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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United States -- Congress. -- House. -- Select Committee on Congressional Operations
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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
    Introduction
        Page vii
        Page viii
    I. Constitutional qualifications of members of Congress
        Page 1
        Page 2
        Page 3
        Page 4
    II. Constitutional immunity of members of Congress
        Page 5
        Page 6
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    III. Powers of congressional committees
        Page 31
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    IV. Constitutional powers of the Congress
        Page 53
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    V. Officers, employees, and agents of the Congress
        Page 111
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    VI. Disputed elections
        Page 143
        Page 144
        Page 145
        Page 146
    VII. Other actions involving members in a representative capacity
        Page 147
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    Decisions
        Page 173
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    Appendix. Members of the 95th Congress parties to or directly concerned with litigation affecting Congress
        Page 449
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    Index. Table of cases reported
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    Back Cover
        Back Cover 1
        Back Cover 2
Full Text
.5

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7.KlRULES AND ADMINISTRATION
1k 44,







II? :'-' U.S. SENATE

i ....... IDE.G
iie PROCEEDIGS AND ACTIONS OF VITAL
... "" INTEREST TO THE CONGRESS
... ....: ..i~ ;'. :
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INTE RStiv to May 15, 1978S
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PWltid for the usbeof the House Select Committee on Congressional
vemOppraton. and the Senate Cimmittee on Rules and Administration
:.:.: l ., "

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95th Congress COMMITTEE PRINT { PART 4
2d Session f




REPORT
OF TIE
SELECT COMMITTEE
ON CONGRESSIONAL OPERATIONS
U.S. HOUSE OF REPRESENTATIVES
PURSUANT TO
HOUSE RESOLUTION '1-2")
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


Cumulative to May 15, 1978








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

U.S. GOVERNMENT PRINTING OFFICE
29-415 0 WASHINGTON : 1978





























SELECT COMMITTEE ON CONGRESSIONAL OPERATIONS
U.S. HOUSE OF REPRESENTATIVES
JACK BROOKS, Texas, Chairman
ROBERT N. GIAIMO, Connecticut JAMES C. CLEVELAND, New Hampshire
JAMES L. OBERSTAR, Minnesota JOHN M. ASHBROOK, Ohio
JOHN L. BURTON, California
ADAM BENJAMIN, JR., Indiana

COMMITTEE ON RULES AND ADMINISTRATION

U.S. SENATE
CLAIBORNE PELL, Rhode Island, Chairman
HOWARD W. CANNON, Nevada MARK 0. HATFIELD, Oregon
ROBERT C. BYRD, West Virginia ROBERT P. GRIFFIN, Michigan
HARRISON A. WILLIAMS, JR., HOWARD H. BAKER, JR., Tennessee
New Jersey
DICK CLARK, Iowa

(II)












CONTENTS


COURT PROCEEDINGS AND ACTIONS OF VITAL INTEREST TO
THE CONGRESS
Page
Introduction ......................................................................................... vii
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:
Davis v. Passm an ................................................................ 5
McAdams (formerly McClellan) v. McSurely................. 11
Hutchinson v. Proxmire ..................................................... 20
United States v. Helstoski.................................................. 23
Helstoski v. United States.................................................. 23
Chase v. K ennedy................................................................. 26
United States v. Garmatz ................................................... 27
III. Powers of Congressional Committees:
United States v. American Telephone and Telegraph
C o ........................................................................................ 31
Koniag Inc. v. Andrus (formerly Kleppe)....................... 38
Exxon Corp. v. Federal Trade Commission..................... 42
Kerr-McGee Corp. v. Federal Trade Commission ........... 42
Union Carbide Corp. v. Federal Trade Commission...... 42
American Public Gas Association v. Federal Energy
Regulatory Commission (formerly Federal Power
Com m ission)...................................................................... 46
Amerada Hess Corp. v. Federal Energy Regulatory
Commission (formerly Federal Power Commission). 46
United States v. Berrellez................................................... 50
United States v. Gerrity...................................................... 51
IV. Constitutional Powers of the Congress:
Chadha v. Immigration and Naturalization Service.... 53
N ixon v. Sampson............................................................... 55
N ixon v. Solom on ................................................................ 73
Atkins v. United States..................................................... 74
McCorkle v. United States................................................ 91
Citronelle-Mobile Gathering, Inc. v. Gulf Oil Corp....... 93
Pressler v. Blumenthal (formerly Simon)....................... 94
Edwards v. Carter............................................................... 99
State of Idaho v. Vance...................................................... 105
Curtis v. C arter.................................................................... 105
D ole v. Carter....................................................................... 107
V. Officers, Employees, and Agents of the Congress:
Socialist Workers v. Henshaw (formerly Jennings)...... 111
United States v. McPherson............................................... 114
Cervase v. Architect of the Capitol................................... 115






Page
United States v. Elko.......................................................... 116
Brislin v. United States...................................................... 116
Doe v. McMillan.................................................................. 117
Common Cause v. Bailar (formerly Klassen)................. 123
Lewis v. Chisholm............................................................... 141
VI. Disputed Elections:
Moreau v. Tonry................................................................... 143
VII. Other Actions Involving Members in a Representative
Capacity:
Dellums v. Powell............................................................... 147
Powell v. Dellums................................................................ 147
Wilson v. Dellums ............................................................... 147
Sportservice Corp. v. Steiger............................................... 151
R euss v. B alles ..................................................................... 152
United States v. Hastings .................................................. 155
United States v. Podell....................................................... 157
Clay v. Bauman................................................................... 159
Ray v. Proxmire................................................................... 159
Young v. New York Times................................................. 160
Rosen v. Young .................................................................... 160
Gardner v. Young................................................................ 161
Helstoski v. Goldstein......................................................... 161
United States v. Tonry........................................................ 162
Cervase v. Rangel ................................................................ 163
United States v. Goldberg.................................................. 163
Attorney General of the United States v. Casey, Lane
and Mittendorf................................................................ 165
United States ex rel. Joseph v. Cannon........................... 167
United States v. Hanna...................................................... 167
Banta v. Talmadge.............................................................. 168
United States Postal Service v. Citizens Committee for
the Right to Keep and Bear Arms................................ 168
United States v. Passman.................................................. 170
United States v. Diggs........................................................ 170
Metzenbaum v. Brown........................................................ 171

DECISIONS
Laxalt v. K im m itt.............................................................................. 175
D avis v. Passm an ............................................................................... 177
Koniag, Inc. v. Andrus (formerly Kleppe)..................................... 209
Nixon v. Sampson............................................................................... 243
Pressler v. Blumenthal (formerly Simon)....................................... 259
Edwards v. Carter (United States District Court)........................ 261
Edwards v. Carter (United States Court of Appeals)................... 277
United States v. Podell...................................................................... 429
Metzenbaum v. Brown ....................................................................... 439

APPENDIX
Members of the 95th Congress Parties to or Directly Con-
cerned With Litigation Affecting Congress............................... 451

INDEX


Table of Cases Reported....................................................................


459












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
constitutionally established institution of the Federal Gov-
ernment, and calling such proceeding or action to the at-
tention 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 Con-
gress as a constitutionally established institution of the
Federal Government and call such proceeding or action to
the attention of the Senate.



















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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 Committee 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, Part 4 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 will continue the practice of publishing cumula-
tive reports of court proceedings and actions periodically throughout
the 95th Congress. 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 suggestions 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.















COURT PROCEEDINGS AND ACTIONS OF VITAL
INTEREST TO THE CON(;RESS

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 Represen-
tatives; 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 43, clause 10 and that a writ of prohibi-
tion be issued prohibiting the defendants from enforcing this provi-
sion. On July 16, 1976, the defendants filed an opposition, stating
that the Supreme Court had neither original nor appellate jurisdic-
tion 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
No. 78-1433 (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 villification" 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.
Defendants moved to dismiss the amended complaint on Janu-
ary 9, 1978. The motion 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
differentiation 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
already 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 com-
plaint sufficiently alleges the requisite jurisdictional amount and
(2) conclude 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, Commit-
tee for the Survival of a Free Congress, and the intervenors,
Common Cause, David Cohen and Nan Waterman.
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 this report at 175.












II. CONSTITUTIONAL IMMUNITY OF MEMBERS OF CONGRESS
Davis v. Passman
No. 75-1691 (Fifth Cir.)
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 then filed this complaint, naming then-
Representative 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 Con-
gressional 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 support-
ed 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 bane.
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 bane 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 bane opinion vacated
the decision of the District Court in regard to that court's holding







that the conduct of which Mrs. Davis complained did not violate
the Constitution.
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 dam-
ages in Bivens was implied as a matter of Federal common law,
and as such subject to the power of Congress to alter or with-
draw, 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 implica-
tion to determine whether to imply a damage action of
non-constitutional dimensions. Second, if this initial in-
quiry does not suggest that such an action should be
implied, we must determine whether the Constitution nev-
ertheless compels the existence of a remedy in damages
to vindicate the rights asserted. [Slip Opinion at 3511;
this report at 181.]
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 assert-
ed, and (4) whether the cause of action implied would be one
appropriate 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; this report
at 181.]
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; this report at 182.]
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 citi-
zens suspected of possessing evidence of crime. The con-
text 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 amendment in future instances in which such an
action might be invoked. The fifth amendment Due Proc-
ess Clause presents no similarly focused remedial issue.
To the contrary, the breadth of the concept of due proc-
ess indicates that the damage remedy sought will not be
judicially manageable 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; this
report at 183.]
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 deal-
ing with the fourth amendment, but also Congress avoid-
ed creating an action for money damages for Congres-
sional aides in non-competitive positions. Moreover, im-
plying 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 jurisdiction. These special considerations * *
eliminate any question of our creating a remedial right
under our federal common law power. [Slip Opinion at
3514; this report at 184.]
Turning to the question of whether the remedy of damages
might yet be constitutionally compelled as indispensable to the
effectuation 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
equitable relief where the employer remained in office,
although 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


29-415 0 78 2







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 leg-
islatures or Congress. Admittedly, some not now covered
would remain inactionable. [Slip Opinion at 3514-15; this
report at 184-185 (footnote omitted).]
The opinion also noted that Article III, Section 1 of the Consti-
tution, 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 ju-
dicial system" were an implied cause of action for damages for
violation of Fifth Amendment due process rights held to be avail-
able.
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.
1 The Senators and Representatives for any speech or debate in either
House shall not be questioned in any other place. U.S. Const. Art. I,
6(1).
2 U.S. Const. Art. I, 1.
*
[T] he court should say that the hiring and firing of his
"alter ego" is a legislative activity and a part of the
exercise 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 jurisdic-
tion 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 tribu-
nal 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;
this report at 185-186.]1
In dissent, Judge Goldberg, joined by Chief Judge Brown, re-
jected 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 was 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, critical-
ly 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 circum-
stances, recognizing that staffers may act as congression-
al 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 injunctive orders requiring Congressmen
to employ particular individuals. This is not the occasion
for a definitive statement on the circumstances which
might justify implication 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 counselling hesitation in the ab-
sence of affirmative action by Congress," Bivens, 403 U.S.
at 396, 91 S.Ct. at 2005, are more germane to the implica-
tion of equitable relief than to implication of an action
for damages.
Similarly, it would seem to me that the special prob-
lems 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 inade-
quacies of state court or state law adjudications of feder-
al immunities in the context of constitutional claims; that
reasoning is, if anything, even more powerful with re-
spect to the issues presented here. [Slip Opinion at 3528;
this report at 198 (footnote omitted).]
Status.-No further action has been taken.
The full text of the en bane opinion of the Court of Appeals panel
is printed in the "Decisions" section of this report at 177.
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.
McAdams (formerly McClellan) v. McSurely
No. 76-1621 (U.S. Supreme Court)
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
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 bane Court of Appeals)
that Judge Moynahan agreed to Brick's examining and copying the
material. [McSurelv v. McChlellun. 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.
Four days later, on October 16th, Senator McClellan directed
Brick to prepare subpoenas duces tecum for the seized material in
Ratliffs 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 Ratliffs custody be returned to the Mi' Sure-
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 lii,.]
On November 1, l!ii7T, a motion for reconsideration and rehear-
ing of the October 3Uth 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 Ratliffs 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 13,Si1.]
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, 1'.6i7, 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
acquital in the matter of the contempt convictions. The Solicitor
General decided not to p-tion 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 banc 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 McSurelys' 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
point, "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.] 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 bane specific holding







of the Ninth Circuit in United States v. Sherwin [5, 1i F 2d
1 (9th Cir. 1976)] are directly contrary.
New law it is, but law absolutely necessary to the major-
ity's holding that the McSurelvs' 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 satisfac-
tion 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. McSurelys'
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 subpoenas [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
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.
Status.-The case is pending before the U.S. Supreme Court.
The full text of the decision of the Court of Appeals in the
criminal action for contempt of Congress was printed in the "Deci-
sons" 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
Couri 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
Nos. 77-1677 and 77-1755 (Seventh Cir.)
Brief.-On April 18, 1975, Senator William Proxmire, Chairman
of the Subcommittee on Housing and Urban Development and
Independent Aencies 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, alle-d telephoned various Federal agencies in an attempt to
persuade those agencies to terminate grants or contracts for re-
search being performed by Dr. Hutchinson. Seven months later,
Senator Proxmire appeared 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 monkte.-: 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 $1 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."
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 1U, 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 connec-
tion with the duties as a Member of Senate subcommittees 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) follow-up 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 (194731, the court
stated that: "The standard for involving congressional immunity
under article I, section 6 of the Constitution is the standard of
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), aff'd
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 plaintiffs 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.
Status.-The action is pending before the U.S. Court of Appeals
for the Seventh Circuit.
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.
United States v. Helstoski
No. 77-1423 (Third Cir.)
and,
Helstoski v. United States
No. 77-1800 (Third Cir.)
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 Argentine 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 co-conspirator 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 inter-
ference 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-


20-415 0 78 3







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 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.
Status.-The appeal and the petition for writ of mandamus/
prohibition are pending before the Court of Appeals.
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.
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







petition 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 court's opinion is printed in the "Deci-
sions" section of Court Proceedings and Actions of Vital Interest to
the Congress, Part 2, August 15, 1977.
United States v. Garmatz
Criminal No. H-770379 (D. Md.)
Brief.-On August 1, 1977, an indictment was filed in the United
States District Court for the District of Maryland against former
U.S. Congressman Edward A. Garmatz. The one-count indictment
brought under 18 U.S.C. 371 charged Mr. Garmatz with conspir-
ing with others to violate 18 U.S.C. 201(g) which prohibits public
officials from accepting bribes and illegal gratuities.
The indictment alleges that Mr. Garmatz agreed to receive cash
payments in exchange for certain official acts to be performed by
him as a Member of Congress and as Chairman of the House
Committee on Merchant Marine and Fisheries, specifically his
sponsorship, support, vote and decision on certain passenger ship
legislation which was within the jurisdiction of the committee he
chaired.







Motions by Mr. Garmatz to dismiss the indictment and to strike
surplusage from the indictment were denied by Judge Alexander
Harvey in a Memorandum and Order filed on December 5, 1977.
In his opinion Judge Harvey delineated two issues raised by the
defendant's motion. First, did all the acts and events of the alleged
conspiracy culminate when the bill in question became law in May
of 1972 as Mr. Garmatz asserted? If so, and if the court therefore
granted the defendant's motion to strike as surplusage all allega-
tions concerning acts and events which occurred after May 1972,
then the 5-year statute of limitations applicable to the alleged
offense would have expired prior to the return of the indictment in
August 1977. Additionally, venue would not properly be in the
Maryland court since the only overt acts alleged to have occurred
in Maryland took place after the passage of the bill in May 1972.
Thus, the judge declared, if the motion to strike surplusage were
granted the court would also be required to dismiss the indictment.
Such action was not required, the judge concluded because the
conspiracy did not end when the bill became law but continued.
The judge noted that:
Essentially, the objective of the conspiracy here was the
exchange of money for an agreement or promise to per-
form official acts. The government charges that pursuant
to the illegal agreement, defendant solicited and received
gratuities both before and after the bill became law. Thus,
the objective of the conspiracy was not attained until the
solicitation and exchange of all money, both before and
after the legislation in question became law. [Slip Opinion
at 8.]
The court further declared that:
In this particular case, a conspiracy to violate 201(g) has
been charged, not the substantive offense itself. The indict-
ment alleges that the conspiracy still existed within the
five years prior to the indictment of August 1, 1977, and
that at least one overt act in furtherance of the conspira-
torial agreement was committed in Maryland within that
period. These allegations are clearly sufficient. [Slip Opin-
ion at 8.]
The second issue presented by Mr. Garmatz motion to dismiss
was whether prosecution of the case would contravene the Speech
or Debate clause (Art. I, Sec. 6, clause 1), of the Constitution. After
discussing earlier Supreme Court cases bearing on the issue the
judge concluded that the Garmatz indictment did not contravene
the clause. The court noted that those earlier Supreme Court deci-
sions do not:
[B]ar an indictment under a general indictment under a
general statute where the government can make a prima
facie case without inquiring into legislative acts. United
States v. Dowdy, supra at 224. Just such an indictment is
before the Court in this case. Under the one conspiracy
Count contained in this indictment, the essence of the
offense charged is an illegal agreement to accomplish an
illegal objective and guilt can be established "by proof of







the agreement, accompanied by proof of one or more non-
legislative acts to carry it out, without proof of legislative
acts immunized from inquiry by the speech or debate
clause." Dowdy, supra at 227. [Slip Opinion at 14.]
Mr. Garmatz had particularly asserted that the Speech or Debate
clause prohibited a prosecution for illegal solicitations pertaining
to past legislative acts. This contention was rejected by Judge
Harvey concluding that the case could be prosecuted "provided
that the prosecution did not offer evidence of the performance by
the defendant of legislative acts." [Slip Opinion at 14-15.]
Judge Harvey further declared:
* [T]he essence of the offense charged in this case is
the illegal agreement. To prove the essential elements of
this indictment, there is no need for the government to
inquire into how defendant Garmatz spoke, debated or
voted or into anything he did in the Chamber or in com-
mittee. This indictment does not allege the performance by
the defendant of any legislative acts, either as a part of
the conspiracy or as overt acts committed in furtherance
thereof. Furthermore, there is no need here for the govern-
ment to show that defendant fulfilled the bargain, either
in proving the conspiracy itself or any of the overt acts.
[Slip Opinion at 15.]
Mr. Garmatz had also asserted that the validity of the indict-
ment could be tested for purposes of the motion to dismiss by the
court for conformity with the Speech or Debate clause only by
examining in advance of trial the evidence to be offered by the
Government. Only in that way Mr. Garmatz argued could the court
determine whether evidence of legislative acts would be presented
by the Government to support the allegations in the indictment.
Such a procedure was not warranted because the court concluded
that the indictment complied with the requirement that:
[L]egislative acts performed by a Congressman can not be
alleged or proved in a case of this sort. Moreover, counsel
for the government had agreed to make proffers of the
prosecution's proof prior to the trial. At that time, this
Court will determine whether any of the proof to be pre-
sented at the trial includes evidence of the performance by
the defendant of legislative acts. [Slip Opinion at 15-16.]
Garmatz had also asserted that the Speech or Debate clause
protected him with respect to any discussions he had with any
interested party which might be construed as part of the informa-
tion gathering process of a Congressman or a Congressional com-
mittee. Judge Harvey declared that such assertion was not support-
ed by the pertinent Supreme Court decisions. He concluded:
The Clause does not prohibit inquiry into illegal conduct
"simply because it has some nexus to legislative func-
tions," and the government is therefore not barred from
presenting proof of "activities that are casually or inciden-
tally related to legislative affairs but not a part of the
legislative process itself." Brewster, supra at 528.







Furthermore, the Speech or Debate Clause "does not
extend beyond what is necessary to preserve the integrity
of the legislative process." United States v. Brewster, supra
at 517. "Taking a bribe is, obviously, no part of the legisla-
tive process or function; it is not a legislative act." United
States v. Brewster, supra at 526. Thus, discussions relating
to the giving or receiving of a bribe would not be barred at
the trial, nor conversations of co-conspirators which might
be casually or incidentally related to legislative affairs.
[Slip Opinion at 16-17.]
The court concluded its discussion of the Speech or Debate clause
by declaring that:
If any proffer of evidence made in this case indicates that
the government seeks to introduce direct evidence of the
performance by defendant Garmatz of a legislative act,
such evidence will be excluded. The question before this
Court when the proffers are made will be whether the
government is seeking to introduce direct evidence of the
performance of a legislative act as that term was defined
in Brewster and Gravel, not whether the legislative act in
question was performed in the past or in the future. [Slip
Opinion at 17-18.]
Status.-On January 9, 1978, with leave of the court, the U.S.
Attorney filed an order dismissing the indictment. Appended to
the order for dismissal was a copy of a letter to United States
District Judge Alexander Harvey II, from Russell T. Baker, Jr.,
Deputy Assistant Attorney General, indicating the reason for the
dismissal. According to that letter:
Between December 20 and December 29, 1977, during
pretrial preparation, the New Jersey prosecutors discov-
ered from information that they uncovered, and pursued
and from information developed by Mr. Garmatz's attor-
ney, Arnold M. Weiner, that Edward Heine, the principal
government witness in the case, had withheld relevant
facts and had affirmatively misrepresented other facts. In
particular that witness had created false documentation
to corroborate certain of his testimony and had tendered
it to the government as genuine. [Order For Dismissal at
2-3.]
The December 5, 1977 memorandum and order of the District
Court is printed in full in the "Decisions" section of Court Proceed-
ings and Actions of Vital Interest to the Congress, Part 3, December
31, 1977.












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 Foreign
Commerce, pursuant to a vote by the Subcommittee on Oversight
and Investigations. The chairman of the subcommittee, Representa-
tive 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 point of interception, (i.e., 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
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 Ohat 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.]
The court determined that it was confronted with a direct con-
test between the investigatory power of the Congress and the invo-
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:
if the materials were turned over to the Subcommittee, the
information could legally be released upon the majority
vote of a quorum (8 Members) of the Subcommittee unless
such a determination were reversed by the affirmative
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(2)(e)(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 be an unaccepta-
ble 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 bane,
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 Banc, 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 Sr ?ch 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 ,ip',,,h. 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 expigated ones. On the issue of notes, still a
bone of contention, our approach would permit the staff to
take notes on their iim.pressions 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 o.-'uld then decide
whether to take a claim of inaccuracy-alleging, for exam-
.'!- executive abuse of the "foreign intelligence" rubric-
to the District Court for resolution. If the District Court,
upon in camera ini-pt.eion of the original and edited
memoranda and of thf 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.]
The executive would be permitted to employ a substitu-
tion procedure, 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 disclosed. 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 consideration
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 legis-
lative 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 accept-
ed the contention that the executive determination that
national security may be involved is conclusive and not
subject 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
interest of 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.]
Status.-The case is pending before the District Court.
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.







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 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 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.
Koniag, Inc. v. Andrus (formerly Kleppe)
Nos. 76-1325 through 76-1334 (D.C. Cir.)
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 $.;...'2.2 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 these 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.
*

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
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 demonstratable 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 revers-
ing 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
determination 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 Secre-
tary should have permitted the parties to take exceptions to the
recommended decisions of the administrative law judge and to
submit briefs to the Board for its consideration. Rather than
directing the reinstatement of the Bureau of Indian Affairs deci-
sions, as the District Court had done, the Circuit Court remanded
the cases to the District 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
Department's regulations.
The Circuit Court's opinion rejected the holding of the District
Court that the hearings "constituted an impermissible Congres-
sional interference with the administrative process" the lingering
effects of which made the usual remedy of remand to the Secre-
tary for redetermination impossible. 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 subcom-
mittee 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 appeals 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 is not enough. [Slip Opinion at 19; this report
at 227.]
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 proc-
ess. Terming the letter a "more serious matter", the court stated:


29-41








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 Comp-
troller General, because it "appears from the testimony
[at the hearings] that village eligibility and Native enroll-
ment requirements of ANSCA [Alaska Native Claims Set-
tlement 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 com-
promised 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. Neverthe-
less, a remand to the Secretary, rather than a reinstate-
ment of the BIA decisions, is the proper remedy in this
case. Assuming the worst-that the letter contributed to
the Secretary's decision in these cases-we cannot say
that 3 1/2 years later, a new Secretary in a new administra-
tion is thereby rendered incapable of giving these cases a
fair and dispassionate treatment. [Slip Opinion at 19-20;
this report at 227-228.]
9 We of course intimate no view as to the validity of the Congressman's
criticism. [Slip Opinion at 19-20; this report at 227-228.]
Status.-The cases have been remanded to the District Court for
remand to the Secretary for redetermination of the appeals.
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 this report at 209.
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 is 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.
MacKinnon 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.
Status.-The consolidated appeals were argued on February 13,
1978.
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).
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.]
American Public Gas Association v. Federal Energy Regulatory
Commission (formerly Federal Power Commission)
No. 77-695 (U.S. Supreme Court)
and,
Amerada Hess Corporation v. Federal Energy Regulatory Com-
mission (formerly Federal Power Commission)
No. 77-697 (U.S. Supreme Court)
Brief.-On December 4, 1974, the Federal Power Commission
(hereinafter "FPC") issued an order instituting proceedings to pre-
scribe rules and regulations establishing just and reasonable rates
for jurisdictional (interstate) sales of natural gas dedicated to inter-
state commerce on or after January 1, 1975, to and including
December 31, 1976, and otherwise regulating such jurisdictional
sales by natural gas producers on a nationwide basis. All interested
persons were asked to file comments and replies by certain dates,
although several extensions of these deadlines were later granted
by the FPC.
The FPC did not propose specific rates in its notice but
stated it would rely on responses by the parties and Com-
mission staff. The order designated as respondents all in-
terstate pipeline companies, and all producers with juris-
dictional sales exceeding 10 million Mcf per annum, who
have since participated as Indicated Producer Respon-







dents. Ultimately some 46 parties and groups of parties,
representing all segments of the natural gas industry and
the consuming public, filed written comments and cross-
comments on a host of matters. [American Public Gas
Association v. FPC, Nos. 76-2000 et al. (D.C. Cir. June 16,
1977); Slip Opinion at 15. (Footnote omitted).]
On July 27, 1976, the FPC issued Opinion No. 770 in which it
made a number of findings in relation to the pricing of natural gas.
It then issued clarifying orders in September and October 1976,
and Opinion No. 770-A on November 5, 1976. In Opinion No. 770-
A, the FPC set rates which were lower than those it had set in
Opinion No. 770, but which were higher than those in effect at that
time. The FPC estimated that the impact of the rates set in Opin-
ion No. 770-A would be from $1.49 to $1.78 billion during the
following 12 months.
Appeals were filed in the U.S. Courts of Appeals in almost every
circuit, and the cases were consolidated and heard by the District
of Columbia circuit. Basically, the consumer petitioners complained
that the rates were set too high. Their attack contested the use by
the FPC of the informal notice-and-comment rulemaking proceed-
ing "for an enterprise of such magnitude and complexity" [Slip
Opinion at 26] as well as the weight given by the FPC to other
factors considered in determining the new rates. The producers
basically claimed that the rates were set too low.
In the meantime, on August 26, 1976, after Opinion No. 770 had
been issued, Senators James Abourezk, John Durkin, and William
Proxmire, and Representatives Berkley Bedell, William Brodhead,
Michael Harrington, Herbert Harris, William Hughes, Andrew Ma-
guire, Toby Moffett, John Moss, James Oberstar, Richard Ottinger,
John Seiberling, and Gerry Studds (hereinafter "the Congressional
parties") together filed a petition for a rehearing on Opinion 770
with the FPC. The next day the Subcommittee on Oversight and
Investigations of the Committee on Interstate and Foreign Com-
merce of the House of Representatives held hearings on the "Fed-
eral Power Commission Rate Decision."
Four members of the subcommittee-Chairman Moss and Con-
gressmen Ottinger, Maguire, and Moffett-were parties to the peti-
tion filed with the FPC the day before the hearings. FPC Chairman
John Dunham, in his testimony before the subcommittee, stated
that he was concerned about the possibility that reconsideration of
Opinion No. 770 might be precluded because of the appearance of
the commissioners before the subcommittee, based on Pillsbury Co.
v. FTC, 354 F.2d 952 (5th Cir. 1966). Chairman Moss said that the
subcommittee hearing should proceed and that the Pillsbury doc-
trine would not be violated by questioning the commissioners, even
though he and three other subcommittee members were adversary
parties. In his opening statement, Chairman Moss discussed the
Pillsbury decision and noted that because the circumstances in that
case were distinguishable, the proceedings conducted by his sub-
committee would not be precluded by that decision.
On September 2, 1976, 6 days after the conclusion of the hear-
ings, Chairman Moss reiterated his view that the commission's
decision showed a "flagrant disregard" of the law, and stated that
he was considering the possibility of instituting impeachment pro-







ceedings against the three commissioners who had joined in the
issuing of Opinion No. 770.
On November 5, 1976, the FPC issued Opinion No. 770-A in
which it set a price for the biennium 1973-74 at 93 cents instead of
the $1.01 rate set in Opinion No. 770, and narrowed the eligibility
for the new higher rates.
Along with all of the other appeals filed with U.S. Courts of
Appeals, the original Congressional parties, joined by Representa-
tives Les Aspin and Christopher Dodd, filed a petition in the U.S.
Court of Appeals for the District of Columbia circuit. They stated
that they believed the new rates established by Opinion 770-A
were still too high, and they asked the Appeals Court to set aside
the decision of the FPC. [Abourezk v. FPC, No. 76-2001 (D.C. Cir.).]
Their appeal was consolidated with the others.
In its initial brief in these cases, the Indicated Producer Petition-
ers and Intervenors (hereinafter "IPPI") argued, inter alia, that
under the Pillsbury doctrine the FPC was disqualified to issue 770-
A. The IPPI asserted that the appearance of four of the FPC's
commissioners at the hearings before the subcommittee, where
they were "subjected to detailed examination as to the thought
processes by which they arrived at Opinion No. 770 and the reason-
ing and logic utilized in the opinion" [Joint Initial Brief of Indicat-
ed Producer Petitioners and Intervenors at 15. American Public
Gas Association v. FPC, Nos. 76-2000 et al. (D.C. Cir.)], should have,
under the Pillsbury doctrine, disqualified these commissioners from
further consideration of the matter, thus requiring the reinstate-
ment of Opinion 770.
On March 23 and 24, 1977, the U.S. Court of Appeals for the
District of Columbia circuit heard oral argument, and on June 16,
1977, it issued its opinion affirming the orders of the FPC.
Regarding the decision of the FPC on its rehearing, the Appeals
Court decided that the FPC was not disqualified from issuing Opin-
ion No. 770-A.
The court first noted the timing of the hearings and that "[t]he
questioning was not confined to explication of 'what the opinion
means and what its implications are.' Chairman Moss went fur-
ther, stating:
I am most committed as an adversary. I find that I am
outraged by Order 770. I find it very difficult to compre-
hend any standard of just and reasonableness in the deci-
sion and I would not want the record to be ambiguous on
that point for one moment." [Slip Opinion at 102.]
Next, the court reviewed the facts in the Pillsbury case, in which
several of the commissioners of the Federal Trade Commisssion
(hereinafter "FTC") had been severely criticized at committee hear-
ings by Members in both the House and Senate for their decisions
regarding enforcement of the Clayton Antitrust Act against Pills-
bury. The hearings took place at a time when the FTC was consid-
ering changing its prior decision in a proceeding against Pillsbury.
The court, reviewing the FTC's decision in that case, held that the
FTC's subsequent consideration and decision had not been consist-
ent with due process of law and set aside the latter decision.







The present court refused to di.-tinguish the two cases on the
basis of the type of administrative proceeding involved, ratemaking
in this action, adjudication in Pillsbury, stating:
We doubt the utility of classifying the rate-making un-
dertaken in the present proceedings by the Power Commis-
sion as entirely a judicial or a legislative function, or a
combination of the two, for in any event the need for an
impartial decision is obvious. See Davis, Administrative
Law Treatise, 7.03. Congressional intervention which
occurs during the still-pending decisional process of an
agency endangers, and may undermine, the integrity of
the ensuing decision, which Congress has required be
made by an impartial agency charged with responsibility
for resolving controversies within its jurisdiction. Congress
as well as the courts has responsibility to protect the deci-
sional integrity of such an agency. [Slip Opinion at 104-
105.]
However, the court concluded, the producers had to be denied
relief under the circumstances here because they had failed to
raise their objections before the FPC. They had been fully aware of
these facts while Opinion No. 770 was being reconsidered, but not
only did they not argue that the FPC should be disqualified, thus
giving all parties-including the FPC-an opportunity to reply to
the charges, but they had also actively participated in the proceed-
ings, urging the FPC to make a new decision more favorable to
their interests. The court said that parties cannot wait until a
decision is made to assert disqualification-it must be asserted as
soon as the party becomes aware of the grounds. The court also
cited 15 U.S.C. 717r which says that no objection to an order of
the FPC can be asserted on appeal which has not been asserted
before the FPC.
The court additionally stated that:
Independent of the status of the parties seeking relief,
we think it is obvious that within the equitable relation-
ship between the reviewing court and the agency there
resides-there inheres-judicial jurisdiction, and responsi-
bility in the public interest, to decide whether there oc-
curred here such an inroad upon the integrity of the deci-
sional function of the independent agency as to require the
court sua sponte to set aside the whole or any part of
Opinion No. 770-A. [Slip Opinion at 106-107.]
The court then considered all of the facts in the case, including the
fact that the FPC's original ruling on an income tax component
was heavily criticized in the hearings but was left standing in
Opinion No. 770-A, that there was no indication that the provi-
sions of Opinion No. 770-A were influenced by the subcommittee
proceedings, and that there was no appearance of partiality on the
part of the commissioners. In view of these circumstances, the
court refused to set aside any part of the opinion sua sponte be-
cause of the subcommittee hearings.
The court then said:
In concluding as above, we recognize the possibility, but
not the probability, that what occurred may have influ-







enced the Commission. We consider the intervention
through the Subcommittee regrettable and quite inconsist-
ent with that due regard for the independence of the Com-
mission which Congress and the courts must maintain.
Nevertheless, when weighed in the context of the record as
a whole, the possibility of influence upon the Commission
is too intangible and hypothetical a basis for this court of
its own motion to nullify Opinion No. 770-A. We think
rather that the interests of the parties and the public are
to be served by our review of the Opinion under the appli-
cable statutory standards and decisions of the Supreme
Court. [Slip Opinion at 107.]
On July 18, 1977, the Congressional parties filed a motion for a
rehearing en banc, as did several other parties.
On August 17, 1977, a per curiam order was filed denying the
petitions for rehearing filed by the Congressional petitioners,
American Public Gas Association et al., Austral Oil Company In-
corporated and Aztec Oil, and the Commonwealth of Pennsylvania.
Separate statements on rehearing were filed by Senior Circuit
Judge Leventhal, who was joined in his statement by District
Judge Gesell.
Another per curiam order was also filed on August 17, 1977,
denying all suggestions for rehearing en banc filed in these cases.
On November 15, 1977, American Public Gas Association and
Amerada Hess filed petitions for writ of certiorari in the U.S.
Supreme Court.
Status.-The petitions for writ of certiorari were denied on Feb-
ruary 27, 1978.
The complete text of the order of August 17, 1977, denying the
petitions for rehearing and the separate statements are printed in
the "Decisions" section of Court Proceedings and Actions of Vital
Interest to the Congress, Part 3, December 31, 1977.
The complete text of 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 2, August 15, 1977.
United States v. Berrellez (New Case)
Criminal Case 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 iherein-
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.
Status.-The case is pending before the District Court.
United States v. Gerrity (New Case)
Criminal Case 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.
Status.-The case is pending before the District Court.














IV. CONSTITUTIONAL POWERS OF THE CONG;RESF


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 l19t6 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
why he should not be deported pursuant to section 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 section 244(a)(2) of the INA, 8 U.S.C.
1254(a)(2). Evidence presented as to his good character was uncon-
tested.
On June 25, 1974, the immigration judge issued his decision,
ordering that the deportation be suspended pursuant to section
244(aX1) 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
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 nonle-
gislative 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, petitioner asserts that the one-House veto provision vio-
lates the requirement of a bicameral legislature. According to peti-
tioner, 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 without
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.
Status.-The petition is pending before the U.S. Court of Appeals
for the Ninth Circuit.
Nixon v. Sampson
Nos. 75-2194, 75-2195, 75-2196, 77-2123, 77-2124, 77-2125 (D.C.
Cir.)
Civil Action 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 the
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.,
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, Represent-
ative from Ohio, is Chairman of the Committee on House
Administration, which has jurisdiction over such legisla-
tion 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
the fact that the principal issue in this action was the ownership of
the tapes and papers. Ms. Holtzman contended that since the At-
torney 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 (herinafter "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 that a three-judge court be convened pursuant to
28 U.S.C. 2282 and 2284 to hear and determine the constitutional
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


21-415 0 7B -







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
challenge case priority over the consolidated cases as assertedly
required by section 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 resolu-
tion. * *" (emphasis supplied). It is clear that the case
for which petitioner sought the three-judge court was a
"challenge 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 resolu-
tion. * *" In these views, we need not consider conten-
tions 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.
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 Freedom of the Press, et at., 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 gener-







ated 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
evidence 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
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 took 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 his-
tory 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 Section 2284 of Title 28 of the United States
Code was eliminated in conference and the measure, with Section
105(a) of the Act, in its present form, which enables a single judge
of the U.S. District Court for the District of Columbia to hear any
constitutional challenge to this Act, was approved by the confer-
ence committee, and subsequently enacted into law.
The Act did not, however, prohibit the petitioner from making
an independent application under Section 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 consolidated cases. Nowhere in
the legislative history is there any suggestion that Sections
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 Section 105(a) as
enacted 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 appropri-
ate 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 Sections
2282 and 2284 to test in orthodox fashion the constitution-
ality 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 Section 105(a) indicate that Con-
gress 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.
On April 2, 1975, Judge Richey removed himself from the con-
solidated 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. 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 explicitly
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
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 non-private 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 insubstan-
tial. * *

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
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 validity of the Act in the Supreme Court as he had made
in the three-judge court. Writing for the Court, Justice Brennan
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 104(a)(7), the unble-
mished record of the archivists for discretion, and the
likelihood that the regulations to be promulgated by the
Administrator 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 Fqual 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 ration-
ally 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.
In this light, congress' action to preserve only appellant's
records is 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 phlebitis,
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 succes-
sors. [Slip Opinion at 42-45. (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.
However, because Mr. Nixon resigned his office under unique cir-
cumstances and accepted a pardon for offenses committed in office.
Justice Stevens stated that Mr. Nixon had put himself in a differ-
ent class from all other Presidents and constituted a legitimate
"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 President,
Justice Stevens voted to affirm the three-judge court's decision.
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-





71

sons different from the majority's he concluded that the Act is
consistent on its face with the separation of powers doctrine. He
first concluded that Congress had not acted beyond the scope of its
constitutionally enumerated powers. This legislation serves the in-
vestigative and informative needs of Congress he said, and it did
not assume executive branch functions. As to the argument that
the Act impaired the Presidential privilege of receiving confiden-
tial communications, Justice Powell concluded that the fact that
former President Ford, while he was in office, and now President
Carter had both expressed the view that the Act furthered rather
than hindered effective execution of the laws was dispositive of this
issue.
Justice Blackmun concurred in the decision of the Court for the
same reasons as Justice Powell, but did not join in Justice Powell's
opinion because for Justice Blackmun the opinions of the incum-
bent Presidents were not dispositive. He agreed that their opinions
were entitled to serious consideration, but pointed out that political
realities and the often open hostilities between incoming and out-
going administrations can influence a President's opinions.
Chief Justice Burger dissented from the opinion and all conclu-
sions of the Court. Title I of the Act violates the separation of
powers doctrine in three ways, he said: first, Congress is compelling
a President in the conduct of his office by forcing him to hand over
his papers to the head of the GSA-a legislatively created agency;
second, it is an attempt by Congress to use executive, not legisla-
tive powers, by gaining control of executive materials; and third, it
makes a sweeping modification of the historical practice and consti-
tutional privilege of confidentiality every President has enjoyed
since 1789. Furthermore, the Chief Justice stated that he did not
believe that the fact that the Act applies to only one President who
has left office, justified what would otherwise be unconstitutional if
it applied to an incumbent. In addition, Title I breaches the need
for confidentiality of advice given to the President, said the Chief
Justice, and he predicted that the Court's decision would force
advisers to future Presidents to be circumspect in articulating their
views to the President.
He also concluded that Title I intruded upon Mr. Nixon's right to
privacy, violating the Fourth Amendment since it is a general
warrant, and violating the First Amendment's freedom of speech
and freedom of association provisions.
Finally, the Chief Justice stated that in his opinion the Act
violates the Bill of Attainder Clause, as it meets both criteria of a
bill of attainder by singling out an individual and by meting out
punishment to him.
Justice Rehnquist also dissented, but since he believed the Act
clearly violates the separation of powers doctrine, he limited his
opinion to that issue. He concluded that the Act violated separa-
tion of powers in that (1) it hinders the communications a Presi-
dent will receive from advisers, foreign heads of state and ambassa-
dors, Members of Congress, and others who deal with the White
House, (2) it hinders the necessary flow of information to and from
future Presidents, and (3) it intrudes upon the effective discharge
by the President of his duties, which intrusion, when balanced







against the asserted interests of Congress fostered by the Act,
cannot permit the Act to be sustained.
On August 15, 1977, defendants moved to dismiss the consolidat-
ed cases as moot, in view of the Supreme Court's decision in Nixon
v. Administrator of General Services.
The consolidated cases were dismissed as moot by District Judge
Robinson in an Order and accompanying Memorandum on Septem-
ber 21, 1977. The Memorandum stated that no further examination
of the ownership of the Presidential materials was necessary since
the holding of the Supreme Court in Nixon v. Administrator of
General Services had resolved that question. Resolution of the issue
of access to the Presidential materials under the Freedom of Infor-
mation Act was also held to be inappropriate within the context of
the consolidated cases since the Preservation Act establishes a
comprehensive scheme governing all access to Presidential materi-
al.
Notices of appeal from the order dismissing the consolidated
cases were filed on November 18, 1977 by plaintiffs' Reporters
Committee for Freedom of the Press, et al.
On December 5, 1977, plaintiff-intervenor Woods moved the Dis-
trict Court to vacate the December 5, 1975 stay of its order of
December 2, 1975 releasing to plaintiff-intervenor Woods her
papers and materials within the custody of the Federal defendants.
The District Court denied the motion to vacate the stay on
January 9, 1978.
The appeals of the District Court order dismissing the consoli-
dated cases were consolidated by the Court of Appeals on January
16,1978.
On March 22, 1978, the Court of Appeals reversed the District
Court's holding that certain documents asserted by Miss Woods to
be her personal papers should be turned over to her.
The Appeals Court determined that the criteria which had been
used by archivists to determine that the documents sought by
Miss Woods were her personal papers were not compatible with
the purposes of the Presidential Recordings and Materials Preser-
vation Act. The court concluded that:
Since an elaborate regulatory scheme has now been es-
tablished by the Administration the most appropriate dis-
position of this case is to dismiss appellee's suit without
prejudice, and to remand her to her administrative reme-
dies. Should those remedies prove unavailing, she will be
able at that time to seek judicial review under 105(a) of
the Act. [Slip Opinion at 14, this report at 256. (footnote
omitted).]
Status.-The consolidated cases are pending before the U.S.
Court of Appeals for the District of Columbia. The complete text of
the decisions of the Court of Appeals and of Judge Richey are
printed in the "Decisions" section of the report of Court Proceed-
ings and Actions of Vital Interest to the Congress, April 15, 1975.
The complete text of the opinion of the three-judge District Court
is printed in the "Decisions" section of the report of Court Proceed-
ings and Actions of Vital Interest to the Congress, April 15, 1976.







The complete text of the Supreme Court's opinion is printed in
the "Decisions" section of Court Proceedings and Actions of Vital
Interest to the Congress, Part 2, August 15, 1977.
The complete text of Judge Robinson's memorandum of Septem-
ber 21, 1977, was printed in the "Decisions" section of Court Pro-
ceedings and Actions of Vital Interest to the Congress, Part 3,
December 31, 1977.
The complete text of the opinion of the Court of Appeals regard-
ing the ownership of Miss Woods' materials is printed in the "Deci-
sions" section of this report at 243.
Nixon v. Solomon (Newly Reported Case)
Civil Action No. 77-1395 (D.D.C.)
Brief.-This action was originally filed by former President Rich-
ard Nixon against Joel W. Solomon, as Administrator of General
Services in U.S. District Court for the District of Columbia on
August 10, 1977. The complaint sought declaratory and injunctive
relief from certain provisions of the Regulations (41 C.F.R. 105-
63) promulgated by defendant pursuant to the Presidential Record-
ings and Materials Preservation Act (hereinafter "Act"), 44 U.S.C.
2107 (1976) and from their enforcement by defendant. Nixon
amended his complaint on August 19, 1977, in response to amend-
ment of the regulations made on August 12, 1977 to challenge
specifically sections 105-63.203, 105-63.204 (d) (e) (f) and (g), 105-
63.302 and 105-73.303 of those regulations. The complaint was
again amended on January 31, 1978.
In the second amended complaint, the first and second causes of
action, out of a total of 19 causes of action, relate to the role of
Congress in enacting Section 104(b) of the Act and in the promulga-
tion of the regulations pursuant thereto. Mr. Nixon asserts, in the
first cause of action, that Section 104(b) and all of the regulations
promulgated pursuant thereto are unconstitutional, void, and vio-
late his rights and privileges in that:
(a) Section 104(b) on its face violates the Separation of
Powers doctrine embodied in Articles I, II and III of the
United States Constitution by reserving to Congress the
power to disapprove regulations promulgated to adminis-
ter an act, which is an Executive function and not within
Congress' power under Article I;
(b) Section 104(b) on its face constitutes an unlawful
delegation of legislative power to one House of Congress;
(c) Section 104(b) on its face illegally permits Congress to
evade the presidential veto requirements of Article I, 7,
clauses 1, 2 and 3 of the Constitution by taking actions
having the effect of laws but without following lawful
legislative procedures;
(d) Section 104(b) on its face violates Article I of the
Constitution and the Separation of Powers doctrine by
reserving to each House of Congress the power to change
at any time the rules set by the Act under which proposed
regulations may be disapproved, thereby permitting either
House of Congress to accomplish an amendment of the Act
without the signature of the President or a congressional
override of a presidential veto; and


29-4l5 (0 78 i







(e) Section 104(b) on its face purports to endow a House
of Congress with powers outside those specifically enumer-
ated in Article I of the Constitution or necessary and
proper to such specifically enumerated powers. [Nixon v.
Solomon, C.A. No. 77-1395 (D.D.C.), Second Amended Com-
plaint For Declaratory and Injunctive Relief at 5-6.]
The second cause of action asserts that Section 104(b) of the Act
is unconstitutional as applied in this case because Congress, under
color of Section 104(b), improperly, unlawfully and unconstitution-
ally influenced the promulgation of regulations under the Act, in
derogation of plaintiff's rights and privileges.
The Justice Department filed its answer on April 14, 1978. In
regard to the first and second causes of action, the Justice Depart-
ment "admitted" these paragraphs of the complaint "in that the
fourth and now effective set of regulations are, in part or in whole,
the product of the exercise of the Congressional one-House veto
provided by Section 104(b) of the Act." [Answer at 2.]
The Reporters Committee for Freedom of the Press, American
Historical Association, American Political Science Association,
James MacGregor Burns, Nat Hentoff, Donald G. Herzberg, Wil-
liam Leuchtenberg, Arthur Link, J. Anthony Lukas, Austin
Ranney and Clement E. Vase moved to intervene as defendants on
April 24, 1978.
Status.-The case is pending before the District Court.
Atkins v. United States
No. 77-214 (U.S. Supreme Court)
Brief--Plaintiffs in these cases are 140 judges of United States
District Courts and United States Courts of Appeals. Filed in the
United States Court of Claims on March 25, 1976, the complaint is
based on Article III, Section 1 of the Constitution of the United
States which states that "The Judges, both of the supreme and
inferior Courts, shall * receive for their Services, a Compensa-
tion which shall not be diminished during their Continuance in
Office."
The complaint asserts that from March 15, 1969 to October 1,
1975, the nominal salaries of judges on both District and Circuit
Court levels remained the same, but that their compensation was
actually greatly diminished because of inflation; that in 1973, the
Commission on Executive, Legislative, and Judicial Salaries (here-
inafter "Commission"), pursuant to the Federal Salary Act of 1967
(2 U.S.C. 351 et seq.), recommended to the President that judicial
salaries be increased by 25 percent to offset the effects of inflation
from 1969 to that time, but that then-President Nixon rejected that
proposal and instead recommended increases of 71/2 percent effec-
tive each March from 1974 to 1976; and that even these smaller
increases were prevented from being implemented by a "one-House
veto" by the Senate.
The plaintiffs allege as a first cause of action that Article III,
Section 1 of the Constitution precludes the legislative and execu-
tive branches from reducing, either directly or indirectly, the real
value of judicial salaries and obligates those branches of the Feder-
al Government to take action to prevent diminution of judicial
compensation resulting from inflation.







As a second cause of action, the complaint states that the Feder-
al Salary Act of 1967 requires the President to submit to the
Congress every fourth year proposals for salary adjustments for the
Federal judiciary. President Nixon did this in 1974, and then, pur-
suant to 2 U.S.C. 359(1)(B), the Senate passed Senate Resolution
293 on March 16, 1974, which vetoed the recommendations. The
plaintiffs allege that this was an unlawful, unconstitutional, and
void exercise by the legislative branch of Executive power reserved
by Article II, Section 1 to the President, and that to give effect to
this action would also violate Article I, Section 1, which states that
the legislative power is vested in both Houses, and Article I, Sec-
tion 7, which allows the President the opportunity to veto acts of
Congress.
The plaintiff judges asked the court to "vitiate Congress's alleged
disobedience to the Constitution by awarding them backpay in
order to equalize the 'real dollar value' of their salary payments
since 1969 as measured by the CPI [Consumer Price Index], with
the level of compensation that Congress set for them in that year."
[Atkins v. United States, 556 F.2d 1028, 1040 (Ct. Cl. 1977).]
During oral argument before the Court of Claims, Rex E. Lee, at
that time Assistant Attorney General, Civil Division, Department
of Justice, "admitted that 2 U.S.C. 359(1)(B) is unconstitutional."
[Brief Amicus Curiae on Behalf of Frank Thompson, Jr., Chairman,
Committee on House Administration, United States House of Rep-
resentatives, Atkins v. United States, Numbers 41-76, 132-76, 357-
76 (Ct. Cl.), filed November 23, 1976.]
The clerk of the Court of Claims, in a letter dated October 14,
1976, notified the President of the Senate and the Speaker of the
House of Representatives of the action of Mr. Lee and invited them
to submit responses.
The Speaker of the House directed that a brief amicus curiae be
filed on behalf of Representative Frank Thompson, the Chairman
of the Committee on House Administration. This was done on
November 23, 1976. In its introduction, the brief alleged that there
had been no effort by counsel for the United States to preserve and
defend the constitutionality of 359(1)(B); that there was substan-
tial question as to whether the Justice Department, acting in the
name of the United States, could admit or concede that any law
enacted by Congress and signed by the President was unconstitu-
tional, especially where no express constitutional duty to see that
the laws are faithfully executed, which duty runs to the executive
departments, and which duty was breached in this case; and that
the Department of Justice should have defended the validity of the
statute or, if it was not going to do this, it should have notified
Congress so that Congress might defend the statute. As constitu-
tional arguments for upholding the validity of 359(1)(B), the
House argued that the Constitution commits to the Congress the
exclusive power to ascertain judicial compensation and permits it
to exercise this power by any means "necessary and proper"; that
359(1)(B) of the Salary Act of 1967, being one of the means
deemed "necessary and proper," is not prohibited by the separation
of powers doctrine or any provision of the Constitution; that plain-
tiffs' second cause of action is nonjusticiable since it involves a
political question; and that the pattern of cooperative accommoda-







tions between Congress and the Executive would be seriously jeop-
ardized were the "one-House veto" to be declared constitutionally
invalid.
As President of the Senate, then-Vice President Nelson A. Rocke-
feller also submitted a brief amicus curiae on November 22, 1976.
In defense of the validity of the statute, the brief stated that the
manner and means selected by Congress for determining judicial
salaries is within its legislative powers; the statutory scheme they
selected is consistent with the separation of powers doctrine; the
effect of the actions by the Congress and the President was not to
contravene the constitutional duties of either, but rather was to
allow Congress to obtain information which prevents the President
from raising salaries unilaterally and that on any law the Presi-
dent proposes, if one House doesn't sustain his proposal, it doesn't
become law; that legislative disapproval does not constitute admin-
istration of a statute; and that if the one-House veto provisions of
the Federal Salary Act of 1967 are held to be unconstitutional, the
rest of the Act is also void, as these provisions are not severable.
On May 18, 1977, the Court of Claims issued its decision. The
court first had to address the question of whether it was disquali-
fied from hearing the case because of the Judicial Disqualification
Act, 28 U.S.C. 455 and the requirements of Canon 3C(1)(C) of the
Code of Judicial Conduct of the American Bar Association adopted
by the Judicial Conference of the United States. The court decided
that the "rule of necessity", which states that a judge is not dis-
qualified from trying a case even where he has a personal interest
in the matter at issue if there is no other judge available to hear
and decide the case, authorized and required them to hear the case.
The majority next turned to the question of whether the failure
of Congress to raise Federal judicial salaries by more than 5 per-
cent since 1969, in the face of severe economic inflation in the
interim, violates Article III, Section 1, of the Constitution, and
whether, as the plaintiffs asserted, the Compensation Clause not
only protected them from substantial diminution of the purchasing
power of their salaries, but is "self-executing" in so doing, i.e., the
clause itself creates a claim against the Treasury whether or not
Congress had acted.
The executive branch had responded by asserting that the court
lacked jurisdiction in this case "precisely because it [the Compensa-
tion Clause] is not self-executing, and in any event because it
cannot be the basis for a claim for money beyond that authorized
by statute at some point during a sitting judge tenure." [556 F.2d
at 1043.]
This Government argument the court rejected noting:
If discriminatory treatment is aimed at the judiciary by
the political branches to effect what is obviously an attack
on the tenure or decisional freedom of the judges, it should
not be assumed that Article III does not mandate the
fashioning of whatever relief is necessary to alleviate the
situation. [456 F.2d 1049.]
In addressing the guaranteed real income assertion made by the
plaintiffs the court noted that earlier Supreme Court decisions had
declared that:







Indirect, nondiscriminatory diminishments of judicial
compensation, those which do not amount to an assault
upon the independence of the third branch or any of its
members, fall outside the protection of the Compensation
Clause * *. [556 F.2d at 1045.]
The majority noted however:
Plaintiffs, however, contend not only that their salaries
have, by inflation and by congressional neglect of their
plight and by congressional action on behalf of others,
been diminished in a discriminatory fashion and to an
extent that compromises the autonomy of their depart-
ment, but also that the "compensation" which the Clause
promises them will not be lowered is a compensation in
real dollars, not nominal ones. They assert that inflation
and congressional unwillingness to adjust their salaries to
mitigate the effects of it have caused a decline in that
supposedly guaranteed real income level, thus giving them
a right to recover in this action. [556 F.2d at 1045.]
The plaintiffs first argued that the debates of the Constitutional
Convention showed that the Framers intended to insure by the
Compensation Clause not merely a fixed nominal salary but a
guaranteed "real income" level. Following an analysis of the Con-
vention debate the court declared:
It must be concluded then, that the Constitution in
granting Congress the power and duty to fix judicial com-
pensation and in not forbidding it to raise that compensa-
tion from time to time, left to the sound discretion of the
political branches the adjustment of the judges' salaries as
economic and other circumstances-inflation, higher living
standards, need for better judges, more difficult cases, and
greater caseload-required. [556 F.2d at 1048.]
As to the Government's assertion that the Compensation Clause
is not "self-executing," the court noted:
By this is meant, defendant explains, that the Clause
itself requires Congress to act in the first instance to set
the judges' nominal dollar salaries, before the Clause's
protection comes into play. If Congress does not alter the
nominal dollar figures, reasons defendant, no help can be
forthcoming from the Clause for plaintiffs benefit beyond
that which they enjoy under the existing salary levels. [556
F.2d at 1049.]
To this the court replied:
The Clause's terms do not compel endorsement of de-
fendant's restrictive view that the provision is not self-
executing, and indeed its broad and benign purpose, funda-
mental to the constitutional system of checks and bal-
ances, leads to the contrary conclusion. Defendant's objec-
tion cannot stand to bar judicial relief pursuant to the
Clause where a proper claim for relief is established. [556
F.2d at 1049.]







As to plaintiffs' argument that the court, as a matter of law,
must allow judges greater compensation in order to attract individ-
uals of high caliber to the Federal bench the court concluded:
Certainly, if less than adequate salaries could be set by
Congress in the first place, the real value of which alone is
protected from diminishment by the Clause, it is difficult
to understand how one can find in the Clause a promise of
compensation adequate to lead those high in professional
standing to quit the practice of law in favor of judicial
posts. In addition, deciding upon the level of salary "ade-
quate" to attract "quality" personnel is somewhat prob-
lematic-it is first necessary to define "quality" and to
determine what degree of it is sought after. The Constitu-
tion obviously gives no answer to this problem, nor does it
instruct how much an otherwise adequate salary may
properly be discounted to allow for the honor and public
service "sacrifice" that historically have accompanied judi-
cial office. We take notice of the fact, however, that the so-
called "psychic income" some attribute to the prestige of a
federal judgeship is not legal tender for the payment of
bills judges incur just the same as do other citizens. Yet,
these are matters for Congress to resolve, and no claim for
relief here may be founded only on plaintiffs' equation of
salary adequacy and personnel quality. [556 F.2d at 1050.]
The court proceeded to reject two other arguments offered by the
plaintiffs in support of their claim that the Compensation Clause
entitles them to a real dollar compensation increase absent an
assertion of discriminatory attack. First, the court rejected the
assertion that the term "compensation" as applied to remuneration
for judges inherently implied the idea of payment in "real value"
as opposed to payments in nominal amounts. Next, the court reject-
ed the plaintiffs' assertion that absent some linkage of judicial
salaries to an inflation index judges would bo subjected to "feelings
of dependence upon the legislature for the maintenance of their
compensation." [556 F.2d at 1051.]
To this assertion the court replied:
The answer is that, while this may be true, no violation
of the Constitution --suits. The Compensation Clause,
though established in large part to guarantee the indepen-
dence of the judicial department, permits and even con-
templates a "feeling of dependence upon the legislature"
to an extent. The Clause itself allows Congress to vary the
nominal dollar value of judges' salaries by way of increase.
[556 F.2d at 1051.]
The court concluded:
In sum, this court has no power to grant relief on plain-
tiffs' complaint that inflation without substantial pay in-
creases has diminished the real value of their official sala-
ries, for the Constitution affords no protection from such
an indirect, nondiscriminatory lowering of judicial com-
pensation, not involving an assault upon the independence
of judges. [556 F.2d at 1051.]







The court also rejected the Government's argument that the
claim for increased compensation required by inflation presents a
political question and is therefore nonjusticiable. In support of this
argument assertion the Government had asserted:
[A] decision in plaintiffs' favor on count I would (1) consti-
tute a major incursion into the compensation-fixing re-
sponsibilities of the political branches, (2) involve the court
in an area devoid of judicially discoverable and manage-
able standards for resolution, and (3) amount to the setting
of judicial salaries by judges. [556 F.2d at 1052.]
Taking each point sequentially the court replied:
Defendant's first point, that a judgment giving plaintiffs
compensation in excess of that set by statute would imper-
missibly intrude into the responsibilities of the President
and Congress, seems based on the notion that the Constitu-
tion commits the fixing of judicial compensation only to
the discretion of the political branches. It is true that the
Compensation Clause envisages the participation of both
the legislative and executive branches in setting judges'
salaries. However, as should by now be plain, the Clause
goes on to declare that those salaries, once set, "shall not
be diminished" while the judges continue in office. How
can it be said that the matter of judicial compensation is
totally committed by the Clause to determination by Con-
gress and the President, without opportunity for judicial
intervention, when the Clause contains language that
pointedly limits the kind of determination they may
make? [556 F.2d at 1052.]
*
Likewise, we cannot agree that plaintiffs' claim should
be ruled nonjusticiable for want of judicially discoverable
and manageable standards. The standards for determining
the existence of a discriminatory attack on the judiciary
can hardly be called difficult to discern or apply. The
federal courts have amassed considerable experience in
discrimination claims of many varieties under the fifth
and 14th amendments. [556 F.2d at 1053.]
i* *
The molding of relief may well present more of a prob-
lem. However, considering the imponderables involved in
fashioning relief in such areas as reapportionment, school
desegregation, antitrust, and Indian land rights, in all of
which areas the courts have undertaken in the recent past
to relieve violations of rights, the computation of a recov-
ery for plaintiffs in the event they establish their discrimi-
natory attack claim would be relatively simple. [556 F.2d
at 1053.]
* *
The basis in the political question doctrine of defend-
ant's third argument for nonjusticiability, that judges







would be engaged in the task of setting their own salaries,
is difficult to perceive. In part this seems to recall defend-
ant's original disqualification objection, disposed of in the
discussion under part I of this opinion. To the extent it is
an independent objection, it has already been answered in
our treatment of defendant's first criticism, that a decision
on count I would amount to an incursion into the responsi-
bilities of the political branches. In disposing of a discrimi-
natory attack claim in plaintiffs' favor, the court would
ultimately undertake to adjust judicial salaries. However,
the court would not be doing so in a vacuum; informing
and guiding the relief settled upon would be not only the
surrounding economic circumstances, judicially proved, but
also the treatment accorded to other classes, not subject to
discrimination, by the President and Congress. The initial
policy determinations regarding the real compensation
that judges should receive would always remain with the
political branches. Defendant's third point, if it has any
substance, fails to convince us that this case presents a
nonjusticiable political question. [556 F.2d at 1053-1054.]
The court then considered whether the allegations made by the
plaintiff showed a discriminatory attack upon the judiciary by the
other two branches and if so whether such discrimination is redres-
sable in the action before it.
On this point the court stated:
To make out a case, plaintiffs need not show a direct
diminution of judicial compensation, but the indirect dim-
inution that they complain of must be of a character dis-
criminatory against judges and, paraphrasing Justice
Holmes, must work in a manner to attack their indepen-
dence as judges. Plaintiffs need to demonstrate the exis-
tence of a plan fashioned by the political branches, or at
least of gross neglect on their part, ineluctably operating
to punish the judges qua judges, or to drive them from
office despite the Constitution's guarantee of tenure in
office, "during good Behaviour." U.S. Const. art. III, 1
(hereinafter Tenure Clause). Whether, to merit relief the
discrimination must be intentional, or may be in effect
only, we need not decide now. [556 F.2d at 1054.]
Noting the interrelationship between the Compensation Clause
and the Tenure Clause, the court, citing Justice Story's commen-
taries on the Constitution, stated:
Without the one provision, he said, guaranteeing an un-
diminished compensation, "the other, as to the tenure of
office, would have been utterly nugatory, and indeed a
mere mockery." 2 STORY ON THE CONSTITUTION
1628 (5th ed. 1891). The two clauses are inextricably tied
to one another in pursuit of securing judicial indepen-
dence, and to allow the indirect diminution of judges sala-
ries to accomplish what the political branches are forbid-
den to do directly under the Tenure Clause would be to
sanction a deplorable ruse at the expense of constitutional
principle. If plaintiffs can demonstrate that the 7-year







freeze on federal judicial pay has brought about or immi-
nently threatens to bring about the general demise of
tenure in judicial office, for want of means on the part of
judges to meet the cost of living, they will have gone far
toward showing the compromise of the Tenure Clause's
integrity in the very fashion that its twin, the Compensa-
tion Clause, was designed to prevent, and thus will have
gone far to make their case of an assault on judicial inde-
pendence by economic duress. [556 F.2d at 1055.]
The court noted that the plaintiffs could not show any such
"mass exodus" of judges from the Federal bench.
As further evidence that no discriminatory attack against the
judiciary was underway, the court pointed to the general salary
freezes in the executive and legislative branches. In this regard the
court noted a general antagonism in the public at large against
salary increases for high Government officials as well as the judg-
ment of Congress and the President through the Salary Commis-
sion that the salaries in the three branches of Government should
be linked.
As a second count the plaintiffs had attacked the one-House veto
as violative of:
1. Article I, Section 1 of the United States Constitution, which
vests the legislative power in a "bicameral legislature" not in one
House alone.
2. Article I, Section 7 which vests in the President veto power
over every order, resolution or vote to which the concurrence of
both the House and Senate is necessary.
3. Article II, Section 7 which vests all executive power in the
President.
An analysis of the constitutionality of the one-House veto in the
Salary Act, the court noted, calls for two fundamental inquiries:
1. Does it conflict with the constitutional powers and obligations
of Congress as a whole acting through both Houses?
2. Does it invalidly intrude on the constitutional sphere of the
President?
The answers to these questions, the court concluded, are domi-
nated by several special factors:
1. The subject matter (official pay) is at the heart of Congress
own competence and concern.
2. The fixing of pay scales may be delegated to the President.
3. In making the delegation Congress retained an interest in its
own pay and the relationship of its pay to judges and other offi-
cials.
4. Although it wished to delegate authority, Congress wanted to
retain "a large measure of control" over the pay levels to be set.
5. The President's salary proposals do not, even when they
become law, regulate any person either actually or potentially. The
recommendations do not affect the rights of others nor do they
restrict any preexisting rights or privileges of anyone other than
those whose pay is thereby established.
The court noted that the constitutional underpinning of 359(1)(B),
the one-House veto device used here, is a combination of Article I,
Section 1, which vests legislative power in the Congress, and Arti-







cle I, Section 8, clause 18, the so-called "Necessary and Proper"
clause:
"Article I, Section 1, endows Congress with the broadest
reach of power in this instance, so long as executive func-
tions are not infringed and presidential veto rights not
compromised, because the subject of the one-House veto,
the salaries of judges and congressmen and other Govern-
ment officers, is at the center of the congressional sphere.
On this foundation, the necessary and proper clause autho-
rizes Congress to choose, first, to delegate the initial power
to make proposals to the President, and, then, to select for
itself the appropriate method for checking and monitoring
the President's action." [556 F.2d at 1061.]
*
"Where there has been no violation of separation-of-
powers principles or of any specific provision of the Consti-
tution, the necessary and proper clause can authorize a
given method of obtaining a desired result, as well as
ground a substantive provision (as in McCulloch). We
therefore see no reason why the one-House veto should fail
of authorization unless one of plaintiffs' three criticisms of
the device listed above establishes such a violation." [556
F.2d at 1061.]
The court noted that the allegation that the one-House veto
violates the bicameral nature of the legislative process established
by Article I, Section 1 was based on plaintiffs' syllogism:
1. Congress possesses only those powers delegated by the Consti-
tution.
2. The Constitution delegates only legislative power to Congress.
3. All legislative power is delegated to both Houses, acting bi-
camerally.
4. The one-House veto is either a legislative act or it is not.
5. If it is not legislative it is beyond the power of Congress.
6. If it is legislative, Congress must follow the constitutionally
prescribed legislative route which involved action by both Houses.
In considering the plaintiffs' arguments, the court concluded that
it must initially determine whether either House may perform
some actions without concurrence of the other body. If so, does the
legislative veto provision involved in this case fall within that class
of acts which may properly be carried out unicamerally?
First, the court declared that legislative action need not always
be bicameral. The court noted that the purpose of Article I, Section
1 is to locate in the Congress rather than in the executive or the
judiciary the central source of legislative authority. It declared that
"the clause does not itself, as a textual matter, mechanically direct
the manner in which Congress must exercise the legislative
power." [556 F.2d at 1062.] The court added that while Article I,
Section 1 requires Congress to confine itself to legislative matters,
the clause does allow some measure of leeway for the manner in
which Congress fulfills its legislative function.
Turning to the second element of this consideration the court
decided that:







[T]he one-House veto here in controversy-being confined
to the matter of salaries traditionally within the peculiar
provenance of the legislative branch, not impinging upon
Presidential functions or veto rights, and having no effect
upon persons other than those whose salaries are at
issue-does not fall within the class of acts that Congress
must perform through the concurrence of both Houses, but
rather is properly exercisable by a single House. [556 F.2d
at 1063.]
The court noted that in this case the one-House veto did not
make new law, but rather preserved the status quo:
[H]ad neither House approved a resolution withholding
effectiveness from the new salary rates, they would indeed
have become the law with the running of time, but it is
essential to realize that they would have done so, and
received the authority for their effectiveness, not in and of
themselves, but solely through the mandate of the Salary
Act, which was a statute enacted by both Houses of Con-
gress and signed by the President. [556 F.2d at 1063.]
The Salary Act, by its own terms provided that the President's
recommendations would become effective only "absent objection
from either House of Congress." [556 F.2d at 1063.]
The court further noted that in this context, the one-House veto
is not "a device employed for the circumvention of the Constitu-
tion's scheme for the enactment of statutes." [556 F.2d at 1065.]
Nor does it expand or contract the powers of either House or of the
Congress.
The second constitutional argument presented by the plaintiffs
was that the one-House veto usurps the President's constitutional
right to have sole veto power over the law. On this point the court
concluded that the President's veto power related only to those
legislative actions requiring the concurrence of both Houses and
since the one-House veto was not such a legislative action, the
language of the clause requiring that legislation be presented to
the President is not applicable in this instance. The court noted:
"As for the policy of preserving the President's veto
power vis-a-vis Congress, the problem handled by this par-
ticular Salary Act reflects perhaps the least need for such
a veto with respect to rejection of Presidential pay recom-
mendations." [556 F.2d at 1065.]
The court also noted that the President "is not forced to recom-
mend any increase or decrease [in pay levels]; he can simply pro-
pose no change in the existing law. If he does that a statute will be
necessary to modify the rates of pay (in the case of judges only to
the extent constitutionally allowable). All in all, the possibility of
undue legislative encroachment on the Executive-the focus of the
Framers' stress on the veto power-is minimal in this situation."
[556 F.2d at 1065.]
The third assault by the plaintiffs upon the constitutionality of
the one-House veto is their assertion that it is violative of the
"separation of powers" doctrine. The plaintiffs principle objections
were:







1. The legislative power to adjust salaries, once delegated, be-
comes an Executive power. This argument the court rejected con-
cluding that "when Congress delegates authority to the kind we
have here to a member of the executive branch, the delegation does
not convert the authority granted into irrevocable executive power,
because in exercising the delegated functions, the executive officer
merely acts as an agent of the legislative branch of the govern-
ment." [556 F.2d at 1068.]
2. The legislative veto in the Act abrogates the President's consti-
tutional duty to faithfully execute the laws. To this assertion the
majority responded that "[i]n decrying the legislative veto as an
abrogation of this constitutional 'power', plaintiffs propose an ex-
pansionist construction of this provision, conferring on the Presi-
dent implied powers which in some way are transgressed by the
one-House veto in the Salary Act." On this point the court conclud-
ed: "Whatever power the President exercises under the Salary Act
comes not from Article II, but from the delegation of Congress
pursuant to the necessary and proper clause." [556 F.2d at 1068.]
3. "Congress can delegate power and can even delegate power
with conditions, but it cannot affix an unconstitutional condition
upon the delegation, i.e., review or veto by one House." [556 F.2d at
1065.] To this the majority replied: "The doctrine of unconstitution-
al condition is in no way pertinent to this case because as we have
suggested repeatedly, the ultimate power with respect to judges'
and others' salaries-and that is all that is involved here-is vested
by the Constitution in Congress and not in the President." [556
F.2d at 1068.]
4. "The legislative veto involves Congress in day to day adminis-
tration and hence expands the role of legislators into administra-
tors in violation of Article I, Section 6, Clause 2." [556 F.2d at
1066.] That provision precludes a Member of Congress "during the
time for which he was elected [from being] appointed to any civil
office under the authority of the United States which shall have
been created, or the Emoluments whereof shall have been in-
creased during such time; and no Person holding any Office under
the United States, shall be a Member of either House during his
continuance in Office."
This argument the court rejected stating that the weakness of
plaintiffs "Office" argument is found in the reason for the adop-
tion of Article I, Section 6. This provision was generated out of a
fear that corruption would result if the legislature multiplied the
number or increased the salaries of public officials for the benefit
of its own members. The legislative veto creates no new offices for
Members of Congress.
In pressing the argument on this point, the plaintiffs had in part
relied on the Supreme Court's recent opinion in Buckley v. Valeo,
424 U.S. 1 (1976), in which the validity of the Federal Election
Campaign Act had been challenged. The Court declared: "plaintiffs
reliance on Buckley v. Valeo, supra, is misplaced. There the Su-
preme Court held that because of the broad enforcement power
given by the Congress to the Federal Election Commission, Con-
gress was precluded from vesting in itself the appointment power
over Commission members. The decision is based squarely on the
appointment power being consti utionally lodged in the Executive







under Article II, Section 2, clause 2. Manifestly Congress has no-
where in the Salary Act attempted to exercise the power of ap-
pointment." [556 F.2d at 1070.]
In a separate opinion, Judge Nichols concurred in the reasoning
and results of the court on the one-House veto issue, and concurred
in the result reached by the court on the inflation and salary
diminution claim, but for different reasons.
He first discussed the question of whether or not the court had
jurisdiction to hear the case. He said that two barriers exist which
the plaintiffs must surmount. The first is statutory-28 U.S.C.
455, as amended (Supp. V., 1975), which requires the disqualifica-
tion of judges in cases where their impartiality might be ques-
tioned. While Judge Nichols stated that anyone might reasonably
question his impartiality, he concluded that the question of the
disqualification of the judges on the Court of Claims could be
waived and had been waived by the parties. If, he said, the Court of
Claims did not have jurisdiction because of disqualification under
28 U.S.C. 445, then the fact that no other court could entertain
the case did not permit the Court of Claims to entertain it under
the "doctrine of necessity" because the Court of Claims is a court of
limited jurisdiction.
He declared:
To me it seems absurd for a court having such limited
jurisdiction to invoke a "doctrine of necessity," saying we
must override an unambiguous statutory bar because if we
do not, the poor fellows have no remedy. If they have
none, they only join a club that has many other members.
The "doctrine of necessity" to my mind exists only for
courts of general jurisdiction and cannot be availed of to
override unambiguous jurisdictional limits. [Atkins v.
United States, (Nichols, J., concurring); 556 F.2d at 1072.]
Judge Nichols discerned a second jurisdictional barrier in the
maxim that no one can sue for the salary of a position, except a
salary fixed by law as the salary of the position that individual
actually holds, or held until unlawfully removed. Applying this
concept to the case before it, Judge Nichols declared that the Court
of Claims did not have jurisdiction to decide the action. He also
rejected the plaintiffs' contention that their Article III rights are
self-executing.
Stating that he recognized that nothing in his concurring opinion
could ever be quoted as "the law", Judge Nichols then discussed
the merits of the inflation and salary diminution claim.
Congress may well have a duty to offset the effect of inflation on
salaries, he reasoned, but just because there is a constitutional
violation does not mean it is remediable in court. Congress may
have a duty to remedy the constitutional violation itself or widen
the jurisdiction of the courts so they may do it, but Congress can
not be forced to do either. He believed that Article III was violated
by Congressional inaction, even including the passage of the Feder-
al Salary Act, and that some kind of damages, even if nominal
should be available. However, since he was of the view that the
court lacked jurisdiction he would never have reached the merits of
this action.







Senior Judge Skelton, with whom Judges Kashiwa and Kunzig
joined, wrote an opinion in which they concurred with the majority
that the Constitution does not require the executive and legislative
branches to take steps to offset the diminution in judicial salaries
caused by inflation, but dissented from the majority's holding that
the one-House veto is constitutional.
The minority opinion declared that the one-House veto violates
(1) Article I, Section 1, which vests the legislative power of the
United States in a Congress, and not in one House, (2) Article I,
Section 7, clause 3, which reserves to the President the power to
veto every order, resolution, or vote to which the concurrence of
the Senate and House of Representatives may be necessary, (3)
Article II, Section 1, which vests all Executive power in the Presi-
dent, and (4) the separation of powers doctrine.
The opinion noted that the first law containing a one-House (or
committee) veto was not enacted until 1939, and that every Presi-
dent since Herbert Hoover has been of the opinion that the one-
House veto is unconstitutional, and each has been supported in this
by his Attorney General. The minority also reviewed statements
made by high ranking Government officials, who during their gov-
ernmental careers had asserted the unconstitutionality of the one-
House veto. In addition, the minority noted that:
It is very significant and most persuasive that the 140
able, experienced, and knowledgeable federal judges who
filed these suits, together with their distinguished attorney
former Supreme Court Justice Arthur Goldberg, all of
whom are learned in constitutional law, believe the one-
House veto is unconstitutional as shown by the allegations
in their petitions and the arguments in their briefs. [556
F.2d at 1077.]
The three judges quoted from Judge MacKinnon's dissent in
Clark v. Valeo, in which he concluded that the one-House veto is
unconstitutional because, inter alia:
[it] makes it possible for a bare majority of a quorum
(which frequently occurs) in either House of Congress to
influence regulations constituting "rules of law," while
completely depriving the President, possibly one-House of
Congress, and one-third plus one of the members of each
House, from exercising legislative power supposedly vested
in them by the Constitution. Short reflection upon the
enormity of these constitutional violations will convince
anyone of the tremendous harm they cause to the basic
procedures that the Constitution provides for the enact-
ment of legislation to govern the Nation. [Emphasis in
original] [Slip Opinion at 10.] [Quoted in Atkins v. United
States; 556 F.2d at 1078.]
Judge MacKinnon's analysis is important, the minority added, be-
cause his is the only opinion written by an appellate judge which
has considered the question of the constitutionality of the one-
House veto in depth.
Furthermore, the minority was troubled by the fact that Clause
B of the Salary Act allows one House to invalidate all or any part
of the President's recommendations. They found that:







the vice of the one-House veto created by Clause B of the
Act is compounded by the fact that in exercising such veto
by a bare majority of a quorum of either House a small
group of Senators or Representatives, or even a larger
group, can do so selectively, that is, they can veto "all or
part" of the salary adjustments made by the President and
there is no recourse or appeal from their decision. In this
manner they can dictate, change, or rewrite the salary
adjustments made by the President. Not even the Presi-
dent has such an "item veto" nor the security that his veto
will not be overridden. Such a system ignores and is con-
trary to the Constitution and the doctrine of Separation of
Powers of our Government. [556 F.2d at 1078-1079.]
The minority also believed that greater weight should have been
given to the fact that in arguing the Government's position, Assist-
ant Attorney General Lee conceded at oral argument the unconsti-
tutionality of a one-House veto, and had added that if this were a
proper case, nothing would please him more than to have the court
so rule. The minority concluded that since Mr. Lee was arguing for
the Government, and since 28 U.S.C. 516 reserves the conduct of
this type of litigation to the Justice Department, the Government
should be bound by this admission.
The minority then discussed the Salary Act itself. Congress has,
the minority noted, the constitutional power to fix the salaries of
Federal judges. This power can be delegated and was validly dele-
gated to the President by the Salary Act. Once made, said these
judges, the delegated power became Executive in character and
remains such until both Houses pass legislation withdrawing it. No
such legislative rescission occurred here. They also asserted that
while the majority and the statute speak of the President's propos-
als as "recommendations," it is clear that the meaning and intent
of the statute was to delegate to the President the power and
authority to set judicial salaries, and not just make recommenda-
tions. This was shown by the fact that the President's proposals
became law when the salaries set in 1967 and 1977 became effec-
tive without any Congressional action. Had they been merely "rec-
ommendations,' said the minority, they could not have become law
without the approval of both Houses of Congress. They further
stated that:
Actually, these salary adjustments could be said to have
the status of regulations issued by the heads of the various
departments and other executive agencies of the govern-
ment pursuant to statutes enacted by Congress. Such regu-
lations have the force and effect of law without any action
being taken regarding them by Congress. No one would
contend that one House of the Congress could invalidate
any of such regulation by a simple resolution. [556 F.2d at
1080.]
The minority further declared that since the one-House veto is
legislative in character, it violates Article I, Section 1 of the Consti-
tution which provides that all legislative power is vested in a
Congress consisting of a Senate and a House of Representatives.
The violation occurs because the House not exercising the veto







power is deprived of its authority to enact legislation. In addition,
Article I, Section 7, clause 3, is violated in that the President is not
given an opportunity to approve or veto the legislation. The minor-
ity reasoned that assuming arguendo that the one-House veto
power is not legislative, it is clearly not judicial-but if it is Execu-
tive, then its use violates the Constitution, because neither House
nor both Houses nor officials of either House can exercise Execu-
tive powers, and because Article II, Section 1 provides that all
Executive power is vested in the President. In addition, the doc-
trine of separation of powers is violated.
Finally, the minority disputed the claims of the Congressional
amici that this was a valid enactment under the "Necessary and
Proper" clause. The minority declared:
The broad interpretation they give to this provision of
the Constitution would authorize Congress to enact any
and all kinds of legislation that suits its fancy so long as it
does not conflict with an express provision of the Constitu-
tion. But as the plaintiffs point out, Congress can exclude
aliens, but it could not admit aliens on condition that they
agree not to exercise free speech. Further, Congress can
confer jurisdiction upon the courts, but it cannot confer
jurisdiction subject to the condition that judicial decisions
must first be approved by the Senate Committee on the
Judiciary. In other words, whether Congress can condition
a delegation of authority depends upon the validity of that
particular condition. This clause of the Constitution does
not authorize Congress to ignore the bicameral provision
of the Constitution, nor the necessity of submitting to the
President every resolution to which the concurrence of
both Houses are necessary, nor the provision that all ex-
ecutive authority is vested in the President. These provi-
sions of the Constitution, in effect, prohibit the one-House
veto, and the "reasonable and necessary" clause does not
authorize Congress to ignore or transgress these funda-
mental provisions of our Constitution. No one can contend
that the Constitution authorizes the one-House veto. A
reasonable interpretation of its provisions points the other
way. [556 F.2d at 1081-1082.]
Having determined that Clause B should have been held uncon-
stitutional, the minority turned to the issue of severability. The
test, as they enunciated it, was (1) are the valid provisions of the
Act capable of standing alone, and (2) would the legislature have
intended them to stand alone without the invalid provisions. Under
this test, the minority concluded that Clause B is severable, and
the remainder of the Act should continue in full force. They con-
cluded that (1) the absence of a severability clause should not lead
to a presumption of inseverability, (2) the legislative history
showed that the one-House veto had little importance in the debate
and Congress would have passed the Postal Revenue and Federal
Salary Act of 1967 without the one-House veto provision, (3) remov-
ing Clause B would not end legislative control over judicial salaries
because Congress can still pass legislation altering the President's
recommendations, and (4) Congress willingly delegated its authori-
ty in this area, as witnessed by the Federal Pay Comparability Act







of 1970, the Executive Salary Cost of Living Adjustment Act (which
extended the provisions of the 1970 Act to judges, among others),
and the 1977 pay raise under those acts. Finally, the minority
viewed the way one-House veto bills have been treated as being
dispositive of the severability issue. As noted earlier, each Presi-
dent since Hoover has stated his belief that the one-House veto is
unconstitutional-yet many bills with one-House provisions have
been enacted. The minority declared that a President obviously
would not sign a bill which contained a provision he believed was
unconstitutional if he did not believe that the unconstitutional
provision was severable, since he would then in effect be signing
into law a bill which would be unconstitutional. Noting that Presi-
dent Johnson believed the one-House veto was unconstitutional,
the minority stated that he would only have signed the Federal
Salary Act if he believed that the one-House provision was sever-
able, thus allowing the rest of the Act to stand.
The minority next discussed the Government's contention that
the Court of Claims lacked jurisdiction because the statute could
not be interpreted as "mandating compensation by the Federal
Government for the damages sustained." This argument was based
on the claim that Clause B was not severable from the remainder
of the act, and therefore, if Clause B is unconstitutional, the whole
Act must fall. Since the minority found Clause B severable, they
also found the assertion of lack of jurisdiction to be without merit.
Furthermore, the minority rejected the Government's contention
that no relief could be granted if a portion of the Act must first be
declared unconstitutional.
Finally, the minority discussed the defendant's argument that if
the court declared the one-House veto unconstitutional the decision
should only be applied prospectively. The Government asserted
first that Congressional reliance on Clause B should preclude the
court from applying the unconstitutionality of the Act to the par-
ties in the case. Congress had used Clause B in 1973 to override the
President's pay recommendations. Had the Congress known that
Clause B would be declared unconstitutional, they would have
passed a statute pursuant to Clause A(1) said the Government. The
minority rejected this argument, concluding that Congress would
always act according to constitutional methods if the alternative
presented is to place reliance on an unconstitutional method rather
than on constitutional procedures. To accept defendant's argument
would make prospective application the general rule when laws are
declared unconstitutional. This would be improper, the minority
noted because the Supreme Court has ruled that neither propsec-
tive nor retrospective application is automatic, but that each case
must be looked at individually. Nor did the minority agree with
the defendant that a decision of unconstitutionality should be ap-
plied only prospectively because otherwise it would be inequitable
to Congress. On the contrary, they said, to apply it only prospec-
tively would be inequitable to the plaintiffs who brought the suit,
since it would deny them relief and discourage other plaintiffs
from challenging the constitutionality of statutes.
As a second argument for prospectivity, the Government asserted
that plaintiffs should not be allowed to attack the constitutionality
of an act under which they have received benefits. The minority


24-415 0 -







said that in the cases the defendants cited as supporting this argu-
ment the plaintiffs in those actions had attacked the entire legisla-
tive scheme under which they had received benefits, whereas in
the instant case plaintiffs attack only one provision which has not
only not benefited them, but has denied them benefits.
The minority would have remanded the case to the trial judge to
determine the amount due the plaintiffs, but would have denied
them interest on their claims.
In addition to joining in Judge Skelton's opinion, Judge Kashiwa
wrote an opinion concurring in part and dissenting in part. He said
that when the President recommends salary increases there are 30
different possibilities in which a House may disapprove them
either totally or partially. Of these, 28 are partial disapprovals
which allow the other recommendations to become effective-and,
argues Judge Kashiwa, these salary changes are changes in the
law. Thus changes are made in the law by the action of only one
House, clearly a violation of the Constitution. He submitted:
that since the provision is unconstitutional in 28 out of 30
instances (93 percent), the entire provision is unconstitu-
tional in toto in that it has been held that where a portion
of a statute is unconstitutional in the vast majority of its
intended applications, and it can fairly be said that it was
not intended to stand as valid on the basis of fortuitous
circumstances only in a fraction of the cases it was origi-
nally designed to cover, the statue cannot be permitted to
stand. [556 F. 2d at 1094.]
Judge Kashiwa noted the relationship between the salaries cov-
ered by the Salary Act in all three branches of Government, assert-
ing that the one-House veto would be "obviously unconstitutional"
if used as a partial veto in rejecting some salary proposals while
allowing others to become effective. Therefore, he concluded, Con-
gress would veto all raises, including those it actually believed to
be justified, in order to block the raises it felt were not justified. He
stated:
The practical effect of the unconstitutionality in the case
of the 28 instances above mentioned is to defeat the pur-
pose of the relationship clauses and to create a situation
where deserving persons such as the plaintiffs in the pres-
ent case will not be given raises which they deserve be-
cause a partial veto cannot be made even though the
statute as Congress intended allows it. Because of the obvi-
ous unconstitutionality in the 28 out of 30 instances and
its adverse practical effect and operation as above illus-
trated, it is my opinion that the single-house veto clause is
unconstitutional in toto. [556 F. 2d at 1094.]
As for standing to challenge the partial vetoes, Judge Kashiwa
said that the plaintiffs had standing because the Government,
through Assistant Attorney General Lee, had stated that the one-
House veto is unconstitutional, and thus it had waived its objec-
tions to plaintiffs' standing to challenge the 28 partial veto possi-
bilities as well as the two total vetoes. He concluded that:
The loaf ( 359(1)(B)) in this case is made up of 28 bad
slices and of 2 slices which the majority claims are good