Report of the Joint Committee on Congressional Operations pursuant to Section 402(a)(2) of the Legislative reorganizatio...

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Report of the Joint Committee on Congressional Operations pursuant to Section 402(a)(2) of the Legislative reorganization act of 1970 identifying court proceedings and actions of vital interest to the Congress
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Table of Contents
    Front Cover
        Page i
        Page ii
    Table of Contents
        Page iii
        Page iv
    Legislative Reorganization Act of 1970 (Public law 91-510)
        Page v
        Page vi
    Introduction
        Page vii
        Page viii
    I. Constitutional immunity of members of Congress
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
    II. Powers of Congressional committees
        Page 11
        Page 12
        Page 13
        Page 14
        Page 15
        Page 16
        Page 17
        Page 18
    III. Constitutional powers of Congress
        Page 19
        Page 20
        Page 21
        Page 22
        Page 23
        Page 24
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
        Page 31
        Page 32
        Page 33
        Page 34
        Page 35
        Page 36
        Page 37
        Page 38
    IV. Officers, employees, and agents of the Congress
        Page 39
        Page 40
        Page 41
        Page 42
    V. Other actions involving members in Representative capacity
        Page 43
        Page 44
        Page 45
        Page 46
        Page 47
        Page 48
        Page 49
        Page 50
        Page 51
        Page 52
        Page 53
        Page 54
        Page 55
        Page 56
        Page 57
        Page 58
        Page 59
        Page 60
        Page 61
        Page 62
        Page 63
        Page 64
        Page 65
        Page 66
        Page 67
        Page 68
        Page 69
        Page 70
        Page 71
        Page 72
        Page 73
        Page 74
        Page 75
        Page 76
        Page 77
        Page 78
        Page 79
        Page 80
    Decisions
        Page 81
        Page 82
        Page 83
        Page 84
        Page 85
        Page 86
        Page 87
        Page 88
        Page 89
        Page 90
        Page 91
        Page 92
        Page 93
        Page 94
        Page 95
        Page 96
        Page 97
        Page 98
        Page 99
        Page 100
        Page 101
        Page 102
        Page 103
        Page 104
        Page 105
        Page 106
        Page 107
        Page 108
        Page 109
        Page 110
        Page 111
        Page 112
        Page 113
        Page 114
        Page 115
        Page 116
        Page 117
        Page 118
        Page 119
        Page 120
        Page 121
        Page 122
        Page 123
        Page 124
    Appendix
        Page 125
        Page 126
        Page 127
        Page 128
        Page 129
        Page 130
    Index
        Page 131
        Page 132
        Page 133
        Page 134
        Page 135
    Back Cover
        Page 136
Full Text


94th Congress }C01VIITTEE PRINT
2d Session 0





REPORT

OF TIHE

JOINT COiMITTEE

ON CONGRESSION AL OPERATIONS
PURSUANT TO

SECTION 402(a) (2) OF TIE
LEGISLATIVE REORGANIZATION ACT OF 1970

IDENTIFY YING


COURT PROCEEDINGS AND ACTIONS OF


VITAL


INTEREST TO THE CONGRESS


Printed for the use of the Joint Committee on Congressional Operations

U.S. GOVERNMENT PRINTING OFFICE


WASHINGTON : 1976


































JOINT COMMITTEE ON CONGRESSIONAL OPERATIONS
CONGRESS OF THE UNITED STATES
Representative JACK BROOKS, Texas, Chairman
Senator LEE METCALF, Montana, Vice Chairman


HOUSE OF REPRESENTATIVES
ROBERT N. GIAIMO, Connecticut
JAMES G. O'HARA, Michigan
JAMES C. CLEVELAND, New Hampshire
JOHN M. ASHBROOK, Ohio


SENATE


MIKE GRAVEL, Alaska
LAWTON CHILES, Florida
JESSE A. HELMS, North Carolina
PETE V. DOMENICI, New Mexico


(n)










CONTENTS


COURT PROCEEDINGS ANI) ACTIONS OF VITAsFNTEREST
TO TIIE (ONGRISS
Page
Introduction VIl
I. Constitutional Immunity of Members of Congress:
Dari8 v. Pssman 1
MJcSurely v. McClella-_ I
Jordan v. Latta - - - - -- - - - -
II. Powers of Congressional (omuiittees:
Ashland Oil, Inc. v. Federal Tmdl ComUUN8;oit-------- it
United States v. Aznevi'an lelcph one a(1 Telegraph
Co 15
III. Constitutional Powers of the (mgress"
,Vixon v. ampon --------------------------------- 19
A:xon v. Admfstrafor o (iersl S('W---------
I\- 'Shu'.lltz) 31
I'lbl;k ( XzctL In. v. AtLoI (oiincrlv S!, I ____ 1
Clalk V. Valeo ------------------------------------- 3
IV. Officers, Employees, and Agents of the (1ono*ress:
Socal/,t Workers v. lien.h aw (formerly enings)_
United States v. .11cPh erwtio-- 40
f li~t(Ifals v JhI~crsn--------------------
Peroff v. m nuel ----------------------------------41
V. Other Actions Involving Menbers iII el)resehltative
Capacity:
De/lunm v. Po ell -----------------------------43
AKentedy v. Joes.. ---------------------------------4
('ow?1non (TauN( v. hai' (foinmerly IKlasen)4-------
HarPriPlfton v. Colby -----------------------------7
sat v. ( e------------------------
Jletcalf v. National Ietrou,, Cown(*;l ------------
YVati'(" Ti/hl (.arne\ Assowrat:on v. AboeZ,
Sportserriee (7oqp. r. Nte;qcr ------------------------ 6
Dri'an v. ichadson (formerly Morton) --------5
S ;mon v. 1iited AS tate Postal (---------------- 67
HutchiiSoI v. tJioxmire --------------------------- 6S
Maremnont Corporation v. Itimsfeld -------------6
Pressler v. Smon --------------------------------- 70
U.v8 v. Balies -----
lnited State8 ex rel. Hlloander v. (ay ------------
Vo ted States ex rel. Martn-T'iqon a v. Hays -------- 7
United States ex rel. Thompson v. Hays -------------7G
United States cx el. Cennamno v. Ray --------------
(ITI





V. Ot Ier Act mis Involving Meuiibers in Representative
( pa It I I I!,((ed Page
[nhte( States v. ILrlsto k; ------------------------- 79
United J t(Ites v. Podell ---------------------------- 79
Genesis I'ublhca/ ions, Inc. v. Mondale -------------- 80
DEcisions
Joirdaln v. Lt(ta -----------------------------------------83
Public Ci[,eu, Inc. V. S'imo -------------------------------89
1 lts v. Amer,'ican Telephone & Telegraph Co -------- 103
Jfar(Imoont (Cororation v. Rumfeld ---------------------- 117

APPENDIX
Members of the 94th Congress Parties to or Directly Concerned
With Litigation Affecting Congress --------------------- 127
INDEX


Table of Cases Reported -----------------------------


133









LEGISLATIVE REORGANIZATION ACT OF 1970

[Public Law 91-510]
TrrE I V -CoX GIESS AS A N I MSTlT IT1ON

P.RT 1-JOINT ('rGM MI'TEE ON CONGRESSIONAL OPERATIONS

I)u'rIEs OF JOI NTT Co%t.lI'TrEE
SE(7c. 402. (a) The Joint Committee shall-

(2) identify any court proceeding or act ion which, in the,
opilion of the Joint Coullmittee, is of vital interest to the
Congress, or to either House of the Congress, as a constitu-
tionaliv established institution of the Federal Government
and call such proceeding or action to the attention of that
Iouse of the Congress which is specifically concerned or to
both Houses of the Congress if both Houses are Concerle(L.

















Digitized by the Internet Archive
in 2013











http://archive.org/details/recom00u nit











INTRODUCTION


In accord with the statutory duty placed upon the Joint Commit-
tee on Congressional Operations by Section 402 (a) (2) of the Legisla-
tive Reorganization Act of '19), te coiniittee initiated a cumulative
reporting practice in the 92d Congress to 'identi fv any court proceed-
illg or action which. in the opinion of the Joint Committee, is of vital
interest to the Congiress, or to either H ouse of the congress as a con-
stitutionally established institution of the Federal Government."
The report, designate( as (as o t 1roccedu;gI a,l Actions of Vital
Interest to the Congress, is intended to meet ti further statutory re-
quirement that the Joint Committee shall "call such proceeding or
action to the attention of that I ouse of the Congress which is specii-
(ally conceniled oi- to both IHouses of the Coiigiress if both Houses are
Col c eld.!(.
Tlhl report. designated as ('otol Iocc((!iHJN livld Act;ao)Is of Vital
1w, r( 8t to f ( Colif s, Is intelde(d to iiieet tlie Htfliter statitorv re-
of decisions in active cases the Joint Committee identified as of vital
interest to the (on'ress since its last report in April 1976.
A final report of court I)roceedings and actions will be published
by the, Joint Comnmittee at the end of the 94thi Congress. We welcome
continents froimi all j(Ijl wri s )f ( 'on gress ai(I others using these re-
1)orts as an information source and research (locun ent, as well as your
suggestions of relevant pending court 1)rocee(lings anod actions-
which (10 not appear in this replort-for inclusion in the future reports
of the Joint Committee.
JACK BROOKS, CVarman.
LEE 1 ETCALF, V 7ce Chai'rman.
(Vin)












COURT PROCEEDINGS AND ACTIONS OF VITAL
INTEREST TO THE CONGRESS

I. CONSTITUTIONAL IMMUNITY oF MEMBERS OF CONGRESS
Davis v. Passman
Civil Action No. 75-1691 (Fifth Cir.)
Brief.-Plaintiff. Shirley Davis, served as deputy administrative
assistant on the staff of Representative Otto E. Passilian from Febru-
ary 1, 1974 through July 31, 1974, on which date her employment was
terminated. Plaintiff then filed this complaint, naming 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 congressional staff be-
cause of her sex in violation of her constitutional rights under the Fifth
Amendment.
Plaintiff supplemented her complaint with a letter from the de-
fendant, in which Mr. Passnman indicated, in dismissing her, that he
had concluded "it was essential that the understudy to my Adminis-
trative 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 legislative and sovereign immu-
nity 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 Louisiana,
dismissed plaintiff's 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 bv Mr. Passman
is not violative of the Fifth :mendment to the Constitution and that
the law affords no private right of action to plaintiff. The court fur-
ther held, however, that Mr. Passman's defense of sovereign 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. On April 12, oral argument was
heard.
Statu. .The, case is now pending before the U.S. Court of Appeals
for the Fifth Circuit.
McSurely v. McClellan
Civil Action No. 73-1991 (D.C. Cir.)
Brief.-Plaintiffs Alan and Margaret MeSurely refused in March
1969 to com-ply with a subpoena duces tecum issued by the Senate
Permanent Subcommittee on Investigations of the Government Oper-
(1)







at ionts Coinniitit', chaired ) (enatoi John L. McClellan, demanding
c j~odicti1 of dociients relatingr to iiniebership in and activities
o1c seval organizat ions, including the Southern Conference Educa-
t ional1 Fl"Id, he So hci 5tident Organization Committee, the
S tudent Nonviolent Coordinating Comnlttee and Students for a Dem-
ocratie Societv. all also plaintiffs in this action.
Pilaintiirs hiled an action in the U.S. District court for the District
of (>lumhia on the (late named in the subpoena for their appearance
before the subcommittee seeking a declaration that compliance with
the subpoena was not required, a preliminary and permanent injune-
lion against institiition of criminal proceedings against them for their
failire to comIly with the subpoena, and damages. No action had
leen taken in the civil action at the time the MeSurelys were indicted
for contempt of Congress for their failure to comply with the sub-
pocuas. Subsequently, the plaintiffs filed an amended and supple-
mental complaint seeking only compensatory and punitive damages.
Pie plaintiffs alleged that the defendants, Senator McClellan, three
members of the subcommittee staff, and the Kentucky Commonwealth
Attorney wvho initially seized from the plaintiffs' home the documents
which included those later subpoenaed by the subcommittee, entered
it o a conspiracy to deprive them of their constitutional rights. They
sought damages "for the unlawful seizure, inspection and appropria-
tion of their personal and business papers and documents and other
oI)jects an articles, for the issuance of subpoenas based on illegally
obtained information and invalid on their face, for their humiliation
and embarrassment, mental and emotional pain, loss of employment,
disruption of personal privacy and safety caused thereby, all in viola-
tion and derogation of their rigits under the first, fourth, fifth and
fourteenth amendments to the U.S. Constitution and the laws of the
United States." [Plaintiffs* Amended and Supplemental Complaint,
at 13-14.1
The cSurelvs were convicted of contempt of Congress and sen-
tenced in June 1970 in the criminal action. The convictions were
a)ppealed to the court of appeals, where oral arguments were heard
on January 21, 1972.
The decisionn of the court of appeals, reversing the contempt of
Congress convictions of the MeSurelys, was filed on December 20,
1 972. The majority of the court took the position that the exclusionary
rule applied to proceedings before congressional committees as well as
to criminal prosecutions, and, therefore, the court held that the sub-
conunittee's subpoenas were invalid as the fruit of an unlawful search
and seizure. [Unth'd Sfae. v. I/,Surey, 473 F. 2d 1178 (D.C. Cir.
1972) : the text of the decision was printed in the Report of the Joint
Committee on Congressioial Operations Identifying Court Proceed-
in 1 ald ACton q of Vital Irterest to the Congress. Final Report for
the 92d Congress, December 19 72. at 645.]
The case was remanded to the U.S. District Court for the District
of Columbia with instructions to enter judgments of acquittal in the
matter of the contempt convictions.
The decision of the Solicitor General was not to petition the Sut-
preme Court for a writ of certiorari.






In the civil proceedings, CDiriman McClellan a-V three su1 com-
inittee staff members tiled a motion to dismiss, or in the alternative,
for summary judgment in the district court on October 26, fI(I.
The grounds claimed in support of the motion were
(1) Defendants are imlue from actions for damniles
where as het-e it is clear tliat their conduct was within the
sphere of legislative activity. (2) The claimnt fails to state a
claim Upon wich relief can be granted gainst defendants
who were a United States or employees of the Sen-
ate of the United States at all times material to this cause.
(3) Plaintiffs are barred by collateral estoppel from re-
litiratingf" issues previously settled by the judgment of this
court ill fV'iUd Ataws v. Ala,, Iw,'idi lq, MaJ'(lPt MC-
Al itrely, (rininal Nos. 1376-69, 1 -9.f1)efendan
Motion to Dhismiss or in the Alternative for Summary Judg-
ment, at 1.]
The motion to dismiss was denied on Juie 12,. 1,94 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 loldiing and
remanded the case for further action consistent with its holding.
The appeals court held, that as a matter of law. the detenldants were
entitled to summary judgment on all counts of the complaint relating
to the inspection bI 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 CIontept of Congress
citations against the plaintiffs.
The appeals court left for the district court on remand the determi-
nation 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 ques-
tion whether the defendants distributed copies of documents to indi-
viduals or agencies outside Congress-and if made, whether such
distribution was actionable.
The court emphasized that at no point in tile proceedings on remand
may inquiry be made into those activities of the defendants which it
had indicated are protected by the Speech or Debate Clause:
[Als a general rule, the process of gathering and utilizing
information within Congress is protected activity within the
"legislative sphere." Constitutional immunity may be with-
drawn, however, if no rational legislative purpose can be
found for a committee's action in directing its investigation
toward a particular individual, organization, or institution.
Also, the Speech or Debate Clause will not shield an employee
or Member of Congress from prosecution or suit for a crime
or fourth amendment violation arising from his efforts to
obtain information. Finally, the dissemination of informa-







tion outside of Congress is not a protected legislative act and
(e1n]ONs 110 special constitutional immunity.
The question whether the Subcommittee on Investigations
in the instant case was engaged in investigative activity con-
crnin1r matters "on which legislation could be had" is readily
answered1. At all times pertinent to the case, the Subcommit-
teo was authorized by Senate Resolution to make a full and
complete studv and investigation of violent disturbances of
the leae Ianal] * civil and criminal disorder * *, the
coiiiiissioi of crimes in connection therewith, their] imme-
11iate an longstanding causes, the extent and effects of such
CC1Ilrrn(l'ws and crimes[ I and measures necessary for their
Jituniediate and long raI1ge prevention.
*
Certainly, there is no question, in view of the breadth of
r uvestigatory power and of its mandate to the sub-
comuu ittee, that the sul committee had jurisdiction to send
Prick to Pikeville to examine the materials in Ratliff's
possession.
Moreover, Brick clearly enjoyed the prerogative-so long
as he did not obtain the documents by unlawful means-to
bring to Washington copies of all materials which might
prove useful to the subcommittee's investigation. The pri-
mary dispute in this case, focused upon by our colleague's
partial dissent, arises from Brick's testimony at the McSurely
contempt trial that not all of the batch of 234 documents he
-received from Ratliff-in the selection of which Brick had
played no part-were necessary to the investigation. Never-
thelej,. rather than attempt a document-by-document deter-
muination of which items might or might not be relevant, he
carried all the papers to Washington for the subcommittee's
inspection. The question posed here is whether it was inchum-
bent on Brk'k eitherr to separate ovuZ those papers which were
'!early not required for fle investigation or forfeit his pro-
hetwn (and, posibby, the protection of the other defendants)
qinder the Speech or Debate Clause.
We do not believe a congressional committee's investiga-
tory jurisdiction can turn on this kind of detailed assessment
of the relevancy of particular items garnered by emnplovees
or Members of Congress pursuant to a facially valid inquiry.
The Supreme Cou rt in a s imilar situation in Doe v. McMillan
111(n "no authorit, to oversee the judgment of the Com-
mittee * or to impose liability on its members if we
isa'ree with their legislative judgment." It would appear
that the jurisdictional requirements of the Speech or Debate
(lauC e are met here. as in Doe, if a rational legislative pur-
pose is present for investigating a particular person, orga-
nization, or institution. There is no requirement that every
piece of information gathered in such an investigation be
justified before the judiciary. Certainly. Tenney v. Brandhove
,md the Seriem en's Fund case do not go so far. Indeed, we
.-ubinit that it is precisely this kind of entanglement in legisla-







tive judgments that the Supreme Court in Doe properly
sought to avoid. In view of the intrinsically functional nature
of the immunity afforded the investigative process by the
Speech or Debate Clause, and the Clause's basic purpose of
preventing the probing of legislative motive, we are convinced
that the line must be drawn here. [JMcSurely v. McClellan,
Civil action No. 73-1991 (D.C. Cir. 1975) ; Slip Opinion at
248-250.1
In response to plaintiff's allegation that the examination by the sub-
committee's investigator of the illegally seized materials in the Com-
monwealth Attorney's possession, was itself an independent viola-
tion of the McSurelys' Fourth Amendment rilits and. therefore, not
protected by Speech or Debate immunity-the court held that fSited
States v. CaIlara 414 U.S. 338 (1974) was controlling in the instant
case. The appeals court said"
In sum, it would appear under C,7anldra that a Congres-
sional committee should enjoy at least the same prerogative
as a grand jury to use material which has been unlawfully-
seized. As with the gtand jury. the congressional colmit-
tee may not be privilegred to utilize such information if its
agents have actively participated in the original unlawful
seizure. Outside of that circumstance, however, a comn-mlnittee
commits no new fourth amendment wrong by examiningr
and copving documents oriinallv unlawfully secured.
Judge Leventhal. in his part ial dissent. however. arcites
that Brick's examination of the McSurelv materials after
the original unlawful seizure was itself violative of the
fourth amendment because he knew the materials had been
unlawfully seized and because a three-judge federal court
had ordered Ratliff to hold the materials in safekeeping.
Certainly, after Calatria, the fact that Brick knew the
(locuments had conie wrongf ully into Ratliff's possession
could not render his own examination unlawful. That a gran(l
jury knows its information springs from an illegal search
does not prevent it from examining the fruits of that search,
and basing questions thereon, in the pursuit of a lawful in-
vestigation. A congressional committee, as we detailed above.
is entitled to the same prerogative.
That Ratliff had been ordered to hold the materials in safe-
keepino also does not render Brick's examination viol ative
of the fourth ,mendment. The three-jiidge court's order was
simply a function of its finding that the materials had been
unlawfully seized. There was no implication in the order-
that investigatory bodies which would otherwise be entitled
to utilize unlawfully seized materials were barred from suct
utilization by the court's formal ruling. This does not mean.
Brick could have broken into Ratliff's office to obtain ac-
cess to the materials. Such an entry would have been in vio-
lation of Ratlifs' fourth amendment rights. Ratliff himself,
however, invited the subcommittee to come to Pikeville to
examine the materials. Ile alerted the subcommittee to the







fact that the product of his search of the McSurely's home
Might he relevant to its investigaon.
Cola ailja makes clear that a grand jury or, we submit, a
Congressional c1mittee has the right in its investigatory
i al~a'iitv to H:Se the product of a past unlawful search and
(eixve. The Supreme Court emphasized that such use works
110 1neW fot h amendment wrong on the owners of the
Seized i)noPetv. Since effective utilization of materials re-
luireF I heir exIm.,it ion, it is difficult, to conceive, after Ca-
h,,,ula, how the inspection by one authorized government
agent of documents in the custody of another can be charac-
terized as an unconstituti nal search. The constitutional vio-
lation is completed with the original taking. [Slip Opinion
at 2.),-25 6.]
On I)ecember 10, 1975, the decision of the court of appeals was
vacunt( 1 and a petition for a rehearing en bane was granted.
( )ral argument was heard by the court of appeals en bane on April
19. 1976.
,Ibttwt.-The case is pending before the U.S. Court of Appeals for
the I )istr c t of Columbia.
The full te:;t of the court of appeals' decision in the civil case was
printed in the "Decisions" section of the report of Court Proceedigs
and Actions of Vital Interest to the Congress, December 31, 1975.
Jordan v. Latta
Civil Action No. C75-166 (N. D. Ohio)
Brief.-Plaintiff is a member of the International Brotherhood of
Teani)sters who lives in Cecil, Ohio. within the Fifth Congressional
District. Defendant Delbert L. Latta is the U.S. Representative for the
Fifth Congressional District, and defendants Larry Paul and George
Blue work for the Federal Bureau of Investigation (FBI) in the
1rea' is Toledo, Ohio o1ice.
The complaint, filed April 22, 1975, alleged the following: that on
or about April 4, 1975, plaintiff called Congressman Latta at his home
in Bowling Green, Ohio, requesting his assistance in a labor dispute in
hich plaintiff was engaged with his trucking firm employer, and that
two days later, at Representative Latta's request, he took some docu-
mients to the Representative's home. Two days later he again called and
asked Representative Latta for his assistance in his capacity as a U.S.
Conrsc:sm,m. and the Congressman indicated that he had prepared a
letter indic'-tigi what plaintiff could do. Three days later, on April 11,
1975, the plaintiff called again asking about the letter and once more
requestin assistance. Congressman Latta indicated that he could not
help. blt that lie had prepared a letter regarding the problem. Plaintiff
then stated that he would remember how to vote, and Congressman
Latta said that was fine, lie could vote any way he wanted.
The complaint then alleo-es that on April'14, 1975, defendants Paul
,qnd Blue called plaintiff and indicated they wanted to talk with him.
Thev net him that day at his home and said Congressman Latta had
filed a complaint with the FBI alleging that plaintiff had put undie
pressure on him, though indicating that no threat was made on his life






by plaintiff. After dirciissing the situation with plaintiff for an hour,
defendants Paul and Blue indicated to plaintiff that the whole inci-
dent should be kept quiet and not revealed to the press.
Plaintiff contended that he contracted his Conite.ss.man in order to
petition his covernnient for a redress of crievances, and that his appeal
to Congressman Latta for assistance and intervention was protected by
kOe First and Fourteenth Amendments; that the utilization of the
FBI was meant to curtail his righl ts to petition the governmentt : that
he at no time put undue pressure on the Congressman, and the use of
Ihe FBI was nieai)t to harass hiii in exercise of his ri ht to petition
i s govern av tMl flat (!(' 1'ndalit >2 acti 'mI le !'t hlin inVtliollt "I a'Ir
qiiate remedy at ]awN, Since lie w as denied his rioht to contact his Con-
'Wress wihout ufferin g from the harassment of FBI invest Wa-
tions. Ie asked for the following relief:
That a deela atory judgment issue declaring the following:
(a) that Plaintiff as a citizen of the United States has a
right as guaranteed by the Constitution to petition his
Congressman;
(b) that Defendant Lattas action in reporting Plaintiff
to the FBI was violative of Plaintiff's rights as guaranteed by
the Constitution;
(c) that the i)efend'ants Larry Paul and( George Blue's
investigation of the Plaintiff because of his contact with De-
fendant Latta was violative of Plaintiff 's unencumbered right
to petition government.
That a preliminary and permanent injunction issue:
(a) requiring the Defendants Larry Paul and George Blue
to expunge any and all FBI records pertaining to Plaintiff as
a result of Defendant Latta's charges;
(b) enjoining the Defendants Larry Paul and George Blue
from harassing the Plaintiff by visitation to home, place of
work or anywhere else because of Plaintiff's exercise of his
right to petition government or as a result of this lawsuit.
That a writ and ma ardam issue against I)efendant Latta
compelling Defendant Latta to do tile following:
(a) carry out and perform his fnctions as a U nited States
Congressman in a manner so as not to deny Plaintiff his right
to petition uo,.vernment
(b) to refrain from filing charges with the FBI regarding
Plaintiff because Plaintiff seeks to petition government
through Defendant Latta;
(c) to fulfill those duties owed Plaintiff by Defendant
Latta in his capacity as a United States Congressman; par-
ticularly to permit Plaintiff to seek a redress of his grievance
and the right to petition overnment through Defendant
Latta without becoming sub'iect to FBI or any other govern-
mental investigation.
:tco] : l-lafory daigeovs; i.n the amount of $15.1 0.00OO l)e
aw-J..' red PI ltiir'.
That !,nitive damages in the amount of !,!0,O00.00 be
awarded Plaintiff.








That reasonable attorney fees be awarded.
For any and all other relief the court deems appropriate.
[Complaint at 5-6]
In their "Motion to Dismiss or, in the Alternative for Summary
Judgmient." defendants stated that Congressman Latta had advised
the 1)laintiff that the matter of plaintiff's request to him was within
the jurisdiction of the National Labor Relations Board, and that plain-
tiff had become so hostile that it caused Congressman Latta to believe
he. may have been threatened. The Congressman reported the incident
to the FBI and left the matter to their discretion. The FBI, after
consultation with an Assistant United States Attorney, decided to
conduct an informal interview to clarify the possible threat. This was
done with plaintiff's consent, and it was determined that no crime had
been committed. Plaintiff was not detained against his will nor subject
to any form of duress, and therefore he had failed to state a claim
against any of the defendants. "Moreover, the named individual de-
fendants in this action were engaged in official duties with regard to
the allegations herein and are therefore immune from suit." The re-
sponse said that Congressman Latta was protected in his actions by
the Speech or Debate Clause, or even if he wasn't, he was protected by
the fact that he was carrying out his official duties as a Congressman.
The response also stated that Congressman Latta's exercise of his
official duties is not reviewable by nandamw,9, since a Congressman
is necessarily besieged with requests from individual constituents to
take actions on their behalf, each of whom may earnestly believe that
his case deserves immediate action as requested. It also said that be-
cause the United States had not consented to being sued in this case,
it was protected by the doctrine of sovereign immunity.
Plaintiff countered that the doctrine of official immunity would not
hold in this case because Congressman Latta had not called the FBI
to investigate a possible crime but had sent tle agents to deny plantiff
his constitutional rights of freedom of speech and the right to petition
his government for the purpose of protecting Congressman Latta by
warning plaintiff not to put anything in the paper that would harm
Congressman Latta's political career. By the same reasoning. plaintiff
argued that Congressman Latta was not engaged in a legislative func-
tion when he called the FBI. and is therefore not protected by the
Speech or Debate Clause. Also, plaintiff claims that mandaMnu8 is
sought not to force Congressman Latta to grant him an audience, but
to )revent the Congressman from filing charges with the FBI for
plaintiff s attempts to petition him for assistance. Plaintiff also states
that the 1,nited States is a proper party, not as to payment of dam-
ages. but as to having an order issued by the court which will prevent
retaliatory action against plaintiff by other government agencies.
Defendants reasserted their claim of official immunity as to all
defendants and legislat-ie immunity as to Congressman Latta, and
stated further that even were these defenses to be denied, Congress-
nimn Latta could not be liable since all he had done was report suspi-
(ios circmstances to a law enforcement agency. They stated further
that plaintiff's claim that Congressman Latta had used the FBI to
harass plaintiff and keep him from going to the press so that Con-
iessnni Latta could sav-e his political career was without merit. "It






is from just such frivolous allegations that the doctrines of official
immunity and congressional immunity are intended to guard govern-
ment officers and legislators, leaving them free to pursue their impor-
tant official f unctions."
Defendants again stated that by interviewing the Iplaintiff, the
agents for the FBI had not given plaintiff grouids for an action, even
if done for an imi)roper motive. Fihially, f11ev stated tlat ti !nited
States is not subject to all action seekig an iljuntion vithoiit its ( 01i-
sent by statute.
In an Opinion and Order issue(l March 26, 1976. V.S. D)istri't ('01out
Jiidge Don J. Youg deci(led that the bawslit coilld not be entertained(
at all because he found that the activities involved fell xvii thiii tlle
1eitimate legislative sphe of lepresen !ati'e Latta's dIities as a
(Congressman. Therefore h)e wNN8s cl]oake(d witli co!i,(reSio1Ia1( imilliitv
and could not be qiestioie(d in COilrt .coiwcerii/iii thIiose act ivi
Latta was performing the legitimate leg.islat ive fijuct in of I isteni ii
to and attempting to solve the probleiis of his coistitueiicv.e a -
pears to have performed said function in ln, honest and sincere man-
ner. In order to insure that he coinnines to perform sai(l funct ion
independently, he must be protected from lawsuits of this natiire."
[Opinion and Order at 3; this report at ST.] The court also fond
that the FBI agents were merely servinr ( 1ongressman Latta in his
legislative. function and were thus also entitled1 to constitutional pro-
tection under the Speech or Debate Clause as reid in Doe v. -lcMil/a,
412 U.S. 306 (1972). Also, since the Uiuted States had not consented
to being sued in this case, it had to be disuiissed as a party. The com-
plaint was therefore ordered dismissed as to all defendants.
Status.-No appeal had been filed at the time of this report. The
full text of the court's "Opinion and Order" is printed in the "Deci-
sions" section of the report beginning at 83. iha.


7 5-535-76-2
















Ashkhwd Oil Inc. v. Federal Trade Ccmzission
Civil Aitm 7 117 ',li7, 7()--1,)0 (D.l Cir.)
BY r f.-Tl1 is suif. filed on Novemiiber 24, 1 1)75. by AsIland ()il, s(eks
,EJ( 8, 1tory 'id j111ji ietive relief 1)mrsmalit to (hapt(r 7 of the Adiuil -
ist rativt IProcodlipe Act (5 -.S.( S. 7)1 (t sc /.).
(-)n, or aboi)t Apil 1). 1.5, Ilne 11'e(leial' La t (lo)nIn i>d
upon Ashland ()i1 an o'dler ( Specifal lIe)Ort,) which requiiied A1,h-
hoInd Oil to sublibit Il fornia ion, some of wlich ''was li(h1v sellsilive
cll)k, etive daa (letailinlg the cciajpl s reerv, estimates for all of
Iiis llatural :IMs Iees and cont rac ts nat ionwide." [, ovleand 0;/, Iw. v.
r ~ ~ ~ O' tijj Tiic(ko(.n4 ivlAc on No. 75I96( .)(X):Slip
ic7rf Ti,'ll Jci N ) "" ' .
()iion "at 3]. Ashlaius su.lfllio)1ssm was ac)oIm),aie(d by a letter I'ro10i
onW of its vice pre-ide'nts s4ati "g il:at the conIpanys inforniation onl
'as reserves was confdential and of a proprietary nature, the dis-
closure of which would result in competitive injury. The letter further
stated that such information was submitted to the ("loiniission with
the express reservation that Ashland could claim its right to have
the materials therein provided accordre confidential treatment and
be protected from disclosure."
Following a rejection by the Federal Trade Commission of his re-
quiest, as a Member of (on,re~s, to make available to him data gathered
bv the Conmiission pertaining to lease extensions on Federal lands,
Coi, ressman John E. ?Mloss sent a second request as Chairman of the
Subcommittee on Oversight and Investigations of the House Commit-
tee on Interstate and Foreig'n Commerce. Unlike its first response, in
which it denied the Congressman's request for information which it
Consi dered to be exempt from mandatory disclosure under the Free-
loin of Information Act (5 U.S.C. 5352 (b) (4) and (b) (9). the
(Vommil. sion treated the second request as a "formal Congressicnal
request" and advised Chairman Moss that the requested information
wo11d be furnished. Subsequently, Ashland was advised of the Con-
mission's decision to turn over the requested data to Congressman
Mloss.I--
On the same day tl)at this suit was filed-November 24. 1975-Ash-
la)nd moved for and was granted a temporary restraining order en-
ioiniii the Commission from releasing the information in issue, thus
preserving the stam.s quo until the court considered the merits of
Ashland's claims.
On I)ecember 2, 197.5, a subpoena duces teo wrn was served on te
Tarin~n of the Federal Trade Commission whieh ordered him to
a'1)iar' before the sibconunittee and to bring with him
an1y and all records within the Federal Trade Commnission 's
control or custody or within the Federal Trade Commission's
means to produce appertaining to or involving oil and/or gas
(I)l


1I. Powvim's ();." CO N,:'- '" '"1,,,x ,* (Com1,.t"...I1.,








lease extensions on Federal lands, including Ashland Oil,
Inc. and including all correspondence between the Federal
Trade Commission and Ashland Oil, Inc. relating in any man-
ner to agreements or proposed agreements to hold such rec-
ords confidential or to give advance notice of the release
thereof. [See H.R. Rep. No. 94-756, 94th Cong., 1st Sess.,
at 34- (1975).]
By letter of December 3, 1975, Chairman Moss informed Mr. Lewis
Engpman (Chairman of the FTC) that the subcommittee would take
no action to enforce compliance with the subpoena until the court had
considered the issues arising in the instant case.
Following a hearing in open court, Congressman Moss' motion to
intervene pursuant to Rule 24 (a) of the Federal Rules of Civil Proce-
dure, was granted on January 16,1976.
This case came before Judge Howard F. Corcoran, of the United
States District Court for the District of Columbia on Ashland's mo-
tion for preliminary and permanent injunction and Defendants Moss'
and the Federal Trade Commission's motions for summary judgment
or, alternatively, to dismiss.
In a memorandum and order filed February 2, 1976; the district
court denied the plaintiff's motion, granted defendants' motion to dis-
miss, and dissolved the temporary restraining order issued Novem-
ber 24, 1975.
After addressing itself to the plaintiff's contention that Section 6(b)
of the Federal Trade Commission Act prohibits the disclosure of trade
secrets by the Commission to any third party-including the Con-
gress-and having determined that some of the data in issue do
indeed constitute a "trade secret" within the purview of Section 6(f)
of the FTC Act, and further, declaring that congressional investiga-
tory power is not unlimited and the parameters of the inquiry may be
no broader than the "legitimate sphere of legislative activity," the
court concluded:
In summary, we find that the particular investigation here
in issue is directly related to and in furtherance of "a legiti-
mate task of Congress." Watkins v. United States, eupra,
354 U.S., at 187. The Subcommittee, in issuing the subpoena,
was acting under the clear mandate of the full committee and
the House of Representatives to investigate within the
"sphere of legitimate legislative activity" and that grant of
authority is itself sufficient to show that the investigation
upon which the Subcommittee has embarked "concerned a
subject on which 'legislation could be had'." Eastland v.
United States Servicemen's Fund, supra, 421 U.S., at 506:
McGrain v. Daugherty, 273 U.S., at 177; see aso Comniv ist
Party v. Control Board, 367 U.S. 1 (1961). [Slip Opinion at
18; footnote omitted.]
With respect to plaintiff's specific motion for preliminary and
permanent injunction, the court said:
Injunctive relief is appropriate only "to prevent existing
or presently threatened injuries" and "will not be granted
against something merely feared as liable to occur at some







indefinite time in the future." Connectiut v. Massachusetts,
282 U.S. 660, 674 (1930), See also, General Fireproofing
Company v. Wymain, 444 F.2d 391, 393 (2nd Cir. 1971). In-
junctions will not be granted where the injuries complained of
are prospective and "which may, indeed, never occur." Crim-
mins v. American Stock Echange, Ive., 346 F. Supp. 125)6,1
1262 (S.D.N.Y. 1972). The injury complained of must be of
such imminence that there is a "clear and present" need for
equitable relief to prevent irreparable harm. Hershey Cre am-
ery Co. v. Hershey Chocolate C orp.. 269 F. Stpp. 45 (S.D.
N.Y. 1967) ; see also Assn. of Professional nqn' rig Per-
son nel v. Radio Corp. of Amnerca. 183 F. Supp. 834 (1,.C.
N.J. 1960). And the required slimoriig of irreparable injury
is not eliminated simply by virtue of a claim alleging viola-
tion of statutory or constitutional rights. (unless the require-
ment has been specifically eliminated by statute). Thus, in
U)Ited Fuel (as (o. v. Rilroadi (ommnm~wn. 278 U.S. 30(0
(1928), the Supreme Court noted:
Suitors may not resort to a court of equity to restrain
a threatened act merely because it is illegal or trans-
cends constitutional powers but the act complained
must inflict upon them some irreparable injury." 278
U.S., at 310 (Stone, J.)
ee alsOo .ea'tex ,.,. Corp. v. JVih;cd S'tate.,, 107 F. Supp. 3S8
(S.D.N.Y.), aff'd. 344, U.S. 901: Ell, Raw Bar v. District
of Columbia Redc,?.lopn-vt Lal Alrecwy, 433 F.2d 543
(D.C. Cir. 1970).
While Ashland couches its concerns in terms of "public
disclosure," any irreparable injury to it would result, more
precisely, in disclosure to its competitors. Certainly, such in-
jury might logically result as well from general dissemina-
tion. But the transfer of such data from the FTC to the
Subcommittee and the Subcoi-mmittee's review of that infor-
mation, does not lead inexorably to either public dissemina-
tion or disclosure to A;hlaiid's cominetitors. Moreover, the
courts must presume that the committees of Congress will
exercise their powers responsibly and with due regard for the
rights of affected parties. See, A .sara v. Ea.stland, 442 F.2d
751,754 (1971) ; United States v. Tobin. 195 F. Supp. 588, 613
(D.D.C. 1961). [Slip Opinion at 19-20: footnotes omitted.]
In response to Ashland's allegations about the subcommittee's han-
dling of trade secrets in the past which, according to the plaintiff.
"has shown either a total incapacity to protect such trade secrets or a
callous indifference to the proprietary nature of those secrets" (Plain-
tiff's Reply Memorandum, p. 59), the court stated:
While the Court can appreciate Ashland's concern under
these circumstances., it does not appear to the Court that iso-
lated instances of breached confidentiality in the past are
sufficient to overcome the continuing presumption of Con-
gressional propriety.







Through its staff counsel, the Subcomnittee has indicated
that there is "no in(lication" that the Subcommittee "would
release inform ation originating from Ashland." (Affidavit
of Michael i. Lemiov, Intervenor's Motion to Dismiss). And
Chairman M oss, trough counsel, has represented:
Of coilrse. the Subcommittee does not seek publica-
tion of Ash lan(l's trade secrets; it seeks merely
production of documents in compliance with a Con-
zressional subpoena. (Response of Chairman Moss
to Ashland's Opposition to Mlotion to Dismiss, p. 6).
Weighing all of these considerations, it appears to the
Court, on balance, that the irreparable injury which Ashland
seeks this Court to prevent by the issuance of permanent
injunctive relief is neither "presently threatened" nor "im-
minent." The injuries eomplaiined of are, rather, "prospective"
in nature and "may. in deed, iiever occur." See Crinmips V.
An!mercan stock KE-chaIe. supra. [346 F. Supp. 1256, 1262
(S.D.N.Y. 1972) ] [Slip Opinion at 22.]
In conclusion the court held that irreparable injury-could not be
established, that injunctive relief was not warranted, and that it need
not reach the merits of Ashland's complaint.
However, on February 9. 1976, the court granted plaintiff's motion
for an injunction pending appeal on terms identical to the temporary
restraining order previously entered. The court said:
[I]t appears to the Court that (1) this action will be ren-
(ier(l I moot in the absence of an injunction pending appeal;
and that (2) the issues to be raised on appeal have not hereto-
fore been definitively settled in prior case law and are of sub-
stantial import to the parties and the general public; but that
(3) the countervailing legitimate interests of the legislative
branch militate against indefinite protraction of interlocu-
tory relief by this Court. [See Order and Statement of
Reasons Pursuant to Federal Rules of Appellate Procedure
8 (a), February 9, 1976, at 1.]
Representative Moss filed a motion with the District Court on Feb-
ruary 4 asking that Court to amend its findings in its order of Febru-
ary 2 by removing any implication that either he or the Subcommittee
he chairs had at any time breached promises they had given to keep
trade secret data confidential. Ashland filed a motion for a rehearing
on February 5. Both motions were denied by the Court on February 9.
On February 18, 1976, Ashland filed an appeal with the U.S. Court
of Appeals for the District of Columbia, and also filed a motion for an
injunction to preserve the status quo pending appeal. The motion for
the injunction was argued before the Court of Appeals on M Narch 11,
and was granted on March 26 in an order whiri also denied defend-
ants' motion for summary affirmance.
Representative Moss then filed an appeal from the denial of his mo-
tion to amend the findings of the District Court. The appeal, filed on
April 2, asked that this appeal and that of Ashland's be consolidated,
which was done on April 23.






The consolidated cases were argued before the court of appeals on
May 10, 1976.
Status.-The case is now pending before the U.S. Court of Appeals
for the District of Columbia.
The district courts memorandum and order of February 2, 1976,
was printed in the "Decisions" section of the report of Court Proceed-
ings and Actions of Vital Inlcrest to the Covgi'ess, April 15, 197G.
United States v. American Telephone & Telegraph Co.
Civil Action No. 76-1712 (D.C. Cir.)
Brief.-On July 22, 1976 the Justice Department filed this action
in the District Court for the District of Columbia seeking a temporary
restraining order enjoining American Telephone and Telegraph (A.T.
k iT.) f'r1o11 coniplvin1Z with a slbpoeIa issues(] by the Chailman of the
House Committee on Interstate and Ioreign Commerce pursuant to a
vote by the Subcommittee on Oversight and Investigations. The Chair-
man of the Subcommittee, Representative Moss, filed a motion to inter-
vene as a party-defendant which was granted. (ivil Action No. 76-
1372 (ID.D.C.).)
The information sought piusuant to the subpoena included letters
from the Federval Bu rean of Investigation (FBI) to subsidiaries of
A.Y. & T. requesLi n- (1) that a h,sod telephone line be provided at the
usual commercial rate, (2) a statement that the request was made upon
a specife authorization of the Attorney General for purposes o 1a-
tiona! security, (3) the phone niu,.ber, location or other illformnation
relating to the lines to be intrcepted, and (4) the statement that A.T.
& T. was not to disclose the existence of the request because such dis-
closure couid obstruct and impede the investigation.
The letter includes the phone number, the address, or some other
indication 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 telepLone line leading 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 one of the subpoena seeks such "national security request
letters."
The return (late on tbe subpoena was originally set for June 28, 1976,
but because of contigmiing negotiations the compliance date was ex-
tended to July 23rd.
The executive branch presented the committee with an alternative
proposal. Under this proposal, following A.T. & T's preparation of
an "inventory" of the request letters held by A.T. & T., the FBI would
identify by date those which were "foreign intelligence surveillances"
and those which were "domestic surveillances." In regard to the past
domestic surveillance, the FBI would furnish to the Subcommittee
the memoranda on which the Attorney General based his authorization
for such surveillances, with only minor deletions necessary to protect
ongoing investigations. From tle "foreign intelligence surveillances,"
the Subcommittee could select sample items for any 2 years, and rep-
resentatives of the Subcommittee would be given access to the memo-
randa on which the Attorney General based his authorization of those








surveillance with names, addresses or other information identifying
targets and sources deleted. President Ford also proposed a procedure
whereby verification, and resolution of any questions, would be ac-
complished by the direct participation of the Attorney General and
if necessary by the President himself. This proposal was rejected by
Subcommittee Chairman Moss. On July 22, 1976, the President wrote
to Representative Harley 0. Staggers, Chairman, Committee on In-
terstate 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 informa-
tion and would be detrimental to the national defense and
foreign policy of the United States and damaging to the na-
tional security. Compliance with the Committee's subpoena
would, therefore, be contrary to the public interest. Accord-
ingly, I have instructed the American Telephone and Tele-
graph Company, as an agent of the United States, to respect-
fully decline to comply with the Committee's subpoena.
The suit was filed when it became clear that not withstanding the
President's order. A.T. & T. was prepared to turn over the subpoenaed
documents to the Committee.
Chairman Moss. "ostensibly participating in this action on behalf
of the Subcommittee," [Slip Opinion at 8; this report at 109], 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 leitimate legislative investigation.
The Justice Department countered that the suit should only be con-
si~le ed one seekim-r to restrain a private party from releasing docu-
ments in its possession.
By doing that, the Department argued, the court need not consider
the applicability of the Speech or Debate Clause. since the immunity
of 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. This argu-
M11 t was advanced s-o that the court could avoid dealing with a consti-
fi tional confrontation between two of the three branches of our
Government.
On July 30th the court issued its decision. Rejecting the Depart-
ment's approach, the court said:
[T]o take this avenue would be to place form over sub-
st'ince. The effect of any injunction entered by this court
enioining the release of materials by A.T. & T. to the Subcom-
mittee would have the same effect as if this court were to quash
the Sub(ommittee's subpoena. In this sense the action is one
a against the power of the Subcommittee and should be treated
as such, assnmingr that Representative Moss has authority to
speak for the Subcommittee.
The court determined that it was confronted with a direct contest
between the investigatory power of the Congress and the invocation of
executive privilege. Rejecting the contentions of absolute rights as-






serted by both Chairman Moss and the Justice Department, the cotrt
determined that:
Here, by nature, the extent and the relative importance of
the power of one coordinate branch of government inust be
balanced against that of the other. Neither can be considered
in a vacuum.
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 respon-
sible ,fulfillment of the Committee's functions." Senate Select Coln-
mittee v. Nixon, 498 F.2d 725, 731 ().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 pro-
vide the required information "without forcing a, showdown on the
claim of privilege." United tafc. v. Reynolds. 345 U.S. 1, 11 (1952).
(3) the circumstances surrounding and the basis for the Presiden-
tial assertion of privilege. Id.; Viiled Sla'es v. At;xoa, 418 U.S. 088,
710-711 (1974).
The court concluded:
In the context of this case, and the court elnillasizes that
this decision is limited to the circumnstances 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 determination that release of this mate-
rial would present an unacceptable risk of disclosure of
matters concerning the national defense, foreign policy and
national security outweighs the Subcommittee's showing of
necessity.
In deciding to grant the permanent injunction against compliance
with the subpoena, the court considered the likelihood that the sub-
poenaed material if turned over to the Subcommittee might be made
public. The court noted the President's determination that release of
the material would present an unacceptable risk of disclosure 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 pur-
suant to Rule XI(2) (e) (2) of that Chamber's Rules. The
potential for disclosure of this highly sensitive informa-
tion, if put into the hands of so many individuals, has been
determined by the President to be an unacceptable risk. Such
a determination is entitled to great weight.








The court is not implying that the Members of the Sub-
committee, or of the House of Representatives, will act negli-
gently 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 gov-
ernment to which the primary role in these areas is entrusted.
Status.-Defendant-intervenors filed an immediate appeal with the
court of appeals and asked for an expedited briefing period. On Au-
gust 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.
The full text of Judge Gasch's memorandum and order is printed
in the "Decisions" section of this report at 103.












III. Co.NsrurTuI(NAL POWERS OF THE CONGRESS


Nixon v. Sampson
Civil Action No. 74-1518 (D.D.(.)
and,
Nixon v. Administrator of Gen. Servs.
.7-1605 (U.S. Supreme Court)
Br;cf.-Following the resignation of former President Riliad M.
ixon, the special prosecutor's office advised counsel to P~resident
Ford and counsel to the former President of its continuing interest in
presidential materials and tape-recorded conversations housed in the
White fouse, tle Executive ()ffice Building, and elsewhere which
were relevant to investigations and prosecutions within the jirisdic-
tion of the special prosecutor. Thereafter counsel for President Ford
requested an opinion front then Attorney General William B. Saxbe
on the issues of owners. )p of the presidential materials and tapes
and the responsibilities of the Ford Adninistration with respect to
them. A response to that request indi'ated1 that in the opinion of the
Attorney (General the presidential materials and tapes belonged to the
former "President. )lut the government had a right to use said mate-
rials. Following that advisoiy opinion a '-depository agreement"
[INixon/Satnpson agreement] was signed by the former President and
Arthur F. Sampson, Administrator of the General Services Adminis-
t ration, on Septenilber 7. 1974.
Thereafter, ack Anderson. a well -known columnnist, and others filed
a petition with the General Services Administration seeking access to
these materials pursuant to appropriate provisions of the Freedom of
Information Act. The petitions were denied by GSA.
On October 17. 1974, the former President filel a suit against Samp-
son and others in the Inited 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 tlpes.
Mr. Anderson. and the special prosecutor, and others moved to
intervene, seeking a temporary restraining order and preliminary
injunction to prevent the implementation of the "Nixon/Sampson
agreement." IT.S. District CourtJudge Charles R. Richey issued a temn-
porary restraining order prohibiting the implementation of the agree-
ment until a full hearing could be held on the former President's
motion for a preliminary injunction. [Nixon v. Sampson, Civil Action
No. 74-1518 (D.D.C.).]
A petition for leave to participate as amic; ciirae in this case was
filed and i.ranted on behalf of then Senator Sam J. Ervin, Jr.. and
Senators Gaylord Nelson and Jacob Javits and Representatives Wavne
L. Hays and John Brademas on November 11, 1974. A separate motion
(19)






20


of Representative Elizabeth Iloltzman for leave to file an amicus brief
was also granted on the same day.
Tle congressional petitioners sought leave to participate in the pro-
ceedins 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 niamtenance of the statu_ quo pending consideration by the Con-
gress of matters falling within its primary and fundamental author-
itv." [Memorandum of Ervin et al. as amici curiae, Nixon v. Sampson,
Civil Action No. 74-1518 (D.D.C. Nov. 11, 1974).]
At the time of the filing of the Ervin and Holtzman petitions, the
Senate had passed a bill, S. 4016, which, while making no determina-
tion as to the title of the presidential materials, provided for the pres-
ervation of access to materials by placing them under the control of the
Administrator of the General Services Administration, with all the
materials to remain in Washington. The bill had been transmitted by
the Senate to the House and referred to the appropriate House com-
mittee which had not then had an opportunity to act on it.
Each of the congressional participants-the amici--'bore a special
responsibility with regard to this legislation. As noted in a memoran-
dum prepared on their behalf:
Amicus Ervin, Senator from North Carolina. is Chairman
of the Senate Committee on Governiment 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. Representative from Ohio.
is Chairman of the Committee on House Administration,
which has jurisdiction over such legislation in the House.
Amicus Brademas. Representative from Indiana, is Chair-
man of the relevant Subcommittee of the House Adminis-
tration Committee. [Id.]
The action sought by the am id was set out in this language:
Amici respectfully urge that the safeguarding of these ma-
terials pending Congressional action is a matter of the most
compelling public interest. Accordingly, in light of these con-
siderations of fundamental significance to amici and their
colleagues in the legislative branch, amici urged that the
Court grant a preliminary injunction to maintain the status
quo. Such an injunction will insure an opportunity for or-
derly consideration of the issues by the representatives of the
public in the exercise of their special Constitutional responsi-
bilities 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 responsibili-
ties. [Id.]
Although the Holtzman petition supported the status quo position
of the Ervin petition fully. Ms. Holtzman's memorandum was sub-
mitted 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 pap(rs. AcQoI'digly, I1s. Ifol't IllzzIl coltended t hat since lie
Attorney General bad already expesoed )i is opinion in riting that
all of thel disputed papers and tapes belongcvd to the forlener President,
the "level of vig'or" with wliielt t1ie I)epart ment of Justice would
pursue the defense of any action Ibrolglit by Mr. Nixon-Jo obtain
either the return of. or compensafi( fo the property which I oth Iie
ind tie .Atteornev Gen 'ra 1l -ea lv :ao-reed were 1i i. "vo lld 1 les
than inadequate. ifoieovcr, she, iiis a itained tli;t, the iiiatter was ftri lier
co plicated bec'uise I e II)epa tmnent was currentItly reMresenting \r.
Nixon in several suits brought against liiiii whfile lie was President,
tlnis 1aisi0 ai et iical (l ,W !estlo to \N,%l11licr it -oiild repreIeilt his
adversary (the United States) in itigation over lie ownership of 1:lie
p1aipers and tapes in piest ion.
To rQllledy the situation, I\f's. Iloltziinan i1fornied the colrt that
she intended, to iit odiice 1egrisl, ion to provide for a Special (olinsel,
in lieu of the 1)epartin,et of Ju1stice, to represent the United Stfates
in all litigation relating- to the ownership of the papers and tapes at
issue in this case. [ Menlorandui of Con oresswoman Elizabeth Holtz-
oa n as anieus cilU,;ae, Nixon v. 8anpson, Civil Action No. 71-1518
(D.I.C. N ov. 11. 1974). I
Judge Richey held a hearing on the petitions on November 15 and
18, 1974. but withheld any decision and asked counsel for amori to
provide him with additional information regardifig 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, was signed into law on December 19,
1974 [Pub. L. 93-5261.
On the day after the Act went into effect, the former President
brought an action in the U.S. District Court for the District of Co-
]bimbia to enjoin its enforcement on the grounds that it transgressed
the Constitution. [See Nixon v. Admlsil.trafor of Gen. Serves 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
V.S.C. 2282. 2284 to hear and determine the constitutional
,claims asserted. The case was assigned to Judge Richey, before whom
the consolidated cases aforementioned were then pending. The same
issues, namely, the ownership of the materials and tapes and privi-
lege against their disclosure, which were raised in the consolidated
cases were now extended to Mr. Nixon's most 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-
he (Mr. Nixon through counsel) requested Judge Richey to initiate
the statutory procedure leading to the formation of a district court
of three judges. I)uring that period, Judge Ricihey was preoccupied
with the consolidated cases and planned to complete work on them
before toiriing his attention to the challenge case. (Nixoit v. Admuv-
ti.ato) of G n. suipra.)
Having failed to convince Judg-e Richey that the appointment of a
tlree-judge court took priority in this matter, Mr. Nixon filed a peti-







tion 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 chal-
lenge case priority over the consolidated cases as assertedly required
by section 105(a) of the Presidential Recordings and Materials Pres-
ervation Act. [N;on, v. RIchey, Civil Action No. 91-1063 (D.D.C.).]
The appeals court, in a per ct,'Im order and opinion filed Janu-
ary 31. 1975. denied the former President's petition stating that the
issuance of a writ of w/inims was unnecessary. It did, however, hold
that Judge Richey erred in delaying action on the application for a
three-judge panel. Although the court stated that an application for
the conveiing of such a court is statutorily entitled to expeditious.
treatment under -28 U.S.C. 2284. it held that beyond these considera-
tions, the Presidential Recordingzs and Materials Preservation Act.
requires the trial judge to give priority to such an application:
Beyond these consilerations, the Recordings and Materials
Act independently supports petitioners claim that the Dis-
trict Judge should have acted weeks ago on the three-judge
apI)lication. Section 105(a) of the Act confers upon the Dis-
trict Court for the District of Columbia "exclusive jurisdic-
tion to hear challenges to the legal or constitutional validity
of this title." and specifically provides that "[a]ny such chal-
lenge shall be treated by the court as a matter requiring
inimediate consideration an(d resolution. * *" (emphasis
supplied) It is clear that the case for which petitioner sought
the three-judge court was a "challenge to the legal or consti-
tltional 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
ain(l resolution. * *" In these views, we need not consider
contentions by one of the amici curiae that Sections 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 mandamus
remedy under the circumstances. it saw no occasion for issuance of a
writ, since having advised the District Judge of the relevant law, it
assumed the lower court would proceed in accordance with the ap-
pellate Opinlionl.
01n the same day (January 31) in which the appeals court had
issued itorder an(opinion. ,ftudge Richer released a 98-page opinion
in the coIsoli(lated cases. At thi same time. Judge Richey issued a
sullumuiary and synopsis of his opinion which appears in its entirety as
follows:
SUMM3IARY AND SYNPOSTS OF OPINION OF CHARLES R. RICIIEY1
UNITED STATES DISTRICT JUDGE
A. Introditct on

These consolidated cases present a unique controversial, the
heart of which concerns the ownership of and the right to
assert or waive a privilege with respect to the "Presidential





23

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 government de-
fendant'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 partial summary judg-
ment by p laintifs Anderson, The Reporters Committee for
Freedom of the Press, et, al., Lillian Hellnan, et al., and the
Special Prosecutor. on his counterclaim for declaratory re-
lief. and as the intervenor-defendant 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 Recordings
and Materials Preservation Act of December 19, 1974, nulli-
fies 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 recordings, 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 asserted Fourth Amendment claims.

D. Sunummary 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. 0 wnerslip
1. The claim of ownership of former President Nixon to
the "Presidential materials and tape-recorded conversations"
of the Nixon Administration is contrary to the general prin-
ciple of law that that which is generated or kept in the ad-
ministration 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 generated or
retained by himself or others on his behalf in the perform-
ance of his duties as the President of the United States is







conitrary" to the nature of the Office of the President and the

3. The inherent continuity of the Office of the President
negates a 'lain by former President Nixon that the inde-
1endence of the Of ice re(tuires that h1is assertion of owner-
ship he sustained.
4. There is 1o precedent which compels a finding that the
"Presidential materials and tapes" are tie personal property
of former President Nixon.
5. The historical pract ice of past presidents does not evi-
dence a clear and constant recognition of ownership of the
materials generated and retained in the conduct of the Office
of the Iresident.
6. Congress has not sanctioned the personal ownership of
"Presidential materials and tapes" enerated and retained in
the conduct of the Office of th1e Presilent.
7. Materials and tape-recorded conversations generated by
Executive departments and agencies, although subsequently
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 conversations 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. Priviege
A former President may not assert or waive the privilege
which attaches to the confidential communications relating to
the conduct of the Office of the President contained in Presi-
dential materials and tape recordings as the privilege belongs
to the government and may only be asserted 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 gen-
eral warrant: nor does it subject him to an unreasonable
search and seizure. However, under the circumstances, 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. Iemedy
The Court will require the following rwocedure with re-
Lar(l to effectuation of the Novem-ber .th Arcnent. with
regard to any rquelts for Presidential materials and tane
recordings made pursuant to court order or subpoena. r with






regard to any requests made under the Freedom of Infor-
mation Act:
1. Documents: The government defendants, or
their agents, prior to any governmental examination
of the materials, shall permit Mr. Nixon or his coun-
sel, (a) to segregate from any box or file, any docu-
ment which is deemed personal, as defined by this
(1ourt ; (b) to mark those portions of any document
which are deemed private, as defined by this Court,
without destroying or impairing the integrity of
that portion or any other portion 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-re-
corded 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 recorders,
one (hereinafter, "recorder A") of which shall in-
chide the following features: (1) a single-listening
device, commonly known as head-phones, and (2) a
digital "counter"; the other (hereinafter, "recorder
B") shall include the capacity to duplicate the re-
cording 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 conversation or
portion thereof as private, as defined by this Court,
the operator shall stop recorder B at the commence-
ment of that conversation or portion 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 pri-
vate, and the operator shall also, utilizing the "coun-
ter," mark in a log the digital number of the com-
mencemnent and termination of the conversation or
portion thereof designated as private. When a dis-
pute arises with respect to the validity of a claim
that a particular item, or portion thereof, is private,


75-5G5-76--3







upon notice of counsel. the Court shall examine the
material or tape-recorded conversation, or portion
therotf, in e ,: ra. This sha~l be followed by a hear-
inff under the procedure set forth in the OpIinion.
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 revea-e of Judge Richey's opinion, the former Presi-
lent, sought reconsidtr at ion of the appeals court's earlier refusal of a
Tle apt)CalS court, ini an opinion and order of February 11, 1975,
, ItiUed is stay oI J f a I of any order implementing Judge
11iuev's opinion. The court lnoted that aince a three-judge panel was
coiivened on February 5 to coiIder whether it properly should pass
on the con:tit"tional isue. no further action by the appeals court
wa needed in that regard.
The appeals court noted that in its earlier opinion [January 31]
it took pains to alert ,udre Iichev to the peril of disposing of the
consolidated cases before acting on the former President's application
for a three-judge panel. The court said it was obviously referring to
the doctrine of collateral estoppel. [U7nder the doctrine, a final judg-
mient in a prior suit precludes reliti action of material issues decided
in that suit.] The court continued that the former President might be
barred --from urging in the challenge case [Nixon v. Adm-,nLmtrator
of G( n. Se's.. Civil Action No. 74-1852 (D.D.C)] positions contrary
to determinations which any decision of the consolidated cases [Nixon
v. 8anpson. Civil Action No. 74-1518 (D.D.C)] might yield." [Nixon
v. 17;4thy, 51; F. 2d 430, 438.]
The ,ppeals court proceeded to undertake a review of the history
of the Presidential Recordings and Materials Preservation Act.
The court stated that there were two goals Congress intended to
and did accomplish by the passage of the Act: (1) insuring the Fed-
eral Government's interest in acquiring control over and power to
prote-t the Presidential materials. and (2) speedy determination of
pos~s> constitutional challenges to the validity of the Act.
The court noted that the three-judge requirement under procedures
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
At. in its present form, which enables a single judge of the U.S.
)istriut Court for the IDistrict of Columbia to hear any constitutional
challene to this Act. was approved by the Conference Cemmittee,
and subsequently enacted into law [513 '. d at 439-442].
Thj, Act did not, however, prohibit the petitioner from making an
1 ((ll(e(ent appIlication un(ler Section 2284. spra. The court said
The remarks of Represcntative Brademas demonstrate that
Con .res intended to preserve ii :le-judue jurisdiction over
tilC (onsli~dated caS.?s, even lor consideration and decision of
challenges to the constitutional validity of the new Act in the
event that such challen s were asserted in those cases. The
remarks plainly contemplated, too. that any sucl challenge
would iit ili je that oppovtiinit v. But I Ptrese1i. tive Brad1emas







was completely silent on the ques tion whether such a chal-
lenge could only take tlat route, and so is the rest of the
legislative history.
We need not ponder whether (mI)OTress could validly have
imposed the reqii iren ent 'iiat stici' a diallenge could only be
entertained in the co(isolia "l ed (,uses. Novwhere iin the Ieisla-
tive history is there any slI'estion that Sections 2282 and
2284 would not eni i a sepaate suit present i a comA itu-
tional challenge to tl!e Act in the context of a demand for in-
jlunctive relief. It woult have hc-en siiiiple foi Re)reselitative
Brademas to st te, and inWleed Tor (o (onlress to require tlha
those sections ,- otild i ot ap)Iy to challenges to the Act. had
that been what Con:!'ess bad ill ind. Neither, l -over, was
done, and the courts are left with the t)PoblLeii of determiiining
whether petitioner's s(1 a,,te-snt clial len!'e requires the usual
three-judge court. pa ietiCaklv iii lig it of the (Yeneral canon
of constrni'tion tlt repeal of a statute by implication is
(tisfavored.
It is nmch the ,lcaer. howv'i. thn'i (onrress deemed in-
dispensible to its objective flie iiilnedlate consideration and
resolution of any challenge to the coltitutioual or legal valid-
itv of any provision of the new Act. It was to mandate that
degree of expedition that each of the bills uitially passing
the Senate and thle House contained the requirement that such
challenip'es be heard and determined bv 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 challengres.

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 nmde in the consolidated cases
before Judge Richer a, a Sille judo'e, after appropriate
amendments and adaitionls of )artios for that purpose were
accomplished. Whiat Com,'rress apparently did not anticipate
was that petitioner, instead of pursui;lg that route, would in-
stitute a new. separate suit 'oromided on Sections 2282 and
2284 to test in orthodox fashion the constitutionality of the
Act before a three judge rather than a single-*udge tribunal.
[513 F. 2d at 442-413.1
The court added that what Cem~rcss wanted "was speed in judicial
Iian(Tlinca of such [conFtitutional] 'c!fl 1lenges" whether properly to be
considee(1 anol determined b-v three judges or one. Just as plainly, the
text "E'nd l>stov Section 1.0(a) indicate that Congress (lid not share
the same concernl for speed in the re-;olution of litigationi not amountinfr
to a constitutionall] ehallenre'. That litiation is relegated to a posi-
tion below te priority specified for 'cinalleng'e' actions." [513 F. 2d at
444-115.1
T1-e court concluded by rrantinr the former President's petition for
_a.. orderin, a stay of the issuance of Judge Richey's order
and of any further proceedings in the consolidated cases.








() h A1priI 2. 1975, J I dge hihe reII oved himself from the con-
sol idatedI cases in wNhichi he was trial judge and from the challenge case
)e f(ore the three-judge panel of which he was a member. Ile was re-
laced in both proceedings by Judge AUibrey E. Robillson.
II August, Rose Mary Voods. who was Mr. Nixon's personal secre-
iarv wheni he was President. nIoveld to intervene in the action before
the ()urt of appeals for the purpose of having the stay over the pro-
ceedins in the consolidated cases anminde( to allow her to intervene in
those i)roceedings. Oi Selptember 2, 1975, the court of appeals allowed
her intervention anld gfrallted her motion to amend its order of Janu-
ar r 1. 1975. Miss Woods then was adioitted in the consolidated cases
s an intervenor plaintiff seeking to obtain certain personal papers of
her own from the Administrator of GSA. On December 2, 1975, her
immtion for judgment on her pleadings was granted. The decision was
imediately appealed to the court of appeals. [Nixon v. Samtpson,
Civil Action No. 75-2194 ().(. Cir.).]I
In the meantie, the three-judge panel in the challenge case heard
oral arguunent on Septemlber, 22. 1!7)). In a unanimous opinion released
on January 7, 1976, the three-judge court uIpheld the constitutionality
of the act on its face. A sumary of the courts opinion appears as
follows:
kSzcope of Inquiry
'The court, responding to its duty to avoid constitutional
questions whenever possible, considers only those questions of
the Act's constitutional validity that are immediately 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 con-
stitutionally protected interests of Mr. Nixon that is allegedly
worked by the taking of his presidential materials into cus-
tody and their screening by government archivists. Slip op.
at 18-31 infra.
Claims Relaf ing to the Separation of Powers
The court finds nothing in the separation of powers doc-
trine to support the contention that the legislature may not
pass a statute in any way touching upon the prerogatives 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 materials that genuinely
implicate presidential confidentiality. Although the court
thinks it doubtful that a former President, rather than the
incumbent, may assert such privilege, at the very least such a
claim is entitle(l to relatively less weight in the balance of
competing consi(lerations. And the infringement upon presi-
dential confidentiality cav'use(l by screening by trained and
discreet roveI'nlm ent archivists, who have been employed to
I)erformn identical tasks for the materials of every President
since Herbert Hoover, is very slight. The court finds, on
tle other hand, that C(ongress had apinle reason to mandate





29

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 preserva-
tion and responsible treat ment of presidential materials are
(1) maintaining a complete and accurate historical record
and (2) assuringr the availability of the materials potentially
needed for coiitinuity in executive policymaking. Other inter-
ests served by the Act inclu(le informing the public about
the Watercrate matters and ensuring the availability of ma-
terials that mav be relevant to legislative investigations or
judicial proceedings. Because of the manner in which per-
sonal materials are intermingled with official ones, compre-
hensive screening represents the only feasible manner of pro-
tecting these important interests. The court finds that the
slight inroad on presidential confidentialit caused by such
screening is outweighed by the need to further these impor-
tant legislative objectives. Slip op. at 31-66 htra.

Claims Relat;!ng to P'ivacy
It appears from the record that plaintiffs can validly claim
a privacy interest in only a small fraction of the materials.
Yet due to the historical practice of de factor control by Pres-
idents of presidential materials, the court finds that regard-
less of where ownership of the materials lies-a question that
need not bxe reached-plaintiff has a reasonable expectation
of privacy in these materials, an interest that is infringed
even by mere screening by government archivists conducted
under legislation with retroactive application. In light of the
intermingled nature of the materials, the court finds such
infringement of privacy interests to be an inescapable con-
comitant 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 plaintiff's pri-
vacy interests has adequate justification. Slip op. at 67-89
ut Ji a .
Freedom of Speech and A ssoc;atioi
Plaintiffs First Amendment claim is predicated upon the
assumption that all materials-including those implicating"
privacy in political association-will be open to public access.
The court finds no basis for that assulitption. Rather, reach-
ing only that infringenient of Fit-st Aii e diiient interests








caused by screening by government archivists, the court finds
any injury to protected interests arising from a confidential
review process to be insubstantial. Slip op. at 89-93 ifra.
Equal Protection

The coumt finds that aly difference in treatment between
plintifl and other Presidents is adequately justified. As re-
spects immediate past Presidents, their papers had already
been (1e)osited in presidential libraries where, on the whole,
their availability to promote important governmental inter-
est(s was assured. As respects current and future Presidents,
legislating with respect to tl:em risked disrupting current
executive policymaking, and would be unwise before the Com-
mission study of the sensitive anl complex problems involved
in regulating tie records of federal officials had-been com-
)leted. Only plaintiff has finished his service as President but
has not yet es tabished a presidential librar-. Prompt con-
gressional action was reasonably deemed necessary to assure
that tle materials would remain preserved. and to begin the
lengthy process of reviewing and classifying them. Finally,
Congress could legitimately consider plaintiff to be less likely
than his immediate predecessors or successors to dispose of
the materials responsibly. Slip op. at 93-97 infra.

Bill of Pai. and Penalties
There is, in the court's view, no evidence in the legislative
record to support the claim that the Act was designed to im-
pose, or constitutes, punishment within the meaning of the
Bill of Attainder Clause. The court finds there are other
legislative objectives served bv the Act which Congress could
legitimately-and did--consider. Rather than possessing tra-
ditional indicia of a punitive enactment, the Act includes pro-
visions that indicate a concern for plaintiff's interests, pro-
visions that are wholly inconsistent with the hypothesis of
I)uitive intent. Slip op. at 97-103 infra.
The court ordered tlat the preliminary and permanent injunctive
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 defend ants were enjoined from "processing, disclosing,
inspecting, transferring, or otherwise disposmg of any materials, be
they documents, papers, tape recordings or other items" which might
fall under the rovisons of the act, except for legal proceedings, in-
wctionl by Mi. N xon or his designated agent, or use for current busi-
e by tile executive branch.
ThIe court also noted that tile court of appeals had stated in Nixon v.
Zi/cheA, 513 F. 2(1 at 448 that it woui(l dissolve its stay of January 31,
1975. on the consolidated case procee.dings. whenever the three-judge
court indicated it believed the need for the sta no longer existed.
~y
"favin~ now entered judgment in this action, we are simultaneously
requesting the court of appeals to dissolve the stay, thus permitting


M I







the consolidated cases to proceed in whatever manner seems fit in light
of the possibility of appeals in this action *" [Slip Opinion at
16. n. 10].
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 order on D~ecember 2, 1975, which
granted Rose Mary Woods summary judgment on her motion. Pend-
ing a decision on the merits of the appeal, the court ordered the par-
ties to stipulate those materials as to which no controversy exists, and
to make intermittent reports to the court. The parties have iade sev-
eral such reports to the court.
On March 5, 1976, Mr. Nixon filed a notice of appeal to the Supreme
Court of the decision of the three-judge court on January 7, 1976. The
case was docketed by the Supreme Court on May 3, 19T6 ('No. 75-1605).
Status.-The consolidated cases are before Judge Robinson in the
.. -District Court fowv' the l)istriet of (olunibita. The appeal -of the
order granting. Miss Woods sinmary jidinet is 1enidinir before the
court of appeals. -Mr. Nixonis appeal of the decision bv the th:'ee-jude
court was distribuited by the S>uprelne Court on July 23, 1976, but no
decision to grant or denV te fl appeal was mia(le by the court before it
recessed for the summer.
The full text of the I.S. Court of Appeals' de(isionls and of K.S.
District Judge Richey's opinion were printedl in the "Decisions" sec-
tion of the report of Court Proeedings and Actioits of Vital Iiter-
est to the Congress, April 15, 1975, and the full text of the three-
judge court's opinion and order was printed in the report of Court
Proceedings and Actionws of Vital Interest to the Congress, April 15.
1976.
Public Citizen, Inc. v. Simon (formerly Shultz)
Civil Action No. 74-2025 (D.C. Cir.)
Brief.-This action, filed in the U.S. District Court for the
District of Columbia on November 16, 1972, sought to recover the
salaries paid certain members of the White House staff for periods
during which they were allegedly devoting substantially full-time to
the 1972 Nixon presidential re-election campaign, rather than to their
official duties.
Filed by Public Citizen, Inc., a nonprofit citizens' organization of
some 65,000 members, an objective of which is to ensure that gov-
ernment officials carry out their duties in accordance with the law
and that such laws are enforced, and its founder, Ralph Nader,
the action named as defendant then Secretary of the Treasury
George P. Shultz. The former members of the White House staff
named in the complaint were Charles Colson, Special Counsel to the
President, Robert H. Finch, Counselor to the President. Herbert G.
Klein, Director of Communications for the Executive Branch, and
various members of their staffs, of the White House staff and the staff
of the Vice President.
The complaint was based upon Article I, Section 9 of the Constitu-
tion, which provides, in part. that "[n]o money shall be drawn from








the Treasury, but in Consequence of Appropriations made by
Law; * *"It was alleged that payments to staff persons, 'devoting
substantially all of their working time to the re-election campaign
of President Nixon," from public moneys violates this constitutional
provision and the provision of Section 628 of Title 31, United States
Code, since such payments were not authorized by an appropriation
of Congress. The code provision states: "Except as otherwise pro-
vided by law. sums appropriated for the various branches of ex-
penditure in the public service shall be applied solely to the objects
for which they are respectively made, and for no others."
On March 8, 1973, U.S. District Judge June L. Green denied a mo-
tion by defendant to dismiss the suit for lack of standing on the part
of plaintiffs. Subsequent to that denial, the Supreme Court decided
two cases involving the issue of standing and defendant renewed his
motion to dismiss, asking the court to review its previous holding in
light of these two recent decisions. Judge Green agreed to do so.
In a memorandum opinion handed down September 30, 1974,
Judge Green granted defendant's motion to dismiss, concluding that
"[iln view of these recent narrow interpretations of taxpayer stand-
ing [Udted States v. Richardson, 418 U.S. 166 (1974) and Schlesinger
v. Reservists Committee to Stop the War, 418 U.S. 208 (1974)] this
Court is constrained to conclude that the plaintiffs at bar fail to
establish standing to proceed with this case." [Public Citizen v. Simon,
Civil Action No. 2280-72 (D.D.C. Sept. 30, 1974), Slip Opinion at 4.]
Judge Green elaborated in her opinion:
In the Richardson and Reservists cases** *, the Supreme
Court reviewed and reaffirmed its conclusion that in order to
establish standing as a taxpayer, one must meet the narrowly
defined tests enunciated in Flast v. Cohen, 392 U.S. 83 (1968),
which are:
"(a) Challenging an enactment under the taxing
and spending clause of Art. I, 8 of the Constitution
and (b) claiming that the challenged enactment ex-
ceeds specific constitutional limitations imposed on
the taxing and spending power." * *
* The Supreme Court made it abundantly clear [in
Richardson and Reservists] that taxpayer standing can be
shown only when one challenges Congressional enactments
under the taxing and spending clause of Article I, 8.
Plaintiffs herein fail in both respects. They are concerned
with Executive action, and they base their claims not on
Article I, 8, but on Article I, 9, clause 7 of the Constitu-
tion. [Slip Opinion 2-3.]
On June 25, 1976, the Court of Appeals affirmed the District Court's
granting of the motion to dismiss, rejecting Public Citizen's assertion
of standing. The Court held: "[T] he fair implication of appellants'
position is to recognize taxpayer standing to attack any executive ac-
t ion that draws on an outstanding appropriation on the ground that
the purchases or services are not in accord with the congressional in-
tent in passing the appropriation. This would place the judiciary in the
role of management overseer of the Executive Branch. Such oversight







is a function of Congress. Taxpayer standing here would bring into
play the separation of powers concern pervading Frothingham, Rich-
ardson and Schlesinger.
"Appellants' final argument is that if they are not granted standing,,
the constitutional violation alleged will go unreinedied and the funds
diverted to the Nixon re-election campaign will never be recouped. Wle
need not consider whether there is -a 'better plaintiff' than a taxpayer
to maintain the instant challenge. If not, the taxpayer's claim is still
barred. In Richardson the Court rejected this factor as a basis for
finding taxpayer standing, and viewed 'the absence of any particular
individual or class' litigant as lending 'support to the argument that
the subject matter is committed to the surveillance of Congress, and
ultimately to the political process.' [Slip Opinion at 13-14.]
Stats.-No appeal had been filed as of the (late of this report.
A copy of the appeals court's opinion is found in the "I)ecisions"
section of this report at 89.
The full text of the district court's memorandum opinion was
printed in the "Decisions" section of the report of Court Proceedings
and Actions of Vital Interest to the Congress, Final Report, Decem-
ber 1974.
Clark v. Valeo
Civil Action No. 76-1227 (D.D.C.)
Brief.-This suit was filed on July 1, 1976, by former Attorney Gen-
eral Ramsey Clark, now a candidate for the Democratic nomination
for U.S. Senator from New York, against: Francis R. Valeo, the
Secretary of the Senate; Edmund L. Henshaw, Jr., the Clerk of the
House of Representatives; and the Federal Election Commission
(FEC). The action seeks declaratory and injunctive relief from cer-
tain provisions of the Federal Election Campaign Act of 1971, 2 U.S.C.
431, et seq., as amended (hereinafter the "FECA") and Subtitle H
of the Internal Revenue Code of 1954, 26 U.S.C. 9001 et seq., as
amended, (hereinafter "Subtitle H") and against their administration
and enforcement by defendants, on the grounds that these provisions,
which allow a single House of Congress to disapprove regulations of
the defendant Federal Election Commission (hereinafter "FEC"),
violate the constitutional doctrine of separation of powers and destroy
the constitutional system of checks and balances established by Articles
I, II and III of the United States Constitution and deprive plaintiff of
due process of law under the Fifth Amendment of the United States
Constitution. [Plaintiff's "Complaint for Declaratory and Injunctive
Relief," at pages 2-3.]
Plaintiff alleges that in the primary for the Democratic nomination
he will be opposed by Representative Bella Abzug, among others, and
that as a Member of the House of Representatives, she is authorized
to, has and will continue to vote on whether to disapprove certain reg-
ulations of the FEC affecting elections for the U.S. Senate; and that
in the general election he will be opposed by, among others, Senator
James Buckley, who, as a Member of the Senate, is authorized to, has
and will continue to vote on whether to disapprove the regulations of
the FEC when they affect elections to the Senate. Mr. Valeo and Mr.
Henshaw are sued (1) in their official positions whose duties include








furnishing certain services and facilities and cooperating with the
FEC inI carrying out its duties, (2) as custodians of the FEC of cer-
tain reports and statements submitted pursuant to the FEC's regula-
tions, and (3) as ex o)fio members of the FEC.
The complaint states that the FEC is empowered to prescribe rules
an1d regulations to carry out the provisis of the FECA and Sub-
tit le 1I, but before ally such rule or regulations may be put into effect,
a statement containing the propose(l regulation or rule and a detailed
explanation of it must be transmitted to the appropriate House.
Statements concerning candidates for the Senate go to the Senate
and statements conceriMni/ candidates for the House go to the House.
All other statements nmist be transmitted to both Houses. If within
30 legislative days after receil)t either House disapproves a rule or
regulation or part thereof, the FECJ may not put the rule or regu-
Lit ion or part disapproved into effect.
Plaintiff states that on July 30, 1975, the FEC sentto both Houses
a regulation pertaining to office accounts, which usually consist of ex-
cJss campaign fInIds, useld by Members of Congress to support various
activities, an( that a modified version of the regulation, intended to
cOIil)Iv with certain sinzgestions by Members of both Houses. was
sent to both houses on September 30. 197.5: that on October 8, 1975, the
Senate rejected a modified version of the regulation by a single vote;
that Senator Buckley, who himself has an office account, voted against
the modified regulation: and that the Senate then rejected both regu-
lations 1y a voice vote. Plaintiff further states that on August 1, 1975,
the FEC sent to 1)oth Touses a regulation which would have required
Members to file all reports and statements in the first instance with
the F' EC. instea of allowing them .he special privilege of filing them
with the Clerk of the Iouse or the Secretarv of the Senate (as appro-
piabite) in the first instance, which plaintiff alleges delays the report-
no. to and mestigatin by the FEC for at least a week; that on
October --, 197-. the House of Representatives disapproved the
regulation" and that Representative Abzug voted to disapprove the
re~rul at ionl.
He also states that several other regulations were referred to the
aH)rol)riate houses prior to the Supre-me Court's decision in Buckley
v. o l1on .January 30. 1976, which had not been disapproved, and on
which the 30 le i'ative (lays had not yet run on that date, and that
Congress subscIuentlv provided that even rules and regulations
adol)ptd 1v the FEC beforee the date of enactment of the 1976 amend-
maenI s to the FECA would ')ot be effective unless they were resubmitted
and subjected to the congressional veto system. -Te states that no
sliri resubmissions have been made. Finally, plaintiff argues that
since the FEC is currently considering rules and regulations which
bave not vet been, hut which must eventually he. sent to the appro-
priite Hlouse to see if it disapproves, the FEC has and will continue
to modify propose(l ules and regulations in ways it perceives will
meet the desires and wishes of MAemers. -it times modifying them
in such a way 's to give i1cumbents advantages over non-incumbents.
The complaint states that the FECA and Subtitle H: (1) deprive
11l1iintiff of his conslititonal rights 1)v allowing a single House to
lis:,)prvc riile and re~lat ions adopted 1w the FEC, and by denying






35

the President the opportunity to veto such1 coiigressiona1 actions in
violation of Articles I, 11, aiid III of the Constitution: (2) deprive
him of his constitutional right to have i'ws affecting him enacted by
the full legislative process, including passage by both Houses with
an opportunity for a Presidential veto, and invidiously discriminate
against him by allowing incumbent Members of both ITouses to veto
rules and regulations of the FEC in violation of plaintiff's right to
due process under the Fifth Amendment; and (3) deprive him of
his constitutional rights by delegating the discretion to disapprove the
FEC's regulations and rules to a single IHIouse of Congress and by
delegating such authority without giving any standards or criteria
to govern the exercise of such discretion or requiring any reason to
be given for the use of such discretion.
Plaintiff alleges that unless the court enjoins the enforcement of
the provisions of the FICA and Subtitle II which allow a siiigle
House of Congress to disapprove the ruls and regulations of the
FEC that he will suffer irreparable injury and will suffer constitu-
tional impairment of his rights to vote. to participate effectively in
the political process', and to compete without discrimination in the
electoral process. Ile asks the court to (1) immediately ap)loi:ut a
three-judge court to hear the issues ntised by the complaiiit as to Sub-
title H. and (2) certify to the. Qourt of Aupeals for the district
of Columbia all issues of coistitutionalitv raised cicernn the
FECA. Further he asks: that the docket be expedited pursuant to 2
U.S.C. 437h and 26 U.S.C. 9011(b) (2) ; that the court order,
adjudge, decree and declare that the FECA and Subtitle 1- provisimis
which allow the FEC's rules and regulations to be disapproved are
repugnant to the Constitution and violate plaintiff's constitutional
rights; and that the court permanently enjoin and restrain defendants
from transmitting any rules or regulations to any body of Comgress
pursuant to the foregoing provisions of the FECA and Subtitle It
and require the FEC to prescribe rules and regulations upon adoption
by their own body.
That same day plaintiff fie(l a motion to convene a three-judge
court as required by 26 U.S.C. 9011 and 28 TU.S.C. 2282 with regard
to those issues raised concernino the constitutionalitv of Subtitle 1I of
the Internal Revenue Code. a motion to reduce defendants time to
answer from the usual () days to 30 (lays, and a motion to certify
questions about the constitutionality of the FECA to the IT.S. Court
of Appeals for the I)strict of Columbia. The motion for an expedited
answer should be granted. plaintiff claimed, because the FEC was
about to adopt new rules anld send them to each House of Cougress
(where they could then be disapproved). Congress had directed that
the (locket in these cases be expedited (thus recognizing the need for
prompt rulings in these cases), plaintiff had band-delivered coies of
the complaint to the U.S. Attorney and the Attorney General on the
same date the ,ction was filed (thus avoiding the usual delays M their
receivino" the complaint due to the size of the Justice Department).
tind the defendants had just briefed and argued the very issue raised-
the constitutionality of the congressional veto system-in the U.S.
Supreme Court in "uckley v. Va/eo, although the Court in that case
found it necessary to decidee the issue at that time.








Plaintiff claims that this question is now in the proper posture for
resolution and asks the court to certify the following questions to the
court of appeals:
1. Does the FECA deprive plaintiff of his constitutional
rigits by allowing a s igle House of Congress to disapprove
rules and regulations, or selected portions of such rules and
reul ati ons adopted 1yv tlie Federal Election Commission,
and by denying the President of the Inited States the oppor-
tunity to veto such ('oingressonal actions, in violation of the
constittional system ()f separatioi of powers and checks
and balances e stalbllsled b Articles 1 II and III of the
11ited States (Constit tion
"2. 1)o)es tie FE('A deprik, plaintiff of his constitutional
rinzht to have laws atIectiiug him enacted by the full legislative
prICoeS. including iasa" by both HI-ouses of Congress with
the opportunity for a Pr-esidential veto, and invidiously dis-
criminate against plaintiff bhy allowing inciimbeiit office-
holders. b1ut not challengers, to veto rules and regulations of
Il]e ( oniisslon. in violatoiol of plaintiff s right. to Due
Process of Law under Ithe Fifth Amendment of the United
States Constitution ?
3. )oes the FECA deprive pl)aintiff of his constitutional
ri gihts by delegatiig the discretion to disapprove regulations
of the Federal Election (ommission to a single House of
Congress and by delegatiiIg such discretion without fixing
standards or criteria to govern the exercise of such dis-
(retion and without requiring any statement of reasons for
the exercise of such isretion ?
O1 August 6. 1976., the Justice Department moved to intervene as
a pii'ty plaintiff in the action, stating that no party would adequately
rel)resent the interest and the position of the Executive Branch that
2 U.S.C. 43S(c) (2) and (c) (4), 26 U.S.C. 9009(c) (2) and
(c) (4). and 26 U.S.C. 9039 (c)(2) and (c) (4) are unconstitutional.
Trie notion alleges t1at these sections impermissibly intrude upon
those area reserved ) y the Constitution to the Executive Branch. It
alleges the foilowiing'constitutional infirmities: the one-house veto
pro)Iv1iions of the Federal Election Campaign Act of 1971, as amended,
violate the colist itutional )rinciple of separation of powers as em-
bodied in Articles I II, and II of the Constitution; the one-House
veto provisions illegall and unconstitutionally permit the evasion of
the Presidential veto requirements of Article I 7, clauses 1, 2, and 3
of the Constitution ; the one-I house veto )Iovisions constitute an unlaw-
fill and uniconstitiitiodial delegation of legislative power to one House
of Cong("ress: the one-I louse veto provisions are in derogationn of Arti-
cle I of the Const itution in P11rp.rting to endow a House of Congress
with powers outside of those s)ecifically enumerated in the Constitu-
tion : and that. if ern itted to operate. the challenged provisions will
del)rive the Pr'esileiit of l)owers committe(l to his office and the Ex-
ective Br"ch of (;overnnIent by the ( ,onstitution and will allow
each Iouse of ( ongress to separately perform legislative acts in
(lero!!1ti) 101f1 Artidles I1 and .1





37

A hearing was held on August 10 before I .S. 1)istrict Judge Charles
R. Richey. Plaintiff's motion to convene a three-judge court was argued
in part and then respite until August 30. Tho court directed the legis-
lative defendants to respond by August 18 to the motion of the Justice
Department to intervene. The court, also granted defendants' motion
to file a motion to dismiss bv August 18, and set a hearing on the
motion to dismiss for August 30, 1976.
Status.-The case is pending before the U.S. Court of Appeals for
the District of Columbia.











IV. OFFICERS. EMPL. YEES. AND AcGENTS oF rie Co0on:Ens
Socialist Workers 1974 National Campaign Comm itee v. Henshaw
(formerly Jennings)
Civil Action No. 71-4l8 ( "" I.C.)
P2,l.-On. Septeiniber 10) 1974I. the ocltillst W orders 1974 Na-
tional Campaign Coimnittee, other State anl 1oc' Socialist Workers
Party Organizatioins and individual members of the Socialist Workers
Party filed suit in the 1 .S. 1)}st it ('ourt for the )istrict of Columbia
to declare unconstitutional the Flederal Electlos (anmpain Act of
1971.
The defendants in the case are the Clerk of the House, the Secre-
tary of the Senate and the Conmptroller General of the 1-nited States.
each of whom is designated as a "supervisory o iicev with whom state-
mients and reports required under the Act are to be filed.
The plaintiffs allege, in tei al;a. that the provisions of the Act requir-
ing the disclosure of the identities of party members, contributtors, and
others who support "lawful, though controversial political activities."
deprive them of their freedom of association rights under tle First
Amendment. Plaintiffs also assert that the reporting and disclosure
requirements "deprive the plaintiffs ald their supporters of the right
to associational privacy and to political anonymity under the First.
Fourth, and Ninth Amendments to the constitution. * *"
On October 2, 1974, Comnton (ause moved to intervene as a defend-
ant. The motion to intervene was granted and plaintiffs' motion for
a three-judge Federal district court to rule oni the constitutionality
of the law was denied on October 10. 1974. The denial was appealed,
and on December 12, 1975. the district court granted plaintiffs' motion
for the three-judge court.
Plaintiffs sent interrogatories to and requiested the production of
documents from: W. Pat Jennings and his successor Edmund L. Hen-
shaw as Clerks of the House of Representatives; Francis R. Valeo.
Secretary of the Senate: and Elmer B. Staats, Comptroller General of
the United States. The House passed H. Res. 863 on November 13. 197,5.
authorizing the Clerk to answer the interrogatories and to provide
copies of notifications of noncompliance or apparent violations sent by
the Clerk to campaign organizations affiliated with the Socialist
Workers Party from ,anuarv 1, 19"5 to date. after the court has
determined that such documents are material and relevant. The court
so determined on November 19, 1975.
A second set of interrogatories and requests for the production of
documents relating to the Socialist Workers Party was received by
each of the defendants on March 8, 1976. The House passed
1. Res. 1122 on March 31, 1976. which had similar provisions to those
of H. Res. 863 in allowing the Clerk to t"I e with him copies of all
"non-public' records or documents relating, to plahitirfhs or to any
(39)








previous Socialist Workers Party committee, candidate or official
maintained by his office which are requested in the subpoena duces
tepuon and found by the court to be material and relevant.
On July 2.3. plaintiffs filed a first supplemental and amended con-
plaiit for declaratory relief, adding several State Socialist Workers
Parties as plailitifls and adding the Federal Election Commission
(FEC) and Attorney General Edward Levi as defendants. The FEC
was added because it is charged by the 1976 amendments ("Amend-
ments') to the Federal Election Campaign Act of 1971 ("Act") with
monitoring and enforcing the recordkeeping and disclosure provi-
sions of the Act and the Amendments, and Attorney General Levi
because he is charged with enforcing their criminal sanctions. The
complaint states that under the Amendments the plaintiff must main-
tain records of all contributors of $100 or more and identify such to
the FEC. It states that plaintiffs have not identified them on constitu-
tional grounds. It states that recent information concerning govern-
ment harassment and surveillance of persons associated with the So-
cialist Workers Party shows further proof that disclosure of these
contributors will deter and intimidate persons from associating with,
contributing to, and supporting the plaintiffs and their candidates. It
asks the court to declared U.S.C. 432 (b), (c), and (d), and
438(a) (8) and 434(b) (1)-(8) unconstitutional on their face as ap-
plied to plaintiffs and to contributions and expenditures on behalf of
their presidential candidate Peter Camejo, and to preliminarily and
permanently enjoin their enforcement as to plaintiffs and as to candi-
ate Camejo.
Status.-The case is now pending before the U.S. District Court for
the District of Columbia.
United States v. McPherson
Criminal Action No. 76-136 (D.D.C.)
Brief.-On March 31, 1976, an information was filed in the United
States District Court for the District of Columbia charging Michael
C. McPherson with mail fraud. The information stated that while
serving as Administrative Assistant for Representative William L.
Clay, McPherson had placed on the staff payroll an individual who
at all times was employed as a school teacher in Los Angeles, Calif.
The paychecks, 22 in all totaling over $32,000, were sent to McPher-
son or the teacher's sister, who later became McPherson's wife, and
the cheeks were signed by someone other than the teacher and placed
in the accounts of the sister or McPherson.
McPherson pleaded guilty to one count of mail fraud on March 31,
1976.
At a hearing prior to sentencing, U.S. District Court Judge William
B. Jones ordered the defendant to enter a plea of not guilty and sent
the case to a grand jury to determine whether an indictment was
warranted.
."tatus.-The charges are now being investigated by a grand jury.







Peroff v. Manuel
Civil Action No. 76-0341 (D.D.C.)
Brief.-On February 11, 1976, Franklin Peroff filed this action
against Philip C. Manuel, a member of the staff of the Senate Perma-
nent Investigations Subcommittee. Peroff, who has been a Govern-
ment informer, alleges that Manuel made public his [Peroff's] cover
name and address. Peroff further alleges that Manuel's failure to main-
tain the confidentiality of the information has resulted in several
attempts to kill him [Peroff].
On March 11, 1976, the case was removed to the Federal I)istrict
Court for the District of Columbia.
Defendant Manuel filed an answer on April 27, in which he claimed
as his second defense that at all times material to the complaint he
was performing his duties in his capacity as an investigator for the
subcommittee, and therefore his actions are absolutely privileged. He
also filed a motion to dismiss on June 27, in which he states as one of
his grounds that plaintiff's claims against him are completely barred
by the doctrine of congressional immunity.
Status&-A hearing on defendant Manuel's motion to dismiss has
been set for September 30, 1976, in the U.S. District Court for the Dis-
trict of Columbia.


T-565-76--4











V. OTiHER ACTIONS INVoLVI N(; M BE i sR.s IN CEIKMENTATIVI: (APACITY
Dellums v. Powel
Civil Action Nos. "75-1974, 75-19 75, 75-2117, 76-1418, and 76-1419
(D.C. Cir.)
Brief.-This was an action for declaratory and injunctive relief and
for damafages, brought in the U.S. District Court for the District of
Columbia on November 11, 1971. arising out of the arrest of some
1,200 persons assembled oii the steps of the tlouse of Representatives
at the Capitol Builling on May 5, 1971.
Representative Ronald V. I)Allums, a plaintiff. bought the action
as an individual for violation of his constiltioial rights and for
interference with the d i,'-hlair'e of his constitutional duties as a
i1 ember of Confrress. The other plaintiffs, all are~ed dlemonstrators,
sued individually and as einbeis of their class, seeking damages.
expungement of arrest records and destruction of ille'ally obtained
fingerprints and pliotograplhs.
Defendants named in Iibe complaint inelhlded the Chief of the
Capitol Police, Chief of the Metropolitan Police Department, the
District of Columbia anid th1e 7.S. Attorney General.
Numerous pretrial motions were filed on behalf of the parties to
this action resulting in a nUmber of rttlings by U.S. District Jiudge
William B. Bryant, in which he denied plaintiffs' motion for a pre-
liminary injunction, granted plaintiffs' motion to maintain the action
as a class action and required defendants to supply to plaintiffs the
names and addres. es ()f the personis arrested on the Capitol steps on
M\ay 5, 1971, in order that notices of the class action could be sent
to them and permitted extensive discovery through the use of
interrogatories.
On January 16, 1975. a $12 million judgment against the District
of Columbia for false arrest and infringement of basic rights under
the First. Fourth and Eio-hth Amendnents to the Constitution, was
awarded to the 1.200 antiwar demonstrators. Representative Dellunis
was awarded $7,500 for deprivation of his rights of free speech under
tho First Amendment.
Appeals were filed by the defendants on October 1, 1975 (Civil
Action Nos. 75-1974 and 75-1975). On October 22, 1975, plaintiffs filed
an appeal (Civil Action No. 75-2117) from a final judgment by the
district court dismissinog defendant Richard Kleindeinst as a party to
the action, which was entered on October 20, 197-5. At the time of the
arrests, Kleindeinst was Deputy Attorney General.
On March 4, 1976, the district court reinstated into the class the
three plaintiffs who had been dismissed from the suit as original plain-
tiffs. Defendants immediately appealed this decision (Civil Action
Nos. 76-1418 and 76-1419).
All five cases were consolidated for purposes of alpeal on June "j,
I 1976.
(43)







~Stblt,. Th(e 'ppeals are pending before the U.S. Court of Appeals
for the District of Columbia.
Kennedy v. Jones
Civil Action No. 7 -19-f (D.D.C.)
BThh!f.- -I a suit filed January 29. 1974, in the U.S. District Court
for tIhe D istrict of Columbia. Senator Edward M. Kennedy of Massa-
(dhusetts s:oliiht an order in the nature of v ndamus., or, in the alterna-
tive. a l)erlanelt inljunflctiol. to rquire defendants to publish H.R.
10511 (9:8d Congress. 1st Session), an act to amend the Urban Mass
Transporltton Act of 1964, to authorize buses purchased under its
provisions to be used for chartered bus services.
Defendant Thomas, M. Jones was sued in his official capacity as Chief
of White House Records. It is his duty to receive bills presented by
Congress to the President and to deliver those that have become law to
the Administrator of the General Services Administration (GSA)
for publication.
Defendant, Arthur F. Sampson, the Administrator of GSA, is re-
quired to publish, both in slip form and in the United States Statutes
at Large, bills that have become law.
On December 21, 1973, Congress completed action on H.R. 10511.
On December 22, 1973, the 1st session of the 93d Congress adjourned
sine die. Under Rule III of the House of Representatives, the Clerk
of the House was authorized to receive messages from the President
during adjournment.
The 10-day period for the President to approve or veto the bill hav-
ing expired on January 3, 1974, the President issued a "Memorandum
of Disapproval" on January 4, 1974, in which he announced his dis-
approval of said bill and sought reliance on the pocket veto provision
of Article I, Section 7, clause 2 of the Constitution for his veto of the
legislation.
On March 24, 1975, plaintiff filed a supplemental complaint which
included a second claim for which the same relief was sought. This
second claim involved H.R. 14225, which had been cleared by Con-
gress on October 16, 1974, for action by the President. The bill
amended the Vocational Rehabilitation Act by extending for one
year authorization of appropriations for programs for the handi-
capped, amended certain Federal progoTams for the blind, and pro-
vided for the convening of a White House Conference on Handicapped
Individuals. On October 17, 1974, Congress adjourned for a. 32-day
recess encompassing the mid-term Congressional elections, the Clerk
of the House being authorized to receive messages from the President
during the adjournment. That same day the bill was presented to the
President. His ten days for approving the bill were to expire on
October 29, 1974. On that day he returned the bill to the Clerk of the
Ihouse with his objections, stating that the absence of his signature
from the bill prevented it from becoming law because of the pocket
veto. Congress reconvened on November 18, 1974, and the House on
Novener 20 and the Senate on November 21 voted by over two-thirds
to override the President's veto. On November 22 the bill was delivered
to defendant Sampson, who had refused to publish it as a law of the
United States.








The plaintiff alleged that defendants' acts denied him the
effectiveness of his vote as a U.S. Senator, denied him the opportunity
to override a veto and injured him as a taxpayer and as a United
States citizen by depriving him of his right to have the executive
branch comply with the mandates of his elected representatives in the
Congress.
On January 19, 1976, the district court rejected the defendants'
motion for dismissal which argued that Senator Kennedy lacked
standing and that the controversy was moot since Congress had sub-
sequently passed and the President had signed into law identical
legislation.
The court held that Senator Kennedy's vote in favor of the initial
legislation was suficient to convey standing.
As to the question of mootness, the court noted that the Senator
had alleged that the failure to publish the initial legislation as laws
of the United States was a violation of his rights as a United States
Senator.
"To date, the court said, "the, defendants have not published I.R.
10511 and H.R. 14225 as laws and it is their failure to perform their
diuty which is in contest here. * Here plaintiff requests a declara-
tory judgment that the bills became law in accordance with the provi-
sions of the Constitution and seeks a mandatory injunction requiring
the defendants to publish the bills as law. This relief has not been ob-
tained and the case is not moot on this basis."
On April 13, 1976, the Justice Department filed a one-sentence state-
ment of consent by defendants to the entry of the judgment sought by
plaintiff in his supplemental complaint and his motion for summary
judgment. That same day the Justice Department issued a press release
which stated in part:
President Ford has determined that he will use the return
veto rather than the pocket veto during intra-session and
intersession recesses and adjournments of the Congress,
provided that the House of Congress to which the bill and
the President's objections must be returned according to the
Constitution has specifically authorized an officer or other
agent to receive return vetoes during such periods.
Status.-The court filed an order on April 21 granting plaintiff's
motion for summary judgment and directing that judgment be entered
for the plaintiff.
The full text of the court's memorandum and order of January 19,
1976 was printed in the "Decisions" section of Court Proceedings and
Actions of Vital Interest to the Cangress, April 15, 1976, at 199.
Common Cause v. Bailar (formerly Klassen)
Civil Action No. 1887-73 (D.D.C.)
Iirif.-Originally filed on October 5, 1973, this action seeks declar-
atory and injunctive relief against Postmaster General B. F. Bailar
and Secretary of the Treasury William iE. Simon for actions they
allegedly performed or failed to perform, in the course of their official
duties, relating to the congressional franking privilege.
Plaintiffs, Common Cause and John W. Gardner. Chairman of
Common Cause, amended their original complaint on March 12, 1974,








foi lowitng thw enact itmejit of the Franking Act of 1973 [Pub. L. 93-191]
on I)ee]cr I 1: 73. to incorporate references to the new statutory
1;] 1 tL' .,i"I-( %
PlaintI ifs alle c that the use of the frank for newsletters and news
rehTlaes Lv a Member of (oigress-then a candidate for nomination or
elect io o1 en al iii fmidraisinig for a candidacy-and the use of the
frank on Iail matter such as condolences, biographies, pictures or
writing laudat orv or complimentary to a Member on the basis of per-
formance of official duties: (1) abridges plaintiffs' First Amendment
rights : (2) denies their Fifth Amendment rights; (3) is an unlawful
a)pprolriat on of public funds for nonpublic purposes; (4) violates the
Postmaster General duty; and (5) is an unlawful disburse-
inent of public fnds contrary to the statutory duties of the Secretary
of the Treasury.
On May 31. 1974. the defendants filed a motion to dismiss, together
with supporting memorandum, asserting that:
The court lacks jurisdiction over the subject matter of this
action in that neither of the above-named defendants are
proper parties to this proceeding, the plaintiffs have failed to
exhaust the administrative remedies available to them, the
plaintiffs lack standing to maintain this action, and that the
complaiiit fails to state a claini upon which relief may be
gIraniied. [IDefendants' motion to dismiss, May 31, 1974]
On June 14, 1974, plaintiffs filed a memorandum in opposition to
the defendants' motion to dismiss as well as an application to convene
a three-judge district court. On June :6, 1974, U.S. District Court
Judge John I. Pratt, denied withotit opinion defendants' motion to
dismiss. 01n July 1, 1974, Judge Pratt signed an order convening the
ihree-jud've district court requested by the plaintiffs. A week later, on
,July 8, 1974, the defendants filed their Answer to the Amended
Complaint.
Since September 9, 1974, plaintiffs have attempted to depose and
serve subpoenas dues tecum on numerous individuals. A partial list
follows: Victor C. Smiroldo, Staff Director of the House Corn-
1is1sion on (on're-sional Mailing Standards Benjamin R. Fern,
(]hief ('ounsel of the Senate Select Committee on Standards and
Conduct: I)avid Rama ge, House Majority Clerk; Thomas J. Lank-
ford. House Minority Clerk: Joseph J. Fahey, Supervisor of the
5e( ate Vold( in-' Rooin Iiinmid L. Hensha w. then Assistant Sergeant
atrms1 of the foulse : John M. Swarmer. Staff Iirector of the House
(Yuo nitte'e on Stailar'ds of Official Conduct : Eli Bjellos, Chief of the
I >izse IPuldications Dlsti lbution Service; larold Needham, Superin-
tenlent of he Senate Services Department-, James Estep, Manager
o t the Senate computerr Center; Buehl Berentson, Executive Director
of le Nathe onah Repulican Senatorial Committee; Bill Goodwin of
tlie Nat ional ] epu)licaln Senatorial Committee; Lee MacGregor,
former Aide to Senator R0bi ert (,.iflirt: Jovee Baker, a former em-
ployee of h:] e Seite Re!tldican Pol icy Conmittee : Richard Conlon,
Staff ;I ire, tor the lo" Ie oe'Wtio Study Group; Lynda E.
( '!: ne.v. l~iul'ard J. ('Ii fton, and ( 'lee (omien. Staff Assistants of the
(j)e~!bic11n Senntol'i:} (Campaimn Conmittee: Jay Bryant, Special
Assistant in the Ofice of the Minority Whip; Edward L. Beach,






Staff l)ireetor and Secretary of the Senate Republican Policy Coln
nittee and Senate Republican Conference: Edwin F. Feulner, Execu-
tive Director of the House Republican Study Committee; P4atricia
Goldn'an. Director of the Wednesday ( roup: and Jay I). Sterling,
Executive Director of the IHouse Republican Research Committee.
On October 9, 1974, the Senate passed S. Res. 423 regarding" Mr.
Fern. and on October 11. 1974. passed S. Res. 431 regarding Messrs.
Estep, Needham and Fahey. The resolutions stated that by the privi-
leges of 01be Senate no evidence of a documentary character under
the control anl(1 in the possession of the Senate caii be taken without
its permision by the mandate of process of ordinary courts of justice:
that the employees were authorized to appear before the court but not
to take with them any papers or documents on file iii tleir offices or
in their possession, and that when the court determin,d that any of
the1 subpoenaed ioeuments and papers had become part of the of ihiiai
traniscripts of public proceedin.,.,s of the Senate. and that tlev were
material to the case, the court could receive copies of the documents.
On NoveImber 22. 1974, a similarly worded S. Res; 436 was passed re-
garding joyee Baker.
The subpoenas of House employees Bjellos, Swarmer, Smiroldo,
Rnamage, and Lankford were presented by the Speaker to the House
for its consideration on September 30. 1974. When the, employees
failed to appear for their depositions. plaintiffs filed motions to com-
pIel their testimony.
On October 21. 1974. two of the subpoenaed employees, Eli Bjellos
afnd John SwNaner., wrote a letter to Judge Pratt after receiving a
copy of the motion filed by the plaintiffs to compel their testimony.
Each informed Judge Pratt of his view that both by statute and by
the custom of the House. they were forbidden to testify or to remove
documents belonging to the House without the permission of the
House. The letters also informed Judge Pratt that the question of
the subpoenas was under active consideration by the House and that
the two men were therefore awaiting further guidance from the House
on the course of action they should follow.
On December 18. 1974. the House adopted H. Res. 1517 which was
simihr to the Senate Resolutions, except that it resolved that:
M1len it appears by the order of the court or of the judge
thereof. or of any legal officer charged with the administra-
tion of the orders of such court or judge, that documentary
evidence in the possession and under the control of the House
is needful for use in any court of justice or before any judge
or such legal officer. for the promotion of Justice, this House
will take such action thereon as will promote the ends of jus-
tice consistently with the priveg'es and rights of the House.
[H. Res. 1517, 9:3d Cong. 2d Sess. (1974) 1
On ,Janr'arv 23. 1975. the House again took up the matter of the
subpoenlas in H. Rcs. 85 which observed that:
a large variety and volume of [the materials sought by plain-
tiffs from the five House employees] do not appear to bear
any essential relationship to the causes of action and relief
requeste(1 in the plaintiffs amended complaint. * [IT. Res.
S5. 94th C(ong. 1st Sess. (1975)1







Viw resolution also stated that, consistent with its privileges, the
1fous-e would act "to promote the ends of justice * upon a deter-
nmination of relevancy by the * court," and it authorized the
Speaker to appoint counsel to represent the House and its employees
If the proc:eedlings.
On .January 27. 1975, oral argument was held on a renewed motion
to dismiss which had been submitted by the defendants. This motion
raised the '-ame argnnents that had been made in defendants' first
motion to (ismiss. and made the additional allegation that plaintiffs
Iad failed to join an indispensable party-the Congress-as required
LY Rule 19 of the Federal Rules of Civil Procedure.
Also discussed at the beginninfg of the January 27 hearing were the
[lubponas which plaintiff had issued. Counsel for the plaintiff, in
msweiin an inquiry regarding the mass of material being sought,
state(l that although the challenge was to the constitutionality of the
frankin laws on their face, the discovery was necessary to show that
Ilie statute was (lesired for and being used for political purposes.
Ihe court sugfrested that perhaps the volume of material sought
('o1l1,( be reu(lced. probably through stipulation between counsel, since
I lie ultimate argument. seemed to be on constitutional issues in which
the facts invol-ed would be rather undisputed. The court directed
plaintiff to submit an itemized list of the documents it was seeking
within 10 days after it ruled on the motion to dismiss, if its ruling
was a denial of the motion.
By a Memorandum and Order of February 10, 1975. the court
denied the defendants' renewed motion to dismiss. In rejecting the
(defendants' argument that plaintiffs had failed to exhaust their ad-
uiiinistrative remedies, the court wrote:
The claim that plaintiffs have not exhausted their admin-
i-trative remedies in failing to file complaints concerning
violations of the statute with the House Commission on Con-
gre-sional Mailing Standards or the Select Committee on
Standards and Conduct of the Senate has no merit. Plaintiffs
make no contention that there have been abuses or violations
of the statute. consideration of which are in the sole jurisdic-
tion of the House Commission or the Senate Committee, but
rat her that the statute on its face is unconstitutional, a matter
beyond the jurisdict ion of such bodies. Obviously, the House
Commission and Senate Committee have no power to declare
an act of Congress unconstitutional. It is well settled that the
doctrinee of exhaustion does not apply where the administra-
Iiv 1)rocss is inadequate to dispose of the constitutional
caim. Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752 (1947).
'om an Cause v. KlassCn, Civil Action No. 1887-73.
M).I).C. 1975); Slip Opinion at 2; see complete text in
"!)eci>ion<" section of Court Proceedings and Actions of
1, lW/ Iurf to the Conqress, April 15, 1975].
In addition, the court said, the Congress or the membership of
(onjtess are not indispensable parties-and though defendants' third
allIefation- that plaintiffs lacked standing to sue-was more serious
,i(1 required further exploration, it too, was without merit:







Plaintiffs sue as taxpayers with a taxable income of over $6
billion annually and federal tax liability in excess of $1 bill ion
each year. They assert that federal funds appropriated under
the franking privilege are being used to finance the distribil-
tion of partisan political literature specifically authorized by
Section 3210 and that such expenditures of federal funds
violate the limitations upon the taxing and spending power
of Congress under Article I, Section 8, and contravene tie
First and Fifth Amendments of the Constitution.
Just as importantly, plaintiffs claim status as registered
voters, representatives of registered voters, candidates for
Congressional office, and supporters of candidates. It is al-
leged that. over fifty members of Common Cause challenged
incumbent members of Congress in the la-st election and
many of its members supported challengers to incumbents.
They assert that the present franking privileo-e confers sub-
stantial political benefits upon incumbents, while nonincum-
bent challengers and their supporters do not have the sanme
advantage. As a result, the rights of challengers and their
supporters to freely associate for political purposes are in-
paired, and the value of their votes is diluted and diminished,
all in violation of the First Amendment. Baker v. Cat-r,
[Baker v. Carp, 369 U.S. 186 (1962).] In addition, it is al-
leged that this practice invidiously discriminates in favor
of incumbent members in violation of the due process clause
of the Fifth Amendment. In short, as citizens with a par-
ticularized interest in the electoral pIrocess, plaintiffs claim
standing to attack Section 3210 as violative of their consti-
tutional rights.
From the foregoing brief discussion, it is clear to us that
the plaintiffs have met the test laid down in Flast [Flat v.
Cohen, 392 U.S. 83 (1968) ] and subsequent cases. They have
asserted (1) an injury in fact, not a generalized complaint
common to all citizens and taxpayers, and they have demon-
strated (2) a nexus between the injuries suffered and the
constitutional infringements alleged. [Slip Opinion at 3-4.]
On February 21, 1975, plaintiff submitted its "Itemized List of
Documents Subpoenaed from House Employees." From Victor
Smiroldo, Staff Director and Counsel of the House Commission on
Congressional Mailing Standards, and John M. Swanner, Staff Direc-
tor of the House Committee on Standards of Official Conduct, plain-
tiff sought:
* all complaints concerning possible violation of the
franking statute, and attachments thereto, or copies thereof,
brought to the attention of the Commission and all memo-
randa or other writings or copies thereof which relate to or
reflect the disposition of these complaints[;]
* all advisory opinions and attachments thereto, or
copies thereof, which relate to the mailing or contemplated
mailing of franked mail, issued to any Member of the House
of Representatives or Member-elect, surviving spouses of ani







of the foregoing persons, or other House of Representatives
officials, their agents or mlployeCs[ ,]
* all letters, memoranda or other writings, and attach-
ments thereto, or copies thereof, which relate to or reflect
information rulidance, assistance, advice or counsel given
,in connection with the mailing or contemplated mailing of
franked mail [;]
* all formal or informal correspondence, or copies
tiereof received by the Commission requesting information,
gidanlce, assistance. advice or counsel in connection with the
mailin, or conlteIplated mailing of franked mail[ ;]
*4 all informal opinions and attachments thereto, or
C(oies thereof, issued by the Commission concerning use of
the franking privilege[ ; and]
* all regulations or proposed regulations or copies
thereof, governing the proper use of the franking privilege
bIy any Member of the House of Representatives or Member-
elect, surviving spouse of any of the foregoing, or other
House of Representatives official, entitled to send mail as
franked or any employee or agent of any and all of the fore-
going persons. [Itemized list of documents subpoenaed from
House employees, filed February 21, 1975, hereinafter "Item-
ized List"].
From Da id Ramage and Thomas Lankford, respectively the Major-
ity and Minority Clerks of the House of Representatives:
* all documents, correspondence, memoranda, work-
sheets and other writings, or copies thereof, which reflect
or relate to the printing or preparation of Congressional
newsletters or news releases by the House Majority Room
from December 31, 1973 through the date of this sub-
poenaf[; and]
* all documents, correspondence, memoranda, and
other writings, or copies thereof, including but not limited
to books, records or receipts, which relate to or reflect a bill
or payment for services provided by the House Majority
Room in pirinting or preparing Congressional newsletters or
news releases provided between December 3, 1973 and the date
of this subpoena. [Itemized List]
From Eli S. Bjellos, Chief of the House Publications Distribution
Service-
* all documents, correspondence, memoranda, work-
sheets and other writings, or copies thereof, which reflect or
relate to the monthly work units of the Publications Distribu-
tion Service from ,January 1, 1967 through the date of this
subpoena[ ;]
* all documents, correspondence, memoranda and
othr ritin* :-tespe nmmorada anitd
t, or copies thereof, including but not limited
to books, records or receipts, which relate to or reflect a bill
or payment for services provided by the Publications Dis-
Ibution Service for the period from December 1, 1973 to
the date of this subpoena[ ; and]







* all documents, correspondence, nemorainda, and
other writing, or copies thereof, which relate to or reflect the
manner of, or handling of mass mailed matter, including,
but not limited to instructions on the handling of Congres-
sional newsletters for the period from )ecember 1, 1973 to
the date of this subpoena. [Itemized List]
Plaintiffs had also sought documents from certain Seniate employees
and when the empiloyeos, pursuant to lie inst ructions of the Cmtte
failed to produce them, plaintiffs filed a motion to conIpel the produc-
tion of the documents. On May 21, 1975, Senate, euilloyces, Fern,
Needham, and Estep filed mnemoiranla in opposition to plaintiffs
motion to compel theiii to produce documents. stating that the records
sought were not material to the subject matter of the pending litiga-
tion, which is that the franking statute is ,ilconstitutioiial oil its lace,
and the records sought involve use of the frank in specific instances,
which question is not in issue. Furthermore, they stated that the rec-
ords are internal administrative records of the Senate which are
privileged; that the use of the Seinate folding rooiii and computer are
part of the pay and allowances of MNembers of Congress which is a
policy question and not a legal one; and, in Mr. Fern's case, that the
lawyer-client privilege applies. Later the three Senate employees filed
supplemental memoranda invoking the decision of the Supreme Court
in Eastland v. Unled States,VC b Funid, 421 U.S. 491 (1975),
as supporting their position on legislative immunity of the records.
On June 17, 1975, IHouse employees 13jellos. Swanner, Smiroldo,
Ramage and Lankford filed their memorandum in opposition to plain-
tiff's motion to compel, testimony and the production of documents. It
claimed that plaintiff's discover'v should not be allowed since the data
sought were irrelevant to a facial attack )upon the constitutionality of
the franking act, the in formation is privileged against forced disclo-
sure under the Speech or Debate Clause of the Constitution, and the
subpoenas were needlessly ),u r(lensome.
The motion by plaintiffs to compel testimony and the production
of documents was arg'ied on July 16, 1975. On July 30, 1975, the court
issued a memorandum and order which stated that:
Objections to this attempted discovery are phrased in terms
of (1) irrelevance (2) l),lrdensomeness and (3) constitutional
immunity under Article 1, Section 6 (The Speech and Debate
clause) or Article 1, Section 5 (power of each body of Con-
gress to enact its own rules).
The claim of lack of relevance is predicated on the narrow
theory that, irres)ective of the relevance of the requested ma-
terials in other frames of reference, they are simply irrelevant
in a case where the gravamen of the complaint is that the stat-
ute. complained of is alleged to be unconstitutional on its
face. Aside from plaintiffs' continuing burden of maintaining
standing, it is clear to us that ai proper resolution of the issues
raised by the complaint calls for a complete record consisting
of the type of documentary materials sought to be discovered.
For this reason, we hold these materials to be relevant and
necessary.





52

Likewise tie claims of constitutional immunity are without
weight. T re Bj wter case and others clearly demonstrate that
congressiol iImmunity is limited to legislative activities and
the claime(l use of the franking privilege for political activi-
ties is not covered even by a miot expansive definition of the
Speech and Debate clause. That the use of the franking privi-
lege is not within the language of Article 1, Section 5, requires
no discussion.
The claim of burdensomeness is more serious. On the one
hand. the materials requested are relevant to the issues raised
by tle complaint and plaintiffs are entitled to a substantial
delg-ree of discovery. On the other hand, there may be prob-
lems concerning the sleer bulk of the materials requested,
about which we are not presently apprised. In addition, con-
siderations of fairness dictate that the names of individual
members of Congress not be disclosed, as far as it is possibh-
to achieve this result without unduly hampering the full and
expeditious processing of this lawsuit. Where possible, sub-
mission under protective order may be a reasonable alterna-
tive.
Fortunately, as to the House employees, we are not pres-
ently faced with any of these problems since these employees
through counsel have offered to submit voluntarily informa-
tion respecting the use of franked mail broken down as to
(1) categories of congressional membership to compare fre-
quency and volume of franked mail as it varies between mem-
bers depending on estimated difficulties to be faced at primary
or at election. ('2) sources of payment for materials mailed,
and (3) certain non-public interpretive materials, including
but not limited to advisory opinions and more informal ad-
vice. We commend this effort of House defendants' counsel
and urge counsel for plaintiffs to consider and determine the
adequacy of such proposal and, if unable to agree with House
employees' counsel, to be prepared to demonstrate the need
of further materials.
Unlike the House employees, the Senate employees have
made no move to supply any of the requested materials. Being
satisfied as to plaintiffs' entitlement to substantial discovery,
we herein require that counsel for Senate employees confer
with plaintiffs' counsel in an effort to work out an accommo-
dation along the general lines of the proposal made on behalf
of the House employees. [Memorandum and Order, Common
Cause v. Bailar, Civil Action No. 1877-73 (D.D.C. 1975);
Slip Opinion at 3-4.]
The court granted plaintiff's motion to compel discovery from the
Senate and House employees, "it being understood that the exact
nature and bulk of the materials to be produced are left to further
negotiation between counsel for the respective parties."
On March 1. 1976,. the court issued an order approving a stipula-
t ion between plaintiff and Senate employees Estep and Needham, and
a stipulation between plaintiff and House employees Ramage, Link-
ford, Bjellos and Smiroldo.







The stipulation regarding Estep, Manager of the Senate Computer
Center, and Needham, Superintendent of the Senate Services Depart-
i1tint stated that plaintiffs were to receive a User's Guide for the Senate
Computer Center and a description of the computer programs used;
a compilation of the work orders from Senators designating the cate-
gories of individuals who are to receive franked mail, the work-order
number and week thereof; a compilation detailing the categories of
names maintained by the Senate Computer Center for each Senator,
the number of names in each category, and the code designation of
each category; the number of address labels affixed to franked mail
for each Senator for each day. or week; and the right to inspect copies
of newsletters in the possession of the Senate Service Department.
The stipulation further provided that Estep and Needham would
not be further deposed.
Additionally, a protective order was issued defining: (1) the in-
formation on the volume of mail for each Senator that may be pub-
lically filed; (2) the information that is to be available to plain-
tiff s counsel under seal; and (3) the extent to which the information
available to plaintiffs' counsel under seal may be publicly filed in this
action. The Senate employees will be given a list of all Senators with
certain characteristics of the State each represents, voting percentages
in elections since 1966, information on reelection, section of the
country, and other general information. The Senate employees will
then substitute a code for the name of each Senator, the key to which
will be kept in camera and not made available to plaintiffs or defend-
ants or their counsel or anyone else. If a party needs the information
he must first serve notice on the Senate employees' counsel. Finally, all
documents sought by plaintiff from others will first be submitted to
the court and the code will be substituted for the Senator's name, de-
ponents and witnesses will use only the code, and plaintiff will refer
to individual Senators only by their code.
As for Senate employee Fern, Chief Counsel of the Senate Select
Committee on Standards and Conduct, the court stated:
Plaintiffs seek production of the following internal doc-
uments of the Senate Select Committee on Standards and
Conduct:
(A) The actual text of (a) all complaints to the
Select Committee concerning the use of the frank by
Members of the Senate and the disposition thereof,
(b) all written requests from Members of the Senate
to the Select Committee for advice concerning the
use of the frank and the written reponses thereto
and (c) deponent Fern's notes or other memoranda
concerning oral requests for advice and oral re-
sponses, or, in lieu of the actual text of the docu-
ments, a summary of each document with the full
document made available to plaintiffs' counsel to
verify the accuracy of the summaries; and
(B) All internal memoranda of the Committee
concerning the use of the frank which have been
approved by the Select Committee or used as the
basis for rendering advice to Members of the Senate.








Actual text was defined by plaintiffs' counsel as a copy of
the full text of the document or the original document itself,
with only the identification of the Senator deleted. [Order,
Cor(n min Cause v. Bailar, Civil Action No. 1887-73 (D.D.C.
March 1. 1976) [hereinafter "Order"]; Slip Opinion at 3.]
The court noted that after the Select Committee had decided not
to allow Mr. Fern to produce the documents, the Senate on December
17. 1975, had adopted a resolution reaffirming a previous Senate res-
olution prohibiting the disclosure of the internal records of the Select
Committee. On January 27, 1976, the Select Committee had again
consi(lered the matter and determined that under order of the Senate
it could make no change in its position. Fern had offered to supply
summaries of documents in list (A) above, but plaintiff had insisted
1on1)1 inspection of the actual records to insure the accuracy of the
summaries, and the Select Committee had rejected this proposal. The
ioirt continued:
We have given careful thought to the contentions of the
1)arties. It is conceded that the documents themselves are rele-
vant to the issues in this case. Whether the documents are
privileged may be determined by whether they relate to the
business of Senators or the business of candidates for the
Senate. This approaches a capsule description of the ulti-
mate is-lie in this case. We can agree that a privilege for
Senatorial documents exists, without deciding that these
documents are Senatorial and therefore privileged.
At this stage in the lawsuit we think it better to act as if
the (1luments were Senatori2 and privileged, with the
ultimate decision reserved. Inspection by plaintiffs' counsel,
even with all safeguards, would in some sense defeat the
rilvle ge, if in ultimate analysis these documents were found
to be properly entitled to protection. However, there is no
doubtht that the privilege claimed, if it exists, is not absolute
but is defeasible upon a showing of proper need. As the re-
cent Watergate experience has taught us, a President's claim
of absolute privilege on the grounds of confidentiality must
yield when a proper showing is made that the overriding
cons-deratIins of the public interest require disclosure. The
body to make such a determination is the judiciary after an
;a camera inspection of the material. United States v.
V;. U.<-u .-- ( 1974).
It iqs our udgment that plaintiffs have up to this point
failed to demonstrate the showing of particular need to over-
coie the Select Committee's claim of privilege. It may well
I x thi at the summaries themselves plus additional discovery
in other areas will satisfy the plaintiffs' evidentiary problems
and will make it unnecessary for us to order at this time the
production of the documents themselves. On the other hand,
we sIe no reason why Mr. Fern should not be required also to
~u Pl) smmaries of "all internal memoranda" described in
slfl)aLagraph (B) above. It is understood that the entire file
of original documents is quite limited in size. Accordingly, it
is by the Court,







Ordered, that plaintiffs' motion to compel production of
original documents by the witness Fern be and is hereby de-
nied ,itwhot prejIfdie; and it is
Further ordered, that the witness Fern be and is hereby
ordered to produce summaries of all documents covered in
subparagraphs (A) and (B) above. [Order at 4-5.]
The stipulation with the House employees states that plaintiffs will
receive: (1) the sources of funds used to defray printing costs for
niass-railed franked materials on a per seat breakdown, and the
banks and account numbers where the proceeds of the printing opera-
tions are kept.; and (2) access to the files of the Iouse Publications
Distribution Service (PDS) for the purpose of prea rinc, compila-
tions of the per scat volume and timing" of franked mail, with the
research and results to be done either by PDS at plaintiffs' expense or
by plaintiffs, with PDS then compiling the information and using a
code for a Member's name. The information will then be compiled and
coordinated with coded numbers and a coded list of the attributes of
the Mfember similar to those of the Senate, with similar access and
protections. Plaintiff will also receive from Mr. Smiroldo of the ITouse
Commission on Congressional M{ailing Standards, at plaintiffs' expense
copies of all documents and other writings pertaining to
all formal complaint proceedings, pending or completed. In
addition, Plaintiffs will receive copies of all documents in the
files of the Commission that embody (a) formal or informal
advice rendered by the Commission and/or its staff to Mem-
bers of Congress regarding their use of the franking privi-
lege; or (b) policy statements or regulations of general
applicability adopted by the Commission regarding permissi-
ble uses of the franking privilege by members of Congress; or
(c) communications of the Commission or its staff with third
parties outside the House of Representatives that relate to
the franking privilege. The only omissions from these ma-
terials will be such details as identify a particular
Congressman.
This voluntarily offered material includes:
a. Correspondence and other communications from the Com-
mission to Mlembers of Congress or their staffs, advising a
member with respect to the frankability of a proposed
mailing.
b. Correspondence and other communications from Mfem-
bers of the House Commission staff to Mfembers of Congress
or their staffs that provide such advice.
c. Corre spondenee and other communications relating to the
franking privilege, between, on the one hand. the House Con-
mission or its staff and, on the other hand, individuals other
than Members of Congress or their staff.
d. Internal staff memoranda addressed to the Commission
in cases where staff memoranda have been adopted LV the
Commission as the basis for its final action in (i) renderin
advice on the frankability of a proposed mailino-, or (ii)
adopting policies or regulations of general application with







t tperiiible uses of the franking privilege by Mem-
hers of Congres. [Stipulation and Protective Order Regard-
ing Production of Information and Documents By Certain
Employees of the House of Representatives, Commnon Cause
v. Baairl, Civil Action No. 1887-73 (D.D.C. March 1, 1976)
(lereinafter "Stipulation") ; Slip Opinion at 5-6.]
Fu-hermore. still a different code will be used in place of Members'
nanAes in compilation than in the previous one, and it was:
especially understood and agreed that Mr. Smiroldo will not
provide Plaintiffs with information or access to other mate-
rials consisting of (a) internal memoranda that were not
adopted by the Commission as the basis for advice or policy
decisions bv the Staff or the Commission, (b) requests for
advice by members, except as otherwise provided for above,
and (c) either the identity or the code number for the men-
bers involved. [Stipulation; Slip Opinion at 6.]
Finally. the court's order stated that with respect to subpoenas
issued by plaintiff on February 15, 1976, to the administrative assist-
ants or aides of all 100 U.S. Senators, which commanded each one to
bring with him "all documents, correspondence, memoranda, and other
writings or copies thereof, which relate to or reveal the types of lists,
'codes., or groupings of names maintained for mailing purpose in
t he Senate computer since December 18, 1973," in conjunction with
each one being deposed at 15 minutes intervals from February 18 to
03, 1976, it was understood that counsel for both parties were trying to
work out a solution including the directing of one subpoena to a single
staff member who would represent all 100 Senators in the furnishing
of documents anonymously, and it ordered the proposed procedure as
approved, with the court to be advised of the precise procedure agreed
upon.
On March 9. 1976, the House passed H. Res. 1082 giving its consent
to the House employees to furnish the documents requested in the
stipulation.
The Senate passed S. Res. 411 on March 24, 1976, which authorized
the preparation of a list showing the codes used by each Senator on
work orders for mailings sent under the frank, and authorizing em-
ployees to furnish the meaning of such codes.
On April 7. 1976, the 100 administrative assistants moved for a
protective order from the court limiting the scope of discovery to the
terms of S. Res. 411.
On July 1, 1976, the House of Representatives passed H. Res. 1382
authorizing the House Commission on Congressional Mailing Stand-
ards to -eek to intervene in the case. The motion to intervene was filed
on August 6.
Status.-The case is pending before the three-judge court in the
U.S. District Court for the District of Columbia.
The full text of the court's "Memorandum and Order" of July 30,
1976. the "Stipulation and Protective Order Regarding Production
of Information and Documents By Certain Employees of the House
of Repre entatives," filed on March 1, 1976, and the "Order" of the
court filed on March 1, 1976, were printed in the "Decisions" section







of the report of CoIrt Proceed~igs awd Aotlons of Vitdal Interest to
the Cangress, April 15, 1976.
Tie full text of the nienorandum and order of February 10. 1975,
was printed in the 'I)ecisIons section of tie report of (ouvrt P1roe(d-
ings and Actions of Vital Interest to the Congress, April 1), 19T5.
Harrington v. Colby
Civil Action No. 75-1862 (D.C. Cir.)
Bhief.-This action, filed I)ecenber 27. 1974, in the U.S. District
Court for the I)istrict of ('ohinibia, colicerins certain allegedly illegal
activities of the Central Intelligence AoYeicy including the procedures
1)y which these and other activities of tie Agency are reviewed and
funded by the Coinress.
The purpose of the suit. according to the plaintiff, Representative
Michael Harrington, is to require the Areny to.
operate within the limits imposed by law prohibiting
foreign covert political oleratiois andl doulnestic intelligence
activities. * The oversicht comiili iti ee- of ( on-ress have
repeatedly failed to cxercie any reaI control over CIA opera-
tions, rendering legal limiitations nieai Iloss in practice. A
long history of CIA covert operatiolIi- a (]. including the
Bay of Pius iivasioY an,1 the (-rle V ll iI Laos. attests to
the complete -idiozltio 01 of respovisibilitv by
those on the oversi!lit co"li ,,ttee. E,, ofi. o( 0et sin-
veillance adds to the pressill 'e for 01 rc, ,-s','tron of f ppli-
cable legal limitations on CIA operations. [Press Release of
Congressional Ha rrington, December 27, 1974.]
Named as defendants in tile suit, ii addition lo Williani E. Coilby,
Director of the Central Intelligence AO'env', wre Ifenrv Ki ssiioer,
in his capacity as Security Advisor to flie President, (1 t'li 1mall of
the Intelligence Conilitittee of the Naztioinl Security (oulnciil and
Chairman of the 4() committeee, and William E. ilmon. i'n his capacity
as Secretary of the Treasury.
Mr. Hairrincrton i )1i1os this action in ]Iis capacity as a taxpayer
and as a Memb!er of (omnae.... I e contel(ds ] hat 'is a Conressnian his
rights have been curtailed and his authority inmipaired in the following
respects:
(a) Under Nrticle I. Section 2. clause 5 and Article 2, Sec-
tion 4 of the Constitution to consider, initiate, support or vole
for the ipeahinent of the defendants Colby. Kissinger and
other civil officers of the United States ;
(b) Under Article I. Sections 1 an(l 8 of the Constitution
to consider, initiate, support or vote for leQ'islation. civil or
criminal. prescribing- the Agenvs activities and ensuring
that such prescriptions are obeyed;
(c) Under Article I. Sections 1 and S and Article I. Section
9, clause 7 of the Constitution. to co.n-ider. initiate. support
or vote for legislation prescribing or limiting the use by the
Agency of any public funds: and
(d) To take other legislative actions relative to the actlvi-
ties of the Agency.


75-55--76--5








Plaintiff's complaint alleges that the Agency has violated its statu-
tory authority under 50 U.S.C. 403, et seq., in that it has partici-
pated in "activities (lesi(ged and calculated to affect or manipulate
political, military, economic or social developments in foreign coun-
tries and in foreign affairs as distinguished from the activitie of
Collctinr analyzing, integration interpreting and disseminating ;n-
fornation.. The complaint outlines specific instances of these alleged
illegal activities; e.g., financial support to Chilean trade organizations
oppos(l to the election of Salvador Allende as President of Chile,
Plaintiff asserts, as well, that in light of recent statements made by
President Ford and Director Colby such activities can be expected
to continue.
As a second cause of action, plaintiff alleges that the expenditure
of public funds drawn from the Treasury for Agency nonintelligence
related activities violates Article I, Section 9, clause 7 of the Con-
stitut ion,wich states that "[n]o Money shall be drawn from the
Treasury but in Consequence of Appropriations made by Law; and
a regular Statement and Account of the Receipts and Expenditures
of all public Money shall be published from time to time." Mr.
Ilarrigton contends that such activities of the Agency violate 50
U.S.C. } 403f(a) (receipt of funds from other Governmnent agencies)
and 31 U.S.C. 11, 62S, 696 (transmittal of the Budget to Congress,
application of moneys appropriated, and limitation on use of appro--
priitio., I.:y agencies .
Thle il of action in Mr. ITarrington's complaint alleges
that thm (k." ral Inteli.n IgC Agency violate(l its statutory authority
by ,(,,.,.i in illegal domestic spying anld surveillance, including
coileci ina infon ~ation and maintaining files on at least 10,000 Amer-
ican citwiZm '. It is claied that such files contain information regard-
ing the ro :ica] bel efs. activities and associations of American citizens
and we:1c obtained l, the Agency through break-ins, burglaries, wire-
taps a d su rre!)t it U;, inspection of mail. Representative Harrington
states tint siih activities are not within the authority of the Agency
nder 50) U.S.C.. 40:(d) (3) which states that "the Agency shall
have no pol1e 0 01poena, law enforcement powers, or internal security
Thm tifns.* *
l!,airtiir re'emes t"I coult to dec'Are the following activities of
the (IA illegal" Foreign nonintelligence related activities; domestic
s, pvci 11 nce a "d information gathering operations of the Agency
directed at .S. citizens; current appropriation and funding pro-
cedures : failure to pWhiish in the Federal Register nonintelligence
I\ lated awIets n I ,.ijiestic )olice-internal security operations; and
failue of the Atency and J)epartment of Treasury to identify spe-
cifically the receipt an( expenditure of funds for nonintelligence and
WeI e i'it v f0)ct ioTs, Iarrington asks that defendants.
al teir success~ors in ofWce. be permnanently enjoined from engaging
in such illegal activities. Plaintiff also requests that defendants, and
their suc ce!sos in office, be require(l to report Agency nonintelligence
nind police-internal security activities in compliance with 5 U.S.C.
552 (publication of information for the public record) and identify
sp-ecifically the funding for such activities pursuant to Article I, Sec-








tion 9, clause 7 of the Constitution and 31 U.S.C. 1029 (receipt and
expenditure of public money).
Plaintiff finally requests that the court preliminarily enjoin the
defendants from engaging in all alleged illegal activities pending final
determination of this action.
Defendants motion to dismiss was granted on July 3, 1975. Plaintiffs
then filed an appeal on July 28, 1975.
Status.-The case is pending before the U.S. Court of Appeals for
the District of Columbia.
Oral argument has been set for September 15, 1976.
United States v. Gurney
Criminal Action No. 74-122-CR-J-I (M.D. Fla.)
Brief.-On July 10, 1974, former U.S. Senator Edward ,J. Gurney
of Florida, two members of his staff and several other individuals were
indicted by a Federal grand jiury in Jacksonville. The, 11-count indict-
ment charged the Senator with bribery, conflict of interest, conspiracy
to defraud the United States. afld kiiowingly iinaking false material
declarations to a grand jury ) 2, 2U1, 203, 371 and 1623 of Title 18,
U.S. Code]. The Senator's aides were also charged with violating
2, 201, 203, and 8"71 of Title 18.
Senator Gurney and his aides pled not guilty to each count of the
indictment.
On August (, 1975, Senator Gurney was acquitted of bribery. re-
Ceiving unlawiiil cIn atlion anid three counts of perjiry. A mistrial
was declared with respect to the conspiracy charge.
Status.-A: new trial on the conspiracy charge is pending.
Metcalf v. National Petroleum Council
Civil Action No. 4,)-2 ) (I).C. (ir.)
6"ief-Semuor Lee Metcalf, on March 21, 1975, filed this a(ti(n
in the U.S. )istrct, ((unrt for the 1 )1st 'ict of ( o1unfi)bla, iii(ler the
Federal AVdvi.ory (onuitt Act (FAC.A) 5 V.S .C App. 1 (S11I).
IMI, 1973') and the Fci eral Kin(, Administration Act of 174
(FEAA), 15 U.S.C. ,o 761-786 (Supp., 1975), to enjoin the Ikepart-
ment of interior anod t,,e eder'al Energy Admiiitrat ion fi'uin obta iu-
ing advice or reccn: iw 1dat:o:1 i froii the National PIet rolenin (o11:i
until the (ouniijil -'.c' !f'nrls to !10 )Visio,!1> of the Federal Ad\i v
Committee, and the FI I iVril a-v Adniin i 1a- n Act [s. In aI
tion, the suit asked that the Council be enjoined from advising" tK(l-
eral agencies "intli" it is lawfully co-stiuued and properly satioeI
by the Olice of Mana'c,1Ient and budget.' Plaint ifl Metcalf fil(
this suit as a identity and zencral coisuiner of petroleum Plirotlels.
and as a Memner of the Unite([ States Senat. As a residential, ami
general conswliln.- ot pet1tul0 "Ihl)1 Uts, Svna to, _Metcalf tl'o
that because "the ("onieil leimbeihip preently is not fairly aaiced
or reasonably representative in accordance with law, anid is iinappir )-
pr:ateiy mfluenced vby special interests, the advice and i econ-
miendations which it transmits to the executive agencies will no"
adequately consider or prevent potential enivironniental dailge,
thereby directly affecting the licalti and safety of I family.








As a United States Senator, plaintiff Metcalf sponsored and voted
for the Federal Advisory Committee Act and voted for the Federal
ELnerg Administration Act. The complaint alleged that because of
defendants' failure to comply with requirements of current law he has
hiad11 his votes for and legislative efforts to insure compliance with them
effectively nullified. Moreover, the Seiiator alleged that in his work as
a Member of the Senate Interior an(d Insular Affairs Committee
which committee has jurisdiction over the Department of Interior's
activities c(Ocerninff mineral r(']ources-he has been injured in the
)pro~l'r asse~slileit of interior's requirements because of the effects
oa (h1ice providedd Interior by the Council.
Senator Metcalf was joined in his suit by Robert Clarke Brown
who aLo sued as a residential and general consumer of petroleum
')'cts, The coml)laint alleged that as a result of defendants unlaw-
ful activities Mr. Brown has been paying higher prices for petroleum
pr1odIRcts and is further iijred by the environmental damage and
hazards associated with petroliun products which are threats to his
health and safety.
Defendants in this case are the National Petroleum Council and
each of its sugroups wlich the complaint alleged are advisory com-
niittees within the meaning of the Federal Advisory Committee Act
and the Fe(leral Energy Administration Act of 1974. Other named
defendants -re John E. Swe.iinren, Chairman of the Council and
a1so Chairman of the Board of the Standard Oil Company of Indiana;
Kenneth t J. le Executive l)irector of the Council; the De-
pAartnnt of the Iriior. and its Secretary, Rogers C. B. Morton;
the Federal Energy Adninistration, and its Administrator, Frank G.
Zarb- the ClIlice of Management and Budget, and its Director, James
P'. IVnnU.
TI1f complaint furte r alleged that about 140 of the approximately
ou ci members ~jvMappointe- by the Secretary of the Interior are
affiliated with or employed by the petroleum industry, and virtually
all of the additional members of the council subgroups are either
emphy4es of, paid by, or responsible to the petroleum industry. The
complaint further state( that throughout the year the Council and its
si igr ups advised, informed, and influenced Interior, FEA, and
other Fede rll n Io p1trl1eum and energy related issues, all in
violation of Section 5(b) (,2) and (b) (3) of FACA which states that
the resident and agency heads shall require "the membership of the
advisorV committee to be fairly balanced in terms of points of view
reJ)Verented and the functions to be performed by the Advisory Coi-
wiittee,- and that the president and agency heads shall "insure that
ie advice and recommendIation of the Advisory Committee will not
be inal])Iolriately influenced * by any special interest."
The case came before J udg-e John It. Pratt, United States District
Judge for the l)istrict of Columbia on defendants' motion to dismiss
or in t he alternative for summary judgment.
The court grante(d defendants' motion to dismiss with prejudice and
held that the plaintiffs lacked standing to maintain the action.
In its memorandum opinion of February 9. 1976, the court noted
that both plaintiffs alleged three types injur to themselves as
consumers: (1) Anticipated Igeher costs for petIroleum products; (2)







Potential environmental damage and threats to health and safety; and
(3) Anticipated denial of benefits from the development of alternative
sources of enerrT. ie court held that these allegations of consumer
injury fail to establish a real and immediate injury or threat of in-
jury-that at best they are speculative and represent grievances shared
by all or most of the geiieral imblic. The court concluded that the
plaintiffs failed to kiiaiw out a "cae or ontroversy" and that "stand-
ing to sue may not be predicated o. an flit.( cst * *Nvhich is held In
common by all members of the public" citingr Schlesioner v. Res,'Irsts
to 8top tlie 1(Iaj, 418 IT.S. 208, 220 (1973) ; see also United States v.
Rih a)ds o v, 418 IT.S. I#; (1973).
The coit also dismissed Senat or Metcalf s allegations that defend-
aniits actions have diminished the effectiveness of his votes for the
FACA and FPJAA and have impaired him in carrying out his legisla-
t ive duties. The court said
Plaintiff Metcalf in an affidavit supplementing plaintiffs'
opposition to defendaits' motions spells out the type of
injury claimed as a United States Senator. They are that (1)
the data and information from Interior and FEA, to the
extent that such includes data and advice from the Council,
are biased and unreliable, thereby impairing his legislative
work because of his need for unbiased data and advice, and
(2) further legislative activities in the direction of correct-
ing these abuses will be adversely affected until the legal
issues raised by the complaint are resolved. The very recital
of these alleged illjuries indicates their lack of substance.
Plaintiff Metcalf as a legislator of sophistication and long
experience is not a neophyte. It is difficult to accept the
premise that he is in any way misled by the data or informa-
tion received from government agencies such as Interior or
FEA or that he is unable to identify an(l discount any bias
arising from the Council's input into that process. As for
the necessity of a judicial declaration to determine his future
legislative course of action, plaintiff Metcalf is not without a
remedy. He is well aware that each standing committee of
the Senate (and he is a member of such committee or com-
mittees) in the exercise of its legislative review filictioll.
is required to "make a continuing review of the activities of
each advisory committee under its jurisdiction." (5 U.S.C.
App. I, 1975 Supp. 5(a).) In addition, it is no secret to
him that both Interior and FEA are completely dependent
on Congress for appropriations. In short, this suit is an effort
to obtain an advisory opinion from this Court. Such is for-
bidden by the "case" or "controversy" requirements of Article
III. As was said in a recent case,
"Pleadings must be something more than an inge-
nious academic exercise in the conceivable. A plain-
tiff must allege that he has been or will in fact be,
perceptedly harmed by. the challenged agency
action, not that he can imagine circumstances in
which he could be affected by the agency's action.







And it is equally true that the allegations must be
true and capable of proof at trial." United States v.
SCRAP, 412 U.S. 669, 688-89 (1973). [Metcalf v.
National Petroleum Council, Civil Action No. 75-
397 (D.D.C.) ; Slip Opinion at 5-6.]
Finally, the court added that there was a further defect in plaintiffs'
position:
They have failed to show that their injuries came as a
result of the actions challenged herein. * In attempting
to show that defendants' actions have caused and will cause
their injuries, plaintiffs have assumed, if the Council's
membership were changed, (1) that Council's advice would
be different, (2) that Interior or FEA would act on a certain
way or not act upon receipt of said advice, (3) that plaintiffs
would not be harmed by such action or inaction, (4) that
with different advice from the Council, Interior and FEA
would act in a way different from their present actions, and
(5) that assuming a different course of conduct by the
governmental agencies, such changed conduct would favor
plaintiffs' interests. These assumptions in every instance
lack record support. They do not provide the factual foun-
dation upon which one could reasonably infer that, in the
absence of the defendants actions which plaintiffs seek to
change, the injuries complained of would not and will not
occur, and that, if the plaintiffs are granted the relief they
seek, that those injuries would cease and disappear. [Slip
Opinion at 6-8.]
Plaintiffs filed an appeal with the court of appeals on February
23, 1976, asking for a summary reversal. On March 22, defendants
filed a motion with the court of appeals asking for summary
affirmance.
The court of appeals denied both motions on May 12, 1976, and
't the same time ordered the clerk of the court to schedule the case
for oral argument on the same day and before the same panel as
H, rmuqon v. Colby (see this report at 75 supra).
,',,.- The al)peal is pending before the U.S. Court of Appeals
for the District of Columbia.
The full text of the district courts memorandum opinion is found
in ],e repot of Court Prooiodi~ns and Actions of Vital Interest to
io ('on(a April 15. 197G.
National Tribal Chairmen's Association v. Abourezk
Civil Action No. 75-0103 (D.D.C.)
/:, f.- AOn M 5 'Av 20, 1 95, -. the Nf national Trib nl Chairmen's Associa-
tion (hereinafter 'referred to as NTCA) filed suit against the Ame-
CI Indian Policy Review Commission and its Commissioners, who
include six Senators and Congressmen appointed to the Commission
by the President Pro Tem of the Senate and Speaker of the House.
'Tlie Commission was created by a joint resolution of Congress with
the approval of the President. Its five Indian representatives were
a)l)ointed by the six congressional Members and selected from the
CiMan community as follows:








(1) three members shall be selected from Indian tribes
that are recognized by the Federal Government;
(2) one member shall be selected to represent urban
Indians; and
(3) one member shall be selected who is a member of an
Indian group not recognized by the Federal Government.
P.L. 93-580; 1(c); 88 Stat. 1911.
The Commission is to conduct a comprehensive review of the
historical and legal developments underlying the Indian's unique
relationship with the Federal Government in order to determine the
riature and scope of the necessary revisions in the formulation of
policies and programs for the benefit of Indians.
The NTCA describes itself as a voluntary nonprofit organization
composed of those Chairmen, Presidents, Governors, or Chiefs of
reservation Indians or of federally recognized tribes with Federal
trust land who have been selected according to their tribal constitu-
tion as heads of their respective tribes. The NTCA includes the elected
leaders of approximately 190 federally recognized tribes.
NTCA comphiins that the five Indian members of the Commission
are "inferior officers" within the meaning of Article II, Section 2,
clause 2 of the Constitution and that their appointment by six mem-
bers of a Commission created by, but wholly distinct from, Congress
to execute Public Law 93-580 is repugnant to thie aforesaid provision
of the Constitution because such body is not, lawfully vested with the
power of appointment. It also alleges that Public Law 93-580 is un-
constitutional because it unlawfully vests the power of appointment of
inferior officers in a body other than the President, the Courts cf
Law, or the Head of a Department.
The selection of the Director and General Counsel of the Commis-
sion is also attacked because they were named prior to the appoint-
ment of the five Indian Commissioners. The Association further
complains that they were neither appropriately selected under the
formula prescribed by the joint resohition, nor reflective of the diverse
character of the Indian community.
The composition of the Commission is so unrepresentative. NTCA
Plleges, that it constitutes a breach of the trust relationship between
the Federal Government and the federally recognized land based
Indian tribes.
The Association asks that the Commission and its enabling statute
be declared unconstitutional. that the appointment of the five Indian
members of the Commission be declared constitutional, and that the
members of the Commission be enjoined from carrying out their
responsibilities or expending authorized funds.
The case came before a three-jud'e panel of the Vnited States Dis-
triet Court for the District of Columbia on cross-motions for summary
judfnent.
On February 19. 1976. the panel granted defendants' motion for
summary judgment and denied same to plaintiffs. In its order of the
19th the court found that:
(1) the powers and responsibilities vested in the Amerian7
Indian Policy Review Commission ("Commission") are ex-







chusi s-lv legislative in nature. see J1eG(ura'n v. Daugherty, 273
U.S. 5:i) (1927), llatrns v. [Jited Atates, 354 U.S. 178
-17,). ?(,/ //tt V. UitCd States 360 U.S. 109 (1959),
Eastland v. United States Servicem men's Fund, 421 U.S. 491
.( 1). nd, squenitly. nelthelr the creation of the Com-
1)1 ',)ll no the appointment of its membership by Congress,
or designated subgroups thereof, is violative of the doctrine
of separation of powers or the Appointments Clause of the
Constitution, art. 11, 2, c. 2. Buckley v. Valeo,-U.S.-,
44 .S.L.W. 4127 4162-70 (TT.S. January 30, 1976), cf. In
I, (, U.S.) 23{).o8 (1839) Collins v.United
"VJt. 1 (1t. ( 1. 58 (17h). Sp'')1r v. Philipp'ne Islands,
277 UJ.S. 189 (1928); (2) the indian members of the Com-
Mission are not "inferior officers" of the United States within
the meaning of the Appointments Clause, Buckley v. Valeo,
,a. It, i.S.L.'. at 4164-70: (3) the present Thdian mem
IheRI in of t'Ie Co ission reflects the criteria for selection
detailed in Section 1(c) of the American Indian Policy Re-
view Commission Act ("Act") 25 U.S.C. 174 (1975) ; and
the I )ircctor an(l ( 'cilell Counsel of the Commission
were -hpopmted "by recor(l vote of a majority of the Comi-
ni-Sion mnhers a-s required by Section 6(a) of the Act.
[Y--,w;o 1 7'7;al (,Iwanu,'.? Asso(cbotion v. Abourezk, Civil
Action No. 75-803 (D.D.C.), Order at 1-2; footnotes
omitted.]
Plaintiffs filed a notice of appeal to the United States Supreme
Court oin M.Narc.l 19. 19T.
Stauhs.-On May 19, 197C, plaintiffs filed a motion to dismiss their
owfn apl)eal before the Supreme Court.
The full text of the district court's order of February 19, 1976, is
found in the "Decisions" section of Court Proceedings and Actions of
Vital Interest to the Congress, April 15, 1976.
Sportservike Corp. v. Steiger
Civil Action No. C28G51 (Superior Court, State of Arizona for
M-aricopa County)
ef. EarY in 1974 Spoitservice Corporation and its subsidiaries,
wh ich are eIi gaged in various businesses incbding horse racing, dog
racing, and businesses i(lentified with those activities, as well as the
ol)(rat ion of food and beverage concessions, filed suit against Repre-
sentative Sam Steiger, one of his former aides, and others alleging a
co~sj)lracvy to damagee 1)laintiff s business activities for defendant's
personal benefit. The complaint asks $1,000,000 in damages.
Among other charges, S)ortservice alleged that statements made
by Rejpresentative Steiger and dissemination by him of material to
certain publications were part of the conspiracy.
Representative Steiser in his answer denied any conspiracy, re-
sp)onlded that all the statements he had1 nade and the material he had
furnished were true. and claimed that all acts done or performed were
in his capacity as a Member of Congress in furtherance of his official
(Ilties. As such, Representative Steiger claimed that they were pro-
tected by the -doctrines of legislative privilege and legislative immu-







nity." As for the statements made by him and alleged by Sportservice
to be defamatory, Representative Steiger asserted that his statements
were true, made in good faith in the belief that they were true, and
in any event, privileged as statements made in the public interest in-
volving matters of public concern.
Representative Steiger's answer to Sportservice's complaint con-
tained a counterclaim alleging that Sportservice was engaging in an
effort to defame him and to damage his reputation illdividihallv and
as a Member of Congress. Representative Steigers counterclai i seeks
$2,000,000 in damages.
During the course of the proceedings. the trial coirt ordered Repre-
sentative Steiger's former aide to answer questions i)lit to him ill a
discovery deposition. Representative Steiger asserted Speech or 1)e-
bate Clause immunity to prevent. the aide from responding. Sport-
service then sought a court order to reqtiire the aide to answer. Sulch
an order was issued by the trial cotrt. but Representative Steiczer
appealed. The matter came before the Arizona Supreme Comt [tei/er
v. The Superior Court of the Sptat of A rizova for AMariopa County,
Number 11752 (1975)1 and was decided on June 4, 1975.
Before the. State Supreme Court, Representative Steiger again as-
serted that the actions complained of by Sportservice were carried out
in his official capacity and that Speech or Debate Clause immunity
was a bar to inquiry into his legislative activities.
The court held that while activities that are clearly related to the
legislative process are immune from inquiry, even when general crim-
inal statutes might otherwise apply, Speech or Debate lause im-
inunity does not shield everything related to a congressman s office.
Only acts done in the process of enacting legislation are protected.
While Representative Steiger had asserted that the acts which were
to have been the siibject matter of the deposition were part of an
investigation h was conducting, the court noted that there was no
showing that the investigation was related to any pending congres-
sional inquiry or legislation. The court also noted that more than one
year after the acts occurred, Representative Steiger introduced a bill
to provide criminal penalties for fixing certain horse or dog races.
While the court said it was arguable that the impetus for the legIsla-
tive proposal may have resulted from tle investigation and as such
was related to the legislative process, it refused to accept that such a
connection was sufficient to bring the acts within the protection of the
Speech or Debate Clause immunity.
Status.-A trial on the merits is pending in the Arizona State court
system. The decision of the Arizona Supreme Court in teif/er v. 7'1w
Superior Court of the State of Arizona for Maricopa County is printed
in the "Decisions" section of the report of Court Proceedings and
Actions of Vital Interest 'to the Congress, August 15, 1975.
Drinan v. Richardson (formerly Morton)
Civil Action No. 75-1916 (D.D.C.)
Brief.-On November 11, 1975, Representative Drinan and 24 other
Members of the House of Representatives filed suit, as Members of
Congress, against Rogers C. B. Morton as Secretary of Commerce and
Thomas Kleppe as Secretary of the Interior, alleging that certain







actions and linactions of the defendants had violated Section 3(5) of
the EXport A(lI Iifi itratioil Act (hereafter referred to as "Act").
Sect ion 3 (5) of the Act provides as follows:
It is the policy of the United States (A) to oppose restric-
tive trade pr-actices fostere(l or imposed by foreign countries
against other countries friendly to the United States, and
(8B) to encourage and request loiestic concerns engaged in
the exl)ort of articles, materials, supplies, or information, to
refuse to take any action. including the furnishing of infor-
mation or the si,,ming of agreements, which has the effect of
furthering or supporting the restrictive trade practices or
boycotts fostered or imposed by any foreign country against
another country friendly to the United States.
The plaintiffs state that under the Constitution, it is the duty of the
Congress to determine and state national policy, and the duty of the
executive department to implement and effectuate it and to refrain
from actions that hinder, impair or frustrate it; that Israel is a, coun-
try friendly to the United States; and that a number of countries in
the Near East and North Africa, now and for many years have en-
gaged in a systematic and continuing boycott of Israel and of Ameri-
can domestic concerns engaoed in trading or doing business with or in
Israel.
The complaint alleges that under Morton, the Commerce Depart-
ment acted to hinder the implementation of the Act's policy by pro-
mnoting business between the Near East and North African countries
and American concerns that comply with their boycott policies and
practices through publications encouraging businessmen not now
doing business with those countries to begin doing so, and offering-
the services of the Department in helping them start. It states that
Morton wrote an article in a Department publication entitled "Mideast
Trade and the Bovcott," which failed to mention Section 3 of the Act.
Further, the Department issued Export Regulations Section 369.1
which states that it is the policy of the United States to oppose re-
strictive boycotts imposed by foreign countries against any country-
not included in a certain group, and all exporters are "encouraged and
requested to ref use to take (but are not legally prohibited from tak-
ing) any act ion" that would further the boycotts. The complaint states
that there is nothing which allows the executive branch of the Govern-
ment to advise American concerns that they can take actions directly
cont rary to the national policy as expressed by the Congress, that the
,-tateiment is an erroneous statement of law, and that its only purpose
can be to invite and encourage American concerns to violate the anti-
)ott policy of the United States. Finally, plaintiffs complain that
th )epartment violates the policy (1) by circulating notices of trade
o iimnities or tenders from Near East and North African countries
t A I wvci, withoiit informing them that these countries
,-111 ici m,' te in /)-ot policies and practices against which Section 3
ofI I Act is specificallv aii ed: (2) by circulating such notices and
ten(hr- in whlv.1l the inviting country expressly excludes concerns that
:I]r ( or use mat eia s 1mnufacturl by concerns that are) officiallv
boycotted by the inviting coiintr- : (3) bv circulating such notices and
tenders without stating that conpl.ace with the terms violates the







Act; and (4) by cirettlati-n snch notices and tenders with a statement
that compliance with the boycott provision is (OiitrnIlry to American
policy but is not illegal or legally prohibited.
The complaint alleges that under Kleppe's direction or approval',,
the Department of Interior, in purchasing materials for use by its
Geological Survey Bureau in Near East and Nont 1 African countries
required the American vendors to submit certification that neither
the steamship1) on whnch the materIZals was to be sent nor the coillVy
insurllino the materials were on the boycott list of the country involved.
The suit, asks for declaratory and injunctive relief to prevent, de-
fendants from encouraging trade between American concerns and the
Near East and North African countries.
011 Mlari 10, 19 76. Oefendants filed a motion to dismiss, clahinw
that plaintiffs lacked standing, the complaint p resented a non-jitsti-
cia lo annactin watioo
cable question, and the action was moot since the President and D)e-
partments of Coinnierce and Interior had announced policies and reg-
ulations to enforce the laws against discrimination based on religious
or ethnic origins and against secondary boycotts based upon such
discrimination.
Plaintiffs filed their opposition to the motion to dismiss on June 2,
alleging that they did have standing, as they were injured by having
the effectiveness of their votes nullified by the actions of the Executive,
and because they have responsibilities to legislate with respect to the
subject matter of the Export Administrations Act. They also argued
that once Cong-ress has enacted legislation setting forth specific policy
with respect to foreign commerce, the question of whether the
Executive is nullifying this policy is an appropriate subject for
judicial review. They stated that it was not they who were attempting
to challenge the foreign policy of the United States, as defendants,
claimed. but it was defendants who were violating the foreign policy
of the United States as spelled out by Congress. They argue that the
act presents a "clear and j udiciable nageable standard for resolvilno
the issue in this case." Finally, they state that the controversy is not
moot, since the actions of the President and the Departments of Com-
mnerce and Interior cited by the defendants "are either wholly irrele-
vant or so tentative and inadequate as to bolster the thrust of this
action and confirm the need for the relief sought. None of them is suffi-
cient to moot the controversy raised by the complaint herein." [Plain-
tiff's "Points and Authorities in Opposition to Defendants' Motion to
Dismiss," at page 2-.i
On June 18, Plaintiffs motion of June 8 to substitute Elliott Rich-
ardson, now Secretary of Commerce, for Mr. Morton, was granted.
Statits.-The case is pending before the U.S. District Court for the
District of Columbia.
Simon v. United States Postal Service
Civil Action No. 76-322 (D.D.C.)
BK f.-Oi Februaor 20 1976, U.S. Representative Paul Simon and
50 other Congressmen and Senators filed suit against the U.S. Postal
Service seeking injunctive and declaratory relief.
The complaint alleges that the Postal Service has been putting into
effect a program which will cause the closing of small post offices which







are operating at a loss. Such a program, the Representatives and Sena-
tors argu, is a violation of 39 U.S.C. 101 (b). Additionally, the com-
pllint, alleges that the closings violate the statutory requirement that
a change in the nature of postal service requires an advisory opinion
from the Postal Rate Commission prior to its being put in-to effect.
139 U.S.C. 3661 ). Furthermore, the closings are alleged to be in vio-
lation of Postal Service regulations which require an official recom-
niendat ion mi hiding a description of the proposed action and a 90-day
waiting period between the time an action is proposed and its date of
effectiveness.
The court granted a temporary restraining order and on March
3d rlietd argument on the plaintiffs' request for a preliminary
inj unction.
On March 5ith the court granted the motion for a preliminary in-
junctiou. While the court rejected the argument that thePostal Serv-
ice program violated the statutory provisions, as alleged, it found
that the program conceived by the Postal Service did violate its notice
and recommendation requirements.
In its order the court enjoined the Postal Service from closing or
consolidating any post office until the regulatory requirements are met.
On March 22 the case was consolidated with National Association
of Postmasters of the United States, et al. v. U.S. Postal Service, et al.,
Civ11 Action No. 75-194 (D.D.C.).
On April 2, the Postal Service filed motion to dismiss or in the
alternative for summary judgment.
St(Its.- The case is pending before the U.S. District Court for the
District of Columbia.
Hutchinson v. Proxmire
Ci vil Action No. 76-C257 (W.D.Wis.)
t;,'b/.-On April 18, 1975,. Senator William Proxmire, Chairman
'of the Subcommittee on Housing and Urban Development and Inde-
nendeiit Agencies of the Senate Appropriations Committee which has
jurisdiction over funds for the National Science Foundation (NSF)
and the National Aeronautics and Space Administration (NASA) and
the Office of Naval Research (ONR), made a statement on the floor re-
lating to certain research contracts awarded by those agencies to Dr.
Ronald R. Hutchinson. a Michigan research scientist. Subsequently,
. press release which consisted almost entirely of quotations from the
Senate or's floor statements was issued by Senator Proxmire's office. At
;tbout the same time. Morton Schwartz, an aide to Senator Proxmire,
allegedly telephoned various Federal agencies in an attempt to per-
suade those agencies to terminate grants or contracts for research being
I)erfoimed by I)r. Hlutchinson. Seven months later, Senator Proxmire
Ipl'()pired on a nat finally syndicated television show. During that ap-
inra ilee Senator Proxmire made statements rewarding the expendi-
ttire of Federl funds for a study of certain aspects of the behavior
of monkeys, rats. and human beings. Dr. Mutchinson was not men-
tioned ~y dame during this appearance.
On April 15, 1976, Dr. Hutch inson filed a $6 million slander and
libl acting against Senator Proxmire and his aide alleging that they
".maliciously and with kniowledge of the consequences of their conduct








interfered with the numerous valid contractual relationships that the
plaintiff had with the supporters of his research." Dr. Hutchinson's
complaint seeks relief based on the statements made in the press re-
lease, 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 Jime 10 to have the
case transferred to the District of Columbia.
On June 11 the court issued an order by U.S. District Court Judge
Doyle in which he disqualified himself from the action.
Senator Proxmire filed a motion to dismiss or alternate ively for
summary judgment on July 9. In it he claimne(: (1) that the alleged
misconduct was legitimate legislative activity aiid, accordingly, al)so-
lutely privileged, (2) that his statements and inquiries of the use of
public funds were privilege(, and (3) that there is no factual basis
which will support a finding for the plaintiff.
Statuw.-The case is now in the Northern District of Illinois before
Judge Leighton, since Judge Doyle is the only judge in the Western
District of Wisconsin. The case is still docketed in the Wisconsin court,
however, and will be handled as if it were there. The case is now
pending before the court in Illinois.
Maremont Corporation v. Rumsfeld
Civil Action No. 76-0895 (D.D.C.)
Brief.-Maremont Corporation and the entire Maine congressional
delegation has filed suit against the current and immediate )ast Secre-
taries of Defense and the current Secretary of the Army. The com-
plaint seeks to enjoin the current officers from awarding a contract to a
Belgian company for the production of a tank machinegun either
permanently or at least until such time as the Comptroller General
has reached a decision as to complaints filed by Maremont with the
GAO.
The congressional plaintiffs assert standing "on their own behalf
as Members of the United States Congress and on behalf of those
citizens of the State of Maine adversely affected . ." by the action
of the officials of the Department of Defense.
The complaint alleges that the Defense Department's decision to
contract with the Belgian firm for the purchase of 18,191 machine-
guns at a cost of $1,517 each as opposed to $707 for equivalent
Maremont-made weapons is violative of 41 U.S.C. 10a et seq., the
"Buy American Act," 723 of the 1976 Department of Defense Ap-
propriation Act, P.L. 94-212, the military procurement statutes of
the United States, including 10 U.S.C. 2304, the Armed Services
Procurement Regulation, and the Fifth Amendment to the United
States Constitution.
The complaint was filed on May 19, 1976. At the same time
plaintiffs filed a motion for a preliminary injunction to prevent
defendants from entering into a contract with the Belgian company
until at least after GAO had issued a report on its findings. A hearing
on that motion was held on July 1, 1976.
On July 2, 1976, Judge June L. Green of the U.S. District Court
for the District of Columbia issued a memorandum order. Noting that
defendants had violated their own regulations regarding procurement,








and that GAO had stated that it could reach a determination within
25 days, the court granted the motion for a preliminary injunction
al enijoinwd defendants from issuing the contract for production
WAn or purchase of the Belgian iachinegins until 5 days after GAO

,N/afq .-The ease is pending before the U.S. District Court for
thlt() istriu't of Colimibi a.
The full text of the "Memorandum Order" is found in the
"I )eci~iofs" set1ion of this report at 117.
Pressler v. Simon
(-ivil Aotion No. 76-0782 (I).D.C.)
S, ;4-.() May 7. 197(,. Representative Larry Premsler filed suit
in tlhe district court for the Iistrict of Columbia challenging the
(co-i titut inali v of "automatic annual" pay raises for Members of
Congress.
The complaint. accompanied by an application for a three-judce
Di']-,t Court. seeks a declaratory judgment that the Federal Salary
Act of 19;7 and the Executive Salazr Cost-of-Living Adjustment Act
whiclh set forth p rocedures for establishing new rates of compensation
for Mem abers of Congress are unconstitutional. The complaint also
seeks to enjoin executive officers. the Sergeant at Arms of the House,
:!!d le Secreivarv of the Semte -from requisitioning. authorizing pay-
3ewilt of or dlisbllrsing increases in congressional salaries effected pur-
suaut to tie acts1."
The 19(;7 act established a Commission on Executive Legislative and
Judicial salaries which recommends (o the President. at 4-year inter-
va rates of pay for Senators. Representatives, Federal judges,
ca1inet officers. andl certain other officials in the three branches of gov-
enlilnlt. 1,ased on the Commission's recomnendation, the President
subits, in his next proposed budget. his own recommendations for
n t al ai e. The President's recommendation becomes effec-
Iive :l) days after his proposals have been transmitted to the Congress
u'le5s either 7t least one House has passed a resolution disapproving
of :ul or )art of the recommendations or other rates have been enacted.
Congressnin Presster contends that the procedure insofar as it
provides a mechanism for adjustiii salaries of Members of Congress
violates Article I I of the Constitution which provides that "[aill
Le~isative Power herein ranted shall be vested in a Congress of the
T'nited States" and Article I e cl. 1 which provides "[tihe Sena-
tors ind1 Representatives shall receive a Compensation for their
services, to ]e ascertaied ly Law and paid out of the Treasury of
the United States."
Congressman Pressler further contends that the Executive Salarv-
(-'i"-of-Living Adjustment Act of 1975 which provides for an auto-
mmtuc annual cost-of-living adjustment in the salaries of certain
verm nentaI officers. i nel ulin Members of Congress, is unconstitu-
ional. The Act states that the annual rate of pay for Mlembers of
(ow1Ines is to 1w the rate established pursuant to the provisions of
the l9P7 Act. Congres'inan Pressler asserts that insofar as the Act
elablislhes procedures for the establishment of salaries for Members
of congresss it also violates Article I 1 and Article I c cl. 1 of the
Con-t itut ionl.







Status.-On July 20th the court dismissed the action without
prejudice. Three days later the court vacated the order granting dis-
missal and set oral argument on motion for summary judgment for
September 21, 1976.
Reuss v. Balles
Civil Action No. 76-1142 (D.D.C.)
Brief.-Representative Henry Reuss brought this action (in a com-
plaint filed on June 21, 1976, and in an amended complaint filed on
July 7) against the individual members of the Federal Open Market
Committee (FOMC) who are not members of the Board of Governors
of the Federal Reserve System and against the twelve Federal Re-
serve Banks.
The individual defendants are all presidents or first vice presidents
of the Federal Reserve Banks, each of whom was appointed as an
officer by his Bank's board of directors, with approval of the Board
of governors s of the Federal Reserve Svstem. Under the li)r, ision of
S12A(a) of the Federal Reserve Act (12 UIS.C. '" 263(a)), the
FOMC consists of the seven members of the Board of Governors of
the Federal Reserve System, plus five others (and their alternates)
selected by the boards of directors of the Federal Reserve Banks who
must be either presidents or first vice presidents of said Banks. Each
board of directors of a Bank consists of nine members, three of whom
are chosen by the Board of Governors of the Federal Reserve System
and six of whom are chosen by the commercial banks who are the
stockholers of said Bank.
Representative Reuss states that he is "a Member of the House of
Representatives and is Chairman of the Committee on Banking, Cur-
rency and Tloiisinc, which. pursuant to Rule X.1 (d) of the Rules of
the House of Representatives, has jurisdiction of legislative matters
relating to. inter alia, banks and banking, Federal monetary policy,
money and credit, valuation and revaluation of the dollar, and inter-
national finance. The plaintiff is also Chairman of the Subcommittee
on International Economics of the ,Joint icononic Committee estab-
lished by the Employment Act of 1946 (15 U.S.C.. Chapter 21)." He
also states that he is the owner of certain marketable bonds whose ag-
gregate cost. ao'gregate marketable value, and ao'grreoyate face value are
in excess of ,S20,000. The complaint states that the FOMC makes
decisions to buy or sell United States Government securities and the
currencies of foreign governments, which decisions are then carried
out by the Federal Reserve Banks. and that these purchases o1 sales
have a substantial effect on the value of foreign currencies relative to
the currency of the United States, and upon domestic bank reserves.
bank creditC. money supply, interest rates, overall credit conditions.
economic activity, jobs. and prices. It states that the five defendant
members of the FOM[C have the same vote as the seven who are
members of the Board of Governors of the Federal Reserve System.
and that they exercise substantial power in the fornmiulation of the
decisions on open market policy.
Representative Reuss alleges that the method of selection of the
five defendant mneilbers qad their alternates violates Article II. Sec-
tion 2 of the Constitution because they have not been appointed
officers of the United States in accordance with the procedures out-








lined therein. He alleges that by voting on the FOMC they create for
themselves de facto offices of the United States, thereby diminishing
or usurping his legislative functions, both as a Member of the House
and as Chairman of its Conimittee on Banking, Currency and Hous-
mg. lic a lleihe is affected in participating in the exercise of the
1oll ow% i _ig powers of Congress:
(a) Regulating the value of money and foreign exchange under
fitle I, Section 8, clause 5 of the Constitution.
(b) Providing for offices under the United States not otherwise
provided for by the Constitution; and to establish the qualifications
tlierefor, prescribe the duties and compensation thereof, and provide
for the terms of office and grounds for removal.
(c) Regulating interstate and foreign commerce.
(d) Borrowing money on the credit of the United States.
(e) Participating in the process of selection of officers of the United
States as provided in Article 11. Section 2, of the Constitution through
negotiations with representatives of the Senate on issues and nominees
in the context of the overall functioning of the legislative process in
the congress s of the united States.
le also alleges that the individual defendants can substantially and
adversely affect the value of his property,. thereby depriving him of
property without due process, by increasing or decreasing interest
rates on government securities and by affecting the availability of
money. The complaint alleges that in carrying out the orders of the
FOMC, which are made by the unconstitutional participation of the
defendant individuals, the defendant banks regulate the value of
money and of foreign currency, thereby interfering with plaintiff's
legislative functions under Article I, Section 8, clause 5, and that
these actions may also deprive him of property to the extent of morm
than $10,000 without due process of law.
The suit asks that the defendant individuals and their successors
be permanently enjoined from serving as members or alternate mem-
bers of the FOMC., that defendant banks be permanently enjoined
from complying with any FOMC decisions made while any of these
individuals sit as members of it, and that the court render a judg-
ment declaring void for repugnance to Article II, Section 2, clause 2
of the Constitution, such parts of section 12A(a) of the Federal Re-
serve Act as provide for the selection of members and alternates of the
FOMC by the boards of directors of the Federal Reserve Banks.
Rep resentative Reuss also made application for a three-judge court
to hear the case pursuant to 28 U.S.C. 2282 on June 21, 1976.
I)efendants filed an opposition to the convening of a three-judge
court and a motion to dismiss on July 30. The motion to dismiss argues
that Iplaintiff lacks standing to sue, both as a Member of the House of
present at ives and as an individual owner of securities.
Stat us.-The case is pending before the U.S. District Court for the
I)istrict of Columbia.
United States ex rel. Hollander v. Clay
Civil Action No. 76-493 (D.T).C.)
hb';/ef.-This suit was filed by a private citizen pursuant to 31 U.S.C.
231-,)), which allow private citizens to bring suits in the name of







the United States against anyone making a false claim against tle
United States. The plaintiff is required to notify the iiistice )epalrt-
ment, which has 60 lays after receiving the notice to take over as
plaintiff. If the Justice 1)epartmient takes over the case. the private
citizen may be awarded up to one-tenth of ti amount recovered for
bringing facts and evidence to the attention oil the (oveIiiiient: if lie
must prosecute the case alone, lie may be awarded up to oie-fourt Ii
of the amount recovered for his services.
The action, filed on March 26, 1976. alleges that Represeiitative
William Clay had, during the 6 years prior to tfle fifijin of the suit,
made numerous claims, which Rel)resentative Clay knew to 1)e false.
upon the Finance Officer in the Office of the Clerk of the I ouse of
Representatives for $212.80 each as reimbursenment for the cost of a
round trip by automobile from Washington, ).C.. to Representative
Clay's home in St. Louis, Mo., for trips not actually made. It asks
pursuant to 31 U.S.C. 232, that Represe ntative lay pay double the
amount of claim, plus $2,000 for each claim falsely tiled.
On June 4, 1976, the Justice )epartment took control of the
litigation.
The Justice Department then filed an amended complaint on Jimue
18. The complaint alleges that since he assumed office in 1969. Con-
gressman Clay has submitted vouchers for, and received payment for.
at least 21 trips to his State congressional district which lie (lid iot
and could not have taken, inasmuch as lie was officially recorded as
travelling to other destinations for which he received reimbuiseineit
from the Finance Office. or else he was officially recorded as having
voted in the House of Representatives duriiig tile tinie of the pur-
ported travel. It also states that he submitted vouchers that represented
that he travelled by private automobile and claimed reimburseilent
on that fact, when the trips were actually made by common carrier,
thus entitling him to a lesser reimbursement than he received for tile
claimed trips by private automobile. The complaint asks for such
damages as may be established at trial, which is subject to doublino"
and such statutory forefeitures as the court might allow, together witl
interest at the maximum allowable rate. The complaint alleges as a,
second cause of action that Representative Clay, as a Member of Con-
gress, holds a, public trust and owed a duty of accou-tal)ilitv for llbli(l
moneys entrusted to his use and paid for his benefit in an(! of his per-
formance of his official and representative responsibilities, and tiat
because of the false claims he has unjustly enriched himself at time
expense of the United States. For this cause of action the Government
seeks damages equal to the amount of unjust enrichment plus the
maximum interest allowable. Finally, the complaint asserts as a third
cause of action that the United States has paid moneys to Represent-
ative Clay under a mistake of fact, that being that it believed the
moneys were being paid for trips made at the applicable House stand-
ard, when in fact he was overpaid and reimbursed for trips not actu-
ally taken. The suit asks for judgment in the amount paid by mistake
of fact and maximum interest.
On July 7, the plaintiff filed a motion for an order directing the
issuance of a subpoena for the attendance of witnesses and production
of documents to Edmund L. Henshaw, the Clerk of the House of
Representatives.


75-565-76-6








ILI,1csent ative Clay filed a motion to dismiss for lack of jurisdic-
i lon July i. The motion states that under the Speech or Debate
( latse. the Memidvrs are not only given a defense on the merits, but
re protectedd irom lit iati%on itdf, and that its protection extends
1( AIl acts generally one in a session b a Member in relation to the
1)si~H e"rIce the hIouse. Since the submission of a travel voucher
to l(i 1 Klist ri is an action generally done by a Member in the course
,of h is legislative duties, this action is protected by the Speech or Debate
t alse. The Menbei represents his constituency. and must travel to it
a~crta in t!he need- and wis of h1is coilstituenlts. This is part of his
1b as a legislator, an(l thus it is protected. The motion says that the
()~lr't lacks jiiisdhitii also bec(aus( Article I. Section 5. clause 2 gives
ae"li Ilolse the right to puni-h its own Members, and thus entertain-
ilent liv the (court of this action would violate that clause. It also alleges
that thjis is a "political question" which cannot be entertained by the
u lll'is. because under ow / v. 1.11orklak, 395 U.S. 486 (1969), if
tll~re is a "textually demonstrable commitment" to Congress of the
power to take action, the case is not justiciable. The motion argues that
iiclh a coflliititielit" is present here.
VIIIllv. tle motion asserts a statutory prohibition, in that in United
v. B1ewte, T48 I.S. 501 (1972). which upheld a former U.S.
u,:i for s conviction on accepting a l)ril)e for casting a vote, the
Sin~reme Cotirt had said"
If we muIderestiniate the potential for harassment, the
Congress. of course, is free to exempt its Members from the
:iiiilit of federal bribery laws, but it has deliberately al-
lowed the instant statute to remain on the books for over a
century. I408 U.S. at 524.]
Congressman Clay asserts that such an exemption exists in this case.
1 } 95 reads:
95. Payments from continent fund of House of Repre-
sentatives-No payment shall be made from the contingent
fund of the 1Touse of Pepresentatives unless sanctioned by
the Committee on Accounts of the House of Representatives
ICom *mittee on llouse Administration]. Payments from the
cot inent fund made upon vouchers approved by said com-
mittee shall be deemed, held. and taken. and are hereby de-
clarel to be conclusive upon all the departments and officers
of the Government. No payment shall be made from said con-
tingent fund as additional salary or compensation to any of-
ficer or employee of the House of Representatives.
The provision was enacted into law in 1888 and re-enacted as re-
iitlv as 1974.
N\f-8. -Th case is penming before the U.S. District Court for the
)i-trict of C(oluimbia. Oral argument on all pending motions is set
fl, Septenler 16, 1976.
United States ex rel. Martin-Trigona v. Hays
('ivil Action No. 76-1140 (D.D.C.)
f?,, fThJis suit was filed by a private citizen on behalf of the
I itied S~a~es against- Representative Wayne L. Hays; former Rep-








resentative Kenneth (rav : Elizabeth Rav. a. former employee of "tle
I [ouse of Represent ati yes A- li n istratioi ( "on tiiittee ; and before that
for then-Represen ative (1-a *v:- and !)onald IZ. Gosn r. employedd hr
b otl the IIouise of I el)reseli.1ative Adl(lillistl'ation ( onlin ittee (sic')
and by Defendant la.'s oin is ()bio staff.- It was filed under 81
7.S.C. 2.32. which allows ai pirte cit izen to )ring a, suit in the name
of tile United States ax:" inst anyone. in' waki i a eal 5(' cla m a gaillst the
United States. The >tatite reoii es t le plajitiff to notifv 1lie Justice
)epart inent that the uif I a- Veil filed, and allows the Justice I,)e-
pait-1Ptfle(t to take ove.r I h- (' if dole wit hil 60 days after tle plain-
titrs notification. 1PliHtill' nia v )P awarned up to one-tlourtil of tile
aiNonut recovered if tme - ust ice Depat- rt.ent I(OU, not assu ic tlie ca-e,
and up to one-tentl if it does.
Tie coinphliit alle-(. th"at MiRs Rav w- 5 kept on the governmental
payroll to Iperforn iileagal sex 1:1 ats for fminler Ilepreseit native (Graiy
lnd Rel)resentat i I h, v and ot he is at tlhir di section while on their
tI~afl1sI that they ( ici' hir ii ex(ess 01 ttie vaIue of the lawful serv-
ItTQs she, freda Z-1 hat >thlte knowingly received )1blic funds iII
excess of tl'e value of i le lawful services she provided, that Repre-
sentative liars knowinzliv aut Iorized tile office manao'er of the Con-
inittee on House Adminitrat iol to p ay Mis> iay $85 for her rent, for
whiel she provided no lawful service's and which s e ]nertheless
nowin v received: that I'. GMosIIv lr,(l',"'i(d finds froni two full-
time positions. one a Reprwcenfative Itavs' field representative in
Ohio and the other as an aUSI-: ant clerk io-1 the Comnittee on House
Administration. and that Rkepresentative tlavs knowing'Iv atliori*zed
tile paymnents atiou ,,li i\1 r. ( V could not, -have fulfilled tile funic-
t ions of both jol' : that Repure:('1it tive I1tars and former Representa-
tire Gray eai i""ed their (htv as public officer> under 81 U.S.C. )2
1r using" public funds for personal niatteri and for improper and ii-
legal sexial acts pifomed bv Miss Ray: that defendants have
knowingly violated 31 1 ..S.( 529 by aulthorizinKg payment of or
receiving pa"Vnent iii cxc- of the lawful services rendered. : tlhat all
defendauiis except i[r. (Gosiv violated 31 1.S.C. .5,1 bv using" public
moneys for food and lodg'ing" for assemblages of two or more persos:s"
that Representa tive thars and former IRepresentative G-Iv violated
31 U.S.C. b {i S b s ynin public funds for illegal purposes by causi,-
theni to be paid to A[is> Ray for performing. sexual aets witl their.
and others, and vio'1ted lS U.S.C. 2A1--22 1v personally and with
the assistance of others transporting MisZ Ra- "in interstate corn-
P-Iere" to lerfoIlh these acts: and t!hat Representative Hays and
former Representative (i'iav violated 31 U.S.C. 6 671 by knowino-ly
usin funds appropriated for contingent expenses of the House of
Representatives for pelrsona1. sexual services provided by Miss Ray
which were not intimately connected with routine legislative
functions.
The suit asks 5o, hi() for eah1 false claim paid to defendants or p)i i11
at their request or autlioritv: that they pay to tie Treasury of tlv
United States doubt e the total amount of these clains: that defendant'
pay $iW0,000 in punitive damages: anl that, plaintiff Mlartin-TFrigona
be award(d reasonable conml-)ni-ation for 1)roseciutinf" tle suit.
Former Replreseiitaltve (ray filed motions on July :26. asking!" tl(
Court to: (1) dismiss al but t1 n' cause of action based o :81 )l .S.(C.







2. since that is the only statute allegedly violated which authorizes
suit by a private individual, (2) dismiss the 232 cause of action or in
thw alternative require a more definite statement of the facts of the
alleged fraud, and (3") dismiss the complaint for lack of jurisdiction
btcauh the information was already in the possession of the United
States when the action was filed, and 31 U.S.C. 232(c) states that no
cort has ju1ri(liction if the complaint is based upon information in the
possessin of the UInited States at the time the suit is filed.
On August 9. plaintiff filed oppositions to defendant Gray's motions..
stating (1) that liis injury as a taxpayer should give him standing to
sie on1 all coits, (2 ) that his allegation on the fraud charge was clear
enMugh, and (3) that whether the Government had the information
wats a questionn of fact, and the Justice Department should be allowed
the statutory (60 days to answer, and that even if they had the informa-
tion, there are diversity and Federal question grounds for jurisdic--
tion. Plaintiff also filed a motion to join the United States as an in-
voluntary plaintiff.
Rlepreseiitative Hays filed motions to dismiss on August 10. He asked
that all hut the fraud count be dismissed for lack of standing, and that
the fraud charge be dismissed for lack of jurisdiction, since 31 U.S.C..
z232() states that no court shall have jurisdiction of actions brought
iruder this statute if it appears that the information upon which
the suit is based was in the possession of the Government at the time
the suit was filed. He also asked for a protective order limiting dis-
co'Cr, to questions of the courtS jurisdiction until that motion i;
ruled on.
'tutu .-The case is pending before the U.S. District Court for the-
)istrict of Columbia.
United States ex rel. Thompson v. Hays
Civil Action No. 76-1078 (D.D.C.)
1hY].-Plaintif, a private citizen, filed this suit under Sections.
281 and 232 of Title 31 of the United States Code, which allow a
private citizen to file a claim on behalf of the United States against
aiy person making a false claim for money upon the United States.
Section 2"31 states that anyone convicted shall pay and forfeit $2 0.,
plus double the amount of damages the United States may have in-
,I 'red as a result of the false claim, plus the costs of the suit. Section
232 requires the plaintiff to notify the Justice Department of the suit,
and allows the Justice Department 60 days from such notice to take
over the case from the plaintiff and carry on the suit on its own. If the
United States fails to enter an appearance, the plaintiff may carry on
tbe suit. If the United States enters an appearance, the private citizen
may still be awarded fair and reasonable compensation for disclosure
of information or evidence not in the possession of the United States
when1 te suit was brought. The amount may not exceed one-tenth of'
the amount recovered. If the United States does not take over the
case, the court may award up to one-fourth of the amount recovered
to the plaintiff as compensation for his services.
Plaintiff filed this action on June 16, 1976, against Representative,
Wayne L. Hays, and Elizabeth Ray "as a private citizen of the United
States." It alleges that during a number of years defendants made-








,numerous claims or acted in concert to make claims, which they knew
to be false, upon the Finance Officer of the Clerk of the House of
Representatives as payments to defendant Ray to serve as the mistress
i.of Representative Hays. The suit asks double the amount of $14.000
for each of the number of years the payments complained of were
made, plus $2,000 for each claim made by defendants.
On August 10, Representative Hays filed a "Motion to Dismiss and
for a Protective Order." ie stated that the court lacks jurisdiction
under the statutes, since 31 U.S.C. 232(c) provides that a court shall
not have jurisdiction of a suit brought nmider this section if such suit is
based upon evidence or information already in the possession of the
United States at the time the suit was l)roui'ht. The motion states that
the substance of the charges in the complaint first appeared in a front
page article in The JVa/8hngto.n Post on May 23, 197"), that on May 25
several well-known papers arried the story that the Justice Depart-
inent was conducting a criminal investigation of the charges, and that
on June 1, U.S. District Chief Judge William B. Jones issued a gag
orler which once again gave public acknowledgment to the Govern-
ment's investigation. It states that this complaint was filed 2 weeks
later, and that it contains no new information. but is based only upon
charges made earlier in the press. iTh motion also asks that while the
(_o1t is considering the motion to dismiss that it issue a I)rotective
order limiting the scope of discovery to questions relating to its juris-
diction over the subject matter.
)S.tatus.-The suit is pending before the U.S. District Court for the
districtt of Columbia.
United States ex rel. Cennamo v. Ray
Civil Actions No. 76-1132 (D.)D.C.)
Bri cf.-This suit was filed on Jume 18, 1976, by two private citizens,
Anthony D. Cennamo and his attorney. George I. Douglas, Jr.. against
Elizabeth Bay. Representative Wayne L. Havs. and Dell Publishing
(o., Inc. It was filed pursuant to 31 U.S.C. 231 and 232 which allow
a private citizen to bring a suit oni behalf of the United States where
such person has kiiowlebze of a false claim which has been filed against
the United States. The Justice I)epartiment must then be notified of
the suit. and it has 6 d vs after the notification to assume control of the
proseciition. If they assiime control, the comrt may still award the
inst igrat ors up to one-tenth of the anotlnt recovered: if the inst igators
niust prosecte the case on their own, the court may award them up to
one-fourth of the amount recovered.
The complaint states that the defendants have. over a number of
years prior to the filing of the complaint. made numerous claims, or
acted in concert and entered into agreements. combinations, or con-
spiracie with each other in making claims, knowing them to be false
and fictitious, upon the Finance Officer of the Office of the Clerk of
the House of Representatives, in the amounts of or about $14,000 per
year. As a second cause of action. the complaint states that over a num-
ber of years, defendant Ray conspired with Dell and Representative
Hays to defraud the Finance Officer of the Office of the Clerk of the
House of Representatives or the Copyright Office of the Library of
,Congress or other agencies of the United States "to obtain the pay-







1 (ts and IregistratioI for Copyright of false, fictitious and fraudulent
cla ims for serving as the friend of defendant Wayne L. hays." The
third cause of action states that defendant Ray did lot possess the
s-kills for being a secretary or for holding any other position com-
men1surate with the compensation she received; that while she was em-
ployed by the Government she was assigned and did perform tasks
wrongful in nature; that she utilized the time, materials, and facili-
Tic- of the (overnment to benefit and enhance her wrongful conduct;
that she used the time. materials, and facilities of the Government to
keep a record of her wrongful conduct, with the knowledge that it wa
1ontrarv to the proper performance of a compenisated Government
eniployee; that she disclosed her conduct to the media for publicity
!)Irl)t)7es for monetary gain; that through her actions she and Dell
have become unjustly enriched at the "burden of the United States,"
'1!A that she hla(l reduced her wrongful conduct to writing as a book
in novel form ("but with the clear and u equivocal impression to the
reader that it is a recount of her wrongful conduct and acts") which
was cop righted and therefore permits her to become unjustly en-
riched by I Ier wrongfuill conduct.
Tie complaint asks for a judgment against all defendants in
amounts of about $14,000 for each of the number of years the payments
omIl)ained of were made, said amount to be doubled as the prescribed
penalty uder 31 U.S.C. 231, together with an amount of $2,000 for
each false claim made : that the Government be declared the owner of
Miss Ray's copyright and all incone-, royalties, and assets thereunder;
taint 'Ill oneysreeived bv defendants Ray. m)ell. and Hays resulting
from s11ch enrichment be returned to the Goverment : that all moneys
received 1hv Miss Ray (le to appeamiante., interviews, tapes. poses. and
so forth be ret lrne( to the Government that all moneys, compensa-
tion, or royalties received for the publication of Miss Ray's book be
hWld in trust for the Government : and that the case be consolidated
with U~dtc,-! ottes x ref. Tolnpson v. ]Hysx Civil Action No. 76-1078
this report at 76).
On July 8, plaintiff individuals filed an amended complaint. In it
they additionally allege that Frank Vamelle and Donald R. Gosny,
two "l)uriorted 'emllovees" of Representative Itays, in conspiracy
with each other made numerous false claims for com pensation as em-
1lyees wheni in fact tlley were not employees in the service of Repre-
sntati-e I ays, as they maintained other employment or positions "for
-eRVi'ces not related to the services for the US. Government but which
l)loymlenlt services are to advance, serve, and otherwise benefit the
per,1on1a and political interests of defendantt Hays." It also alleges
that as a Memler of the House of Representatives and as chairman of
era in coimittees, Representative IJays supervised and controlled
appropriated fulds for Vaous voVaLs to foreign countries and
through the 'In excess' countries and other various and devious means
did(. e laim and otherwise obtain fm-ds of the United States much
greater than the allotted per diem and travel expenses knowing that
such claims were false and that such moneys obtained would not be
imsed for the benefit of the Government, but only for his personal bene-
fit or iltere ts,
The amended complaint asks that Representative Havs be made to
provide an accouting for all claims and payments made to "alleged







employees," that a judgment be entered against all three for th...
amounts, that Representative Hays provide al accounting for all
moneys appropriated for foreign travel and expenses for himself.
other Members, employees and others, that a, judgment be entered
against him for all moneys received in excess of the per diem and
travel expenses allotted, and that the judgment include all moneys
for travel not for the benefit of the Government.
Plaintiff individuals also that day filed a motion to require Repre-
senative Hays to provide an accounting for all Federal funds sizpel
under 22 U.S.C. 276(c) (1) from fiscal 1971 to the present.
On July 9, plaintiff individuals filed a motion to order Representa-
tive Iays to submit to a physical and mental examination by a physi-
cian appointed by the court. The motion states that the Congressmiian
had been absent from House sessions for a bout 60 days while recuper-
ating from an overdose of sleeping pills, that 2 U.S.C. 39 requires
that deductions shall be made from a Member's salary for each day he
is absent unless he or a member of his fanily is-sick, that Representa-
tive Iays was up and about and engaged in a variety of activities
during part of these 60 days, and that there is no way to know whether
he was still ill and therefore excused from House sessions, or whether
he was not and therefore by law these funds should be returned to the
Government, unless lie submits to such an examination.
On August 10, Representative Hays filed a motion to dismiss, citing
the court's lack of jurisdiction under 31 U.S.C. 231 and 232, since
plaintiff individuals had provided no new information not in the
possession of the Government at the time of the filing of the action. lie
also asked for a protective order limiting discovery to questions of
jurisdiction until the jurisdictional question has been decided.
Status.-The case is pending before the U.S. District Court for the
District of Columbia.
United States v. Helstoski
Criminal action No. 76-201 (D.N.J.)w
Brcf.-On J.une 2 1976, Representative nIerv Ilelsto;ki was An-
dicted by a grand jury on three counts of soliciting ad(i acceptiii2"
bribes from Chilean and Arc'entinean aliens in exchange for intro-
ducini private citizenship bills in Cono'ress with the intent of delay-
ing their deportation. The indictment also included three counts of
conspiracy and obstructing justice and four counts of lyino" to a fetl-
eral grand jury. Indicted with him were two members of his con,-2-
sional district staff and the treasurer of his re-election committee.
Status.-The case is pending before the U.S. District Court for New
Je rsey.
United States v. Podell
Civil Action No. 76-0509 (SDNY)
Ihle-On January 30, 1976, the United States filed this action
under 28 U.S.C. 1345 against former Representative Bertram L.
Podell for 41.3 which Podell alleged -was illegally paid while a
Member of Cnes to seek favorable treatment from Federal aren-
cies for a small Florida airline.







Podells answer specifically denied each allegation of the complaint
a111d further" claimed that prosecution was barred by the statute of
liinitat ions.
8ta,1s.-No further action has been taken.
Genesis Publications, Inc. v. Mondale
(ivii Action No. 76-2242 (S.D.N.Y.)
BIcf.-Thisiss an action for libel against Senator Walter F. Mon-
dale. The complaint, filed on May 19, 1976, states that the plaintiff
."is in the business of publishing a sophisticated men's magazine called
(7,(XI< which it admits publishes pictures of nude and semninude
women. although it states that it also publishes articles of "great pub-
lic interest" by eminent authors. It states that Senator Mondale is the
author of a book titled "The Accountability of Power," and that the
book's publisher, David McKay, Inc., offered plaintiff the right to
publish an excerpt from the book. Plaintiff accepted the offer and pub-
lished the excerpt in its May 1976, issue.
The complaint states that, having learned of the appearance of the
CXcerI)t in Genwes, Senator Mondale called a press conference in his
Senate office on or about April 14, 1976. It alleges that there, before
repreentativIs of the leading newspapers of the United States,
"intending that what he said should be published in the said leading
newspapers and carried on the wires of the news services," Senator
Mondale falsely and maliciously contrived to injure the plaintiff and
its magazine iI their good name, faline, credit, and reputation and to
I.z'ijd,: laintiff and its magazine into public scandal, infamy, ill repute,
and disgrace and to hold them up as objects of scorn, ridicule, and
shane bv stating that he was "outraged and furious" that the excerpt
was 1fll)lished in (;cscsi and that he wanted the people of Minnesota
to NI,)w that. bv calling G(woW;s a "filthy piece of literature," and by
hsI'rilin as a "'lespic'able act" his publisher's granting of permission
to (,( i, 1,si's to ll the excerpt and threatening to sue the publisher.
The plaintiff alleges that the publication of Senator Mondale's
1har I.s has injured is ,_ od name, fame, credit, and reputation; that
amiml)eri of firms who dealt with plaintiff by selling articles or
xcr(11ts to them or hv advertising with them have ceased to do so or
threatened to cease, thereiby causing plaintiff to lose revenue; and that
pllintiff has been deprived of literary material which would have been
1 hlhie to theiii. The coinplint asks $1 million in damages.
On July 9, t ie parties stipulated and the court issued an order grant-
i111 hat an answer need not be filed until September 13, 1976.
Nat ~,- ile case is pending before the U.S. District Court for the
S4 utleln District of New York.

























DECISIONS












In the Inited States District Court for the Northern
District oe Ohio, Western Division
(Civil No. C 75-166)
\\ILLIA-M S. JORDAX PLAINTIFF
V.
DE1,BERT LATTA, ETC., ET AL., DEFENDANTS

OPINION AND ORDER
YOUNG, J:
This cause caine to be heard upon motion of defendants
to dismiss the complainlt for failure to state a claim upon
which relief can be granted or, in the alternative, for
summary judgment. See Rules 12(1b) (6) and 56, Federal
Rules of Civil Procedure.
Technically, since this motion is supported by matters
outside the pleadiigs, including various affidavits, the
Court is required to treat it as a motion for summary
judgment. There are, however, numerous genuine issues
as to material facts, thus precluding the possibility of
summary disposition. Unfortunately, the motion is not
that simple. The defenses of congressional, official and
sovereign. immunity are raised by the defendants and thus
the key question to be decided at this time is whether the
suit may )e ought at all.
Plaintiff has sued the iiooable Delbert Latta, a mem-
ber of the United States House of Representatives, two
si)ecial a'ents of the Federal Bureau of Investigation,
and the Uited States of America. Jurisdiction is predi-
eated upon 28 U.S.C. \, 1331, 1343, and 1361, and plain-
tiff seeks relief pursuant to 28 U.S.C. 2201, Rule 65 Fed.
R. Civ. P., and the First and Fourteenth Amendments to


(83)







l1(' Uiited1 States Condtitution. Plaintiff believes that the
(V .ei c111Si;ive iiit-rfired with and voilated his con-
stitlillo1iy j (1'e(JI(ted right of freedom of the speech and
L ri~ht to 1.dition the government for a redress of"

It is vea. with res(pect to congressional immunity that
1 tle (l(tn! a}t (t'l))hies, legislators are protected not only
ltV4 1 the os('0 (lueieeS of' litigation but also from the bur-
d( Oi 2,iiI,, tlVrllLal ti p of defending themselves.
Ll:,a nd ?'. [Jld( (1 ,ttCN Sicenen's Fund, 95 S.Ct.
PsI (1975) (itili" dombrosTJi c. Eastland, 387 U.S. at 85
(19.7). The (,11t, then, ii it were to hold the doctrine
et te t case would have to dismiss as to
("1 ) ] e!Ole I I L, I
flie de--lcid,11t _Latinl.
SiIle I, S c,ti()n 6, Clause 1 of the United States Con-
rThe Senators and Representatives shall receive a
Compensation for their Services, to be ascertained by
Law, and paid out of the treasury of the United
States. They sOall in all Cases, except Treason, Fel-
11'y adl reachh of the Peace, be privileged from
arrest during their Attendance at the Session of their-
Respective Houses, and in going to and from the
s,ame ,-and for any Speech or Debate in either House,
tley shall not be questioned in any other Place.
As can be seen from a literal reading of the clause, it
does not provide that a congressman may not be sued.
]hither it has l)een construed to mean that senators and
Ve1 i (i tatix yes may jot be questioned in any other place,
imiehidiig imej(liediial formn, concerning activities which
fall within the s)lere of legislative activities. Eastland,.
N U at 1S2(0 and the cases cited therein. The clause has.
always 1)eel given a very boad interpretation so that con-
giessnie1 cou 1 )l' rnmu their legislative function inde-
I)I(le1tly. t J'ited States v. Brewster, 408 U.S. 501
(1971) ; (nil Sins r. Joh. tson, 383 U.S. 169 (1966).
In determining whether, particular activities other
tflan literal Sl-pccch alid debate fall within the "legiti-
leislative sphere," we look to see whether the!







activities are done in a Session of the House l)y one
of its members in relation to the business before it.
Eastland, supra at 1821 citing Kilbourn v. Thomnpson,
103 U.S. at 204 (1881).
Legislative acts are not all-encompassing. The
heart of the Clause is speech and debate in either
house. Insofar as the Clause is construed to reach
other matters, they vnist be an Integral part of the
deliberative and comniicative process by which
members participate in the committee and House pro-
ceedings with respect to the consideration and pas-
sage or rejection of proposed legislation or with re-
spect to other matters which the Constitution places
within the jurisdiction of either House. Gravel v.
United States, 408 U.S. 606, 625 (1971).
The fact that certain acts are performed in an official
capacity as senator or representative is not sufficient to
make such acts legislative in nature. Id. The privilege has
been extended to matters beyond pure speech and debate
but "only when necessary to prevent the indirect impair-
ment of such deliberations." Id. citing Uted States v.
Doe, 455 F. 2d at 760 (1st Cir. 1972).
This Court is of the opinion that the activities involved
in tis case fall within the legitimate legislative sphere of
defendant Latta's duties as a congressman. He is, there-
fore, cloaked with congressionall i:ninunity and may not
be questioned in this Court concerning said activities.
Jcf,taid, supra at 1>'20. Plaintiff came to defendant
Latta seeking help with an employment problem. The
congressman said he would try to help and accepted
plaintiff's papers and documents. He turned said papers
over to his staff for possible action. The staff examined
the documents and consulted with the Assistant General
Counsel for the Ohio area of the National Labor R ela-
tions Board and recommended that a formal charge be
filed with the NLRB. A letter to this effect was a -
entlv sent to plaintiff from defendant Latta's office. Be-
fore it was received, however, plaintiff a,ain contacted
the defendant by telephone. Mr. Jordan was upset that







te matter hadl not been handled more promptly. Defend-
ant Latta, in his afidavit (attached to motion filed July 3,
1975, p. 4-5) states that plaintiff told him that he would
" get action ahight, he was now going to take care of
matters his way. He said he was tired of getting
the run around and was now going to take care of the
natter himself and besides he was not going to vote for
me." While plaintiff did not threaten the life of de-
fendant Latta, he, according to Mr. Latta, did put the-
fear of God into him (affidavit p. 5). The next day
Mr. Latta contacted the F.B.I.
It is clear that Mr. Latta's contact with the F.B.I. was.
not the result of a fear of adverse publicity or of los"i
votes. See affidavit of William Jordan filed August 11,.
19T5, p. 4; affidavit of Latta, p. 5. Rather, it was the
fear that plaintiff was going to take matters into his
own hands. At page 5 of his affidavit, Mr. William
Jordan does not deny that he had threatened to take
matters into his own hands, stating only that he had
not threatened to do it through violent means. This is
Corroorate1d by the affidavit of the plaintiff's father,
(lamer Jordan, who states:
nor did William S. Jordan at any time
threateni to take matters into his own hands using
olence against anyone. Affidavit of Garner
Sordan filed Aug. 11, 1975, p. 2.
It does not1ake- any difference that plaintiff did not
exi)icitly state tlat lhe would use force or violence to
d-hieve his goals. Implicit in the statement that he wou(1d
latOcFare of matters his way is the likelihood that force
o1 violence would be resorted to if necessary. Once the.
deleldan~t Latta determine that plaintiff would resort
to s l-hell, he had tie right, if not the duty, as a
federal ollicer, to contact the F.B.I. No sinister motives.
,( e imUPied from such conduct.
This Cort has0 no syNpathy for people who take the
law iito their own h ands. If suchs activity were to be
c 1doned, there would be no necessity for congressmen
ei" lcgislalres; for judges or courts. This Court is not
wviIlii to let the judicial branch of our government be







used as a tool to justify and approve the dehberate
circumvention of the legislative branch by resort to self-
help. Mr. Latta was performing the legitimate legisla--
tive function of listening to and attempting to solve tbe
problems of his constituency. He appears to have per-
formed said function in an honest and sincere manner.
In order to insure that lie continues to perform said
?function independently, lie must be protected from law-
suits of this nature. See United States v. Brewstw,
su pra; Eastlaitd v. U ited States, supra.
With regard to the F.B.T. agents who are defendants
in this case, this Court finds that they were merely
serving the defendant Latta in his legislative function
and thus they are entitled to gain constitutional prote-
tion under Article I, 6, Cl. 1. Doe v. Mciilait, 412 U.S.
306 (1972). Furthermore, since the United States has
not consented to be sued in this case, it must be dismissed
as a defendant. Any reliance on 28 U.S.C. 1346 is mis-
placed if for no other reason than that the amount i,.
cotorovers. exceeds $10,000.00. Plaintiff is suing foi
$15o,000.00 in compensatory damages and $100,000.00 in
punitive damages. The entire complaint against all de-
fendants will theref ore be dismissed.
For the reasons stated herein, good cause therefore
appearing, it is
Ordered, That the motion of all defendants to dismiss
the complaint or, in the alternative, for summary judg-
ment, should be, and it hereby is, gra nted, and it is
further
Ordered, That the complaint should be, and it hereby
is djsiiissed with prejudice as to all defendants.
It is so o;delred.
W7xr. J. Xorx o,
United States District Judge,
MARCH 24, 1976.
Toledo, Oio.










United States Court of Appeals for the District of
Columbia Circuit
No. 74-2025
PUBLIC CITIZENS, INC., ET AL., APPELLANTS
V.
WILLIAM E. SIMNoN, SECRETARY OF THE TREASURY
Appeal from the United States District Court for the
District of Columbia
(D.C. Civil Action 2280-72)
Argued October 21, 1975
Decided June 25, 1976
Girardeau A. Spann, for appellants. Alan B. Morrison,
was on the brief for appellants.
David J. Anderson, Attorney, Department of Justice,
with whom Carla A. Hills, Assistant Attorney General,
at the time the brief was filed, Earl J. Silbert, United
States Attorney and Leonard Schaitman, Attorney, De-
partment of Justice, were on the brief for appellee.
Morton Hollander, Attorney, Department of Justice, also
entered an appearance for appellee.
Before: LEVENTHAL and MACKINNON, Circuit Judges
and MCMILLAN,* United States District Judge for the
Western District of North Carolina.
Opinion for the Court filed by Circuit Judge LEVEN-
THAL.
Dissenting opinion filed by District Judge MCMIILAN.
LEVENTHAL, Circuit Judge: This appeal raises the
question whether taxpayers have standing as taxpayers,
*Sitting by designation pursuant to 28 U.S.C. 292 (d).
(89)


75-565-76-7







without congressional authorization of their suit, to chal-
lemrc executive spending claimed to be in derogation of
constitutional and statutory strictures. The District
Court deemed the action barred by United States v.
Richardsoi, 418 U.S. 166 (1974), and Schlesinger v.
Committee to Stop the War, 418 U.S. 208
(1974). We agree.

I. PARTIES AND PROCEEDINGS BELOW
Appellants are a taxpaying non-profit organization
supported by contributions and a prominent taxpayer-
public causes advocate. They allege injury as taxpayers.'
Their action is brought against the Secretary of the
Treasury, sued in his official capacity. Appellants seek
declaratory and injunctive relief to require appellee "to
take appropriate action to recover all salaries paid to
persons on the -White House Staff while they were devot-
ing substantially all of their working time to the 1972
Presidential election campaign, rather than to the official
business for which their positions are authorized."'
Asserting that Congress has made no appropriation for
substantial, on-working time political activity by mem-
bers of the White House Staff, appellants allege that
this activity violated the Appropriations Clause of the
Constitution 3 and 31 U.S.C. 628) and that appellee is
under a duty implied from these provisions to ensure
that all congressional appropriations are being used for
their designated purposes, and to recover the misspent
'There is some question as to whether Public Citizen, Inc. is a federal tax-
pyer for purposes of this suit. Appellants' counsel asserted at the argument
that although Public Citizen is a non-profit organization it pays social security
taxes, but there is no averment in the complaint or evidence in the record that
it pays general federal taxes. Appellee doe, not challenge the bona fides of Public
Citizen's claim to taxpayer status. If the issue were critical, we would remand
to the District Court to determine whether Public Citizen is in fact "a taxpaying
non-profit organization." see Protestants and Other Americans, etc. v. Watson,
132 U.S.AJpp.D.C. 329. 320, 407 F.2d 1264, 1265 (1968). A remand is unnecessary
here because of the presence of co-appellant -Nader as an individual taxpayer.
2J.A. 4.
"No Money shall be drawn from the Treasury, but in Consequence of Appro-
priation made by Law: and a regular Statement and Account of the Receipts
and Expenditures of all public Money shall be published from time to time."
Art. I, 9, l. 7.
Except as otherwise provided by law, sums appropriated for the various
branches of expenditure in the public service shall be applied solely to the objects
for which they are respectively made, and for no others.







appropriations for the use and benefit of the United
States Treasury.5
On November 14, 1972 appellants instituted this
action in District Court. Shortly after the filing of the
complaint, appellee moved to dismiss for lack of stand-
ing. The District Court denied the motion without opin-
ion on March 8, 1973. Appellants then proceeded to take
discovery. Following the conclusion of discovery, appellee
renewed his motion to dismiss, which the District Court
granted on September 27, 1974. This appeal followed.

I. SUPREME COURT PRECEDENTS ON TAXPAYER STANDING
Appellants hinge their standing to sue on a proposed
extension of Flast v. Cohen, 392 U.S. 83 (1968), to
permit taxpayer challenges to executive spending. In
Flast the Court modified the doctrine of standing which,
since Frothiugham v. Mellon, 262 U.S. 447 (1923), had
barred suits by federal taxpayers to enjoin allegedly un-
constitutional expenditures. Flast, in turn, has been
accorded a restrictive reading in the recent decisions of
United States v. Richardson, 418 U.S. 166 (1974), and
Schlesinger v. Reservists Committee to Stop the War,
418 U.S. 208 (1974). The viability of appellants' pro-
posed extension turns on an appreciation of this doc-
trinal development, which we now set forth.
Frothing]am, involving a Tenth Amendment challenge
to federal legislation providing grants to the States for
participation in programs to reduce infant and maternal
mortality, erected what appeared at the time to be an
absolute barrier to federal taxpayer suits. It did so on
a rationale which, although interlaced with non-consti-
tutional policy considerations, was grounded in the Arti-
'Appellants requested the following relief: (1) a declaration that appellee
was not authorized to pay the salaries of persons who had devoted a substantial
part of their working time to the Nixon reelection campaign; (2) an injunction
directing appellee to investigate and prepare a report on such persons and the
amount paid on salaries while they were working on the campaign, and to take
the necessary action to recover such salaries; (3) such further relief as may be
just and proper including the appointment of a Special Assistant Attorney Gen-
eral in the event appellee and the Attorney General of the United States fail to
take effective action within a reasonable time; (4) an injunction as to future
payments to, and use of federal property or facilities by, "any person who is
devoting substantially all of his/her working time to any political campaign";
and (5) costs. J.A. 7-8.







cle III concept that the federal judicial power may be
invoked only in a genuine "case or controversy." The
Court held that a federal taxpayer, unlike his state
counterpart, has a "comparatively minute and indeter-
minable interest" in the moneys of the Treasury, such
that injury to him occasioned by obnoxious legislation is
indistinguiishable from that suffered by the general
public. To permit such suits, the Court feared, would
expose to taxpayer challenge every appropriation act
whose administration requires the outlay of money, and
would thrust the Judiciary into conflict with the other
branches of government without the direct, particular-
ized harm that lends legitimacy and urgency to the call
on the courts to act.'
Frotyin.ham remained undisturbed for forty-five
years. It generated considerable confusion as to whether
it stated a constitutional requirement for Article III
standing or simply a policy of judicial self-restraint.!
Reexamination finally came in Flast, which involved a
challenge to a federal statute providing disbursement of
federal funds to finance secular instruction in religious
schools. The Court, per Chief Justice Warren, phrased
the issue before it as "whether the Frothingham barrier
should be lowered when a taxpayer attacks a federal
statute on the ground that it violates the Establishment
and Free Exercise Clauses of the First Amendment."
Flast answered some of the questions raised by Froth-
inham. It made clear that Article III is not an absolute
harrier to taxpayer actions, that the question of stand-
ing relates to whether one is "a proper party to main-
tain the action" and "does not, by its own force, raise
separation of powers problems related to improper judi-
cial interference in areas committed to other branches
of the Federal Government." I Whether taxpayers have
standing to challenge the constitutionality of a federal
spending program becomes a question of whether "they
can demonstrate the necessary stake as taxpayers in the
* 262 U.S. at 486 -89.
' See Flast v. Cohen, supra, 392 U.S. at 92 & n. 6.
I d. at 8.5.
Id. at 100-01.