus curiae and appellant's brief
in response thereto were both filed on October 25, 1977.
The consolidated appeals were argued on February 13, 1978.
The Court of Appeals issued its opinion on October 19, 1978,
affirming the judgment of the District Court in its entirety. In the
opinion for the court filed by Circuit Judge MacKinnon, the ques-
tion at issue was posed as whether any protective measures
should be imposed on the FTC with respect to the divulging to
Congress of "trade secrets" obtained by the FTC under the com-
pulsion of a subpoena.
The opinion noted that some of the information that the appel-
lants sought to protect, specifically data concerning Union Car-
bide's coal holdings, had already been disclosed, and that the
appeal was moot as to this material. As to the issues which were
not moot, the status of as yet undivulged material, the request for
notice prior to disclosure, and the request for steps to be required
to ensure that Congress keep such trade secret information confi-
dential, Circuit Judge MacKinnon noted that most represented an
attempt to have the court virtually engage in rulemaking for the
FTC, which would be inappropriate and potentially overreaching.
Turning to appellants' prayer for a permanent injunction re-
quiring 10 days advance notice to affected parties before the FTC
could disclose confidential data pursuant to Congressional re-
quest, the Court of Appeals determined first that the material
which the FTC proposed to divulge was fully within the scope of
the legitimate investigatory powers of Congress. In rejecting the
request for a permanent injunction, Circuit Judge MacKinnon
stated:
For this court on a continuing basis to mandate an
enforced delay on the legitimate investigations of Con-
gress whenever these inquiries touched on trade secrets
could seriously impede the vital investigatory powers of
Congress and would be of highly questionable constitu-
tionality. While normally reasonable advance notice can
be required, in exigent circumstances Congress has full
authority to issue forthwith subpoenas and formally re-
quest immediate disclosure. To impose a mandatory
notice period would skirt dangerously close to being at
least the temporary "equivalent to an order quashing [the
official request or subpoena] which is generally an imper-
missible frustration of the congressional power to
investigate * and hence [would raise] serious consti-
tutional issues," United States v. American TeL & TeL Co.,
551 F.2d 384, 388 (D.C. Cir. 1976), citing, Eastland v.





59


United States Servicemen's Fund, 421 U.S. 491, 506 (1975).
It would also abrogate the broad discretion of the Com-
mission, e.g., FTC v. Lonning, 539 F.2d 202, 211 (D.C. Cir.
1976)-through which the FTC can make use of its con-
siderable expertise to balance the private and public in-
terests involved-to formulate its own reasonable confi-
dentiality protections, see FTC v. Anderson, 442 F. Supp.
1118 (D.D.C. 1977). [Slip Opinion at 9; this report at 223.
(Footnote omitted.)]
To impose any mandatory advance notice would, the Court of
Appeals concluded, run directly contrary to the spirit of the U.S.
Supreme Court's decision in Eastland v. United States Service-
men's Fund, supra, which emphasized the necessity for courts to
refrain from interfering with or delaying the investigatory func-
tions of Congress.
Furthermore, the court found no indication that disclosure to
the subcommittee would in any way harm the appellants, since
such disclosure does not constitute public disclosure. Reaffirming
its rationale in Ashland Oil Inc. v. FTC, 548 F.2d 977 (D.C. Cir.
1976), the opinion stated that absent a showing that it is evident
that Congress intends to make trade secrets divulged to it by the
FTC publicly available, the FTC may, upon proper demand, re-
lease such secrets to the Congress without the necessity of prior
notice to the parties involved, unless such information was ob-
tained upon an agreement to give prior notice.
The Court of Appeals also rejected appellant's contention that
the FTC should be required to obtain assurances that confidential
information will not be publicly disclosed unless a majority of the
members of the committee or subcommittee vote to do so. The
opinion stated that for the court to establish such a requirement
on the record in this case would clearly involve an unacceptable
judicial intrusion into the internal operations of Congress. In
regard to the possibility of leaks, the Court of Appeals stated:
If, in fact, a Member or congressional staff member
improperly "leaks" confidential data, the injured parties
have a recourse against that individual directly, and the
possibility of such action will serve to deter unjustified
disclosure of trade secrets. Beyond provision for such
suits, and in the absence of a concrete violation of law,
rule or regulation, the courts are unable to aid the appel-
lants in their request to oversee the activities of the legis-
lature, allegations of the prevalence of "leaks" from some
committees notwithstanding. The FTC should, and does,
alert Congress when the information made available to it
is confidential. In fact, some such cautionary statement
could be impliedly required from the prohibition on the
public disclosure of trade secrets imposed by 15 U.S.C.
46(f). If the Commission failed to alert Congress to the
fact that information being supplied to it was by statute
prohibited from "public" disclosure the Commission
would violate a duty implicitly imposed upon it by the
statute. To impose further protective procedures upon
Congress, without some immediate threat of illegal dis-







closure, would impermissibly interfere with the legislative
branch-an action we refuse to take. [Slip Opinion at 15;
this report at 229. (Footnote omitted.)]
The Court of Appeals also declined to restrict the right of the
FTC to discuss with Members of Congress or their staff, prior to
Congressional demand, the general nature of available data and
thus inform Congress about relevant information of which it may
be unaware. The opinion noted that barring some prohibition,
governmental agencies may interchange information, and that
most problems in this connection will be obviated if the Commis-
sion merely notifies Congress whenever confidential trade secrets
are requested or involved in potential delivery.
The opinion emphasized that the denial of appellants' requested
injunctive and declaratory relief designed to limit the manner in
which the FTC may respond to a subpoena or formal request, did
not address the question of when a formal request or subpoena
has been properly issued. The Court of Appeals stated that it is
important that disclosure of information can only be compelled
by authority of Congress or its committees or subcommittees, not
solely by individual Members; and only for investigation and Con-
gressional activities. In regard to ordinary publicly available in-
formation, there is no need to require the FTC to determine
whether or not a request for such information is in fact a proper
formal request or subpoena, which satisfies the requirement of
the controlling Congressional rule. Trade secrets, however, may
not be divulged except upon verified legally authorized requests,
the opinion noted. While noting that it did not clearly appear that
the request sent to the FTC by Senator Hart was a formal request
authorized by the subcommittee, the Court of Appeals assumed
that the FTC had verified that the request had been properly
authorized.
The opinion also noted that in appealing a refusal to grant
equitable relief, appellants bore heavy a burden and that to grant
such relief the Court of Appeals would be required to interfere in
the operation of Congress and also to depart from traditional
doctrine concerning the availability of equitable relief.
On November 2, 1978, appellants filed a petition for rehearing
and a suggestion for rehearing en banc, which were both denied
on December 6, 1978.
Status.-No further action has been taken.
The complete text of the orders of the District Court are printed
in the "Decisions" section of Court Proceedings and Actions of Vital
Interest to the Congress, Part 2, August 15, 1977, at 247 (Union
Carbide), 243 (Exxon), and 245 (Kerr-McGee).
The opinion of the Court of Appeals is printed in the "Decisions"
section of this report at 215.
NOTE.-In a footnote to its orders of March 29, 1977, the District
Court stated that it was aware of footnote 63 in a decision by the
Court of Appeals in FTC v. Texaco, No. 74-1547 (D.C. Cir. Feb. 23,
1977). Footnote 63 states:
We think it not unreasonable to require notice to the
producers even in the event of a proposed release to Con-
gress, since the circumstances surrounding such a disclo-








sure cannot presently be ascertained. [See Ashland Oil v.
FTC. 548 F.2d 977.]
The court concluded: "we believe that action to be legally and
factually distinguishable from the case at bar." In Texaco, the FTC
had undertaken an investigation to determine whether certain cor-
porations were violating Section 5 of the Federal Trade Commis-
sion Act by deliberately understating gas reserves in southern
Louisiana. After an informal investigation effort proved inad-
equate, the Bureau of Competition of the FTC determined that the
issuance of subpoenas would be necessary, and on June 3, 1971, the
Commission issued a resolution directing the use of compulsory
process in a nonpublic investigation. The companies refused to
comply with the subpoenas which were subsequently issued, and
the FTC filed petitions for enforcement in the Federal District
Court.
The companies argued that the accuracy of the gas reserves
estimates had already been determined by the Federal Power Com-
mission in ratemaking proceedings before that body prior to 1971,
and therefore it was improper for the FTC to subpoena documents
for the same purpose. The District Court agreed, and determined,
in general, that the FTC could only receive documents from 1969-
71 and could use them only to investigate the possibility of a
conspiracy in reporting reserves, but could not use them to deter-
mine reserves. In addition the court ruled that the documents used
in that investigation could only be reviewed by FTC personnel
assigned to that investigation, and had to be returned to the com-
panies at the conclusion of the investigation, unless the court ruled
otherwise.
A Court of Appeals panel upheld the decision of the District
Court, but the panel's decision was vacated by the en banc Court of
Appeals when it decided to rehear the case en banc. Among the
parts of the District Court's order which the en banc court modified
in its opinion and order of February 23, 1977, was the part dealing
with protection of confidentiality of the information claimed by the
companies. The en banc court concluded that until the FTC had a
chance to review the documents and rule on specific requests of
confidentiality the District Court's order was premature and im-
proper. They continued:
Accordingly, we accept with some modifications, the FTC's
proposed confidentiality protection, which would provide
notice to the producers of any FTC decision. Specifically,
we order that the FTC not disclose any of the documents
produced which a company designates as confidential to
any person [fn. 63] outside the employ of the FTC (other
than an outside consultant retained by the FTC who has
agreed not to disclose the documents) without first giving
the company ten days' notice of its intention to do so. Such
a procedure would, of course, provide an opportunity for
judicial review at some later date, if the producers believe
that a particular proposed disclosure is improper. [FTC v.







Texaco, No. 74-1547 (D.C. Cir. Feb. 23, 1977); Slip Opinion
at 43-44.]

United States v. Berrellez
Cr. No. 78-00120-01 (D.D.C.)
Brief.-On March 20, 1978, a six-count information was filed in
U.S. District Court for the District of Columbia against Robert
Berrellez. The first count charges the defendant with a violation of
18 U.S.C. 371 (Conspiracy). Specifically, Mr. Berrellez is charged
with conspiring with Harold V. Hendrix, who is not charged in the
information, and other persons from March 1972 to March 21, 1973,
to: (1) obstruct a proceeding of the Subcommittee on Multinational
Corporations of the Committee on Foreign Relations of the U.S.
Senate (hereinafter "Subcommittee"), (2) commit perjury, and (3)
defraud the United States of and concerning its right to have the
business of the Subcommittee conducted honestly and impartially.
The second count charges the defendant with violating 18 U.S.C.
1505 (Obstruction of Proceedings) by giving false and blatantly
evasive testimony before the Subcommittee concerning communica-
tions and relationships between employees, officers, and directors
of the International Telephone and Telegraph Corporation (herein-
after "ITT") and Central Intelligence Agency (hereinafter "CIA")
officials and communications and relationships between employees,
officers and directors of ITT and certain Chileans. The third and
fourth counts charge defendant with violating 18 U.S.C. 1621 by
committing perjury before the Subcommittee. The fifth count
charges the defendant with perjury before a panel of arbitrators of
the American Arbitration Association (hereinafter "Panel"). Mr.
Berrellez had testified in June 1974, before the Panel, which was
seeking to ascertain, in the course of conducting an arbitration
proceeding, what activities of ITT were undertaken in Chile and
elsewhere with regard to the 1970 Chilean Presidential election. On
the basis of the same testimony upon which count five is based, the
sixth count charges Mr. Berrellez with violating 18 U.S.C. 1001 by
knowingly and willfully making false and fictitious statements and
representations as to material facts in connection with a matter
within the jurisdiction of an agency of the United States, specifical-
ly, the Overseas Private Investment Corporation.
Defendant pleaded not guilty on March 29, 1978.
On April 27, 1978, defendant moved to dismiss the information.
Mr. Berrellez' motion to dismiss was argued on August 18, 1978,
and taken under advisement. On August 21, 1978, the motion to
dismiss was denied.
On September 29, 1978, Mr. Berellez moved to dismiss counts 5
and 6 of the information for failure to state an offense against
the United States. The motions to dismiss counts 5 and 6 were
denied on October 18, 1978.
On October 23, 1978, the oral motion of the Government to
strike various alleged overt acts from the information was heard
and granted.
At the status call on October 30, 1978, the trial was continued
until a ruling from the Court of Appeals in regard to mandamus.






63


On November 8, 1978, the Government moved in the District
Court to amend pages 4 through 7 of the information to reflect
the changes made by the oral motion of October 23, 1978.
Status.-The case is pending before the District Court.

United States v. Gerrity
Cr. No. 78-00121-01 (D.D.C.)
Brief.-On March 20, 1978, a six-count information was filed in
U.S. District Court for the District of Columbia against Edward J.
Gerrity, Jr. The first count charges the defendant with violating 18
U.S.C. 1505 (Obstruction of Proceedings) by giving false and bla-
tantly evasive testimony before the Subcommittee on Multinational
Corporations of the Committee on Foreign Relations of the United
States Senate (hereinafter "Subcommittee") in March and April of
1973. The testimony was given in the course of an investigation
being conducted by the Subcommittee into actions by or on behalf
of the International Telephone and Telegraph Corporation (herein-
after "ITT") in relation to the course of the Presidential election in
Chile in 1970. The second and third counts, also arising from
defendant's testimony before the Subcommittee, charge him with
violating 18 U.S.C. 1621 (Perjury). The fourth count charges Mr.
Gerrity with a violation of 18 U.S.C. 1622 by suborning perjury by
Harold V. Hendrix in testimony before the Subcommittee. The fifth
count charges the defendant with perjury before a panel of arbitra-
tors of the American Arbitration Association (hereinafter "Panel").
Mr. Gerrity had testified in June 1974, before the Panel, which was
seeking to ascertain what activities of ITT were undertaken in
Chile and elsewhere with regard to the 1970 Chilean Presidential
election. On the basis of the same testimony upon which count five
is based, the sixth count charges Mr. Gerrity with violating 18
U.S.C. 1001 by knowingly and willfully making false and fictitious
statements and representations as to material facts in connection
with a matter within the jurisdiction of an agency of the United
States, specifically, the Overseas Private Investment Corporation.
Defendant pleaded not guilty on April 28, 1978.
On May 19, 1978, the Government moved for a protective order
and filed its response to Mr. Gerrity's motion for a bill of particu-
lars.
Defendant moved on June 2, 1978 to dismiss Count 1 for failure
to state a violation of Title 18 U.S.C. 1505 and on grounds of
vagueness; to dismiss Counts 2 and 5 on grounds of duplicity; to
dismiss Count 4 on grounds of improper venue; to dismiss Counts 2,
3, and 4 on grounds of incompetency of the tribunal and immateri-
ality of the inquiry; to dismiss Counts 5 and 6 for failure to state
an offense against the United States and for failure of a material
matter; and to dismiss Count 6 as inappropriate in this informa-
tion, or in the alternative, to force the Government to elect be-
tween Counts 5 and 6. Mr. Gerrity also moved on June 2, 1978 to
dismiss the information on the ground that his waiver of the
constitutionally-required indictment was ineffective.
On August 18, 1978, at a hearing on Mr. Gerrity's motions to
dismiss, the Government stated that it would not prosecute Counts
4, 5 and 6 of the information. Therefore, the motions pertaining to







those counts were not argued. The motion to dismiss the entire
information because of ineffective waiver of indictment was sub-
mitted on pleadings. The other motions attacking the information
were argued and taken under advisement. The motions were
denied on August 21, 1978.
On September 27, 1978, the Government moved to dismiss
Counts 4, 5 and 6 of the information. The counts were dismissed
on October 5, 1978.
On November 8, 1978, the trial which had been set for Decem-
ber 4, 1978, was continued to a day not less than 45 days after a
verdict or other resolution in United States v. Berrellez (Cr. 78-
120).
Status.-The case is pending before the District Court.
Holy Spirit Association for the Unification of World Christianity et
aL v. Fraser et aL
Civil Action No. 78-1153 (D.D.C.)
Brief.-This suit was filed in the U.S. District Court for the
District of Columbia on June 22, 1978. Plaintiffs are the Holy Spirit
Association for the Unification of World Christianity, (hereinafter
"the Unification Church") and Bo Hi Pak, a South Korean citizen.
Named as defendants in the suit are Donald M. Fraser, a U.S.
Representative from Minnesota and chairman of the Subcommittee
on International Organizations of the House Committee on Inter-
national Relations (hereinafter "Subcommittee") and two staff
members of that Subcommittee, Edwin H. Grogert and Martin J.
Lewin.
The complaint contains two counts. The first count alleges a
conspiracy by defendants to deprive the plaintiffs and the members
of the Unification Church of their constitutional rights. Specifical-
ly, it is claimed that defendants and other unnamed individuals
have conspired to deprive plaintiffs and "all persons associated
with the Unification Church and Bo Hi Pak" of their rights of free
speech, freedom of association, freedom of expression and freedom
of religion. Plaintiffs allege that Congressman Fraser distributed
defamatory materials regarding plaintiff, attempted to "deceive
and trick" Bo Hi Pak during Pak's testimony before the Subcom-
mittee, caused the payment of fees to witnesses who testified before
the Subcommittee, and leaked, or permitted leaking of testimony
given by Bo Hi Pak in Executive Session. The plaintiffs claim that
these activities, in addition to violating their rights of freedom of
religious exercise and association, damaged their reputation and
resulted in financial damage to them due to curtailment of their
activities and a reduction in financial contributions to the Unifi-
cation Church. As relief under the first count, plaintiffs seek an
injunction barring defendants from violating or conspiring to vio-
late plaintiffs' rights under the First, Fourth, or Fifth Amendments
and $5 million in compensatory damages and $10 million in puni-
tive damages.
The second count asserts that defendants have deprived plaintiffs
of their constitutional rights. It is also specifically alleged, in addi-
tion to the acts alleged in count one, that defendants Grogert and







Lewin, representing themselves as architects, gained entry to a
Washington, D.C., Unification Church building.
Plaintiffs claim that as a result of this action by Grogert and
Lewin, their rights to the free expression and exercise of their
religion were abridged, their right of free association was impaired,
they were subject to a warrantless search, and they were deprived
of the due process of the law. Plaintiffs contend that the activities
complained of in count two also resulted in damage to their reputa-
tions and financial harm. Their demands include an injunction, $5
million in compensatory damages and $10 million in punitive dam-
ages under count two, the same relief demanded under count one.
On October 10, 1978, defendants moved to dismiss the com-
plaint or, in the alternative, for summary judgment.
Status.-The case is pending in the District Court.

In re Beef Industry Antitrust Litigation
No. 78-3344 (Fifth Cir.)
Brief.-In the course of conducting investigations of marketing
restrictions and unfair competition in the beef industry, the Sub-
committee on Oversight and Investigation of the House Committee
on Interstate and Foreign Commerce and the Subcommittee on
SSmall Business Administration and Small Business Investment
Companies of the House Committee on Small Business, issued sub-
poenas duces tecum to some of the plaintiffs in In re: Beef Industry
Antitrust Litigation. At least some of the documents sought by the
committees were subject to a protective order previously issued by
the court on November 23, 1976.
Those parties who were recipients of the committees' subpoenas
asked the court to either clarify or modify its order to allow compli-
ance with the committees' subpoenas. A hearing was held on the
motion on March 22, 1978. On April 4, 1978, the motion was
denied.
On May 30, 1978, the Subcommittees and the Clerk of the House
filed with the District Court a "Motion For Leave to File". In the
motion, the Subcommittees and the Clerk supported plaintiffs' ear-
lier motion for leave to comply with the Subcommittees' subpoenas.
On July 27, 1978 the District Court held a hearing on the motion
filed by the Subcommittees and the Clerk of the House.
On August 17, 1978, United States District Judge Taylor, in a
memorandum opinion, denied the motion of the Congressional mo-
vants for clarification or modification of the protective order. Judge
Taylor stated that the sole question was whether Congress can
subpoena documents in the hands of a litigant who would not
otherwise have them except for the discovery procedure of the
Federal courts when there has been no showing of extraordinary
circumstances. The memorandum opinion noted that the persons
subpoenaed would not have had the documents but for the discov-
ery rules of the Federal courts and that the Congressional movants
had not based their motion on any extraordinary need for the
documents to be subpoenaed from those particular individuals.
Judge Taylor held that Congress, by subpoenaing the documents
was interfering with the processes of a Federal court in an individ-
ual case. Furthermore, the memorandum opinion stated, had a







protective order not been in force covering the documents, a
motion for one would have been entertained by the court.
On September 11, 1978, the Congressional movants filed a notice
of appeal with the United States Court of Appeals for the Fifth
Circuit of the denial of their motion for clarification or modifica-
tion of the protective order.
On November 27, 1978, the Congressional-appellants filed a
motion that their appeal be separated from other appeals growing
out of this multidistrict litigation, with which it was docketed; for
expedited oral argument; and for an early decision as soon as
practicable after oral argument.
On December 4, 1978, appellee, Iowa Beef Processors, Inc., filed
a memorandum in opposition to appellants' motion to expedite,
on the grounds that appellants have not acted expeditiously them-
selves and that appellants have made no showing to justify expe-
dited treatment.
On December 5, 1978, appellee, The National Provisioner, Inc.,
filed a motion to dismiss the appeal of the Congressional-appel-
lants for lack of jurisdiction and as unauthorized.
On December 7, 1978, United States Circuit Judge, Robert A.
Ainsworth, Jr., issued an order, dismissing that portion of the
Congressional-appellants' motion to separate their appeal, since
the Clerk had separately docketed other appeals growing out of
this multidistrict litigation; and granted that part of their motion
to expedite subject to the classification of the case under the
court's screening procedures.
Status.-The appeal is pending before the U.S. Court of Appeals
for the Fifth Circuit.
The memorandum opinion of the District Court is printed in the
"Decisions" section of Court Proceedings and Actions of Vital Inter-
est to the Congress, Part 5, September 15, 1978.
Iowa Beef Processors, Inc. v. Bagley (Newly Reported Case)
No. 78-1855 (Eighth Cir.)
Brief.-On August 1, 1977, Iowa Beef Processors, Inc. (hereinafter
"IBP") filed suit against a number of defendants in the United
States District Court for the Northern District of Iowa (C.A. No.
77-4040, N.D. Iowa). Named as defendants were Lex Hawkins,
John 0. Cochrane, and Hughes A. Bagley, among others. The com-
plaint alleged that Mr. Bagley, a former vice president of IBP, had
taken a number of documents with him when he left the employ of
IBP in 1975. These documents allegedly contained confidential
business information which would damage IBP's business if dis-
closed. The complaint also alleged that Mr. Bagley had in fact
disclosed certain confidential information and records to Mr. Haw-
kins, Mr. Cochrane, and others in violation of both contractural
obligations and common law fiduciary duties. Mr. Hawkins and Mr.
Cochrane are lawyers who have been involved in a number of
consolidated private antitrust suits brought by members of a group
known as the Meat Price Investigators Association (hereinafter
"MPIA") against IBP. (See In re Beef Industry Antitrust Litigation
is printed in this report.)







Chief Judge McManus, in an order issued February 13, 1978,
deciding various pretrial motions, granted IBP's motion, which had
been filed on October 28, 1977, for a protective order preventing
disclosure of IBP's confidential business information and limiting
its use to defense counsel and to Hawkins and Cochrane for pur-
poses of the consolidated antitrust cases.
In October 1978, the Subcommittee on SBA and SBIC Authority
and General Small Business Problems (hereinafter "Subcommit-
tee") of the Committee on Small Business of the United States
House of Representatives (hereinafter "Committee"), served a sub-
poena duces tecum on Mr. Bagley requiring him to produce a
number of documents covered by the protective order.
Mr. Bagley filed a motion on November 1, 1978, to lift the
protective order or in the alternative for guidelines. On November
13, 1978, IBP filed a brief in opposition to the motion.
On November 24, 1978, Chief Judge McManus issued an order
modifying the protective order to allow Mr. Bagley to comply with
the subpoena. The order stated that the court could ascertain no
great interference in proceeding with the suit by allowing the
Committee to examine and copy the records as long as the original
copies remained accessible to the parties in the suit. It was noted
by Judge McManus that IBP was free to approach the Committee
in regard to the scope of the use of the documents.
On November 27, 1978, a subcommittee investigator took physi-
cal possession of seven boxes of the documents.
IBP filed a notice of appeal from the District Court's order lifting
the protective order. The appeal was docketed on December 4, 1978.
A petition for writs preserving appellate jurisdiction and a stay of
the District Court's order was filed by IBP on December 4, 1978. On
the same day, the District Court's order was stayed to and includ-
ing December 16, 1978. The motion for a stay was argued on
December 12, 1978.
On December 14, 1978, the Court of Appeals, in a per curiam
order, denied IBP's motion for a stay pending appeal and for ex-
traordinary writs preserving appellate jurisdiction. The order ex-
pressed the opinion that a stay of the District Court order was both
inappropriate and unnecessary at that time. The "very limited"
scope of Judge McManus' order and the fact that the protective
order remained otherwise in effect were noted. .The Court of Ap-
peals considered the fact that disclosure was to be made to a
subcommittee of the House of Representatives and stated:
In regard to the disclosure to the Subcommittee, it has
represented in its papers filed in this court and during
oral argument that it has no intention of making public
any of these documents, if ever, until after the House of
Representatives begins its next session in January, 1979.
In good faith, we must accept these representations made
by members of a coordinate branch of government at face
value. We are further assured that the Subcommittee and
its Special Counsel will take all appropriate precautions to
insure that these documents are disclosed only to the
extent necessary to allow the Subcommittee staff to begin
the job of collating and classifying the information con-







trained therein. In present circumstances any disclosure
beyond the immediate needs of the Subcommittee and its
staff would appear to be both unnecessary and a matter of
a grave import for all concerned.
Given the Subcommittee's representations to us and the
limited nature of Judge McManus' order, we are of the
opinion that granting a stay and compelling the return of
the documents at this time is both unnecessary as a practi-
cal matter and inappropriate as a matter of comity. Such
action would inevitably, albeit erroneously, be viewed as
an expression of our lack of faith in the Subcommittee's
representations to us. Such an expression would be par-
ticularly inappropriate in view of the Subcommittee's past
cooperation with this court. [Iowa Beef Processors, Inc. v.
Bagley, No. 78-1855 (8th Cir., Filed Dec. 4, 1978); Slip
Opinion at 4-5; this report at 254.]
Stating that the case presented jurisdictional and substantive
questions and implicated fundamental concepts of legislative and
judicial authority, the Court of Appeals deemed it appropriate that
the case be heard on an expedited basis and ordered it scheduled
for argument on the merits on January 9, 1979.
Status.-The case is pending before the United States Court of
Appeals for the Eighth Circuit.
The order of the District Court of February 13, 1978 is printed in
the "Decisions" section of this report at 237.
The order of the District Court of November 24, 1978 is printed
in the "Decisions" section of this report at 249. *
The per curiam order of the Court of Appeals of December 14,
1978 is printed in the "Decisions" section of this report at 251.
United States v. Powell
Cr. No. 78-251 (N.D. Ga.)
Brief.-Claude Powell, Jr., was charged with contempt of Con-
gress, a violation of 2 U.S.C. 192, in an indictment filed by a
Federal grand jury on August 8, 1978 in the U.S. District Court for
the District of Columbia. The indictment charges that on February
6, 1978, Mr. Powell deliberately and intentionally refused and
failed to appear to testify before the Subcommittee on the Assassi-
nation of Dr. Martin Luther King, Jr. (hereinafter "Subcommit-
tee") of the Select Committee on Assassinations (hereinafter "Com-
mittee") of the U.S. House of Representatives, in defiance of a
subpoena which had been issued on January 17, 1978 and served on
Mr. Powell on January 20, 1978. According to the indictment, the
subpoena had been issued in connection with information which
had been obtained by the Committee and the Subcommittee to the
effect that Mr. Powell and his brother Leon Powell had alleged
that they had been asked in the fall of 1967 or the spring of 1968,
in Atlanta, Ga., whether they might be interested in making a
large sum of money by killing Martin Luther King, Jr.
On September 27, 1978, the case was transferred to the U.S.
District Court for the Northern District of Georgia.






69


On October 11, 1978, Mr. Powell was arraigned and at that time
tendered a plea of guilty and filed a petition to enter a plea of
guilty.
On December 13, 1978, Mr. Powell was again arraigned. His
plea of guilty was entered and he was sentenced to serve 1 month
imprisonment and fined $100.00. The term of imprisonment was
suspended and he was placed on probation for 3 months.
Status.-No further action has been taken.
Application of Senate Select Committee on Ethics
Misc. No. 78-0275 (D.D.C.)
Brief.-On September 1, 1978, the Senate Ethics Committee filed
this application with the United States District Court for the Dis-
trict of Columbia to secure the testimony of Daniel Minchew in the
committee's investigation of Senator Herman Talmadge. The appli-
cation sought a grant of immunity from prosecution without which
Mr. Minchew would have refused to testify.
The immunity statutes (18 U.S.C. 6001-6005) provide that the
Justice Department may have the order delayed for 20 days, allow-
ing it to present to the court the evidence accumulated on the
witness. This will enable the court to insure that the evidence
given by the witness under the grant of immunity is not the
foundation for any subsequent criminal action against the witness.
The Justice Department was granted such a delay in this case.
Status.-On September 20, 1978, an order granting immunity to
Mr. Minchew and compelling him to appear and testify was issued.
Application of House Select Committee on Assassinations (New
Case)
Misc. No. 78-0350 (D.D.C.)
Brief.-On November 23, 1978, in the U.S. District Court for the
District of Columbia, the Select Committee on Assassinations of the
United States House of Representatives filed a petition for a writ
of habeas corpus ad testificandum directed to the U.S. Marshals for
the District of Columbia and the Eastern District of Missouri and
the Chief of Police of St. Louis, Missouri, ordering the release of
Mr. John Larry Ray, incarcerated at that time at the St. Louis City
Jail, to testify on December 1, 1978, before the Subcommittee on the
Assassination of Dr. Martin Luther King, Jr., of the Select Commit-
tee on Assassinations.
Status.-The writ of habeas corpus ad testificandum was ordered
and issued on November 28, 1978.













IV. CONSTITUTIONAL POWERS OF THE CONGRESS


Chadha v. Immigration and Naturalization Service
No. 77-1702 (9th Cir.)
Brief.-This is a petition for review of an order of the Immigra-
tion and Naturalization Service (hereinafter "INS"). The INS had
promulgated an order which exempted the petitioner, Jagdish Rai
Chadha, from deportation as an alien. That order was subsequently
vetoed by the passage of a resolution by the U.S. House of Repre-
sentatives. A new order which required Chadha's deportation was
then issued. The petition challenges the constitutionality of the
"one-House veto" by which the original order was overturned.
As set out in petitioners' brief, the facts are these: Petitioner was
born and raised in Kenya, although his race was East Indian. In
1966, he was issued a passport to the United Kingdom. He was
lawfully admitted to the United States as a student in 1966 and
continuously resided in the United States since that time, except
for one short trip to Canada.
After obtaining B.S. and M.A. degrees from an Ohio university,
he discovered that neither the United Kingdom nor Kenya would
allow him to return because of his race. He moved to California in
1971 to seek work but was unable to obtain work because he did
not have lawful status in the United States. However, the petition
asserts, he was able to meet expenses from personal savings and
from financial help from his family overseas.
Since his visa had expired in 1972, he was summoned to show
cause why he should not be deported pursuant to 241(a)(2) of the
Immigration and Nationality Act (hereinafter "INA"), 8 U.S.C.
1251(a)(2). A hearing was held before an immigration judge on
January 11, 1974, at which Mr. Chadha requested a suspension of
deportation pursuant to 244(a)(2) of the INA, 8 U.S.C. 1254(a)(2).
Evidence presented as to his good character was uncontested.
On June 25, 1974, the immigration judge issued his decision,
ordering that the deportation be suspended pursuant to 244(a)(1)
of the INA.
Section 244(a)(1) of the INA provides that suspensions may be
granted when an alien (1) has been physically present in the
United States for at least 7 years immediately preceding his appli-
cation, (2) is of good moral character, and (3) would suffer extreme
hardship if deported. (Although this authority is granted to the
Attorney General, it has been delegated to the "immigration
judges," with an appeal to the Board of Immigration Appeals.)
Once the decision to suspend deportation is made, notice of the
action is transmitted to Congress with a detailed explanation and
justification for the decision. The suspension does not become effec-
tive until the close of the session of Congress following the one in
which the decision is transmitted, and then it only becomes effec-
tive if during both sessions neither House has passed a simple
71)


37-148 0) 71 fi







resolution disapproving the decision, pursuant to 8 U.S.C.
1254(c)(2).
Mr. Chadha and five aliens whose deportation had been suspend-
ed by immigration judges lost their suspensions when on December
12, 1975, the House of Representatives passed H. Res. 926, 94th
Cong., 1st Sess. (1975).
On August 4, 1976, the immigration judge ordered Mr. Chadha
deported in view of the House resolution, and on appeal to the
Board of Immigration Appeals, the Board affirmed the order of
deportation on February 11, 1977.
Mr. Chadha filed a petition for review of the deportation order
with the U.S. Court of Appeals for the Ninth Circuit on July 18,
1977. The filing of the petition automatically stayed his deporta-
tion.
The petition challenges the constitutionality of the one-House
veto. It argues that neither the constitutional provisions granting
Congress the power to regulate immigration nor the "Necessary
and Proper" clause empowers Congress to contravene other consti-
tutional provisions, and it asserts that the one-House veto does this
in three ways. First, it says, the one-House veto violates the separa-
tion of powers doctrine. Petitioner claims the constitutional history
of this doctrine demonstrates that one branch cannot perform the
functions or control the performance of another, and that since the
one-House veto allows a single House of Congress to perform non-
legislative functions and control the actions of an executive agency,
it is unconstitutional.
Next, Mr. Chadha argues, the one-House veto deprives the Presi-
dent of the opportunity to exercise his veto power under Article I,
Section 7. The Framers of the Constitution intended that a single
executive would be given the opportunity to veto every Congres-
sional action having the effect of law, but, since the one-House veto
is not subject to Presidential veto, it is unconstitutional.
Finally, Mr. Chadha asserts that the one-House veto provision
violates the requirement of a bicameral legislature. According to
Mr. Chadha, the Framers of the Constitution intended that every
power of the legislative branch not expressly granted to a single
House must be exercised by both concurrently. Therefore, since the
one-House veto provision allows a single House to make law with-
out the concurrence of the other, it is unconstitutional.
On October 27, 1977, respondent INS filed a suggestion to invite
the submission of amici curiae briefs by the U.S. Senate and House
of Representatives.
Clerk's letters were sent on November 17, 1977, inviting the
President of the Senate and the Speaker of the House to file briefs
amicus curiae within 30 days.
On February 27, 1978, an amicus curiae brief on behalf of the
Senate, pursuant to Senate Resolution 338 of the 95th Congress,
and a separate amicus curiae brief on behalf of Representative
Frank Thompson, Jr., Chairman of the Committee on House Ad-
ministration of the U.S. House of Representatives, were filed. Each
of the briefs opposed Mr. Chadha's petition and contended, inter
alia, that the one-House veto is constitutional and that Chadha
lacked standing to challenge the constitutionality of the one-House
veto.





73


The petition was argued on April 10, 1978.
Status.-The petition is pending before the U.S. Court of Appeals
for the Ninth Circuit.
Nixon v. Sampson
C.A. Nos. 74-1518, 74-1533, 74-1551 (D.D.C.)
Brief.-Following the resignation of former President Richard M.
Nixon, the special prosecutor's office advised counsel to President
Ford and counsel to Mr. Nixon of its continuing interest in Presi-
dential materials and tape-recorded conversations housed in the
White House, the Executive Office Building, and elsewhere, which
were relevant to investigations and prosecutions within the juris-
diction of the special prosecutor. Thereafter counsel for President
Ford requested an opinion from then-Attorney General William B.
Saxbe on the issues of ownership of the Presidential materials and
tapes and the responsibilities of the Ford Administration with re-
spect to them. A response to that request indicated that in thc
opinion of the Attorney General, the Presidential materials and
tapes belonged to Mr. Nixon, but the Government had a right to
use said materials. Following that advisory opinion a "depository
agreement" (Nixon/Sampson agreement) was signed by Mr. Nixon
and Arthur F. Sampson, Administrator of the General Services
Administration (hereinafter "GSA"), on September 7, 1974.
Thereafter, Jack Anderson, a well-known columnist, and others
filed a petition with GSA seeking access to these materials pursu-
ant to appropriate provisions of the Freedom of Information Act.
The petitions were denied by GSA.
On October 17, 1974, Mr. Nixon filed a suit against Mr. Sampson
and others in the United States District Court for the District of
Columbia seeking a temporary restraining order and preliminary
injunction to compel compliance with the Nixon/Sampson agree-
ment and to prevent unauthorized access to the materials and
tapes. Mr. Anderson, and the special prosecutor, and others moved
to intervene, seeking a temporary restraining order and prelimi-
nary injunction to prevent the implementation of the Nixon/Samp-
son agreement. U.S. District Judge Charles R. Richey issued a
temporary restraining order on October 21, 1974, prohibiting the
implementation of the agreement until a full hearing could be held
on Mr. Nixon's motion for a preliminary injunction. [Nixon v.
Sampson, Civil Action No. 74-1518 (D.D.C.).]
On October 21, 1974, a suit was filed by The Reporters Commit-
tee for Freedom of the Press, and several other parties, to gain
access to these materials. [The Reporters Committee for Freedom of
the Press v. Sampson, Civil Action No. 74-1533 (D.D.C.).]
Then, on October 24, 1974, Lillian Hellman and several other
individuals also filed suit to gain access to the materials. [Hellman
v. Sampson, Civil Action No. 74-1551 (D.D.C.).]
Mr. Nixon filed a motion on October 29 to consolidate the three
cases, which the court did by an order issued on October 31, 1974.
[Hereinafter these three cases will be referred to as the "consoli-
dated cases."]
A petition for leave to participate as amici curiae in these cases
was filed and granted on behalf of then-Senator Sam J. Ervin, Jr.,





74


Senators Gaylord Nelson and Jacob Javits, then-Representative
Wayne L. Hays, and Representative John Brademas on November
11, 1974. The Congressional petitioners sought leave to participate
in the proceedings in order to bring to the attention of the court
"their intense interest-as Members of Congress having 'special
responsibility with pending legislation dealing with the subject
matter' before the court-in the maintenance of the status quo
pending consideration by the Congress of matters falling within its
primary and fundamental authority." [Memorandum of Ervin et al.
as amici curiae, Nixon v. Sampson, Civil Action No. 74-1518
(D.D.C.).]
At the time of the filing of the Ervin petition the Senate had
passed a bill, S. 4016, which, while making no determination as to
the ownership of the Presidential materials, provided for the pres-
ervation of access to materials by placing them under the control
of the Administrator of GSA, with all the materials to remain in
Washington, D.C. The bill had been transmitted by the Senate to
the House and referred to the appropriate House committee which
had not then had an opportunity to act on it.
Each of the Congressional participants-the amici-bore a spe-
cial responsibility with regard to this legislation. As noted in a
memorandum prepared on their behalf:
Amicus Ervin, Senator from North Carolina, is Chair-
man of the Senate Committee on Government Operations,
which has jurisdiction over such legislation in the Senate.
Amicus Nelson, Senator from Wisconsin, is the sponsor of
the pending bill. Amicus Javits, Senator from New York,
is an original co-sponsor thereof. Amicus Hays, Repre-
sentative from Ohio, is Chairman of the Committee on
House Administration, which has jurisdiction over such
legislation in the House. Amicus Brademas, Representative
from Indiana, is Chairman of the relevant Subcommittee
of the House Administration Committee. [Id.]
The action sought by the amici was set out in this language:
Amici respectfully urge that the safeguarding of these
materials pending Congressional action is a matter of the
most compelling public interest. Accordingly, in light of
these considerations of fundamental significance to amici
and their colleagues in the legislative branch, amici urge
that the Court grant a preliminary injunction to maintain
the status quo. Such an injunction will insure an opportu-
nity for orderly consideration of the issues by the repre-
sentatives of the public in the exercise of their special
Constitutional responsibilities as trustees of the people. It
will insure that nothing untoward can happen to these
materials while the people's representatives decide how
best to exercise their responsibilities. [Id.]
A separate motion by Representative Elizabeth Holtzman for
leave to file an amicus brief was also granted on November 11,
1974. Although the Holtzman petition fully supported the status
quo position of the Ervin petition, Ms. Holtzman's memorandum
was submitted for another purpose-to call to the court's attention





75


the fact that the principal issue in this action was the ownership of
the tapes and papers. Ms. Holtzman contended that since the At-
tornev General had already expressed his opinion in writing that
all of the disputed papers and tapes belonged to Mr. Nixon, the
"level of vigor" with which the Department of Justice would
pursue the defense of any action brought by Mr. Nixon-to obtain
either the return of, or compensation for, the property which both
he and the Attorney General already agreed were his-would be
less than adequate. Moreover, she maintained that the matter was
further complicated because the Department was currently repre-
senting Mr. Nixon in several suits brought against him while he
was President, thus raising an ethical question as to whether it
could represent his adversary (the United States) in litigation over
the ownership of the papers and tapes in question. To remedy the
situation, Ms. Holtzman informed the court that she intended to
introduce legislation to provide for a Special Counsel, in lieu of the
Department of Justice, to represent the United States in all litiga-
tion relating to the ownership of the papers and tapes at issue in
this case.
Judge Richey held a hearing on the petitions on November 15
and 18, 1974, but withheld any decision and asked counsel for
amici to provide him with additional information regarding the
effect of the pending lawsuit on the bill then before the Congress.
Subsequently, after a series of amendments, the Congress passed
S. 4016, on December 9, 1974. The bill, the Presidential Recordings
and Materials Preservation Act (hereinafter "Act"), was signed into
law on December 19, 1974 [Pub. L. 93-526].
On the day after the Act went into effect, Mr. Nixon brought an
action in the U.S. District Court for the District of Columbia to
enjoin its enforcement on the grounds that it transgressed the
Constitution. [Nixon v. Administrator of General Services, Civil
Action No. 74-1852 (D.D.C.), filed Dec. 20, 1974.] At the same time,
Mr. Nixon asked tL:t a three-judge court be convened pursuant to
28 U.S.C. 2282 anm 2284 to hear and determine the constitution-
al claims asserted. The case was assigned to Judge Richey, before
whom the consolidated cases were then pending. The same issues,
namely, the ownership of the materials and tapes and privilege
against their disclosure, which were raised in the consolidated
cases, were then extended to Mr. Nixon's more recent challenge.
On January 3, 1975, Mr. Nixon moved for a preliminary injunction
against operation of the Act.
It was alleged that on five separate occasions, during the 5 weeks
following institution of Mr. Nixon's action of December 20, 1974,
Mr. Nixon had requested Judge Richey to initiate the statutory
procedure leading to the formation of a District Court of three
judges. During that period, Judge Richey was preoccupied with the
consolidated cases and planned to complete work on them before
turning his attention to the challenge case. [Nixon v. Administrator
of General Services, supra.]
Having failed to convince Judge Richey that the appointment of
a three-judge court took priority in this matter, Mr. Nixon filed a
petition for a writ of mandamus in the U.S. Court of Appeals for
the District of Columbia circuit, directing Judge Richey to grant
the application for a three-judge court immediately and give the





76


challenge case priority over the consolidated cases as assertedly
required by 105(a) of the Act. [Nixon v. Richey, No. 75-1063 (D.C.
Cir.).]
The Appeals Court, in a per curiam order and opinion filed
January 31, 1975, denied Mr. Nixon's petition, stating that the
issuance of a writ of mandamus was unnecessary. It held, however,
that Judge Richey erred in delaying action on the application for a
three-judge panel. Although the court stated that an application
for the convening of such a court is statutorily entitled to expedi-
tious treatment under 28 U.S.C. 2284, it held that beyond these
considerations, the Act requires the trial judge to give priority to
such an application. It declared:
Beyond these considerations, the Recordings and Materi-
als Act independently supports petitioner's claim that the
District Judge should have acted weeks ago on the three-
judge application. Section 105(a) of the Act confers upon
the District Court for the District of Columbia "exclusive
jurisdiction to hear challenges to the legal or constitution-
al validity of this title," and specifically provides that
"[a]ny such challenge shall be treated by the court as a
matter requiring immediate consideration and resolution.
* *" (emphasis supplied). It is clear that the case for
which petitioner sought the three-judge court was a "chal-
lenge to the legal or constitutional validity of" the Act. It
is equally clear that, as an integral part of his "challenge,"
petitioner's application for such a court was "a matter
requiring immediate consideration and resolution. * *"
In these views, we need not consider contentions by one of
the amici curiae that 2282 and 2284 are inoperable in
the situation at bar. [Nixon v. Richey, 513 F.2d 427, 429
(1975).]
Although the court acknowledged the propriety of the manda-
mus remedy under the circumstances, it saw no occasion for issu-
ance of a writ, since, having advised the district judge of the
relevant law, it assumed the lower court would proceed in accord-
ance with the appellate opinion.
On the same day the Appeals Court issued its order and opinion,
January 31, 1975, Judge Richey released a 98-page opinion in the
consolidated cases. [Nixon v. Sampson, 389 F. Supp. 107 (D.D.C.
1975).] At the same time, Judge Richey issued a summary and
synopsis of his opinion which appears in its entirety as follows:

SUMMARY AND SYNOPSIS OF OPINION OF CHARLES R.
RICHEY, UNITED STATES DISTRICT JUDGE

A. INTRODUCTION
These consolidated cases present a unique controversy,
the heart of which concerns the ownership of and the right
to assert or waive a privilege with respect to the "Presi-
dential materials and tape-recorded conversations" of the
Nixon Administration.





77


These actions are before the Court on the following mo-
tions: plaintiff Nixon's motions to dismiss the Hellman, et
al., and Anderson suits for lack of standing; the govern-
ment defendant's motion to dismiss all the actions, except
that by the Special Prosecutor, on the ground that they
are moot; and on motions for summary judgment or par-
tial summary judgment by plaintiffs Anderson, The Re-
porters Committee for Freedon of the Press, et al., Lillian
Hellman, et al., and the Special Prosecutor, on his counter-
claim for declaratory relief, and as the intervenor-defend-
ant in Nixon v. Sampson et al. (C.A. No. 74-1518).

B. STANDING
The Court finds that plaintiffs Anderson, Hellman, et
al., and The Reporters Committee for Freedom of the
Press, et al., have standing to sue under the Freedom of
Information Act and to challenge the Nixon-Sampson
Agreement of September 7, 1974.

C. JUSTICIABILITY
The Court finds that although the Presidential Record-
ings and Materials Preservation Act of December 19, 1974,
nullifies the Nixon-Sampson Agreement of September 7,
1974, the said Act does not resolve the basic questions of
ownership of the Presidential materials and tape record-
ings, nor whether the former President may assert any
privilege in regard thereto. Therefore, the questions of
ownership and privilege must be decided by this Court.
Furthermore, the Court has decided the additional issue
raised by the pleadings with regard to Mr. Nixon's assert-
ed Fourth Amendment claims.

D. SUMMARY JUDGMENT
Because the Court finds that there are no genuine issues
of material fact in dispute in these proceedings, the parties
are clearly entitled to summary judgment on the issues as
a matter of law.

E. OWNERSHIP
1. The claim of ownership of former President Nixon to
the "Presidential materials and tape-recorded conversa-
tions" of the Nixon Administration is contrary to the gen-
eral principle of law that that which is generated or kept
in the administration and performance of the powers and
duties of a public office belongs to the government.
2. Former President Nixon's assertion of ownership of
the documents, papers, tapes and other materials generat-
ed or retained by himself or others on his behalf in the
performance of his duties as the President of the United







States is contrary to the nature of the Office of the Presi-
dent and the Constitution.
3. The inherent continuity of the Office of the President
negates a claim by former President Nixon that the inde-
pendence of the Office requires that his assertion of owner-
ship be sustained.
4. There is no precedent which compels a finding that
the "Presidential materials and tapes are the personal
property of former President Nixon.
5. The historical practice of past Presidents does not evi-
dence a clear and constant recognition of ownership of the
materials generated and retained in the conduct of the
Office of the President.
6. Congress has not sanctioned the personal ownership of
"Presidential materials and tapes" generated and retained
in the conduct of the Office of the President.
7. Materials and tape-recorded conversations generated
by Executive departments and agencies, although subse-
quently transferred to and currently located in the White
House, are "records" within the meaning of the Freedom
of Information Act, and the public has a right of access
thereto; however, materials and tape-recorded conversa-
tions generated by the President and his personal aides
are not "records" within the meaning of the Freedom of
Information Act and, thus, are not available to the public
under the Freedom of Information Act.

F. PRIVILEGE
A former President may not assert or waive the privi-
lege which attaches to the confidential communications
relating to the conduct of the Office of the President con-
tained in Presidential materials and tape recordings as the
privilege belongs to the government and may only be as-
serted or waived by the incumbent President.

G. FOURTH AMENDMENT
1. Mr. Nixon's Fourth Amendment rights have not been
violated because the November 9th Agreement is not a
general warrant; nor does it subject him to an unreason-
able search and seizure. However, under the circum-
stances, Mr. Nixon's right of privacy must be afforded
protection.
2. Mr. Nixon's right to privacy does not entitle him to an
injunction, but the Court has the power to protect his
rights and those of the government by fashioning a
remedy.

H. REMEDY
The Court will require the following procedure with
regard to effectuation of the November 9th Agreement,
with regard to any requests for Presidential materials and






79


tape recordings made pursuant to court order or subpoena,
or with regard to any request made under the Freedom of
Information Act:
1. Documents: The government defendants, or
their agents, prior to any governmental examina-
tion of the materials, shall permit Mr. Nixon or
his counsel, (a) to segregate from any box or file,
any document which is deemed personal, as de-
fined by this Court; (b) to mark those portions of
any document which are deemed private, as de-
fined by this Court, without destroying or impair-
ing the integrity of that portion or any other por-
tion of the document;
2. Tapes: The government defendants or their
agents, prior to any governmental examination of
the tape-recorded conversations, shall permit Mr.
Nixon or his counsel to listen to those tape-record-
ed conversations and, if any such tape-recorded
conversation contains matters which are deemed
private, as defined by this Court, then Mr. Nixon
or his counsel shall so designate.
This procedure is to be effectuated as follows:
(a) The defendants shall specify one individual
official of the government having expertise in the
use of tape recording mechanisms (hereinafter,
"operator") who at all times shall operate the
mechanisms chosen by the operator for use in the
procedure; and
(b) The operator shall employ two tape record-
ers, one (hereinafter, "recorder A") of which shall
include the following features: (1) a single-listen-
ing device, commonly known as head-phones, and
(2) a digital "counter"; the other (hereinafter, "re-
corder B") shall include the capacity to duplicate
the recording from recorder A; and
(c) When Mr. Nixon, or his counsel, are in the
process of listening to the tapes, he shall utilize
the single-listener device; and
(d) The operator shall play the tape on Recorder
A and duplicate the tape onto Recorder B, and
when Mr. Nixon or his counsel deem any conver-
sation or portion thereof as private, as defined by
this Court, the operator shall stop recorder B at
the commencement of that conversation or por-
tion thereof so as not to record that conversation
or portion thereof on the tape on recorder B at
the termination of the conversation [or] portion
thereof designated as private, and the operator
shall also, utilizing the "counter," mark in a log
the digital number of the commencement and ter-
mination of the conversation or portion thereof
designated as private. When a dispute arises with
respect to the validity of a claim that a particular







item, or portion thereof, is private, upon notice of
counsel, the Court shall examine the material or
tape-recorded conversation, or portion thereof, in
camera. This shall be followed by a hearing under
the procedure set forth in the Opinion.
The burden of proof as to whether a particular
paper or tape-recorded conversation, or portion
thereof, is personal, shall be borne by Mr. Nixon.
Following the release of Judge Richey's opinion, Mr. Nixon sought
reconsideration of the Appeals Court's earlier refusal of a writ of
mandamus in Nixon v. Richey.
The Appeals Court, in an opinion and order of February 14, 1975,
continued its stay of January 31 of any order implementing Judge
Richey's opinion. The court noted that since a three-judge panel
was convened on February 5, 1975, to consider whether it properly
should pass on the constitutional issue, no further action by the
Appeals Court was needed in that regard.
The Appeals Court noted that in its opinion of January 31, 1975,
it t3ok pains to alert Judge Richey to the peril of disposing of the
consolidated cases before acting on Mr. Nixon's application for a
three-judge panel. The court said it was obviously referring to the
doctrine of collateral estoppel. [Under the doctrine, a final judg-
ment in a prior suit precludes relitigation of material issues decid-
ed in that suit.] The court continued that Mr. Nixon might be
barred "from urging in the challenge case [Nixon v. Administrator
of General Services, Civil Action No. 74-1852 (D.D.C.)] positions
contrary to determinations which any decision of the consolidated
cases might yield." [Nixon v. Richey, 513 F.2d 430, 438 (D.C. Cir.
1975).]
The Appeals Court proceeded to undertake a review of the histo-
ry of the Act.
The court stated that there were two goals Congress intended to
accomplish and did accomplish by the passage of the Act: (1) insur-
ing the Federal Government's interest in acquiring control over
and power to protect the Presidential materials; and (2) speedy
determination of possible constitutional challenges to the validity
of the Act.
The court noted that the three-judge requirement under proce-
dures delineated in 2284 of Title 28 of the United States Code was
eliminated in conference and the measure, with 105(a) of the Act,
in its present form, which enables a single judge of the U.S. Dis-
trict Court for the District of Columbia to hear any constitutional
challenge to this Act,' was approved by the conference committee,
and subsequently enacted into law.
The Act did not, however, prohibit the petitioner from making
an independent application under 2284. The Court said:
The remarks of Representative Brademas demonstrate
that Congress intended to preserve single-judge jurisdic-
tion over the consolidated cases, even for consideration
and decision of challenges to the constitutional validity of
the new Act in the event that such challenges were assert-
ed in those cases. The remarks plainly contemplated, too,
that any such challenge would utilize that opportunity.







But Representative Brademas was completely silent on the
question whether such a challenge could only take that
route, and so is the rest of the legislative history.
We need not ponder whether Congress could validly
have imposed the requirement that such a challenge could
only be entertained in the consolidate cases. Nowhere in
the legislative history is there any suggestion that 2282
and 2284 would not enable a separate suit presenting a
constitutional challenge to the Act in the context of a
demand for injunctive relief. It would have been simple for
Representative Brademas to state, and indeed for Congress
to require, that those sections would not apply to chal-
lenges to the Act, had that been what Congress had in
mind. Neither, however, was done, and the courts are left
with the problem of determining whether petitioner's sepa-
rate-suit challenge requires the usual three-judge court,
particularly in light of the general canon of construction
that repeal of a statute by implication is disfavored.
It is much the clearer, however, that Congress deemed
indispensable to its objectives the immediate consideration
and resolution of any challenge to the constitutional or
legal validity of any provision of the new Act. It was to
mandate that degree of expedition that each of the bills
initially passing the Senate and the House Contained the
requirement that such challenges be heard and deter-
mined by a three-judge court with direct appeal to the
Supreme Court, and contained also the requirement that
both courts proceed immediately to consider and resolve
the challenges.
*
But what Congress expected, and what 105(a) as en-
acted would permit, was that any and all challenges to the
validity of the Act would be made in the consolidated cases
before Judge Richey as a single judge, after appropriate
amendments and additions of parties for that purpose
were accomplished. What Congress apparently did not an-
ticipate was that petitioner, instead of pursuing that route,
would institute a new, separate suit grounded on 2282
and 2284 to test in orthodox fashion the constitutionality
of the Act before a three judge rather than a single-judge
tribunal. [513 F.2d at 422-443.]
The court added that what Congress wanted "was speed in judi-
cial handling of such [constitutional] 'challenges' whether properly
to be considered and determined by three judges or one. Just as
plainly, the text and history of 105(a) indicate that Congress did
not share the same concern for speed in the resolution of litigation
not amounting to be a [constitutional] 'challenge'. That litigation is
relegated to a position below the priority specified for 'challenge'
actions." [513 F.2d at 444-445.]
The court concluded by granting Mr. Nixon's petition for manda-
mus and ordering a stay of the issuance of Judge Richey's order
and of any further proceedings in the consolidated cases.





82


On April 2, 1975, Judge Richey removed himself from the consol-
idated cases in which he was trial judge and from the challenge
case before the three-judge panel of which he was a member. He
was replaced in both proceedings by Judge Aubrey E. Robinson.
In August of 1975, Rose Mary Woods, who was Mr. Nixon's
personal secretary when he was President, moved to intervene in
the action before the Court of Appeals for the purpose of having
the stay over the proceedings in the consolidated cases amended to
allow her to intervene in those proceedings. On September 2, 1975,
the Court of Appeals allowed her intervention and granted her
motion to amend its order of January 31, 1975. Miss Woods was
then admitted in the consolidated cases as an intervenor plaintiff
seeking to obtain certain personal papers of her own from the
Administrator of GSA. On December 2, 1975, her motion for judg-
ment on the pleadings was granted. The decision was immediately
appealed to the Court of Appeals. [Nixon v. Sampson, Civil Action
No. 75-2194 (D.C. Cir.).]
In the meantime, the three-judge panel in the challenge case
heard oral argument on September 22, 1975. In a unanimous opin-
ion released on January 7, 1976, the three-judge court upheld the
constitutionality of the Act on its face. [Nixon v. Administrator of
General Services, 408 F. Supp.0 321 (D.D.C. 1976).] A summary of the
court's opinion appears as follows:

SCOPE OF INQUIRY
The court, responding to its duty to avoid constitutional
questions whenever possible, considers only those ques-
tions of the Act's constitutional validity that are immedi-
ately ripe for resolution. As no regulations have yet taken
effect, and as such regulations once effective are explicit
made subject to judicial review, the court considers only
the injury to constitutionally protected interests of Mr.
Nixon that is allegedly worked by the taking of his presi-
dential materials into custody and their screening by gov-
ernment archivists.* *

CLAIMS RELATING TO THE SEPARATION OF POWERS
The court finds nothing in the separation of powers
doctrine to support the contention that the legislature may
not pass a statute in any way touching upon the preroga-
tives of the Executive. The only genuine separation of
powers claim is that the Act might invade the presidential
privilege that attaches to the small fraction of the materi-
als that genuinely implicate presidential confidentiality.
Although the court thinks it doubtful that a former Presi-
dent, rather than the incumbent, may assert such privi-
lege, at the very least such a claim is entitled to relatively
less weight in the balance of competing considerations.
And the infringement upon presidential confidentiality
caused by screening by trained and discreet government
archivists, who have been employed to perform identical
tasks for the materials of every President since Herbert





83


Hoover, is very slight. The court finds, on the other hand,
that Congress had ample reason to mandate screening by
government archivists rather than control by Mr. Nixon,
who lacks their expertise and disinterestedness. The two
most important of the interests served by preservation and
responsible treatment of presidential materials are (1)
maintaining a complete and accurate historical record and
(2) assuring the availability of the materials potentially
needed for continuity in executive policymaking. Other
interests served by the Act include informing the public
about the Watergate matters and ensuring the availability
of materials that may be relevant to legislative investiga-
tions or judicial proceedings. Because of the manner in
which personal materials are intermingled with official
ones, comprehensive screening represents the only feasible
manner of protecting these important interests. The court
finds that the slight inroad on presidential confidentiality
caused by such screening is outweighed by the need to
further these important legislative objectives. * *

CLAIMS RELATING TO PRIVACY
It appears from the record that plaintiff can validly
claim a privacy interest in only a small fraction of the
materials. Yet due to the historical practice of de facto
control by Presidents of presidential materials, the court
finds that regardless of where ownership of the materials
lies-a question that need not be reached-plaintiff has a
reasonable expectation of privacy in these materials, an
interest that is infringed even by mere screening by gov-
ernment archivists conducted under legislation with retro-
active application. In light of the intermingled nature of
the materials, the court finds such infringement of privacy
interests to be an inescapable concomitant of any attempt
to serve the important legislative objectives underlying the
Act. The private materials are far outnumbered by those
that are nonprivate and related to those objectives. The
court further finds that any invasion of privacy caused
merely by archival processing-rather than by public
access, which need not yet be considered-is not wide-
ranging. In addition, less justification is needed when, as
may be the case here, any invasion of privacy constituting
a search and seizure does not serve law enforcement objec-
tives. In light of these factors and the unavailability of less
intrusive means of furthering the important legislative
ends, the court concludes that any intrusion upon plain-
tiffs privacy interests has adequate justification. * *

FREEDOM OF SPEECH AND ASSOCIATION
Plaintiffs First Amendment claim is predicated upon
the assumption that all materials-including those impli-
cating privacy in political association-will be open to
public access. The court finds no basis for that assumption.







Rather, reaching only that infringement of First Amend-
ment interests caused by screening by government archi-
vists, the court finds any injury to protected interests aris-
ing from a confidential review process to be insubstantial.


EQUAL PROTECTION
The court finds that any difference in treatment be-
tween plaintiff and other Presidents is adequately justi-
fied. As respects immediate past Presidents, their papers
had already been deposited in presidential libraries where,
on the whole, their availability to promote important gov-
ernmental interests was assured. As respects current and
future Presidents, legislating with respect to them risked
disrupting current executive policymaking, and would be
unwise before the Commission study of the sensitive and
complex problems involved in regulating the records of
federal officials had been completed. Only plaintiff has
finished his service as President but has not yet estab-
lished a presidential library. Prompt congressional action
was reasonably deemed necessary to assure that the mate-
rials would remain preserved, and to begin the lengthy
process of reviewing and classifying them. Finally, Con-
gress could legitimately consider plaintiff to be less likely
than his immediate predecessors or successors to dispose of
the materials responsibly. * *

BILL OF PAINS AND PENALTIES
There is, in the court's view, no evidence in the legisla-
tive record to support the claim that the Act was designed
to impose, or constitutes, punishment within the meaning
of the Bill of Attainder Clause. The court finds there are
other legislative objectives served by the Act which Con-
gress could legitimately-and did-consider. Rather than
possessing traditional indicia of a punitive enactment, the
Act includes provisions that indicate a concern for plain-
tiffs interests, provisions that are wholly inconsistent with
the hypothesis of punitive intent. * *
The court ordered that the preliminary and permanent injunc-
tive relief sought by Mr. Nixon be denied, and his complaint be
dismissed as without merit. Pending the final disposition of any
appeal of the decision, the defendants were enjoined from "process-
ing, disclosing, inspecting, transferring, or otherwise disposing of
any materials be they documents, papers, tape recordings or other
items" which might fall under the provisions of the Act except for
legal proceedings, inspection by Mr. Nixon or his designated agent,
or use for current business by the executive branch.
The court also noted that the Court of Appeals had stated in
Nixon v. Richey, 513 F.2d at 448, that it would dissolve its stay of
January 31, 1975, in the consolidated case proceedings, whenever
the three-judge court indicated it believed the need for the stay no





85


longer existed. "Having now entered judgment in this action, we
are simultaneously requesting the Court of Appeals to dissolve the
stay, thus permitting the consolidated cases to proceed in whatever
manner seems fit in light of the possibility of appeals in this action
* *." [513 F.2d at 333.]
The Court of Appeals removed the stay on the consolidated cases
on February 5, 1976.
On March 25, 1976, the Court of Appeals refused to grant a
summary affirmance of Judge Robinson's December 2, 1975 order
in the consolidated cases which granted summary judgment to
Rose Mary Woods on her motion seeking return of certain papers.
Pending a decision on the merits of the appeal, the court ordered
the parties to stipulate those materials as to which no controversy
exists as to Miss Woods' ownership, and to make intermittent
reports to the court. The parties have made several such reports to
the court.
On March 5, 1976, Mr. Nixon filed with the Supreme Court a
notice of appeal of the decision of the three-judge court. The case
was argued before the Court on April 20, 1977.
On June 28, 1977, the Supreme Court affirmed the three-judge
court's decision upholding the constitutionality of the Act. Noting
that no effective regulations under the Act had yet been promul-
gated, and that after such regulations are promulgated they may
be challenged under other provisions of the Act, the Court limited
its considerations of the merits of Mr. Nixon's several constitution-
al claims to those addressing the facial validity of those provisions
of the Act requiring the Administrator of GSA to take custody of
the materials and subject them to screening by Government archi-
vists.
Mr. Nixon had made the same constitutional arguments against
the facial vailidity of the Act in the Supreme Court as he had
made in the three-judge court. Writing for the Court, Justice Bren-
nan reached the same conclusion as the three-judge court that each
claim was without merit, although his analysis differed somewhat
on some questions.
The court rejected Mr. Nixon's assertion that the Act violated
the separation of powers doctrine in that it infringed upon the
President's right to control the operations of his office, and pointed
out that neither former President Ford nor President Carter had
supported this claim, and that under the Act the materials would
remain at all times within the executive branch. Furthermore,
there is abundant statutory precedent for the regulation and man-
datory disclosure of documents in the possession of the executive
branch, such as the Freedom of Information Act, and such regula-
tion of materials generated in the executive branch has never been
deemed to be an invasion of its autonomy. As for Mr. Nixon's
"more narrowly defined claim that the Presidential privilege
shields these records from archival scrutiny," the Court rejected
the view that only the incumbent President may exercise the privi-
lege, adding:
[W]e think that the Solicitor General states the sounder
view, and we adopt it:







"This court held in United States v. Nixon, [418
U.S. 683 (1974)] that the privilege is necessary to
provide the confidentiality required for the Presi-
dent's conduct of office. Unless he can give his
advisers some assurance of confidentiality, a
President could not expect to receive the full and
frank submissions of facts and opinions upon
which effective discharge of his duties depends.
The confidentiality necessary to this exchange
cannot be measured by the few months or years
between the submission of the information and
the end of the President's tenure; the privilege is
not for the benefit of the President as an individu-
al, but for the benefit of the Republic. Therefore
the privilege survives the individual President's
tenure." [Brief for Federal Appellees 33.] [Slip
Opinion at 20-21.]
But, the court noted, again the fact that neither President Ford nor
President Carter supported Mr. Nixon's claims detracted from his
contention that the Act impermissibly intruded into the executive
function. Besides, said the Court, clearly Mr. Nixon may assert
executive privilege only as to those items which fall within the
scope of the privilege recognized in United States v. Nixon, 418 U.S.
683 (1974), and that means it would apply at most to only a small
portion of the documents and recordings held in custody. In addi-
tion, the Court noted that all it need rule on at this time was to
what extent an initial screening and cataloging by Government
archivists would infringe upon the privilege, and that all Presi-
dents since Herbert Hoover had put their papers into Presidential
libraries where they were subject to eventual disclosure. The Court
concluded that the screening process contemplated by the Act did
not constitute a more severe intrusion of Presidential confidential-
ity than the in camera inspection approved in United States v.
Nixon, and that if the guidelines adopted for review proved inad-
equate to safeguard Mr. Nixon's rights or to prevent the usurpa-
tion of executive powers, they could later be challenged in a specif-
ic factual context.
As for Mr. Nixon's claim that the Act violates his rights of
expression and privacy under the First, Fourth, and Fifth Amend-
ments, the Court found that:
appellant has a legitimate expectation of privacy in his
personal communications. But the constitutionality of the
Act must be viewed in the context of the limited intrusion
of the screening process, of appellant's status as a public
figure, of his lack of any expectation of privacy in the
overwhelming majority of the materials of the important
public interest in preservation of the materials, and of the
virtual impossibility of segregating the small quantity of
private materials without comprehensive screening. When
this is combined with the Act's sensitivity to appellant's
legitimate privacy interests, see Sec. 104(a)(7), the unblem-
ished record of the archivists for discretion, and the likeli-
hood that the regulations to be promulgated by the Ad-







ministrator will further moot appellant's fears that his
materials will be reviewed by "a host of persons," [Brief
for Appellant 150], we are compelled to agree with the
District Court that appellant's privacy claim is without
merit. [Slip Opinion at 37-38.]
The Court also agreed with the three-judge court that Mr. Nixon
had a legitimate First Amendment rights claim that disclosure of
the contents of certain conversations might cause some individuals
to refuse to associate with him and would prevent him from being
able to take inconsistent positions in the future. However, the
Court also agreed that there was no reason to believe that his right
to remove some of the politically sensitive documents before screen-
ing would not be protected by the regulations which are to be
adopted.
Finally the Court addressed Mr. Nixon's claim that the Act was
an unconstitutional bill of attainder proscribed by Article I, Section
9 of the United States Constitution. In concluding that the Act was
not a bill of attainder, the Court said:
Appellant's characterization of the meaning of a bill of
attainder obviously proves far too much. By arguing that
an individual or defined group is attainded whenever it is
compelled to bear burdens which the individual or group
dislikes, appellant removes the anchor that ties the bill of
attainder guarantee to realistic conceptions of classifica-
tion and punishment. His view would cripple the very
process of legislating, for any individual or group that is
made the subject of adverse legislation can complain that
the lawmakers could and should have defined the relevant
affected class at a greater level of generality. Furthermore,
every person or group made subject to legislation which it
finds burdensome may subjectively feel, and can complain,
that it is being subjected to unwarranted punishment.
United States v. Lovett, [328 U.S. 303, 324 (1946)] (Frank-
furter, J., concurring). However, expansive is the prohibi-
tion against bills of attainder, it surely was not intended to
serve as a variant of the Equal Protection Clause, invali-
dating every act of Congress or the States that legislative-
ly burdens some persons or groups but not all other plausi-
ble individuals. In short, while the Bill of Attainder Clause
serves as an important "bulwark against tyranny," United
States v. Brown, [81 U.S. 436, 443 (1965)], it does not do so
by limiting Congress to the choice of legislating for the
universe, or legislating only benefits, or not legislating at
all.
Thus, in the present case, the Act's specificity-the fact
that it refers to appellant by name-does not automatical-
ly offend the Bill of Attainder Clause. Indeed, viewed in
context, the focus of the enactment can be fairly and ra-
tionally understood. It is true that Title I deals exclusively
with appellant's papers. But Title II casts a wider net by
establishing a special commission to study and recommend
appropriate legislation regarding the preservation of the
records of future Presidents and all other federal officials.






88


In this light, Congress' action to preserve only appellant's
records in easily explained by the fact that at the time of
the Act's passage, only his materials demanded immediate
attention. The Presidential papers of all former Presidents
from Hoover to Johnson were already housed in function-
ing Presidential libraries. Congress had reason for concern
solely with the preservation of appellant's materials, for
he alone had entered into a depository agreement, the
Nixon-Sampson agreement, which by terms called for the
destruction of certain of the materials. Indeed, as the Gov-
ernment argues, "appellant's depository agreement * *
created an imminent danger that the tape recordings
would be destroyed if appellant, who had contracted phle-
bitis, were to die." [Brief for Federal Appellee 41.] In short,
appellant constituted a legitimate class of one, and this
provides a basis for Congress' decision to proceed with
dispatch with respect to his materials while accepting the
status of his predecessors' papers and ordering the further
consideration of generalized standards to govern his suc-
cessors. [Slip Opinion at 4245 (footnote omitted).]
In addition, said the Court, this Act could not be a bill of attain-
der because, even if the specificity element were present, it lacked
the forbidden legislative punishment aspect, which is something
more than the possible burdensome consequences imposed by the
Act upon Mr. Nixon.
Justice Stevens concurred in the opinion for the Court, but said
the Act raised serious questions under the Bill of Attainder Clause.
Justice Stevens stated, however, because Mr. Nixon resigned his
office under unique circumstances and accepted a pardon for of-
fenses committed in office, that Mr. Nixon had put himself in a
different class from all other Presidents and constituted a legiti-
mate "class of one." Limiting himself to this case, and emphasizing
that in his view this case is not a precedent for future legislation
which is limited to one occupant rather than the Office of Presi-
dent, Justice Stevens voted to affirm the three-judge court's deci-
slon.
Justice White concurred in all of the opinion of the Court except
that part dealing with the bill of attainder claim, and agreed in the
result reached by the Court on that claim because he believed the
Act is not a bill of attainder in that it does not prescribe any
punishment. He also concluded that contrary to the Court's deci-
sion, all purely private materials should be returned to Mr. Nixon
immediately, even if they have historical significance, since he does
not believe that the Government is entitled to Mr. Nixon's purely
private communications merely because it wants to preserve them
and offers compensation.
Justice Powell concurred in the judgment of the Court and in all
parts of its opinion except those dealing with Mr. Nixon's claims
relating to privacy and the Bill of Attainder Clause, because he
was uncertain as to the reach of the discussion by the Court of the
competing constitutional interests implicated by the Act. For rea-
sons different from the majority's he concluded that the Act is
consistent on its face with the separation of powers doctrine. He