Report of the Committee on the Judiciary, House of Representatives ... identifying court proceedings and actions of vita...

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Material Information

Title:
Report of the Committee on the Judiciary, House of Representatives ... identifying court proceedings and actions of vital interest to the Congress
Spine title:
Court proceedings and actions of vital interest to the Congress
Court proceedings and actions of vital interest to the Congress
Physical Description:
v. : ; 23 cm.
Language:
English
Creator:
United States -- Congress. -- House. -- Committee on the Judiciary
United States -- Congress. -- House. -- Select Committee on Congressional Operations
Publisher:
U.S. G.P.O.
Place of Publication:
Washington
Publication Date:
Frequency:
semiannual

Subjects

Subjects / Keywords:
Constitutional law -- Cases -- Periodicals -- United States   ( lcsh )
Legislators -- Legal status, laws, etc -- Cases -- United States   ( lcsh )
Legislative power -- Cases -- United States   ( lcsh )
Constitutional law -- Cases -- Periodicals -- United States   ( lcsh )
Genre:
legal case and case notes   ( marcgt )
federal government publication   ( marcgt )

Notes

Dates or Sequential Designation:
Mar. 1979-
Dates or Sequential Designation:
Mar. 31, 1979-
Numbering Peculiarities:
Cumulative report.
Issuing Body:
Mar. 1979 prepared by the Select Committee on Congressional Operations; Sept. 1979- prepared by the Committee on the Judiciary.
General Note:
Monthly Catalog Number: gp 82015151
General Note:
CIS Microfiche Accession Numbers: CIS 79 H522-20, CIS 81 H522-9, CIS 82 H522-1
General Note:
Reuse of record except for individual research requires license from LexisNexis Academic & Library Solutions.
General Note:
Reuse of record except for individual research requires license from Congressional Information Service, Inc.
General Note:
At head of title: Committee print.

Record Information

Source Institution:
University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
aleph - 022342170
oclc - 05807364X
lccn - 82642591
Classification:
lcc - KF49
System ID:
AA00024018:00001

Related Items

Preceded by:
Report of the Select Committee on Congressional Operations, U.S. House of Representatives, pursuant to House Resolution 420, Ninety-fifth Congress, and the Committee on Rules and Administration, U.S. Senate, pursuant to Senate rule XXV, (n)(2), identifying court proceedings and actions of vital interest to the Congress
Succeeded by:
Report of the Committee on the Judiciary ... identifying court proceedings and actions of vital interest to the Congress

Table of Contents
    Front Cover
        Front Cover 1
        Front Cover 2
    Title Page
        Page i
        Page ii
    Foreword
        Page iii
        Page iv
    Explanatory note
        Page v
        Page vi
    Table of Contents
        Page vii
        Page viii
        Page ix
        Page x
    I. Constitutional qualifications of members of Congress
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
    II. Constitutional immunity of members of Congress
        Page 7
        Page 8
        Page 9
        Page 10
        Page 11
        Page 12
        Page 13
        Page 14
        Page 15
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        Page 48
        Page 49
        Page 50
        Page 51
        Page 52
    III. Powers of congressional members
        Page 53
        Page 54
        Page 55
        Page 56
        Page 57
        Page 58
        Page 59
        Page 60
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        Page 78
        Page 79
        Page 80
    IV. Constitutional powers of the Congress
        Page 81
        Page 82
        Page 83
        Page 84
        Page 85
        Page 86
        Page 87
        Page 88
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        Page 121
        Page 122
    V. Officers, employees, and agents of the Congress
        Page 123
        Page 124
        Page 125
        Page 126
        Page 127
        Page 128
        Page 129
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        Page 148
        Page 149
        Page 150
    VI. Disputed elections
        Page 151
        Page 152
        Page 153
        Page 154
        Page 155
        Page 156
    VII. Other actions involving members in a representative capacity
        Page 157
        Page 158
        Page 159
        Page 160
        Page 161
        Page 162
        Page 163
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        Page 194
        Page 195
        Page 196
    Dicisions
        Page 197
        Page 198
        Page 199
        Page 200
        Page 201
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    Appendix
        Page 343
        Page 344
        Page 345
        Page 346
    Index
        Page 347
        Page 348
        Page 349
        Page 350
        Page 351
        Page 352
    Back Cover
        Back Cover 1
        Back Cover 2
Full Text







96st CongrSession COMMITTEE PRINT 96t Coess} No. 7







REPORT
OFTHE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES
NINETY-SIXTH CONGRESS
FIRST SESSION
IDENTIFYING
COURT PROCEEDINGS AND ACTIONS OF VITAL INTEREST TO THE CONGRESS




CURRENT TO MARCH 31, 1979











Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE 43-771O WASHINGTON : 1979




























COMMITTEE ON THE JUDICIARY
PETER W. RODINO, JR., New Jersey, Chairman
JACK BROOKS, Texas ROBERT McCLORY, Illinois
ROBERT W. KASTENMEIER, Wisconsin TOM RAILSBACK, Illinois DON EDWARDS, California HAMILTON FISH, JR., New York
JOHN CONYERS, JR., Michigan M. CALDWELL BUTLER, Virginia
JOHN F. SEIBERLING, Ohio CARLOS J. MOORHEAD, California
GEORGE E. DANIELSON, California JOHN M. ASHBROOK, Ohio
ROBERT F. DRINAN, Massachusetts HENRY J. HYDE, Illinois
ELIZABETH HOLTZMAN, New York THOMAS N. KINDNESS, Ohio
ROMANO L. MAZZOLI, Kentucky HAROLD S. SAWYER, Michigan
WILLIAM J. HUGHES, New Jersey DAN LUNGREN, California
SAM B. HALL, JR., Texas F. JAMES SENSENBRENNER, JL,
LAMAR GUDGER, North Carolina Wisconsin
HAROLD L. VOLKMER, Missouri HERBERT E. HARRIS II, Virginia MIKE SYNAR, Oklahoma ROBERT T. MATSUI, California ABNER J. MIKVA, Illinois MICHAEL D. BARNES, Maryland RICHARD C. SHELBY, Alabama JOSEPH L. NELLS, General Counsel GARNER J. CLINE, Staff Director FRANKLIN G. POLK, Associate Counsel

(II)









FOREWORD
In 1971, the Joint Committee on Congressional Operations began publishing this series of reports on legal proceedings of importance to the Congress as a constitutionally established institution. The reports have contained descriptions of such proceedings, the texts of court decisions, and related documents.
During the 95th Congress, the Select Committee on Congressional Operations published these reports in conjunction with the Senate Committee on Rules and Administration. Since 1971, 22 regular and special reports have been published in this series.
The Select Committee was not reconstituted in the 96th Congress. The Committee on House Administration conducted a study of the functions of the Select Committee and recommended to the Speaker that this reporting responsibility be assigned to the Committee on the Judiciary. The Speaker concurred.
This particular report is the first to be published by the Committee on the Judiciary. This report was prepared by the Select Committee and was ready for publication prior to the expiration of the Select Committee's authority.
On behalf of the Committee on the Judiciary, I commend the Select Committee and its Chairman, the Honorable Jack Brooks, for their fine work on these reports. We appreciate the cooperation of the Select Committee and its Chairman with the Committee on the Judiciary in the transfer of this function.
PETER W. RODINO, Jr., Chairman,
Committee on the Judiciary.












EXPLANATORY NOTE
This report provides the status of cases of importance to the Congress as of March 31, 1979. The last edition of Court Proceedings and Actions of Vital Interest to the Congress is current to December 31, 1978. This report briefs cases which remained active as of December 31, 1978, and briefs new cases filed after that date. A change (due to new action) in the brief of a previously reported case in this series is printed in bold type in the case brief. Each case filed after December 31, 1978, is designated as a "new case". Each case filed before December 31, 1978, but appearing in the reporting series for the first time is designated as a "newly reported case".
W)





















Digitized by the Internet Archive in 2013















http://archive.org/details/repcommittel979unit











CONTENTS


COURT PROCEEDINGS AND ACTIONS OF VITAL INTEREST TO THE CONGRESS
Page
Foreword.....................................................................111
Explanatory Note ..........................................................v
I. Constitutional Qualifications of Members of Congress:
Cia ncey v. Albert ................................................. 1
Laxalt v. Kimmitt ............................................... 2
II. Constitutional Immunity of Members of Congress:
Davis v. Passman................................................ 7
McSurely v. McA dams (formerly McClellan)............. 14
Hutchinson v. Proxm ire........................................ 25
United States v. Heistoski ..................................... 30
Heistoski v. Meanor............................................. 30
Chase v. Kennedy................................................ 39
Rusack v. Harsha ............................................... 40
In re Grand Jury Investigation ............................... 44
III. Powers of Congressional Committees: Kon jag Inc. v. Andrus (formerly Kleppe) ................. 53
Exxon Corp. v. Federal Trade Commission................ 58
Kerr-McGee Corp v. Federal Trade Commission ......... 58
Union Carbide Corp. v. Federal Trade Commission .... 58
United States v. Berrellez...................................... 64
United States v. Gerrity ........................................ 66
Holy Spirit Association v. Fraser ............................. 68
In re Beef Industry Antitrust Litigation .................. 69
Iowa Beef Processors, Inc. v. Smith (formerly Bagley). 74 United States v. Powell ........................................ 79
IV. Constitutional Powers of the Congress: Chadha v. Immigration and Naturalization Service 81
Nixon v. Sampson ............................................... 83
Nixon v. Solomon ............................................... 102
C'itronelle-Mobile Gathering, Inc. v. Gulf Oil Corp ....104 Goland v. Central Intelligence Agency .........107 Schwartz v. United States Department of Justice..... 115 Goldwater v. Carter............................................. 118
V. Officers, Employees, and Agents of the Congress:
Socialist Workers v. Henshaw (formerly Jennings) ....123 United States v. Elko........................................... 127
Brislin v. United States ............................ 127
Common Cause v. Bolger (formerly.Bailar, formerly
Klassen) ........................................................ 128
Lewis v. Chisholm...................................... 146
Martin Tractor Co. v. Federal Election Commission ...147
NVib




Vill

VI. Disputed Elections: Pg
Moreauv. 7onrj ...................*........................ ........ 15:1
Shao.,~*2A v. HoI~ltzmar .........................................~ 153
United States v. Bowmrran...................................,, 154
Uinted States v'. CJolemran ..................................,,, 15~4
lj..nted Stattes v. Dlixon ................ #......, ................. 154
United Staztes vt. 11'dria.......................................... 154
VII. Other Actions Involving Members in a Representative Capacity:
$jortsrieC v. oel. e...er....................................... 161
Spor Jieauirr Corp.v egr...... ...........................*........ 16
Reuss v. Bijljzles................................................... 16
Clay v. Bau an....o................................... 0................. 1671
Moe vr. 1'6ufng ........................................... 174
Ra e v i. 1ie.....un............................................. 174
Yeosg v'. ewldrkTeimes.................................... 175
1Rse v. Young ........e.......................................... 176
Garnert v'. ng.............................................. 1'74
Une Stats x eosp v. Cannonei ............................................ 182
Unedev Stae v.................n............................... 1761
United States v. G1oldssrg .................................... 177
Uniited States ex rl. Jogsep .Cno...................... 185
Uited Sto/en v'. Hanntrad...................................... 187
United States v. Piaislark................................ 189

United States v. Fl~lood ...................................... 190I
United States 'v. Eilberg................................................. 192
In re Japanese Electronic Products Antitrust Litigation ............................................................. 196

DECISIONS
MclSu~rely v'. MAdam?'s.............................................. 199
In re Grand Jury Investigation (Opinion on Motion to Intervene and for Access to Record) .................................... 203
In re Grand Jury Investigation (Opinion of the Court) ....... 211 In re United States of America (Berrellez).......................... 227
In re Beef Industry Antitrust Litigation............................. 229
Iowa Beef Processors, Inc., v. Bagley................................... 239
Nixon Solomon........................................................... 251
*Ci trone lle-Mo bile Gathering, Inc. v. Gulf Oil Corp ............. 257
Goland v. Central Intelligence Agency ............................... 267
Socialist Wo'rkers v.FC............................................................ 293
S/zarrou v. HoIltzman ....................................................... 299
U.S. v. 1'assman .........................................................., 30J5
L1.ittlejohn v., Tlalmtad~ge.................................................... 317
U.S. v. F~lod............................................................... 325




Ix

APPENDIX Page
Members of the 96th Congress parties to or directly concerned with litigation affecting Congress .................................. 345

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














COURT PROCEEDINGS AND ACTIONS OF VITAL
INTEREST TO THE CONGRESS

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





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

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





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





4
assert that the "outside earned income" limitation is "an improper classification" because it "bears no reasonable relation to the purported purpose of the Senate Ethics Code." [Complaint at 10.]
The CSFC also asserts that it is invidiously discriminated against and denied the equal protection of the laws in that Rule XLIV effectively precludes it from supporting Senate candidates whose "outside earned income" is in excess of the Rule's limitations.
On August 11, 1977, Common Cause, David Cohen, President of Common Cause and Nan Waterman, Chairwoman of Common Cause, citing Common Cause's "history of involvement in the enactment of ethics rules" including the Rule complained of by the plaintiffs, filed a motion to intervene as defendants in the action.
On September 2, 1977, the motion to intervene as party defendants filed by Common Cause, David Cohen, and Nan Waterman was granted.
On December 21, 1977, the intervening defendants moved to dismiss the action.
On December 23, 1977, plaintiffs filed an amended complaint in which they deleted their prayer for convocation of a three-judge District Court pursuant to the provisions of 28 U.S.C. 2282 and 2284.
The congressional defendants moved to dismiss the amended complaint on January 9, 1978.
On January 30, 1978, the intervening defendants, Common Cause, Mr. Cohen and Ms. Waterman, filed a memorandum in opposition to defendants' motion to dismiss. The congressional defendants' motion to dismiss was heard and granted on March 3, 1978.
On March 13, 1978, an order dismissing the action was filed. The court first found that the amended complaint sufficiently alleged the requisite jurisdictional amount. The order declared that Rule XLIV does not add to the constitutional qualifications for Senate membership nor does it deprive the plaintiffs of their freedom of speech. Additionally, the order stated that the Rule's differentiation between earned and unearned income does not constitute unlawful discrimination. Therefore, the Court further concluded, the complaint fails to state a claim on which relief can be granted and that the amended complaint does not allege a justiciable case or controversy.
Finally, the Court declared that its disposition of the issues already mentioned made it unnecessary for the Court to address the question of standing.
Plaintiffs filed a notice of appeal on March 24, 1978. On April 6, 1978, defendants Kimmitt and Stevenson filed a notice of cross-appeal from those portions of the final judgment of the District Court which (1) hold that the first amended complaint sufficiently alleges the requisite jurisdictional amount and (2) conclude that the disposition of other issues raised by the motions of the defendants makes it unnecessary to dispose of the issues raised with respect to the standing of the plaintiff, Committee for the Survival of a Free Congress and the intervenors, Common Cause, David Cohen and Nan Waterman. The appeal and the cross-appeal were consolidated by order of Circuit Judge Wright, sua sponge, on June 5, 1978.





5
On December 8, 1978, appellants moved to add Senator Mike Gravel as a party appellant.
On March 8, 1979, the Senate passed Senate Resolution 93 which postponed the effective date of Rule XLIV from January 1, 197% to January 1,. 1983.
On March 20, 1979, Senator Laxalt and other appellants, at the oral direction of the court, filed a memorandum with respect to Senate Resolution 93, in which they moved for dismissal of the case without prejudice on the ground that the validity of rule XLIV was not ripe for adjudication. Also filed on March 20, 1979, was a brief by Senator Stevenson and Mr. Kimmitt contesting the appellants' efforts to have the action dismissed as moot.
Status.-The case is pending before the U.S. Court of Appeals. The March 13, 1978 order of the District Court is printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress., Part 4, May 15, 1978.












II. CONSTITUTIONAL IMMUNITY OF MEMBERS OF CONGRESS
Davis v. Passman
No. 78-5072 (U.S. Supreme Court)
Brief. -Plaintiff, Shirley Davis, served as deputy administrative assistant on the staff of Representative Otto E. Passman from February 1, 1974 through July 31, 1974, on which date her employment was terminated. She filed this complaint, naming then-Representative Passman as defendant, in the U.S. District Court for the Western District of Louisiana on August 7, 1974, alleging that she had been discriminatorily dismissed from defendant's Congressional staff because of her sex, in violation of her constitutional rights under the Fifth Amendment.
Plaintiff supplemented her complaint with a letter from the defendant, in which Mr. Passman indicated, in dismissing her, that he had concluded "it was essential that the understudy to my Administrative Assistant be a man."
Representative Passman filed a motion to dismiss the complaint, stating: (1) The alleged conduct of the defendant is not violative of the Fifth Amendment; (2) the law affords no private right of action to Plaintiff; and (3) the doctrines of official and sovereign immunity bar any action against the defendant.
In a hearing on February 24, 1975, U.S. District Judge Tom Stagg, of the U.S. District Court for the Western District of Louisiana, dismissed plaintiffs complaint on the grounds that it failed to state a claim against Mr. Passman upon which relief could be granted. The court held that the alleged sex discrimination by Mr. Passman did not violate the Fifth Amendment to the Constitution and that the law affords no private right of action to plaintiff. The court further held, however, that Mr. Passman's defense of 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.
Representative Passman filed his response with the Court of Appeals on June 9, 1976. While supporting the District Court's decision to grant his motion to dismiss, he reasserted his contention that the doctrines of "sovereign and official immunity" are a bar to Mrs. Davis' claim.
The Court of Appeals in its decision of January 3, 1977, rejected Representative Passman's assertions of sovereign, official and Speech or Debate clause immunity. After determining that the allegations asserted by Mrs. Davis would, if proven, constitute a violation of her constitutional rights, the majority took up the question of whether the claim was one upon which relief could be granted. The court noted that Mrs. Davis was seeking three types of relief: specific relief, damages, and a declaratory judgment.
Turning first to the question of specific relief the court noted that there were three remedies requested: Reinstatement, promo(7)
0-774 0 79 2






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





9
The dissent concluded that the doctrine of separation of powers required that the dismissal of the action by the District Court be affirmed.
The case was remanded to the District Court for further action.
On February 16, 1977, Mr. Passman filed a motion for rehearing en banc.
On March 15, 1977, the Department of Justice filed a brief amicus curiae with the Court of Appeals supporting the motion for rehearing and asking leave to participate in oral argument if the motion f r rehearing were granted. On March 31, 1977, a motion for leave to file an amicus brief in opposition to the motion for rehearing was filed by individuals who are members of the House Fair Employment Practices Committee. Accord* to the motion:
The House Fair Employment Practices Committee was
formed pursuant to the House Fair Employment Practices Agreement. This committee is a voluntary organization; it is not a Standing or Select Committee formed by resolution of the House of Representatives. It consists of six elected members. Three of these members are the U.S.
Representatives filing this motion who were elected by the Representatives signing the agreement. The other three members are the congressional employees who are joining in the filing of the motion and who were elected by the employees of those Representatives signing the agreement.
[Motion by the Honorable Morris Udall, et aL, for Leave to File a Brief Amicus Curiae at 2, Davis v. Passman, No. 751691 (5th Cir.).]
The three Members of the House of Representatives on the committee, Representatives Morris Udall, Patricia Schroeder, and Charles Rose, and the three Congressional employees on the committee assert that the case was "competently and fully argued and decided," [Id. at 3], and that the petition for rehearing should be denied.
On April 18, 1977, Representative Don Edwards filed a letter with the court in which he said that the Justice Department had intervened in the matter without Congressional request or approval and that in his view the court's decision was sound and reconsideration or rehearing was not necessary. He also asserted that the Justice Department's brief does not accurately describe the alleged burdens this decision would place upon Members of Congress. He asked that he be allowed to file an amicus brief if a rehearing were granted.
On May 17, 1977, the court granted the petition for a rehearing en banc.
On August 19, 1977, a letter was filed advising the court that the United States would appear at the oral argument as amicus curiae. On September 26, 1977, the case was reheard en banc. On April 18, 1978, the U.S. Court of Appeals for the Fifth Circuit rendered its decision en banc in an opinion reversing the earlier panel opinion. In so doing, the earlier judgment of the U.S. District Court dismissing Mrs. Davis' claim was affirmed on the ground that the law affords her no private right of action in the Federal





10
courts for money damages. The en banc opinion vacated the decision of the District Court in regard to thait court's holding that the conduct of which Mrs. Davis complained did not violate the Constitution.
To determine whether a cause of action for money damages would lie for a violation of Fifth Amendment due process rights the court first noted that the Supreme Court had found that such a remedy was available to parties asserting a violation of their Fourth Amendment rights [Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 19991, 29 L.Ed.2d 619 (1971)]. Concluding that the award of money damages in Bivens was implied as a matter of Federal common law, and as such subject to the power of Congress to alter or withdraw, the court set forth a two-step analysis to deter nine whether the money damages sought by Mrs. Davis could be implied in the Federal common law for a violation of Fifth Amendment due process rights:
First, we look to the jurisprudence of statutory implication to determine whether to imply a damage action of nonconstitutional dimensions. Second, if this initial inquiry does not suggest that such an action should be implied, we must determine whether the Constitution nevertheless compels the existence of a remedy in damages to vindicate
the rights asserted. [Slip Opinion at 3511.]
The majority noted four factors which have been utilized in the past to determine whether to imply a cause of action from a right created by statute: (1) whether the provision asserted creates an especial right in the plaintiff, (2) whether the action of Congress in the field indicates an intent to allow such a remedy or at least an intent not to deny the remedy, (3) whether implication of the remedy would be consistent with the purpose of the right asserted, and (4) whether the cause of action implied would be one appropriate for Federal law. The court concluded that each of these factors militated against Mrs. Davis' claim. As to the question of an especial right, the opinion stated:
While the fifth amendment Due Process Clause surely exists for the "especial benefit" of Davis, as Cort [Cort v.
Ash, 422 U.S. 66 (1975)] required, it does not exist with equal certainty to protect her tenure in a non-competitive personal aide position statutorily denominated as service
at will. 2 U.S.C.A. 92. [Slip Opinion at 3511.]
The court found that the action of the Congress in excluding Congressional employees from the protection of Title VII of the 1964 Civil Rights Act and the 1972 amendments thereto coupled with 2 U.S.C.A. 92 (which provides that Members of a Congressmants personal staff are removable by him "at any time * with or without cause") was instructive as to Congressional intent. The court further noted that:
Implying the cause of action asserted by Davis would
have the anomalous result of granting federal employees in non-competitive positions, whom Congress did not





11
intend to protect, a remedy far more extensive than Congress adopted for federal employees in the competitive services, whom it did intend to protect. [Slip Opinion at
3512.]
As to the question of consistency of the implication of the remedy of damages with the statutory purpose, the court noted that substantial difficulties existed in providing money damages for violation of Fifth Amendment due process rights which were not present when the court implied such a remedy for violation of Fourth Amendment rights. On this point the court stated:
Violations of fourth amendment rights occur in a welldefined setting familiar to the courts. The relationship is always one between law enforcement officials and citizens suspected of possessing evidence of crime. The context in which these violations may arise is sufficiently limited to allow the court to determine that an action for damages would be consistent with the purpose of the fourth amendment in future instances in which such an action might be invoked. The fifth amendment Due Process Clause presents no similarly focused remedial issue. To'the contrary, the breadth of the concept of due process indicates that the damage remedy sought will not be judicially manageable and that there is simply no way a court can judge whether this remedy will be appropriate for securing the right in future situations where some plaintiff might
assert it. [Slip Opinion at 3513.]
Summarizing the holding of the court on whether to imply a cause of action for money damages, the opinion stated:
Not only does this case fail to present special remedial
difficulties analogous to those faced by the court in dealing with the fourth amendment, but also Congress avoided creating an action for money damages for Congressional aides in non-competitive positions. Moreover, implying this damage action necessarily would draw into the Federal judicial system a wide range of cases whose resolution Congress has not committed to the Federal judiciary and whose resolution is better suited to courts of general jurisdiction. These special considerations * eliminate any question of our creating a remedial riaht under our federal
common law power. [Slip Opinion at 3514.]
Turning to the question of whether the remedy of damages might yet be constitutionally compelled as indispensable to the effectuation of the Fifth Amendment Due Process clause and thus not subject to Congressional preclusion, the court noted:
Denying an implied cause of action for money damages
does not render meaningless any constitutional rights of Congressional employees. A plaintiff might still seek equitable relief where the employer remained in office, although Congressional employees in the non-competitive service whose allegedly discriminating employers are not in office may be left without a remedy for sex discrimina-





12
tion in employment unless Congress reverses its present statutory stand. Other due process wrongs would either continue to be remedied in traditional ways through tort actions *in courts of appropriate general jurisdiction or through special statutory remedies provided by state legislatures or Congress. Admittedly, some not now covered would remain inactionable. [Slip Opinion at 3514-15; (footnote omitted).)
The opinion also noted that Article III, Section 1 of the Constitution, pursuant to which Federal District and Circuit Courts of Appeals are established, could be rendered meaningless by the increased number of cases which might be brought in those courts, "crushing an already precariously overloaded Federal judicial system" were an implied cause of action for damages for violation of Fifth Amendment due process rights held to be available.
In Circuit Judge Jones' special concurring opinion he declared:
I do not believe that the constitutional provisions here
pertinent are to be confined to the Speech and Debate clause., The broader provisions by which all legislative powers are vested in the CongreS$2 is relevant to the
cause.
"The Senators and Representatives for any speech or debate in either
House shall not be questioned in any other place. U.S. Const. Art. I, Sec.
6(l).
2 U.S. Const. Art. I, Sec. 1.

[T]he court should say that the hiring and firing of his
Cialter ego" is a legislative activity and a part of the exercise of the legislative power. The question is not one of whether there is a judicial remedy. The question, as I see it, is whether the controversy iis one involving the exercise of the legislative power and within the jurisdiction of the Congress. Let it decide whether there should be absolute immunity. Let it determine whether there iis a right and if so to fashion a remedy and designate a tribunal to declare and enforce it. I think it should have been held that the complaint does not state a claim upon which relief can be
granted. [Slip Opinion at 3515-3516.]
In dissent, Judge Goldberg, joined by Chief Judge Brown, rejected the majority's conclusion that no private cause of action for money damages could be implied from the Due Process clause of the Fifth Amendment. As to the question of whether the Speech or Debate clause served as a bar to the action, the dissent adopted the or* inal decision of the Appeals Court panel which had concluded that it did not.
As to the majority's, comment that equitable relief might be available to Congressional employees discriminatorily dismissed from their jobs, Judge Goldberg declared:
The majority's's unelaborated suggestion of "equitable relief' is oblivious to those constitutional values, critically implicated in this case, underlying the speech or debate





13
clause and the doctrine of separation of powers. Congress has spoken specifically to its views on the nature of the working relationship between Congressmen and their personal staffs by classifying employees like Mrs. Davis as removable "at any time ***with or without cause." The Supreme Court has accorded congressional staffers speech or debate clause protections in certain circumstances, recognizing that staffers may act as congressional alter egos in the performance of certain legislative tasks. Gravel v.
United States.. 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). See Davis v. Passman, 544 F.2d at 877-81 (panel opinion). Apparently the majority feels these values can be better effectuated, consistent with the requirements of the fifth amendment, not by actions for damages but by injunctive orders requiring Congressmen to employ particular individuals. This is not the occasion for a definitive statement on the circumstances which might justify implication of a private action for equitable relief to vindicate fifth amendment rights. But on the facts of the case before us, I would have thought that such "special factors counselling hesitation in the absence of affirmative action by Congress," Bivens, 403 U.S. at 396, 91 S.Ct. at 2005, are more germane to the implication of equitable relief than to
implication of an action for damages.
Similarly, it would seem to me that the special problems
of congressional immunity under the speech or debate clause and the doctrine of separation of powers render this case uniquely appropriate for adjudication in the federal courts under a federal cause of action. Much of the Bivens opinion concerns the difficulties and inadequacies of state court or state law adjudications of federal immunities in the context of constitutional claims; that reasoning is, if anything, even more powerful with respect to the issues presented here. [Slip Opinion at 3528; (footnote omitted).]
Mrs. Davis filed a petition for writ of certiorari with the United States Supreme Court on July 17, 1978. The petition characterized the issues upon which the writ was sought as whether a cause of action for money damages may be implied directly from the Fifth Amendment where there is no alternative remedy available and, if so, whether the Speech or Debate clause bars the suit.
The petition for writ of certiorari was granted on October 30, 1978.
On December 14, 1978, the American Civil Liberties Union filed a brief as amicus curiae urging reversal.
Twenty.-nine Members of the House of Representatives and three employees of the House of Representatives also filed a brief as amicus curiae urging reversal on December 14, 1978. The Representatives were Morris Udall,'Patricia Schroeder, Charles Rose, Les AuCoin, Berkley Bedell, David Bonior, William M. Brodhead, George E. Brown, Jr., John H. Buchanan, Jr., Yvonne Brathwaite Burke, Robert Carr, John Conyers, Ronald V. Dellums, Thomas Downey, Robert F. Drinan, Don Edwards, Dante B. Fascell, Dale E. Kildee, William Lehman, Edward J. Markey, George Miller, Antho-




14
fly Moffett, Richard Nolan, Leon Panetta, D. J. Pease, Fred Richmond, Bruce F. Vento, Harold L. Volkmer, and Ted Weiss.,
Mrs. Davis filed her brief on December 18, 1978.
Former Congressman Passman filed his brief on January 18, 1979 to which Mrs. Davis filed a reply brief on February 13, 1979.
The case was argued before the Supreme Court on February 27, 1979.
Status-The case is pending before the U.S. Supreme Court.
The complete text of the opinion of the Court of Appeals panel is prin ted in the "Decisions" section of the report of Court Proceeding-s and Actions of Vital Interest to the Congress, Part 1, April 15, 1977.
The full text of the en banc opinion of the Court of Appeals panel is printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the ICongress, Part 4, May 15, 1978.
McSurely Y. McA dams (formerly McClellan)
C.A. No. 516-69 (D.D.C.)
Brief-On August 11, 1967, pursuant to warrants issued under a State sedition statute, Kentucky officials arrested Alan and Margaret McSurely and seized books and papers from their home. The McSurelys filed a complaint in the District Court for the Eastern District of Kentucky, challenging the constitutionality of the State statute.
On September 11, 1967, the three-judge court which heard the case issued an order directing that:
(1) the material seized in the raid on the McSurely home
be left in the custody of the Kentucky Commonwealth
Attorney, Thomas B. Ratliff;
(2) the material be made available to the U.S. Marshal
for the Eastern District of Kentucky;
(3) Ratliff and the U.S. Marshal make an inventory of
the seized material and file it with the record of the case;
and
(4) Ratliff return to the McSurelys such materials as he
determined were not relevant to the investigation and
prosecution of the McSurelys.
That same day the McSurelys were indicted' by a Kentucky grand jury.
On September 14, 1967, the three-judge Federal District Court rendered its decision holding the Kentucky statute unconstitutional and enjoining prosecution o f the McSurelys. The court directed that Ratliff retain the seized materials "in safekeeping until final disposition of this case by appeal or otherwise."
On September 25, 1967, Lavern Duffy, Assistant Counsel on the staff of the Permanent Investigations Subcommittee of the Senate Government Operations Committee, called Ratliff by phone to ask about the seized documents. Subsequently, on October 8, 19)67, Committee Investigator John Brick went to Kentucky, talked with Ratliff and confirmed that the seized material in Ratliff's posses-




15

sion contained information relating to the activities of a number of organizations in which the subcommittee was interested.
Ratliff has claimed that at some point before Brick was first given access to the seized material, he tried unsuccessfully to contact all of the members of the three-judge court to obtain their concurrence in his decision to allow Brick to inspect the documents. While he was unsuccessful in reaching two of the judges, he has stated that he did talk to the third (Judge Moynahan). Ratliff's testimony at trial on his discussion with the judge implied (according to the opinion of the minority of the en banc Court of Appeals) that Judge Moynahan agreed to Brick's examining and copying the material. [McSurely v. McClellan, 553 F.2d 1277, 1307-1308 (D.C. Cir. 1976).]
On October 12, 1967, Brick examined the material for about 4 hours. He took notes, made copies of 234 of the documents, and then returned to Washington.
On October 16th, 4 days later, Senator McClellan directed Brick to prepare subpoenas duces tecum for the seized material in Ratliff's custody, which the Senator had determined was relevant to the subcommittee's investigations of an April 1967 riot in Nashville, Tennessee. The next day, Brick, who had returned to Kentucky, notified Judge Moynahan of the issuance of the Congressional subpoenas before serving Ratliff, the U.S. Marshal (cocustodian with Ratliff of the seized materials), and the McSurelys. The next day the McSurelys filed motions with the three-judge court seeking orders blocking Ratliff from releasing the seized material to the subcommittee and directing him to return the materials to them (the McSurelys).
On October 30, 1967, the three-judge court issued an order in response to the McSurelys' motions. The court overruled motions that the materials in Ratliff's custody be returned to the McSurelys and that a restraining order be issued enjoining release of the materials requested "by a Committee of the United States Senate." Officers of -the court and the parties to the action were directed "to cooperate with the Senate committee in making available such of the materials, or copies thereof, as the committee considers pertinent to its inquiry * *." [553 F.2d at 1308.]
On November 1, 1967, a motion for reconsideration and rehearing of the October 30th order was denied. The court granted a 24hour stay to allow the McSurelys to apply to the Supreme Court for review, and directed that pending such review the material not be removed from Ratliff s custody and that "copies thereof shall not be made on or before 2:00 p.m., Eastern Standard Time, November 2, 1967." [553 F.2d at 1308.] On November 10, 1967, Mr. Justice Stewart, for the Supreme Court, ordered that the documents remain in their then custody until the three-judge court could hear and rule on the McSurelys' objections to the Congressional subpoenas.
In an order issued on December 5, 1967, the three-judge court overruled the McSurelys' objections to the subpoenas. The court ordered Ratliff to comply with the Congressional subpoenas, by allowing committee representatives to make copies of the materials in his possession pursuant to the court's order. A 5-day stay was




16
ordered in the compliance required by the order to allow the McSurelys to seek Supreme Court review.
On January 20, 1968, Mr. Justice Stewart, again speaking for the Supreme Court, stayed the three-judge court order "to the extent that the seized documents shall remain in custody." [390 U.S. 914 (1968).] The stay was conditioned on the McSurelys filing an appeal of the October 30th three-judge court order with the Supreme Court.
On March 18, 1968, the Supreme Court declined to hear the case, dismissing the appeal in a per curiam order [390 U.S. 914 (1968)], but continued the stay to allow the McSurelys to apply to the Sixth Circuit Court of Appeals for a stay. By the time the McSurelys' appeal to the Si*xth Circuit was taken, the time for the State to appeal the three-judge court's order of September 14, 1967, finding the Kentucky statute unconstitutional, had expired.
In July of 1968, the Sixth Circuit decided that since time for appeal of the September 14th order had run, "the right of the court to retain possession of the seized documents, which include no contraband, has expired." [MeSurely v. Ratliff, 398 F.2d 817, 819 (6th Cir. 1968).] The Appeals Court ordered that the materials be returned to the McSurelys without prejudice to the subcommittee's right to proceed with the enforcement of its subpoenas: "[Qluestions [as to the subpoenas] may be adjudicated under the appropriate procedure for challenging subpoenas of Congressional Committees." [398 F.2d 818, cited in 553 F.2d at 1309.]
On November 8, 1968, the seized materials were returned to the McSurelys. The McSurelys, who were immediately served with new subcommittee subpoenas similar to the original subcommittee subpoenas, refused to comply with the new subpoenas.
The McSurelys filed a civil action in the U.S. District Court for the District of Columbia on the date named in the subpoenas for their appearance before the subcommittee. They sought a declaration that compliance with the subpoenas was not required, a preliminary and permanent injunction against institution of criminal proceedings against them for their failure to comply with the subpoenas, and monetary damages.
No action had been taken in this civil suit at the time the McSurelys were indicted for contempt of Congress for failure to comply with the subpoenas. Subsequently, in their civil action, they filed an amended and supplemental complaint seeking only compensatory and punitive damages. The McSurelys alleged that the defendants, Senator McClellan, three members of the subcommittee staff, and Ratliff the Kentucky Commonwealth Attorney who initially seized from their home the documents which included those later subpoenaed by the subcommittee, entered into a conspiracy to deprive them of their constitutional rights. They sought damages "for the unlawful seizure, inspection and appropriation of their personal and business papers and documents and other objects and 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 violation and derogation of their rights under the First, Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitu-





17
tion and the laws of the United States." [Plaintiffs Amended and Supplemental Complaint, at 13-14.]
In the criminal action for contempt of Congress, the McSurelys were convicted and sentenced in June 1970. The convictions were appealed to the Court of Appeals. The decision of the Court of Appeals, reversing the contempt of Congress convictions of the McSurelys, was filed on December 20, 1972. The majority of the court took the position that the exclusionary rule of evidence applied to proceedings before Congressional committees as well as to criminal prosecutions, and therefore, the court held that the subcommittee's subpoenas were inadmissible as the fruit of an unlawful search and seizure. [United States v. McSurely, 473 F.2d 1178 (D.C. Cir. 1972).] The case was remanded to the U.S. District Court for the District of Columbia with instructions to enter judgments of acquittal in the matter of the contempt convictions. The Solicitor General decided not to petition the Supreme Court for a writ of certiorari.
In the civil proceedings brought by the McSurelys, Chairman McClellan and three subcommittee staff members filed a motion to dismiss, or, in the alternative, for summary judgment in the District Court on October 26, 1971.
The grounds claimed in support of the motion were:
(1) Defendants are immune from actions for damages
where as here it is clear that their conduct was within the sphere of legislative activity. (2) The claimant fails to state a claim upon which relief can be granted against defendants who were a U.S. Senator or employees of the Senate of the United States at all times material to this cause. (3) Plaintiffs are barred by collateral estoppel from relitigating issues previously settled by the judgment of this court in United States v. Alan McSurely and Margaret McSurely, Criminal Nos. 1376-69, 1377-69. * [Defendants' Motion to Dismiss or in the Alternative for Summary Judgment,
at 1.]
The motion to dismiss was denied on June 12, 1973, and after the motion for reconsideration was rejected, the Federal defendants filed notice of appeal.
In -a 2 to 1 decision on October 28, 1975, the U.S. Court of Appeals for the District of Columbia reversed the District Court's ruling and remanded the case for further action consistent with its holding.
The three-judge panel of the Appeals Court held that, as a matter of law, the defendants were entitled to summary judgment on all counts of the complaint relating to the inspection by the committee investigator of the seized material, the transportation of such material to Washington by the investigator, the utilization of the information by the investigator as the basis for Congressional subpoenas, and the issuance of Contempt of Congress citations against the plaintiffs.
The Appeals Court left for the District Court on remand the determination of whether the defendants actively collaborated in the original raid on the McSurelys' home and, if so, whether there





18
was sufficient evidence of such collaboration to merit a trial on that issue.
In addition, the Appeals Court remanded to the lower court the question of whether the defendants distributed copies of documents to individuals or agencies outside Congress-and, if so, whether such distribution was actionable. [McSurely v. McClellan, 521 F.2d 1024 (D.C. Cir. 1975).]
The McSurelys filed a petition for a rehearing by the Court of Appeals sitting en banc.
On December 10, 1975, the-decision of the Court of Appeals was vacated and the petition for a rehearing en banc was granted.
On December 21, 1976, the Court of Appeals en banc issued its opinion.
A majority of the court held that as a matter of law the Federal defendants were entitled to summary judgment on:
(1) allegations in the amended complaints pertaining to
the subcommittee staff s inspection of the 234 documents that Brick the subcommittee investigator brought to the
subcommittee,
(2) the utilization of the information obtained by Brick
as the basis for congressional subpoenas, and
(3) the issuance of Contempt of Congress citations *
The majority further said that: "since no allegation has been made as to conspiracy in the original raid of the McSurley's home, appellants, are entitled to dismissal on this point." [553 F.2d at 1299.]
As to the first three points the court found that the activities complained of were done within the legislative process and were protected by Speech or Debate clause immunity or legislative immunity.
Left for the District Court's consideration and initial determination on remand were:
(1) whether any cause of action against defendants Brick
and Alderman survives their deaths; (2) whether Brick's inspection of the seized material put in Ratliff s possession under the three-judge court's "safekeeping" directive, and Brick's transport to Washington of copies of 234 documents, violated the McSurelys' rights under the Fourth Amendment; (3) whether Brick selected and transported to Washigton copies of documents he knew to be wholly unrelated to the legislative inquiry, and, if so, whether such conduct was actionable under the applicable law; (4) whether any other federal defendants acted in concert with Brick in action for which he enjoys no legislative immunity; (5) whether any of the federal defendants distributed copies of documents in the subcommittee's possession to individuals or agencies outside of Congress, and, if so, whether such distribution was actionable under the applicable law; and (6) other matters identified in this opinion as requiring further development. [553 F.2d at
1299.]





19
As to the refusal to grant summary judgment on two allegations relating to dissemination of some or all of the documents outside of the suScommittee and the Congress, the Court of Appeals found that such activity "is not legislative activity entitled to absolute immunity by force of the Speech or Debate clause, in the absence of a claim of legislative purpose." [553 F.2d at 1286.]
As to the inspection and transportation by Subcommittee Investigator Brick of documents held in "safekeeping" by court order, the refusal of the District Court to grant summary judgment was affirmed by an equally divided court. Five judges felt that on that point, "there is evidence in the record as it presently stands, 'which affords more than merely colorable substance' to the claim of an independent Fourth Amendment violation by Brick." [553 F.2d at 1289.] They hypothesized that the District Court's "safekeeping" order in effect at the time of Brick's inspection and transportation of the documents to Washington for the subcommittee's use precluded Brick from having access to the documents.
Judge Wilkey, writing for himself and four other judges, disagreed. These judges refused to accept that Brick's inspection and transportation of the documents constituted an unlawful search and seizure under the Fourth Amendment. They said that:
After a tangential approach to this basic underlying
issue, the majority opinion does refer to Brick's "searchand-taking" (P. 30), the "search and seizure of Brick" (P.
32), and then asserts flatly "two separate, independent
search and seizures took place here" (p. 33).
With this holding our colleagues make new law. The
transfer from one investigating agency to another is not a "separate, independent search and seizure," and, as we show later, the rationale of all the Supreme Court "silver platter" decisions and the recent en banc specific holding of the Ninth Circuit in United States v. Sherwin [531 F.2d
at 1 (9th Cir. 1976)] are directly contrary.
New law it is, but law absolutely necessary to the majority's holding that the McSurelys' Fourth Amendment rights were violated here, for without an "unreasonable search and seizure" by the Senate aide his investigative activities and related acts by his superiors are admittedly protected by the Speech or Debate clause. [553 F.2d at
1305.1
These five dissenting judges felt that the majority's reading of the "safekeeping order" was inaccurate. The minority concluded that the initial District Court order did not prohibit Brick's inspection and that subsequent orders by the District Court and eventually the Sixth Circuit Court of Appeals at least impliedly allowed Brick access to the documents.
During the course of the McSurelys' contempt trial, Brick "conceded that when 'he went to Pikeville to examine the documents in the Court House,' he looked through the papers and books and determined there were 'many' items that 'he didn't need at all * *'." [553 F.2d at 1294-1295.] The majority noted: "The fact that Brick took and transported concededly extraneous materialand it is significant that he seized 'some personal letters'-takes





A
V
this case outside the protection of legislative immunity." [553 F.2d at 1295.] On this point the majority concluded: "Brick's testimony at the contempt trial ultimately may be explained away to the satisfaction of a jury. But it is plainly sufficient to preclude an automatic dismissal of the lawsuit at the threshold, on the basis of legislative immunity." [553 F.2d at 1296.]
To this majority conclusion the minority responded:
The majority holds that even if Brick did not violate the
Fourth Amendment in his "search and seizure" he may have violated the right of privacy of the McSurelys by
taking private letters he believed to be irrelevant.
The most simple and complete answer to the majority's
position, which does not necessitate evaluating the facts as to relevance or irrelevancy, is to point out the clear law in the Supreme Court that, absent an illegal search and seizure by Brick, the charge of invasion of privacy does not state a cause of action under the Constitution. Since the McSurelys' amended complaint does not allege any invasion of privacy on a statutory or common law basis, this cause of action should be dismissed if there has been no
Fourth Amendment offense.
If undertaken without relevance to his official inquiry,
Brick I s inspection and copying of the private papers of Mrs. McSurely may amount to a cause of action at common law for "intrusion", upon her privacy. McSurleys' amended complaint, however, does not allege any such common law or statutory violation, but alleges rather a violation of the Fifth Amendment, which, of course, protects each person from deprivation by a federal official of Iffe, liberty or property, without due process of law. Presumably, the McSurelys are alleging that Brick impaired the privacy interest that is implicit in the "liberty" protected by due process.
Does the Fifth Amendment provide liability under
[Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)] against federal officers for what amount to common law torts? The Supreme Court appears to have answered that question in the negative in the recent case of Paul v. Davis [424 U.S. 693 (1976)]. [553 F.2d
at 1326.]
Turn* to the question of whether the documents selected and transported by Brick, "were needed by him for the performance of his duties," the minority attacked the majority's conclusion that the documents were irrelevant. While the minority agreed that Brick had conceded that some of the documents might have been irrelevant to the committee Ys *inquiry, it stated: "This [the majority] decision still amounts to 'second guessing' the legislative process since it overrides an independent estimate of relevance that could be 'plausibly interposed,' and it appears to override a judgment of relevance inferable from the subpoenas [which were subsequently issued by the Committee]." [553 F.2d at 1328.] The minority further noted that the documents which were purported to be irrelevant may ini fact have been relevant to the committee's investigation.





21
The Senate investigator was required to take such documents to the committee for its determination of relevance since "[flhe Senators or others on the staff may easily have seen something of significance in any one of these letters, definitely relevant to the inquiry of the committee, which might have escaped the knowledge or attention of Brick." [553 F.2d at 1328.] The minority continued:
Without deigning to give any reasons therefore, the majority blandly treats the Senate investigator Brick's testimony that he did not "need that letter signed [sic] Dearest Cucumber" as a final irrevocable concession binding on the Senate Committee- and this court that this particular letter (and all other letters similarly characterized by the McSurelys) were totally irrelevant to the Senate inquiry.
This is a rather astonishing assumption.
In the first place, Brick's testimony was only an expression of his own need for the letter, not that of the Committee's. Brick had read the letter and presumably remembered any important features of its contents. Neither Chairman McClellan nor Brick's staff superiors had seen the letter and had had the opportunity to evaluate its
contents.
Secondly, we are at a total loss to understand by what
principle of law it can be held that a subordinate Senate Committee staff member can bind the Senate Committee, or indeed this court, on the question of relevance. Surely the determination of the relevance of any of the documents which Brick had inspected was for the Senate Committee, or under its usual operating procedures, for the Committee Chairman. The agreed facts are that "on October 16, 1967, at the personal direction of Senator John'L.
McClellan,'he prepared the subpoenas involved herein."
Brick took the subpoenas to McClellan, "with whom he had conferred on the subject matter thereof since October 6, 1967," and McClellan signed the four subpoenas, two of which were directed to the McSurelys. This action of the Senate Committee Chairman,, after a review of the copies of the documents brought back by Brick, evidenced the Committee Chairman's determination of what he thought was relevant for the Senate's inquiry, i.e., the 234 documents. What Brick said he himself "needed for the performance of [his] duties" is of little importance in determining what the Senate Subcommittee might reasonably
find relevant for its *inquiries.
We would hold that, relevant or irrelevant, the Senate
investigator's 'actions in regard to the allegedly personal letters of the McSurelys are in no way a ground for a claim of constitutional significance, as the Supreme Court held in Paul v. Davis, supra, and since the McSurelys have alleged no other type claim on this basis, their action on this point should be dismissed. [553 F.2d at 1330-1331 (footnotes omitted).]





22
In its conclusion, the minority objected strenuously to the majority's decision to remand the case to the District Court for further consideration of some of the actions taken by the Congressional defendants. The court noted:
The purpose of an absolute immunity is to cut off claim
against protected parties at the outset. To be true to this purpose, a court should make every effort to determine if a claim is inside or outside the protection of the Speech or Debate clause. A remand for further factual proceedings on the issue of absolute immunity itself should be required only in the case of clear need. Otherwise the "mini-trial"
that the defendant is forced to undergo constitutes an erosion of the principle of absolute immunity. The majority is engaging *in such an.erosion of the Speech or Debate
clause here.
The uncontroverted facts of this case, the logic of the
Fourth. Amendment, and the available case law support our conclusion here that the inspections and copying by Bfick did not amount to an unreasonable search and seizure. Not only does the majority err in its contrary conclusions, but it abrogates its duty in deciding absolute immunity by calling for a remand. [553 F.2d at 1332-1333.]
In a separate dissent, Judge Danaher, writing for himself and three other judges, concurred in Judge Wilkey's opinion, but also expressed a general dissent from those portions of the majority's opinion which did not provide for complete dismissal of the complait. He stated that.A Subcommittee of the U.S. Senate was engaged in the
truthfinding process which it had been commanded to execute. So it is that the Chairman of that Subcommittee and the members of its staff, under the circumstances
here, should be entitled to absolute immunity.
It iis respectfully submitted that this case should be remanded to the District Court with directions to dismiss the
complaint. [553 F.2d at 1339.1
On May 19, 1977, the defendants filed a petition for a writ of certiorari with the U.S. Supreme Court.
On October 11, 1977, the petition for a writ of certiorari was granted.
Herbert H. McAdams, executor of the estate of the deceased Senator McClellan, was. substituted for him as party petitioner on January 23, 1978.
The petition was argued before the Supreme Court on March 1, 1978.
In a one-sentence per curiam opinion, the writ of certiorari was dismissed as improvidently granted on June 26, 1978.
On August 31, 1978, Herbert H. McAdams II, executor of Senator McClellan's will, was substituted, by order of the District Court, as defendant in lieu of John L. McClellan, without prejudice to his right to claim that plaintiffs cause of action did not survive the death of Senator McClellan.





23
On September 15, 1978, the McSurelys filed, in the District Court, a motion for an order to show cause and for a stay, in order to restrain Mr. McAdams from proceeding further in the Probate Court of Pulaski County, Arkansas, where he had filed a petition seeking a declaration that the McSurelys claim against Senator McClellan's estate be rejected for failure to comply with a filing proWsion of Arkansas probate law, or alternatively, that the maximum liability and reserve for the contingency of the claim be fixed and that any distribution be made without personal liability of the executor. The sta was denied on the same day by District Judge Gasch.
On September 18, 1978, the McSurelys filed a notice of appeal from the order denying the stay and also filed, in the U.S. Court of Appeals for the District of Columbia Circuit, motions for emergency relief by way of a stay pending appeal and for expedited consideration of the motion for emergency relief. (78-1916, D.C. Cir.). The motion for emergency relief was denied on November 13, 1978. On November 22, 1978, a stipulation and agreement for voluntary dismissal of the appeal was filed and the appeal was dismissed.
On January 17, 1979, U.S. District Judge Bryant issued a memorandum and order granting the McSurelys' motion to substitute Mrs. Mary Brick as a -arty defendant in lieu of her husband, John Brick, and to substitute Mrs. Evelyn Adlerman as a party defendant in lieu of her husband, Jerome S. Adlerman, and denying the defendants' motion to dismiss the action as to the deceased defendants, Senator McClellan, Mr. Adlerman and Mr. Brick.
Judge Bryant resolved the issue of substitution by determining that the time requirement of Federal Rule of Civil Procedure 25(a)(1) had been met, since plaintiffs had moved for substitution within 90 days after the deaths were suggested on the record. Defendants' argument that substitution was improper at that point because the identity of the deceased defendants' legal representatives had not been settled was rejected. Judge Bryant noted that this would merely mean that the 90 day period of Rule 25(a)(1) would still not have begun and that a successor of an estate as well as a legal representative is proper for purposes of substitution. He also stated that no circumstances were apparent which would make such a substitution at that stage unfair. Defendants had argued that the requirement of Rule 25(a)(1) that the party's death not extinguish the claim had not been met and therefore, the cause should be dismissed. Defendants had contended that constitutional rights are personal rights, the violation of which constitute personal injuries and that the District of Columbia survival statute, D.C. Code 12-101 permits recovery only for pecuniary losses for personal injuries. Because pecuniary losses had not been alleged for the actions which remained at issue, defendants argued that the action abated by operation of the survival statute.
Judge Bryant rejected this argument and stated:
This argument is not persuasive given the nature of the
actions underlying the alleged constitutional deprivations; hence, plaintiffs' remaining -claims survive the de-





24
fendants' deaths whether the court applies federal policy governing survival of a Bivens-type cause of action, see Bivens v. Sir Unknown Named Agents, 403 U.S. 388 (1971), or the District of Columbia survival statute, D.C, Code 12-101. Given the gradual acceptance by federal -courts of the position that federally created torts do survive the death of a tortfeasor, see, e.g., Cox v. Roth, 348 U.S. 20,7, 210 (1955), Kirk v. Commissioner of Internal Revenue, 179 F.2d 619, 621 (1st Cir. 1950), this Court will not single out claims for injuries to constitutional ly- protected rights as abating on the death of the wrongdoer. This is particularly so in light of the Supreme Court's emphasis on the increasing importance of the damage remedy in view of restrictions on the operation of the exclusionary rule. See United States v. Calandra, 414 U.S. 338, 354 n.10 (1974). To the extent that the right of recovery depends upon federal considerations, it should not be governed by archaic concepts of survivability of the common law, see Almond v.
Kent 459 F.2d at 204 but rather by the objectives of the
statutes in question.
With respect to the District of Columbia survival statute, the alleged injury here cannot be categorized as strictly a personal injury, see Colpoys v. Foreman, 163 F.2d at 910, nor is it the case that pecuniary damages for the remaining claims have not been alleged. Defendants argue that the injuries were solely personal in nature, but the claimed violations of papers and property transcend that which is normally considered a personal injury.
Moreover, those cases which permit recovery for pecuniary damages only from personal injuries, see Coleman v.
Moore, 108 F. Supp. 425, at 427; Soroka v. Beloff, 93 F.
Supp. 642, at 644, involve physical harm to the victim. In such situations, while no recovery is permitted for pain and suffering, some measure of recovery is allowed for the physical injury. Coleman v. Moore, 108 F. Supp. 425, at 427; Phillips v. Last4 82 F. Supp. 63, 63 (D.D.C. 1949).
Here, in contrast, to deny recovery for objectively nonquantifiable injury would be to deny the claim in its entirety. Such a position is inconsistent with the purposes of the survival statute. See generally Soroka v. Beloff, 93 F. Supp. at 644. The District of Columbia survival statute is thus no bar to the maintenance of plaintiffs' claims.
[Sli~p Opinion at 3-4; this report at 201-202.1
It was also noted in the memorandum and order that it did not appear to a legal certainty that plaintiffs' claims were for less than the necessary jurisdictional amount and therefore dismissal on that basis would be improper. Stat us.-T he case is pending in the U.S. District Court. The full text of the decision of the Court of Appeals in the criminal action for contempt of Congress was printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, December 1972.





25
The full text of the decision of October 28, 1975, of the Court of Appeals was printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress,
December 31, 197 5.
The full text of the decision of December 21, 1976, of the Court of Appeals en banc was printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, December 1976.
The District Court's memorandum and order of January 17, 1979, is printed in the "Decisions" section of this report at 199.
Hutchinson v. Proxmire
No. 78-680 (U.S. Supreme Court)
Brief.-On April 18, 1975, Senator William Proxmire, Chairman of the Subcommittee on Housing and Urban Development and Independent Agencies of the Senate Appropriations Committee, which has jurisdiction over funds for the National Science Foundation, the National Aeronautics and Space Administration, and the Office of Naval Research, made a statement on the floor of the Senate relating to certain research contracts awarded by those agencies to Dr. Ronald R. Hutchinson, a Michigan research scientist. A press release which consisted almost entirely of quotations from the Senator's floor statement was authorized by Senator Proxmire s office and issued by the Senate Service Department, and at about the same time, Morton Schwartz, an aide to Senator Proxmire, allegedly telephoned various Federal agencies in an attempt to persuade those agencies to terminate grants or contracts for research being performed by Dr. Hutchinson. Senator Proxmire appeared, 7 months later, on a nationally syndicated television show. During that appearance Senator Proxmire made statements regarding the expenditure of Federal funds for study of certain aspects of the behavior of monkeys, rats, and human beings. [Although this was Dr. Hutchinson's project, he was not mentioned by name during Senator Proxmire's appearance.] On April 15, 1976, Dr. Hutchinson filed a $6 million slander and libel action in the U.S. District Court for the Western District of Wisconsin against Senator Proxmire and his aide alleging that they "maliciously and with knowledge of the consequences of their conduct interfered with the numerous valid contractual 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 release, on the television show, and by Mr. Schwartz over the telephone to the various Federal agencies. The defendants filed a motion with the court on June 10, 1976, to have the case transferred to the District of Columbia. On June 11, 1976, the court issued an order by U.S. District Court Judge Doyle in which he disqualified himself from the action. The case was transferred to the Northern District of Illinois, since Judge Doyle was the only judge in the Western District of Wisconsin. The case was still docketed in the Wisconsin court, however, and was handled as if it were there.
Senator Proxmire filed a motion to dismiss or, alternatively, for summary judgment on July 9. In it he claimed: (1) that the alleged misconduct was legitimate legislative activity and, accordingly, ab-





26
absolutely privileged; (2) that his statements and inquiries about the use of public funds were privileged; and (3) that there is no factual basis which will support a finding for the plaintiff.
On December 23, 1976, the court granted defendants' motion for summary judgment, with a written opinion to be issued by January 23, 1977. Subsequently the court extended until April 27, 1977, the date for filing its memorandum.
On April 22, 1977, the court issued its opinion. It concluded that in order to determine whether Senator Proxmire should be granted summary judgment three issues had to be resolved:
(1) Whether the investigative activities of a Senator in
connection with the duties as a Member of Senate subcommittees were privileged.
(2) Whether a press release issued by the United States
Senate Service Department and containing the Substance of a Senate floor speech by the United States Senator was
riv legend under the Speech or Debate clause of the
United States Constitution;
(3) Whether the statements made by the United States
Senator to his constituents and in a television appearance
were libelous or defamatory. [Slip Opinion at 2.]
For purposes of determining the applicability of Speech or Debate clause immunity to the allegations in the complaint the court divided the actions of Senator Proxmire and Mr. Schwartz into four phases:
(1) investigation into Federal funding of Dr. Hutchinson's research;
(2) delivery of a speech on the Senate floor by the Senator and issuance of a press release reciting the facts and content of the Senate speech-,
(3) follow-up investigation by the Senator and his staff at appropriation hearings; and
(4) the Senator's statement on the Mike Douglas Show, his newsletter to constituents, and his other comments about the plaintiff. Citing Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503 (1975) and Doe v. McMillan, 412 U.S. 306, 314 (1973), the court stated that:
The standard for involving congressional immunity under article I, section 6 of the Constitution is the standard of legitimate legislative activity. In the event of a suit, once it is determined that the conduct complained of meets that standard, the action must be dismissed. [Slip Opinion at
13.]
While noting that "considerable confusion exists as to what constitutes legitimate legislative activity," the court concluded that as to the aspects of the case related to the investigations conducted by Senator Proxmire and his staff:
In this case, Senator Proxmire serves on several subcommittees of the Senate Committee on Appropriations. These subcommittees review the budgets of the various agencies with which Dr. Hutchinson has contracted. As a member





27
of these subcommittees, Senator Proxmire votes on appropriations, makes recommendations regarding the distribution of government funds, and concerns himself with their expenditure. Therefore, his inquiries, and those of his administrative assistant, into how American taxpayers' moneys are spent by the agencies over which the subcomit tees in question had jurisdiction were privileged as legitimate legislative activity under the Kilbourn test [Kilbourn v. Thompson, 103 U.S. 168 (1881)] of "things generally done in a session of the House by one of its members in relation to the business before it." [Slip Opinion at 14.]
Addressing the problems of the speech on the floor of the Senate and the authorization of the press release the court concluded that in both instances Senator Proxmire was protected by Speech or Debate clause immunity. 0
In regard to the press release, the court found Senator Proxmire's contention that his authorization of the press release was entitled to immunity as an exercise of the "informing function" to be compatible with the U.S. Supreme Court's holdings in Doe and Gravel v. United States, 408 U.S. 606 (1972). In support of this view the court noted the existence of the franking statute, 39 U.S.C. 3210 (1970), which "promotes the 'informing function' by authorizing free use of the mails" and cited two lower court cases dealing with the use of the frank as an exercise of the "informing function." Hoellen v. Annunzio, 348 F. Supp. 305 (N.D. Ill. 1972), aff d 468 F.2d 522 (7th Cir. 1972), cert. denied, 412 U.S. 953 (1973) and Bowie v. Williams, 351 F. Supp. 628 (E.D. Pa. 1972). The court stated that: "that press release, in a constitutional sense, was no different than would have been a television or radio broadcast of his speech from the Senate floor." [Slip Opinion at 22.]
As to the remaining issue of whether Senator Proxmire's statement on the Mike Douglas Show, his references in his newsletter to Dr. Hutchinson's research and his comments to news reporters and in interviews either mentioning Dr. Hutchinson by name or merely alluding to the Doctor's work were libelous or defamatory, the court concluded they were not.
The court first found that Dr. Hutchinson was, for purposes of the suit, both a "public figure" and a "public official." Thus, for the plaintiff to recover, it must be found that not only did Senator Proxmire publish a defamatory falsehood about him, but also that the publication was made with actual malice; that is, actual knowledge of falsity or reckless disregard of the truth (New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964)).
The court concluded that none of Senator Proxmire's statements met the threshold requirements set forth in the New York Times case.
The court next noted that: Even if for the purpose of this suit it is found that Dr. Hutchinson is a private person so that First Amendment protections do not extend to Senator Proxmire and his administrative assistants, relevant State law dictates the grant of su judgment. Although the court was not certain which
State's law would be appropriately applicable to this case, the District of Columbia's ("the place where the defendants work and




28
their allegedly wrongful conduct originated" [Slip Opinion at 34] or Michigan's ("the plaintiffs domicile where the inquiry presumably had effect" [Slip Opinion at 34]), it concluded that by applying the relevant law of either jurisdiction Dr. Hutchinson would be unable to recover in this action.
The court then granted Senator Proxmire's motion for summary judgment. Additionally, the court stated that unless the plaintiff could show why it should not so order, it would within 30 days dismiss the complaint against Mr. Schwartz.
On May 20, 1977, Dr. Hutchinson filed notice of appeal. On June 229 1977, the District Court dismissed the complaint against Mr. Schwartz. The appeals were consolidated on July 29, 1977.
The appeals were argued on January 9, 1978.
The U.S. Court of Appeals for the Seventh Circuit issued its opinion on June 30, 1978, affirming the judgment of the District Court. Senior Circuit Judge Castle, writing for the court, described the issues on appeal as whether the alleged acts complained of are within the legitimate legislative sphere and hence absolutely immune from suit and, to the extent not so immune, whether they are protected by the qualified privilege of the First Amendment.
In analyzing the question of the possible applicability of absolute legislative immunity under the Speech or Debate clause, the court divided the allegations of the plaintiff into four parts: (1) the followup telephone calls to administrative agencies; (2) the press release of the speech-, (3) the newsletters; and (4) the television, radio, and other interviews.
In considering the phone calls to NSF, NASA, and NIDA, the court relied upon Gravel v. United States, 408 U.S. 606 (1978), McSurely v. McClellan, 553 F.2d 1277 (D.C. Cir. 1976) (en banc), cert. dismissed as improvidently granted sub nom., McAdams v. McSurely, 438 U.S. 189 (1978), and especially United States v. Johnson, 383 U.S. 169 (1966). Specifically, the court held that:
[W]hile there may be cases where the postinvestigation contact with administrative agencies is so integral to the investigation or other protected activities that application of absolute immunity would be compelled, the phone calls to NSF, NASA, and NIDA in this case cannot be accorded
Speech or Debate protection

9 The District Court did not specifically address the Speech or Debate
status of the follow-up phone calls. It appears, however, that the court below viewed these actions as merely a part of the total investigation and therefore absolutely privileged. 431 F. Supp. at 1321-22. In light of the
language in Gravel, we must disagree.
[Slip Opinion at 7.)
The press release was held to be protected by Speech or Debate clause immunity. In reaching this holding, the court relied upon the standard put forth in Doe v. McMillan, 412 U.S. 306 (1973), wherein the Supreme Court held that the availability of legislative immunity in a situation where distribution of information outside Congress has occurred depends upon whether the "legitimate legislative needs" of Congress have been exceeded. Regarding the press release in the instant case, Judge Castle's opinion stated:





29
Given the enormous amount of material addressed by Congress each day, strategic press releases may serve to alert a representative's colleagues about a matter of particular importance as well as to inform the appropriate Federal agencies and the public who can then comment on proper legislative action. We find the limited facilitation of press coverage of congressional action in this case to be protected by the Speech or Debate Clause. [Slip Opinion at 9.]
The Court of Appeals also found the newsletters mailed to Senator Proxmire's constituents to be protected by the Speech or Debate clause, stating that:
If the informing function, even though limited, is to be accorded any absolute immunity, it must be in a case such as this. Senator Proxmire's newsletter informed his constituents of his particular responsibilities as a member of the Senate Committee on Appropriations. Denying a representative protection for newsletters to his constituents in circumstances such as this would effectively isolate the legislator from the people who elected him. [Slip Opinion
at 10.1
Any defamatory remarks which may have been made by Senator Proxmire in television, radio or other interviews, however, were found by the court to be unprotected by the Speech or Debate clause. Absent special circumstances, the court held, public dissemination of information in such manner must be viewed as too far removed from serving legitimate legislative needs, since such methods are not generally necessary to the carrying out of a legislator's informing function and are more often used for political purposes.
Having found the telephone calls to administrative agencies and the inte i ws to be unprotected by the Speech or Debate clause, the court then considered whether the statements made in those communications were protected by the qualified privilege provided by the First Amendment right to free speech. The opinion of the Court of Appeals did not reach the issue of whether the statements, if unprotected, would constitute defamation under the applicable local law, since it went no further than to agree with the District Court that summary judgment on First Amendment grounds was proper. Dr. Hutchinson was correctly found by the District Court to be a public figure and hence, Judge Castle stated he would have to show that the statements were made with "actual malice," that is, with actual knowledge that the statements were false or with reckless disregard for their truth or falsity, in order to disallow the qualified protection of the First Amendment. The District Court was held to have correctIv found that Dr. Hutchinson had shown neither of these things.
Finally, the court rejected Dr. Hutchinson's contention that, even if the defendants are shielded by the First Amendment from liabillty for defamation, the District Court erred in not allowing a trial of the other claims made in the complaint, interference with contractual relations, intentional infliction o emotional anguish, and invasion of privacy. The Court of Appeals saw these as no more than





30
the results of defendant's statements, which must be privileged if the statements themselves are privileged, since to hold otherwise would defeat the privilege of the statements.
A petition for rehearing was filed on July 14, 1978, and denied on July 26, 1978.
Dr. Hutchinson filed a petition for writ of certiorari in the United States Supreme Court on October 20, 1978. As enumerated in his petition, the issues presented are: (1) whether statements made in press releases and -newsletters are protected under the Speech or Debate clause; (2) whether he is a "public figure" within the meaning of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); and
(3) whether there is a genuine issue of fact as to the issue of malice.
Senator Proxmire and Mr. Schwartz filed a brief in opposition to Dr. Hutchinson's petition on November 22, 1978. In their brief, they argued that the Court of Appeals had properly decided the Speech or Debate issue and was correct in finding their actions privileged under the First Amendment, in finding Dr. Hutchinson to be a public figure, and in finding an absence of actual malice in the record.
On January 8, 1979, the petition for writ of certiorari was granted and the case was set for oral* argument with No. 78-5414, Wo/ston v. Reader's D* tAssociation.
Dr. Hutchinson filed his brief on February 22, 1979. On February 23, 1979, the American Psychological Association filed a brief as amicus curiae
On March 26, 1979, the Speaker of the House, Thomas P. O'Neill; the Majority Leader of the House, Jim Wright; and the Minority Leader of the House, John J. Rhodes, filed with the Court a brief as amici curiae.
On March 29, 1979, the President Pro Tempore of the Senate, Warren G. Magnuson; the Majority Leader of the Senate, Robert C. Byrd; the Minority Leader of the Senate, Howard H. Baker, Jr.; and Senator Claiborne Pell, Chairman, and Senator Mark 0. Hatfield, Ranking Minority Member, Committee on Rules and Administration, filed a brief with the Court on behalf of the Senate, as amici curiae.
Status.-The case Iis pending before the U.S. Supreme Court. The decision of the United States District Court for the Northern District of Illinois is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, Part 2, August 15, 1977.
The opinion of the Court of Appeals is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, Part 5, September 15, 1978.

United States v. Relstoski
No. 78-349 (U.S. Supreme Court)
and,
Helstoski v. Manor
No. 78-546 (U.S. Supreme Court)





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Brief. -On June 2, 1976, then-Representative Henry Helstoski was indicted by a grand jury on three counts of soliciting and accepting bribes from Chilean and Argentinean aliens in exchange for introducing private citizenship bills in Congress, with the intent of delaying the aliens' deportation. The indictment also included three counts of conspiracy and obstruction of justice and four counts of lying to a Federal grand jury. Indicted with Mr. Helstoski were two members of his Congressional district staff and the treasurer of his reelection committee.
Before trial was scheduled to begin on 8 counts of a 12-count indictment, Mr. Helstoski moved to dismiss the first 4 counts. His dismissal motion was predicated upon the Speech or Debate clause, Article I, Section 6 of the U.S. Constitution. As enunciated by the court, in its opinion filed on February 18, 1977, "The defendant's position i's that since the Speech or Debate clause precludes inquiry by a grand jury into the performance of his legislative acts, and since the grand jury obviously made such an inquiry, the implicated counts of the indictment are vitiated." [United States v. Helstoski, Criminal Action No. 76-201 (D.N.J.); Slip Opinion at 2.]
The Government opposed the dismissal motion asserting that an indictment, valid on its face, may not be attacked on the ground that incompetent or privileged evidence was presented to the indicting grand jury. Alternatively, the Government argued that the voluntary testimony about legislative activity given by the defendant to the grand jury and during a prior trial of another individual, alleged in the contested indictment to be a coconspirator of the defendant, constituted a waiver of Speech or Debate clause rights. Such waiver, the Government further argued, precluded Mr. Helstoski from attacking the validity of the indictment and "renders evidence of his legislative acts admissible at trial for the purpose of establishing his guilt." [Slip Opinion at 2-3.]
As to Mr. Helstoski's motion to dismiss four counts of the indictment, the court concluded that such dismissal was not required.
The court noted:
Defendant Helstoski's contention that Counts I through
IV of the indictment must be dismissed because the indicting grand jury heard evidence regarding his legislative acts is untenable. United States v. Johnson, 419 F.2d 56 (4th Cir' 1969). This *S not because there is any question that a Member of Congress may not be called to answer for his legislative acts before a grand jury, Gravel v.
United States, 408 U.S. 606 (1972), but because courts Simply Will not go behind the face of an indictment, once it is returned, in order to test the competency of the evidence adduced before the grand jury. United States v. Calandra, 414 U.S. 338 (1974); Lawn v. United States, 355 U.S. 339 (1958); Costello v. United States, 350 U.S. 359 (1956); Holt v.
United States., 218 U.S. 245 (1910); United States v. Blue, 384 U.S. 251, 255 n.3 (1966) (dictum). This rule governs whether the evidence before the grand jury is attacked on the ground it iis hearsay, United States v. Costello, supra, or on the ground the evidence was obtained and set before the grand jury in violation of the Constitution, United





32
States v. Calandra, supra; Holt v. United States, suprW
United States v. Blue, supra. [Slip Opinion at 3.]
As to Mr. Helstoski's assertion that the four counts of the indictment should be thrown out because of their "express reference" to his legislative actions, the court, relying on Supreme Court decisions in United States v. Johnson, 383 U.S. 169 (1966), and United States v. Brewster, 408 U.S. 501 (1972), declared that-the counts involved did not violate the Speech or Debate clause "merely because they make reference to alleged legislative acts of defendant Helstoski." [Sl*p Opinion at 8.1
While the court concluded that presentation of such material to the grand jury was not a proper basis for dismissing the indictment, it nonetheless rejected the Government's contention that Mr. Helstoski's pretrial testimony waived the Speech or Debate clause protection to which he was entitled at trial.
On this point the court stated:
Mhe purpose of the Speech or Debate Clause is to insulate the independent activities of the legislature from executive and judicial interference. This purpose can be achieved only if the executive is barred from utilizing evidence of legislative acts, and if the Judiciary refuses to receive evidence of such acts, in a criminal prosecution of a legislator. I therefore- believe that what the Speech or Debate Clause does is to erect an absolute constitutional immunity in favor of a member of Congress from having evidence of his legislative acts used in litigation against his interests. I am not certain whether a member of Congress has the power to waive this immunity. But I am certain that if such power exists, it is consistent with the constitutional, obligation of the judiciary to eschew interference with the legislature that the courts employ a stringent test before finding such a waiver in a given case. A waiver of the Speech or Debate immunity ought not be found by implication. Such a waiver may be found only where it has been clearly demonstrated that a legislator has expressly waived his Speech or Debate immunity for the precise purpose for which the Government seeks to use evidence of his legislative acts. A less stringent standard would vitiate the prophylactic purpose underlying the Speech or Debate Clause. It is clear that by the above standard, Helstoski has not waived his Speech or Debate immunity from having evidence of his prior legislative acts used against him in the instant criminal prosecution. Accordingly, such evidence may not be admitted at trial on
the ground of waiver. [Slip Opinion at 16-17.1
Turning to the Government's motion seeking a pretrial ruling on the admissibility of evidence the court stated the general proposition that:
[I]t is clear that the Speech or Debate Clause creates no
impediment to the introduction of evidence of an agreement by Helstoski to perform in future a legislative act.





33

What is forbidden is the introduction of evidence of his past performance of such an act. [Slip Opinion at 17.]
As to Mr. Heistoski's particular situation the court noted:
The Government argues, however, that Heistoski's statements, both verbally and in writing, referring to the introduction. of private immigration bills, do not constitute legislative acts and thus may be admitted. The argument is beside the point. The offered evidence contains reference to Helstoski's past performance of a legislative act, and the Speech or Debate Clause forbids use of such evidence during the Government's case-in-chief. The same is true of the thesis that Helstoski's statements reciting the past performance of a legislative act may be used, not to corroborate the existence of a bribe, but on issues such as motive, intent, knowlege and the like. This ignores the absolute command of the Speech or Debate Clause as construed and applied in Johnson and Brewster. The clause does not say that evidence of a legislator's past performance of a legislative act may be used against him for some purpose but not others. It is, rather, that such evidence may not be used at all. If the Government, for whatever reason cannot prove its case without reference to Helstoski's past performance of a legislative act, then the prosecution will have to be foregone. [Slip Opinion at 17-18.]
The court concluded its opinion with a brief discussion of the constitutional power of the House and Senate to "Determine the Rules of Its Proceedings, punish its Members for Disorderly Behavior, and with the Concurrence of two-thirds, expel a Member." [U.S. Constitution, Article 1, Section 5, clause 2.]
This power, the court declared would be an appropriate remedy for those actions of Members of Congress "where it is necessary to call into question their legislative acts in order to impose [punishment]." [Slip Opinion at 18.]
Reading the rulemaking and enforcement powers and the Speech or Debate Clause together the court concluded that:
The Speech or Debate Clause expressly permits a
member to be called into question before the House on account of his performance of a legislative act. If the House does not exercise the power conferred by the Constitution to discipline its own members, such a failure provides no basis for the executive and the judiciary to interfere, ignore the Constitution, and violate the doctrine of
separation of powers. [Slip Opinion at 19.]
On March 18, 1977, the Government filed a notice of appeal.
On June 6, 1977, the court granted Mr. Helstoski's motion to have the Government's brief and appendix suppressed and ordered the brief and appendix resubmitted so that matters not properly subject to a disclosure at that time might be filed in camera. Mr. Heistoski filed a petition for writ of mandamus/pro hi bitwon on June 17, 1977, in the Court of Appeals, asserting again that the indictment violated the Speech or Debate Clause. [Heistoski v. United States, No. 77-1800 (3d. Cir.).] On June 28, 1977, the petition





34
and the appeal were consolidated for purposes of argument and for disposition on the merits.
On October 6, 1977, the appeal and the petition were argued before a three-judge panel of the United States Court of Appeals for the Third Circuit.
On April 13, 1978, the Court of Appeals, in an opinion written by Chief Judge Seitz, denied defendant's petition for writ of mandamus and affirmed the judgment of the District Court.
The opinion dealt first with the petition for writ of mandamus. In describing the writ of mandamus, the court noted:
The Supreme Court recently has emphasized that, in
determining when it is "appropriate" to issue the writ we must keep in mind that "[flhe remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Kerr v. United States District Court, 426 U.S. 394,
402(1976).
Generally, Federal courts have used the writ "to confine
an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Association, 319 U.S. 21, 26 (1943), quoted in Kerr v. United States District Court, 426 U.S. 394, 402 (1976). And while the Supreme Court in Kerr noted that it had "not limited the use of mandamus by an unduly narrow and technical understanding of what constitutes a matter of 'jurisdiction,"' the Court stressed that the writ should issue only in extraordinary situations: "the fact still remains that ionly exceptional circumstances amounting to a judicial "usurpation of power" will justify the invocation of this extraordinary remedy."' Kerr v. United States District Court, 426 U.S. 394, 402 (1976), quoting Will v. United
States, 389, U.S. 90, 95 (1967).
In order to further the congressional determination that
appellate review should come only after final judgment except in the most exceptional circumstances, the courts also have required that even where circumstances amount to a "judicial usurpation of power," the petitioner must satisfy certain other conditions for issuance of the writ.
Thus, the party seeking the writ must have no other adequate means to attain the relief he seeks. And petitioner must also show that his right to issuance of the writ is
clear and indisputable. Id. at 403.
Finally, "it is important to remember that issuance of
the writ is in large part a matter of discretion with the court to which the petition i's addressed." [Slip Opinion at
9-10.]
Mr. Helstoski's argument that the District Court was without jurisdiction to try him, because the indictment charged him with legislative acts and so violated the Speech or Debate clause privilege, was rejected by the court. In refuting the argument, the court held that the indictment was not materially distinguishable from that upheld by the Supreme Court in United States v. Brewster, 408 U.S. 501 (1972). The Court of Appeals noted that since the allega-





35
tions of the indictment charged a crime even without reference to any acts protected from inquiry under the Speech or Debate clause, Mr. Helstoski had not made sufficient showing to justify issuance of the writ on Speech or Debate grounds. The opinion stated that, in so holding, no opinion was expressed as to whether, or in what circumstances, mandamus might be appropriate to prevent trial of an indictment which depended upon proof of materials embraced by the Speech or Debate clause.
Also rejected was the assertion by Mr. Helstoski that the District Court's order prohibiting the introduction at trial of any evidence by the Government of past legislative acts was an attempt by that court to obtain jurisdiction over an indictment otherwise invalid under the Speech or Debate clause. By modifying the proof to be presented at trial, Mr. Helstoski charged, the District Court had constructively amended" the indictment, thereby depriving him of his Fifth Amendment right to be tried only upon the indictment of a grandjury. The Court of Appeals concluded that since a prima facie case may be established under 18 U.S.C. 201(c) without any showing of legislative acts by the defendant, as Brewster made clear, the District Court's evidentiary limitation did not modify the proof of an essential element of the offense from that found by the grand jury. Hence, the order in question did not constitute a "constructive amendment" of the indictment changing the basic theory of the offense or the facts considered by the grand jury.
The court specifically declared that it expressed no opinion as to whether, or in what circumstances the "constructive amendment" of an indictment might justify issuance of a writ of mandamus.
Mr. Helstoski, in seeking the writ of mandamus, had also argued that presentation to the grand jury of evidence of his legislative acts produced an indictment beyond the grand jury's power to return, and beyond the court's jurisdiction to try. The Court of Appeals held that the indictment charges an offense for which Mr. HeIstoski may be tried without violation of the Speech or Debate clause, and the indictment is valid on its face. The Appeals Court thus concluded that:
Even in light of the expansive definition of "jurisdiction"
that the Supreme Court has adopted in evaluating mandamus petitions, we do not believe that in these circumstances defendant's allegations concerning the grand jury make out "'exceptional circumstances amounting to a judicial "usurpation of power" so as to] justify the invocation of this extraordinary remedy."'Kerr v. United States District Court, 426 U.S. 394, 402 (1976), quoting Will v. United States., 389 U.S. 90, 95 (1967). We conclude that the district court has jurisdiction to try the indictment returned against the defendant in this case, and accordingly refuse to grant the writ on grounds of grand jury abuse. [Slip
Opinion at 15.]
The court also declared that:
Any argument that the important policies underlying
the [Apeech or Debate] Clause require dismissal of an inment returned by a grand jury that heard evidence in
violation of the Clause's principles does not go to the jur*s-





36
diction of the district court, but to the proper means that this court should use to effectuate the Clause. As such, we believe it is an argument better left for decision on appeal
from a final judgment.
We also note that it is far from "clear and indisputable"
that defendant could prevail on his arguments that presentation to the grand jury of evidence in violation of the Speech or Debate Clause requires dismissal of the indictment. The Supreme Ci6urt consistently has refused to countenance challenges to the competency of evidence presented to a grand jury, holding that a valid indictment returned by a competent grand jury is enough to call for a trial. United States v. Calandra, 414 U.S. 338, 342-45
(1974).
Moreover, in United States v. Johnson, 383 U.S. 169
(1966), the Court allowed retrial of the conspiracy count even though it was clear from the specification of a legislative act in the overt acts supporting that conspiracy count that the grand jury heard evidence that the Supreme Court held was barred at trial by the Speech or Debate Clause. And on appeal after the retrial, the Court of Appeals rejected Johnson's argument that the indictment was invalid because of the presentation of evidence of legislative acts to the grand jury. United States v. John-son, 419 F.2d 56, 58 (4th Cir. 1969), cert. denied 397 U.S. 1010 (1970).
See United States v. Blue, 384 U.S. 251, 255 n.3 (1966). [Slip
Opinion at 16-17.] .
The Government's arguments that Mr. HeIstoski's petition was untimely and that he had waived his Speech or Debate privilege were not addressed by the Court of Appeals since his petition was denied on the grounds noted above.
The opinion turned next to the Government's appeal of the District Court's order of February 23, 1977, prohibiting the introduction by the Government of evidence of the performance of past legislative acts by Mr. HeIstoski. The Government asserted that the Court of Appeals had jurisdiction to review the order pursuant to 18 U.S.C. 3731 which reads in pertinent part:
An appeal by the United States shall lie to a court of
appeals from a decision or order of a district courts [sic] suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the
proceeding.
Mr. Helstoski's contention that the order in question did not suppress or exclude any specific items of evidence, and thus was not of the type granting jurisdiction to the Court of Appeals, was rejected, the court concluding:





37
In light of the congressional intent that we recognized in
Beck that 3731 be liberally construed, as well as in light of the statute's specific command, we believe the district court's order in this case fairly may be characterized as one 14suppressing or excluding evidence." The practical effect of the district court's order is to prevent the Government from introducing evidence of defendant's past legislative acts that it otherwise almost certainly would have introduced at trial. Section 3731 was designed to allow appeals from such orders to insure that prosecutions are not unduly restricted by erroneous pretrial decisions to
exclude evidence. [Slip Opinion at 19.]
Turning to the substantive question, the Court of Appeals rejected the Government's argument that it should be permitted to introduce the private bills themselves and correspondence and conversations referring to Mr. Helstoski's legislative acts in order to prove Mr. Helstoski's purpose in accepting the payments in question as contrary to the Supreme Court's holding in Brewster, supra, and United States v. Johnson, 383 U.S. 169 (1966). The opinion stated that legislative acts may not be shown in evidence for any purpose in this prosecution and that the Government may not circumvent this prohibition by introducing correspondence and statements which, while not themselves legislative acts, contain references to past legislative acts on the part of Mr. Helstoski. The Court of Appeals declared that to allow a showing of legislative acts by such secondary evidence could render the absolute prohibition of Brewster meaningless and would drastically reduce the effectiveness of the Speech or Debate clause and discourage the dissemination of information about legislative activities to the public.
The Court of Appeals also found that Mr. Helstoski had not waived his Speech or Debate privilege by testifying before the grand jury about legislative acts. While noting that the question of whether an individual legislator may waive his Speech or Debate privilege is an open one, the court found it unnecessary to decide that question in this case. Such a decision was found to be unnecessary since the Court of Appeals agreed with the District Court's holding that the purpose of the Speech or Debate clause as a protection for the legislature against encroachment by the other two branches precludes the finding of a waiver in the context of a criminal prosecution where the legislator has not expressly forfeited his privilege for the purposes for which the Government seeks to use the evidence of his legislative acts. On the facts of this case, the Court of Appeals found no such waiver.
A motion for rehearing en banc filed by the Government on June 14, 1978, on the issues raised in its appeal was denied on June 30, 1978.
The Government filed a petition for a writ of certiorari (No. 78349) in the United States Supreme Court on August 29, 1978, seeking review of two questions. First, whether the Speech or Debate clause bars the introduction by the Government of any evidence which, although not a legislative act, refers to the defendant's past performance of a legislative act. Second, whether Mr.





38
Helstoski's voluntary testimony and production of documents before the grand jury constituted a waiver of that privilege in regard to the use of the testimony and documents at trial.
On September 29, 1978, Mr. Helstoski also filed a petition for writ of certiorari (No. 78-546) in the Supreme Court. His petition sought review of the judgment of the Court of Appeals insofar as it denied a petition for a writ of mandamus. In the petition, Mr. Helstoski noted his opposition to the petition filed by the Government and suggested to the C-Ourt the possibility of consolidation of two petitions. Mr. Helstoski's petition presents the following questions for review:
1. Does the United States District Court have jurisdiction to try petitioner on an indictment which on its face charges that as a Member of the Congress of the United States he performed certain specific and identified legislative acts, to wit, the introduction of bills in Congress, with corrupt motivation.? Under the Speech or Debate Clause, does not Congress have exclusive jurisdiction to inquire
0 A A
into its Members' performance of legislative acts?
2. May an indictment of a Congressman described above,
procured by calling into question before a grand jury the
legislative acts of Chat Congressman, proceed to trial?
3. May an indictment offensive to the Speech or Debate
Clause on its face and in the means by which it was procured, nevertheless be prosecuted by forbidding proof at trial of the legislative acts alleged in the indictment?
Would not such a trial procedure amount to both an impermissible manipulation of the Speech or Debate Clause and a constructive amendment of the indictment, in violation of the Fifth Amendment right to be tried only upon
the indictment voted by a grand jury?.
(Petition for Writ of Certiorari at 2-3, Relstoski v. Manor, No. 78-546.)
The Government filed a brief in opposition to Mr. Helstoski's petition on November 21, 1978. In its brief, the Government listed the following questions as being presented for review:
1. Whether an indictment charging a member of Congress with bribery, in violation of 18 U.S.C. 201(c), is invalid because it contains references to legislative acts that are not themselves punishable due to the Speech or Debate
Clause.
2. Whether consideration by the grand jury of evidence
showing legislative acts deprives the district court of jurisdiction to try an indictment alleging a violation of 18
U.S.C. 201(c).
3. Whether the district court's restriction of the government's proof at trial to prevent references to legislative acts constitutes a constructive amendment of the indictment.
(Brief for the United States in Opposition at 1-2, Relstoski v. Manor, No. 78-546.)





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On November 21, 1978, Mr. Helstoski moved in the U.S. District Court for the District of New Jersey to dismiss counts VII and VIII of the indictment for failure to charge an offense and as the product of the presentation to the grand jury of materials and facts proscribed by the Speech or Debate clause.
The petitions for writ of certiorari were granted and consolidated on December 11, 1978.
Mr. Helstoski filed his brief on January 26, 1979.
On February 8, 1979, the Speaker of the House, Thomas P. O'Neill, Jr. and Congressman Frank Thompson, Jr. and William L. Dickinson, Chairman and ranking minority member, respectively, of the Committee on House Administration filed a motion for leave to file a brief as amici curiae. The motion was granted on February 21, 1979. The brief argued: (1) that the constitution vests exclusive authority Iin the House for the punishment of Members on account of performance of legislative acts and that the House has appropriately exercised that jurisdiction; (2) that an indictment based on grand jury review of specific legislative acts is defective and cannot stand consistent with the Speech or Debate clause; (3) that the decision of the Court of Appeals prohibitling the introduction of legislative acts at trial regardless of the purpose sought to be achieved by such proof should be affirmed and (4) that the protection of the Speech or Debate clause cannot be waived and that any judicially fashioned doctrine of waiver should be strictly limited and precisely defined. On March 1, 1979, Speaker O'Neill moved for leave to participate in oral argument as amici curiae. The Government filed its brief on March 13, 1979. Status.-The cases are pending before the U.S. Supreme Court. The full text of the memorandum and order of the District Court is printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, Part 1, April 15, 1977.
The opinion of the Court of Appeals is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, Part 5, September 15, 1978.

Chase v. Kennedy
Civil Action No. 77-2652 (Ninth Cir.) Brief.-Trueman E. Chase, a resident of California, who had been unable to resolve a dispute with the Social Security Administration, sent a document styled "Congress of the United States of America * Petitionfor Redress" to Senator Edward Kennedy of Massachusetts, intending for Senator Kennedy to present the petition to the Congress or one of its committees. Instead, because Mr. Chase is a resident of California, Senator Kennedy forwarded the petition to Senator Alan Cranston of California. Senator Kennedy advised Mr. Chase that he had forwarded the petition to Senator Cranston. Mr. Chase then wrote to Senator Adlai E. Stevenson III, Chairman of the Senate's Select Committee on Ethics, protesting Senator Kennedy's action. Senator Stevenson forwarded this letter to Senator Cranston and he also advised Mr. Chase that he had done so. Upon receipt of Mr. Chase's petition at


43-774 0 79 4





40
his Washington, D.C. office, Senator Cranston forwarded it to his San Francisco office.
Mr. Chase then filed this action asserting that Senators Kennedy, Stevenson, and Cranston deprived him of his First Amendment right to petition the Government for a redress of grievances.
On July 12, 1977, the U.S. District Court for the Southern District of California issued its decision. Judge Turrentine dismissed the action concluding that Mr. Chase had not been denied his right to petition the Government. Rather he "has confused his right to petition with a supposed right to have his petition granted or acted upon in a certain way. But no such right is found in the Constitution." [Chase v. Kennedy, Civil Action No. 77-305-T (S.D. Calif., July 12, 1977); Slip Opinion at 2.] As to the actions of the Senators, the court concluded that whatever action a Senator determines to take with petitions is "absolutely within his discretion and is not a proper subject of judicial inquiry, even if it might appear that he may be grossly abusing that discretion." [Slip Opinion at 3.]
On July 18. 1977, Mr. Chase filed a notice of appeal. He also filed a notice of d rect appeal to the United States Supreme Court on September 7, 1977, but no further action has been taken in regard to that appeal.
Status.-The appeal is now pending before the U.S. Court of Appeals for the Ninth Circuit.
The complete text of the District Court's opinion is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, Part 2, August 15, 1977.
Rusack v. Harsh
No. 77-1137 (M.D.Pa.)
Brief.-On December 16, 1977, plaintiff, Samuel Rusack, a United States Navy civilian employee working as a Supervisory Contract Negotiator at the United States Navy Ships Parts Control Center (hereinafter "SPCC") filed a defamation action in the U.S. District Court for the Middle District of Pennsylvania. The action named as defendants Representative William H. Harsh, Stanley L. Bishop, P. J. Kanistros, and Poli-Com, Inc. All of the defendants filed motions to dismiss. Representative Harsha filed a motion to dismiss or alternatively for summary judgment.
On December 14, 1978, in a memorandum and order issued by the District Court granted Congressman Harsha's motion to dismiss and rejected those of the other defendants.
The facts are reported in the court's memorandum and order, which states in pertinent parts:
According to plaintiffs affidavit, he is a Supervisory
Contract Negotiator * at the SPCC. His authority is derived from the Armed Forces Procurement Regulations, * * He is one of eleven individuals who have buying and contracting officer authority at the SPCC. His duties include solicitations and requests for proposals. Furthermore, as a contracting officer at a purchasing office such as the SPCC * he is authorized to enter into contracts





41
in the name of and on behalf of the United States Government * *.
Defendant Harsha is a Representative in the United
States House of Representatives from the Sixth Congressional District of Ohio. He is the ranking minority member
*of the House Public Works Committee. He is involved with and has a particular concern in regard to, the
spending policies of the United States Government. **
In July of 1977, Mr. Harsha was contacted by Mr. Bishop involving "military procurement irregularities and taxpayer waste." * Mr. Bishop presented Mr. Harsha with material which, inter alia, dealt with plaintiff Rusack and his involvement with a particular contract and award. The material was reviewed by a member of Mr. Harsha's staff who then forwarded a prepared speech to the Congressman, who reviewed it and approved it for delivery and publication in the Congressional Record of August 3, 1977.
[Slip Opinion at 12-13; (footnotes omitted).]
It was this August 3d speech which Mr. Rusack alleged contained defamatory material, specifically that he was charged therein with dishonest and illegal conduct, fraudulent and unethical practices and collusion and conspiracy to defraud. Following the speech Congressman Harsha wrote a letter to Admiral T. Allhouse, commanding officer at the SPCC seeking material concerning the award which was part of the basis for the August 3d speech. The Admiral sent a substantial volume of material to Congressman Harsha. This material was made available to Mr. Bishop by Congressman Harsha for his determination of whether it was responsive to the Congressman's request. Mr. Bishop determined that the material was not fully responsive and on August 31, 1977, Congressman Harsha sent a second letter to Admiral Allhouse. In this letter Congressman Harsha sought additional material and made several statements about Mr. Rusack which Mr. Rusack alleged were defamatory. Congressman Harsha claimed, and Mr. Rusack did not contest that neither he nor his staff distributed the letter to the general public. The SPCC, responding to Congressman Harsha's letter sent additional information to the Congressman. The material was again analyzed with Mr. Bishop's help.
After Mr. Bishop had analyzed the material and presented his analysis to a member of Congressman Harsha's staff, that staff member edited it and submitted it to the Congressman. The Congressman made some final editorial changes and presented it to the Clerk of the House for publication in the Congressional Record. Mr. Rusack charges that the material inserted in the Record contained defamatory material.
Mr. Rusack further alleged that after placing the two speeches in the Record, Congressman Harsha maliciously distributed and caused to be republished the text of the speeches. Congressman Harsha responded that he sent copies of his correspondence with the SPCC, and their responses along with copies of his speeches from the Record to the U.S. Attorney for the District of Columbia, the Attorney General, and the Office of the Secretary of Defense.





42

Other than that transmittal and the ordinary circulation of the Congressional Record, Congressman Harsha denied any republication or distribution of the two speeches.
The court, in its opinion of December 14, 1978, noted three categories into which the activities complained of by Mr. Rusack could be divided: (1) the insertion of the two speeches into the Congressional Record and the general distribution of those Congressional Records; (2) the August 31, 1977 letter to Admiral Allhouse; and (3) the forwarding by defendant Harsha of the copies of the two Congressional Records and copies of the correspondence between himself and the SPCC to the United States Attorney General, the United States Attorney and the District of Columbia, and the Office of the Secretary of Defense.
The court further noted the grounds on which Congressman Harsha sought dismissial:
Summary judgment was sought on the grounds: (1) that
all the activity is absolutely privileged under the* Speech or Debate clause; (2) that reports of alleged criminal behavior to appropriate executive officials is constitutionally privileged; and (3) that criticism of -plaintiff Rusack is privileged under the First Amendment because the plaintiff is a public official and the record establishes that there is no "New York Times malice." [Rusack v. Ha rs ha (771127), Slip Opinion at 16.]
Turning first to the assertion that Congressman Harsha's actions were protected by Speech or Debate clause immunity, the court noted that Mr. Rusack conceded that congressman Harsha's speeches and their publication in the Congressional Record were activities which were absolutely privileged and protected by the clause. The letter of August 31, 1977 to Admiral Allhouse, the court concluded, was also protected by the Speech or Debate clause. The court declared:
The August 31, 1977 letter to Admiral Allhouse is also
behavior which is encompassed by the Clause. It has long been held that investigation by a Congressman regarding issues over which legislation may be had is legitimate legislative activity and, therefore, protected by the Speech or Debate Clause. See Eastland v. United States Servicemen's Fund, 421 U.S. 491, 504 (1975), Doe v. McMillan, 412 U.S. 306 (1973); Watkins v. United States, 354 U.S. 178 (1957); MeGrain v. Daughterty, 273 U.S. 135 (1927), McSurely v. McClellan, 553 F.2d 1277, 1286-8 (D.C. Cir. En Banc 1976); writ of cert. dismissed as improvidently granted 46 U.S.L.W. 4878 (June 26, 1978). The power over appropriations and expenditures is at the heart of the business of Congress. Article 1, Section 8, Clause 13 of the United States Constitution specifically gives Congress power over the maintenance of the Navy. Knowing how the Navy spends the money allotted to it by Congress is essential if Congress is going to be able to exercise its power with any competency. Defendant Harsha's letter to Admiral Allhouse was an attempt to get needed information, and as





43

such,, it must be afforded the protection of the Clause. [Slip
Opinion at 18-19. (Footnotes omitted.)]
Further, finding that the forwarding of the copy of the letter to Admiral Allhouse and the two Congressional Records to the United States Attorney for the District of Columbia, the United States Attorney General, and the Office of the Secretary of Defense is protected under other constitutional provisions, the court decided not to reach the question of whether it is encompassed by the Speech or Debate clause.
The court declared that where the complaint alleged that plaintiff was defamed by defendant Harsha in regard to the performance of his (plaintiffs) official duty, specifically alleging that Mr. Harsha accused plaintiff of violating 18 U.S.C. 1001, the whole thrust of the complaint and the brief in opposition to the motion was that defendant Harsha had accused plaintiff of criminal acts. To this the court concluded:
The right to inform federal officials of possible violations
of federal law continues to be constitutionally protected.
See United States v. Guest, 383 U.S. 745, 771, 779 (1966), Harlan, J., concurring in part and dissenting in part; Brennan, J. concurring in part and dissenting in part; Williams v. Allen, 439 F.2d 1398 (5th Cir. 1971). 1 believe that the letter to Admiral Allhouse and the forwarding of the materials to the United States Attorney for the District of Columbia, the United States Attorney General, and the Office of the Secretary of Defense are protected by this constitutional right to inform, afford defendant immunity, and, hence, cannot form the basis of a defamation action.
[Slip Opinion at 21. (Footnotes omitted.)]
Finally the court addressed the question of whether Congressman Harsha's statements and letters were protected by the First Amendment. The court first found that Mr. Rusack was a public official. The court declared:
[i]t is * evident that he is intimately involved in the
expenditures of public funds, a matter of great importance so that there is an interest in his qualifications and performance beyond the interest which might be associated with any governmental employee. He is, therefore, a public official and since the allegedly defamatory remarks dealt with his performance as such an official the New York Times malice standard must be applied. [Slip Opinion
at 23-24.]
Reviewing the facts, the court concluded that, as a matter of law, there could be no finding of malice against the Congressman.
In conclusion, the court declared:
In sum, legislative immunity protects defendant Harsha
from suit based on the two speeches, their insertion in the Congressional Record, and the letter to Admiral Allhouse.
The right to inform creates a constitutional immunity from suit for the letter to Admiral Allhouse and the forwarding of the material to the United States Attorney





44
General, the United States Attorney for the District of Columbia, and the Office of the Secretary of Defense, and the Constitutional privilege of the First Amendment encompasses all the behavior upon which this action is based because, as a matter of law, plaintiff is a public official and there can be no showing of New York Times malice based on the facts in the record. [Slip Opinion at 27.]
Status.-The case is still pending in the U.S. District Court for the Middle District of Pennsylvania as to defendants P. J. Kanistros and Poli-Com, Inc.
The opinion of the District Court is printed in the "Decisions" section of the report Court Proceedings and Actions of Vital Interest to the Congress, current to December 31, 1978. In re Grand Jury Investigation into Possible Violations of Title 18,
United States Code, Sections 201, 371, 1962, 1951, 153, 1343
and 1341. (Newly Reported Case)
No. 78-1755 (Third Cir.)
Brief.-This, case arose out of a motion filed by the Government in the U.S. District Court for the Eastern District of Pennsylvania for the production of congressional records from the Clerk of the U.S. House of Representatives, Edmund L. Henshaw. (Misc. No. 78142). The records sought consisted of telephone toll records of all telephone calls from or charged to the Office of then-Representative Joshua Eilberg for the years 1973 through and including March 2, 1978. The motion was granted on March 6, 1978 by the District Court which issued written findings that the documents sought were necessary, material and relevant to a pending Grand Jury investigation. The Clerk of the House was ordered to produce the documents before the Grand Jury on March 16, 1978. Congressman Eilberg filed a motion on March 15, 1978 for leave to intervene and for an order quashing the subpoena duces tecum.
District Judge Fullam issued a memorandum and order on May 5, 1978 granting Representative Eilberg's motion to intervene and denying his motion to quash.
On May 16, 1978, Congressman Eilberg filed a motion for reconsideration of his motion to quash.
On June 2, 1978 a memorandum and order was filed in the District Court denying the motion for reconsideration, but ordering that no evidence concerning the contents of telephone conversations reflected in the subpoenaed records be presented to the Grand Jury except with approval of the Court after in camera proceedings.
Congressman Eilberg filed a notice of appeal on June 9, 1978.
On June 30, 1978, Representative Eilberg filed his appellant's brief.
The Government filed its brief as appellee on July 24, 1978.
On August 3, 1978, the Clerk of the House moved to file out of time a brief as amicus curiae. The motion was granted and the brief was filed on August 10, 1978.
The appeal was argued on September 7, 1978.
On September 8, 1978, Philadelphia Newspapers, Inc. and James Smith petitioned for leave to intervene and for access to District





45
Court records which had been sealed by the District Court and the Court of Appeals.
The Clerk of the House filed a supplemental brief on September 1221978.
On September 13, 1978, the Government filed an answer to the petition of Philadelphia Newspapers, Inc. and Mr. Smith.
Supplemental briefs were filed by Congressman Eilberg and the Government on September 15, 1978, and September 19, 1978, respectively.
On October 20, 1978, the Court of Appeals issued an opinion denying the motion of Philadelphia Newspapers, Inc. and Mr. Smith for leave to intervene and for access to sealed court records. The opinion stated that any challenge to the orders sealing the District Court records should, in the first instance, be addressed to that court.
The Court of Appeals issued its opinion in regard to Congressman Eilbe "s alDveal on October 20, 1978. The court held that the District Court had properly declined to quash the subpoena, but vacated the order appealed from and remanded the case to the District Court for proceedings consistent with its opinion. The court dealt in turn with each of the three grounds on which Congressman Eilberg had sought to quash the subpoena: (1) Insufficient compliance with House Resolution 10 (95 Cong., 1st sess.); (2) insufficient compliance with the Third Circuit's decision in Schofield, In re Grand Jury Proceedings (Schofield 1), 486 F.2d 85 (3d Cir. 1973); In re Grand Jury Proceedings (Schofield 11), 507 F.2d 963 (3d Cir.), cert. denied, 421 U.S. 1015 (1975); (3) the Speech or Debate clause.
House Resolution No. 10 states:
Whereas, by the privileges of this House no evidence of a
documentary character under the control and in the possession of the House of Representatives can by the mandate of process of the ordinary courts of justice be taken from such control or possession except by its permission:
Therefore, be it
Resolved, That when it appears by the order of any
court in the United States or a judge thereof, or of any legal officer charged with the administration 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 justice consistently with the privileges and rights of this
House; and be it further
Resolved, That during the Ninety-fifth Congress, when a
subpoena or other order for the production or disclosure of information is by the due process of any court in the United States service upon any Member, officer, or employee of the House of Representatives, directing appearance as a witness before the said court at any time and the production of certain and sundry papers in the possession and under the control of the House of Representatives, that any such Member, officer, or employee of the House,





46
after notifying the Speaker, is authorized to appear before said court at the place and time named in any such subpena or order, but no papers or documents in the possession or under the control of the House of Representatives shall be produced in response thereto; and be it further
Resolved, That after the Speaker has been notified by the
Member, officer, or employee that a proper court has determined upon the materiality and relevancy of specific papers or documents called for in the subpoena or other order, then said court through any of its officers or agents shall have full permission to attend with all proper parties to the proceedings before said court and at a place under the orders and control of the House of Representatives and take copies of the said documents or papers and the Clerk of the House is authorized to supply certified copies of such documents that the court has found to be material and relevant, except that under no circumstances shall any minutes or transcripts of executive sessions, or any evidence of witnesses in respect thereto be disclosed or copied, nor shall the possession of said documents and papers by any Member, officer, or employee of the House be disturbed or removed from their place of file or custody under said Member,
officer, or employee; and be it further
Resolved, That the House of Representatives reserves to
itself the power to revoke or modify the authority contained herein in all or specific instances; and be it further
Resolved, That a copy of these resolutions be transmitted
by the Clerk of the House to any of said courts whenever such writs of subpoena or other orders are issued and
served as aforesaid.
The court first turned to the question of whether there had been sufficient compliance with the provisions of H. Res. 10. The opinion noted that although the Clerk had suggested in his amicus brief that the District Court's finding that the subpoenaed material was relevant to the grand jury's investigation was insufficiently specific to meet the materiality requirement of H. Res. 10, he had not resisted the subpoena, but rather had stood ready to comply. The court declared that since the Clerk had raised no objection to any lack of specificity in the subpoena at the District Court level, there was no occasion for the District Court to consider and no reason for the court of appeals to rule upon the question of whether H. Res. 10 requires "a more specific governmental showing, and judicial finding of relevancy of the subpoenaed materials than was made and found here." (In Re Grand Jury Investigation into Possible Violations of Title 18, United States Code Sections 207, 371, 1962, 1951, 1503, 1343 and 1341; Slip Opinion at 5, this report at 211)
In a further discussion of H. Res. 10, the appeals court observed:
It seems clear from H.R. 10 that the House believes it
has the power to resist a valid subpoena from a court in some instances. Possibly it would rest its power to do so on Article I 5, cl. 3 4 since the resolution refers to "the privileges and rights of this House." Textually, at least, the resolution does not seem aimed at vindication of the Speech or Debate Clause privilege of House members. That privilege, although of great institutional interest to the





47
House as a whole, is also personal to each member. Whether it could be narrowed by Congressional action to the member's detriment is a question carefully reserved in United States v. Brewster, 408 U.S. 501, 529 n.18 (1972) and United States v. Johnson, 383 U.S. 169, 185 (1966). Whether it could be enlarged by legislation, or more particularly by the nonstatutory action of a single house, so as to place beyond the subpoena power of the judicial branch matters not actually within the Speech or Debate privilege is an open question of considerable delicacy. See United States v.
Liddy, 542 U.S. 911 (1976). But this is not a proper case to decide whether the House has the power to restrict or expand the reach of the Speech or Debate Clause beyond that which a court might otherwise determine. On the present record the House has not taken a position in opposition to the.subpoena. We agree with the district court that in challenging a subpoena to the Clerk for House Records, an individual congressman lacks standing as an intervenor to assert in his individual interest whatever institutional interest the House as a whole may have in a more particularized compliance with its resolution. Thus we reject Mr. Eilberg's contention that H.R. 10 requires a remand, and reject, as well, the invitation of the Clerk of the House as amicus curiae to rely on that resolution as a reason for a remand. (Slip Opinion at 5-6; this report at
215-216.)
4 itEach House shall keep a Journal of its Proceedings, and from time to
time publish the same excepting such Parts as may in their Judgment
require Secrecy *
Turning to the question of whether the Schofield rule was applicable to this action, the Court of Appeals noted that the rule had thus far been applied only for the benefit of persons subpoenaed to appear before the grand jury, not for intervenors. The court found no reason to consider whether an intervenor who suffers injury from the improper use of a grand jury subpoena addressed to a third party might successfully demand that the government make a preliminary showing by affidavit that each subpoenaed item is relevant to an investigation being conducted by a grand jury, properly within its jurisdiction, and not sought for another purpose as by Schofield since it concluded that Congressman Eilberg could not on the present record derive any benefit from the Schofield rule even if he fell within its sphere. The Court of Appeals noted that since he could point to no prejudice from his failure to see the affidavit and did not suggest that he could have put in issue the bona fides of the grand jury investigation.
As to the question of whether records of Congressman Eilberg's phone calls were protected from disclosure by the Speech or Debate clause, the opinion of the Court of Appeals approached the congressman's Speech or Debate clause claim by stating as a preliminary matter that the case law held that a legislator asserting an invasion of the Speech or Debate clause privilege by means of a grand jury subpoena to a third party may intervene and oppose such use. The Court of Appeals agreed with the contention of





48
Representative Eilberg and the Clerk of the House that the telephone is the single most important and often used instrument of communication in the House. The Court of Appeals first noted that many of the uses of the telephone by Congressmen are plainly integral to the deliberative or communicative processes of the House, and as such are legislative acts falling within the scope of the Speech or Debate clause by even the narrowest construction of that clause. Considering the holding of Gravel v. United States, to be the most restrictive reading of the Speech or Debate clause, the Court of Appeals observed that Gravel did not decide the question of whether use against a legislator of his own or his staffs communications in preparation for legislation may be permitted under the Speech or Debate clause, although Gravel apparently permits inquiry iinto such communications when relevant to the investigation of possible third party crimes. Hence, the opinion of the Court of Appeals noted, without deciding, that telephone calls placed or received by Representative Eilberg or his staff in gathering from outsiders information which iis weighed in the process of deciding how to vote, in drafting le i nation, and iin preparing for argument, may be privileged as to use against the Congressman, although not as to use against third parties.
The Court of Appeals rejected the Government's position which the District Court had accepted, that telephone toll records are never protected by the Speech or Debate clause because the records themselves do not reveal the content of the conversations which occurred. At least some of the records reflect the fact that a legislative act took place and those records, the court concluded, should be protected. However, the Court of Appeals also rejected Congressman Eilberg's contention that all of the toll records should be protected since some of the calls reflect legislative acts. While a rule to the effect that a document containing both privileged and unprivileged material is entirely privileged might advance the policies behind the Speech or Debate clause, especially the protection of legislators from Executive Branch harassment in the form of rummaging through partially privileged records, such an approach was foreclosed by the holding of the Supreme Court in Gravel, the opinion stated. Thus, only the use against Representative Eilberg of those portions of the toll records which record legislative acts offends the Speech or Debate clause.
Similarly, the Court of Appeals concluded that Congressman Eilberg's alternate argument that the Government should be required to establish which parts of the toll records are non-privileged and that the court should permit a subpoena only for those parts was not tenable. It would be impossible, the opinion noted, for the Government to meet such a burden, since the necessary information is not in its possession.
The Court of Appeals also rejected Congressman Eilberg's contention that the Executive Branch should not be given access to the toll records until the Court has gone through them, has heard him or his staff in camera and out of the presence of the United States Attorney and has made a preliminary determination as to which calls record legislative acts. The court stated that:





49
This suggestion, we think, is based on a misconception of the nature of the Speech or Debate privilege. Unlike privileges such as attorney-client, physician-patient, or priestpenitent, the purpose of which is to prevent disclosures which would tend to inhibit the development of socially desirable confidential relationships, see Note, The Attorney-Client Privilege: Fixed Rules, Balancing, and Constitutional Entitlement, 91 Harv. L. Rev. 464, 465-66 (1977), the Speech or Debate privilege is at its core a use privilege. See United States v. Helstoski, 576 F.2d 511, 523 (3d Cir.), petition for cert. filed, 47 U.S.L.W. 3148 (U.S. Aug. 29, 1978) (No. 349); In re Grand Jury Proceedings (Cianfrani), supra, 563 F.2d at 584. The constitution clothes the legislator with a use immunity, analogous in many ways to the use immunity conferred upon witnesses. To be sure, the Speech or Debate Clause has also been construed to permit a legislator to refrain from testifying about certain legislative acts. In Gravel v. United States, supra, for example, Justice White wrote:
We have no doubt that Senator Gravel may not be made to answer-either in terms of questions or in terms of defending himself from prosecutionfor the events that occurred at the subcommittee
meeting.
408 U.S. at 616. This broad statement was made in the context of a Justice Department concession that a Senator, even a non-target, could not be compelled to testify before a grand jury about a legislative act. 408 U.S. at 616. Gravel also held that the privilege not to testify about legislative acts applied to a Senator's personal aides. Id. at 6 16-18. The Court reasoned that the Senator's testimonial privilege was designed to prevent hostile questioning by the executive branch before a possibly hostile judiciary. The personal aides were included in this testimonial privilege because the complexities of the modern legislative process made reliance upon the assistance of such aides essential. Id. at 617. Thus they, too, were to be protected from potentially hostile questioning. But to the extent &.A the Speech or Debate Clause creates a testimonial privilege as well as a use immunity, it does so only for the purpose of protecting the legislator and those intimately associated with him in the legislative process from the harassment of hostile questioning. It is not designed to encourage confidences by maintaining secrecy, for the legislative process in a democracy has only a limited toleration for secrecy. See U.S. Const. art. 1, 5, cl. 3. As we have said on two other occasions, the privilege when applied to records or third party testimony is one of nonevidentiary use, not of nondisclosure. See United States v. Heistoski, supra; In re Grand Jury Proceedings (Cianfrani), supra.
The policy against permitting hostile questioning, which justifies the testimonial privilege aspect of Speech or Debate Clause protection, is not implicated in this case.





50
Neither Mr. Eilberg nor any of his personal aides has been subpoenaed. Of course, in a very broad sense the Clerk is an aide to every member of the House; but his relationship with any particular member is not such that there is a realistic possibility that questioning of him, hostile or friendly, will have an inhibiting effect upon that member's performance. Indeed in this case we have been informed that for part of the time period covered by the subpoena, the United States Attorney has subpoenaed duplicates of the telephone toll charge records from the Potomac Telephone Company. Hostile questioning of a record custodian from that company would have no inhibiting effect on the Congressman or his personal aides. Mr. Eilberg's relationship with the Clerk of the House, with respect to the
telephone toll charges, is almost equally remote.
Since the testimonial privilege aspect of Speech or
Debate protection is not implicated in this proceeding, while the use immunity aspect clearly is, our attention should focus on the latter in determining what procedure is appropriate for vindicating the Congressman's constitutional rights. The telephone _toll charge records, whether they are obtained from the Clerk of the House or from the telephone company, are equally subject to use immunity.
Obtained from either source, however, they may not be considered secret. Their examination by the Executive branch prior to submission to the Court does not violate the Congressman's use immunity. Thus there is no reason why the United States Attorney should be excluded from participation in the judicial determination of the scope of that immunity. (Slip Opinion 12-14; this report at 222-224.)
Since the District Court was held to have erred, in concluding that the Speech or Debate clause didn't protect calls which were legislative acts, the Court of Appeals outlined the following procedure to be followed in determining which calls should be kept from the grand jury:
Since the Congressman is asserting a use privilege personal to him, and since the information as to which calls were legislative acts is in his possession alone, the burden of going forward and of persuasion by a preponderance of the evidence falls on him. He should be permitted to indicate by affidavit or testimony those calls which he contends are privileged. If the United States Attorney contests that showing he should be permitted to offer evidence in opposition. Placing the burden of going forward and of persuasion on Mr. Eilberg presents, of course, the possibility that he will have to testify, and that the government will attempt to use that testimony against him if he should later be indicted and tried. Since, however, such testimony may be required in order to vindicate what the Congressman believes to be a valid constitutional right, no testimony so elicited may be used against him in any subsequent prosecution. Simmons v. United States,, 390





51
U.S. 377, 393-94 (1968); United States v. Inmon, 568 F. 2d 326, 332-33 (3d Cir. 1977). Appropriate steps should, of course, be taken to shield the grand jury from inadvertent exposure to material found to be privileged. [Slip Opinion
at 14-15; this report at 224-225.]
The Court of Appeals also rejected the argument of the United States Attorney that because a witness may not refuse to answer grand jury questions on the ground that the questions were based upon evidence obtained in violation of the Fourth Amendment, a congressman who is a target of a grand jury investigation should not be heard in opposition to the use of evidence of his constitutionally-protected legislative acts. The court concluded:
We see no parallel between the two situations. In Calandra the constitutional violation was, at least according to the Court's current majority, an unlawful search and not the subsequent use of the evidence so procured. The exclusionary rule, Justice Powell reasoned, is merely a nonconstitutional prophylactic rule aimed at future violations.
414 U.S. at 354. Under the Speech or Debate Clause, however, the constitutional violation is the use of legislative acts against a legislator. Unlike a violation of the Fourth Amendment, which the Calandra Court held to be a past abuse and thus the lawful basis for subsequent grand jury questioning, it is the very act of questioning that triggers the protections of the Speech or Debate Clause. In United States v. Helstoski, supra, we refused to issue a writ of mandamus to order a district court to dismiss an indictment said to be the product of Speech or Debate Clause violations. In Helstoski, however, we deferred consideration of the question whether such a dismissal is required until an appeal from a conviction. 576 F. 2d at 519. Thus Helstoski is not authority for the proposition that materials falling within the protections of the Speech or Debate Clause may, over the timely objection of an affected legislator, be submitted to a grand jury. Gravel v. United States, supra, involved just such an objection, and its authority in this respect is in no way impaired by United States v. Calandra, supra, or United States v. Helstoski,
supra. (Slip Opinion at 15; this report at 225.)
On December 4, 1978, Representative Eilberg filed a petition for rehearing en banc.
The Government filed a petition for rehearing en banc on December 13, 1978.
The Court of Appeals denied former Congressman Eilberg's petition on January 9, 1979.
On February 15, 1979, Mr. Eilberg moved for a continued stay of mandate to and including March 9, 1979.
A
The motion was granted on February 26, 1979.
On March 12, 1979, a certified judgment in lieu of a formal mandate was issued.
Status.-No further action has been taken.





52
The opinion of the Court of Appeals regarding the Motion ooff Philadelphia Newspapers, Inc. and James Smith to intervene and for access to court records is printed in the "Decisions" section of this report at 203.
The opinion of the Court of Appeals regarding Congressman Eilberg's appeal Lis printed in the "Decisions" section of this report at 211.






of
id
of


III. POWERS OF CONGRESSIONAL COMMITTEES
Koniag, Inc. v. Andrus (formerly Kleppe)
No. 78-512 (U.S. Supreme Court)
Brief.-These actions were filed in the United States District
Court for the District of Columbia by 11 Alaskan communities challenging decisions of the Secretary of the Interior which found each of them ineligible to receive land and money under the Alaska Native Claims Settlement Act (hereinafter "Claims Settlement Act"), 43 U.S.C. 1601 et seq. (Supp. 111, 1973.) [Civil Action Nos. 74-1061, 74-1134, 74-1790 to 74-1795, 75-452, 75-485, and 751097 (D.D.C.).]
The cases were consolidated in the District Court for resolution
of those questions which plaintiffs and the defendant agreed could be adequately presented on cross-motions for summary judgment.
The Claims Settlement Act sought to accomplish a fair, and
rapid settlement of all aboriginal claims by Natives and Native groups of Alaska without litigation. Under it, 40 million acres of land and $962.2 million were to be disbursed to regional corporations and villages that qualified. The Secretary of the Interior was given the responsibility of administering the program outlined in the legislation. Among his responsibilities was the final determination of which applicants were "villages", as defined by the Claims Settlement Act, which were eligible for participation in the distribution. The Secretary's regulations required the Juneau, Alaska, Area Office of the Bureau of Indian Affairs to make these determinations not later than December 19, 1973. Prior to reaching a decision, the Area Office was required to publish proposed decisions, which became final unless appealed within 30 days. Upon receipt of a protest the Area Director was to consider and evaluate it and render a decision within 30 days. These decisions then became final unless an "aggrieved party" appealed to the Secretary of the Interior by filing a notice with the Alaska Native Claims Appeal Board (hereinafter "Board"). The Secretary of the Interior reserved to himself the right to make the ultimate decision in each
case.
If a case was appealed, however, a record was usually built by
assigning the case to an administrative law judge from Interior, who would hear the case de novo in an adversary proceeding. At these hearings the "aggrieved parties" were usually represented by an attorney from the Interior Department's Solicitor's Office. The administrative law judge would hear evidence and make his decision in camera. The decision was forwarded in camera to the Board without being served on the communities. The Board made a formal decision and submitted it to the Secretary of the Interior in camera. The Secretary then consulted with his staff and reached a final decision. Only then were the communities notified as to what
decisions had been reached.
(53)





54
In these cases the Area Director issued decisions determining that the 11 communities were "villages" eligible for benefits under the Claims Settlement Act. The Fish and Wildlife Service, the Forest Service, or the State of Alaska, and certain environmental groups appealed one or another of the 11 decisions. After full de novo proceedings before the administrative law judge and the Board, the Secretary's decision was that three of the communities were of one class of "villages" but not of another, thus reducing the benefits to which the communities believed they were entitled. The other eight iDlaintiffs were determined not to be "villages" as defined by the Claims Settlement Act. The 11 communities brought actions to obtain judicial relief from the Secretary's decisions.
While the village claims were being considered by the Secretary, the Subcommittee on Fisheries and Wildlife Conservation and the Environment of the House Committee on Merchant Marine and Fisheries, chaired by Representative John Dingell, held hearings which were described as oversight hearings on the implementation of the Claims Settlement Act by the Department of the Interior.
Plaintiffs argued that these hearings adversely affected their position on the issues in dispute and improperly influenced the ultimate decisions by the Secretary. In particular, plaintiffs noted the appearance of Kenneth Brown, "who served as legislative counsel and chairman of the Alaska Task Force Working Committee of the Department of the Interior and was one of the Secretary's two principal advisers who reviewed the cases with him at the time he made his decision in the plaintiffs' case." [Koniag, Inc. v. Kleppe, 405 F. Supp. 1360, 1371 (D.D.C. 1975).]
In a memorandum and order handed down on November 14, 1975, United States District Judge Gerhard A. Gesell ruled, inter
0 # I
alia, that the Dingell hearings were an impermissible interference with the administrative process, and that the Area Director's decisions designating plaintiffs as eligible villages should be reinstated since they were the last "untainted" decisions made before December 19, 1973, the date by which the Claims Settlement Act required decisions to be made.
The stated purpose of the hearings, the court noted, was to present a forum for discussing the implementation of the Claims Settlement Act. But, said the 6ourt:
in fact the Committee, through its chairman and staff members, probed deeply into details of contested cases then under consideration indicating that there was "more than meets the eye." The entire rule-making process was re-examined, travel vouchers and other information were sought to probe the adequacy of the investigations made, all papers in the pending proceedings were demanded, the accuracy of data and procedures followed was questioned, and constantly the Committee interjected itself into aspects of the decision-making process. While representatives of Interior indicated they were very concerned about prejudice to the quasi-judicial administrative process, and the chair on several occasions denied that it was his purpose to pressure the agencies involved, Representative Dingell stated that he was obliged to confess that he had doubts as
I I





55
to whether the law was being properly carried out. On key issues now in dispute before the court, representatives of e the Government were obliged to take positions as to the
I interpretation of the Act. A strenuous effort was made by
the chairman to encourage protest and appeals, coupled with comments indicating his clear impression that all that could be done was not being done and that some of the results being reached were contrary to congressional intent. It was following this experience that settlements arranged with two of the plaintiffs * were abandoned by the Department of the Interior because of the hearings.
It should also be noted again that when the Secretary reached the crucial point of making his personal decision on the merits of cases that were investigated and criticized by the Committee he had as one of his two immediate personal advisors Mr. Brown, who had been subjected to the intervention and subtle harassment of the Legislative
Branch.

The Dingell hearings constituted an impermissible congressional interference with the administrative process.
This situation presents a disturbing conflict between the Congress and the Executive Branch, and it is the responsibility of the Judiciary in this instance to prevent an impermissible intrusion by one branch into the domain of the other. It is no less the responsibility of the Court to protect the procedural due process rights of litigants and "to preserve the integrity of the judicial aspect of the administrative process." [Pillsbury Co. v. Federal Trade Commission, 354 F.2d 952, 964 (5th Cir. 1966).] It cannot be gainsaid that the "appearance of impartiality-the sine qua non of American judicial justice-" was sacrificed in this instance. Id. "[P]rivate litigants [have a right] to a fair trial and, equally important, [a] right to the appearance of impartiality, which cannot be maintained unless those who exercise the judicial function are free from powerful external influences," id. The appearance of justice was breached and while the complaining party is not required to shoulder the virtually impossible burden of proving whether and in what way the outcome before the agency was actually influenced by the congressional intrusion, the evidence before the court indicates that the Dingell hearings indeed had a direct and demonstrable effect at least on the cases of [the two plaintiffs with whom the settlement with the Interior Department was abandoned]. [405
F. Supp. at 1371-1372.]
The Department of the Interior appealed each of the cases to the
Court of Appeals and asked that the cases be consolidated for the
purpose of appeal. The motion to consolidate was granted.
On February 23, 1977, the new Secretary of the Interior, Cecil DAndrus, was substituted in place of Thomas S. Kleppe as a party to
these appeals.
The case was argued on March 24, 1977.

43-774 0 79 5





56
The U.S. Court of Appeals for the District of Columbia Circuit issued an opinion on April 28, 1978, affirming in part and reversing in part the ruling of the District Court. In the opinion, fed for the court by Judge Robb, the Circuit Court agreed with the District Court that the appellate procedure established for the determination of appeals made under the Claims Settlement Act did not meet the requirements of due process. The Circuit Court concluded that the original procedure established by the Secretary should have permitted the parties to take- exceptions to the recommended decisions of the administrative law judge and to submit briefs to the Board for its consideration. Rather than directing the reinstatement of the Bureau of Indian Affairs decisions, as the District Court had done, the Circuit Court remanded the cases to the District Court for remand to the Secretary for a redetermination of the appeals.
The decision of the District Court was reversed by the Court of Appeals in regard to the issues of standing and Congressional interference. The Court of Appeals held that the State of Alaska and Federal agencies concerned with the possible impact of determinations made by the Bureau of Indian Affairs Area Office under the Claims Settlement Act had standing under the Interior Department's regulations.
The Circuit Court's opinion rejected the holding of the District Court that the hearings "constituted an impermissible Congressional interference with the administrative process" the lingering effects of which made the usual remedy of remand to the Secretary for redetermination impossible. It is unclear from the opinion whether the Court of Appeals concluded that there was no "interference" with the administrative process, or whether on this point the court only concluded that what "interference" there was was not severe enough to preclude a redetermination by the Secretary. The Appeals Court ruled that the decision in Pillsbury (supra) was not controlling since in this action none of the individuals called to testify before the Subcommittee was a decisionmaker as was the case in Pillsbury. The only possible exception, said the court, was Mr. Brown, who briefed the Secretary on the administrative appeals before the Secretary made his determinations. About Mr. Brown's appearance, the court said:
[E]ven if we assume that the Pillsbury doctrine would reach advisors to the decisionmaker, Mr. Brown was not asked to prejudge any of the claims by characterizing their validity. See Pillsbury Co. v. FTC, supra, at 964. The worst cast that can be put upon the hearings iis that Brown was present when the subcommittee expressed its belief that certain villages had made fraudulent claims and that the Bureau of Indian Affairs decisions were in error. This not
enough. [Slip Opinion at 19.]
The Court of Appeals also dealt with the question of whether a letter sent by Congressman Dingell to the Secretary two days before his determination of the ineligibility of eight of the villages constituted an improper interference in the administrative process. Terming the letter a "more serious matter", the court stated:





57
A more serious matter is a letter that Congressman
Dingell sent to the Secretary two days before he determined that eight of these villages were ineligible. The letter requested the Secretary to postpone his decisions on the cases pending a review and opinion by the Comptroller General, because it "appears from the testimony [at the hearings] that village eligibility and Native enrollment requirements of ANSCA [Alaska Native Claims Settlement Act] have been misinterpreted in the regulations and that certain villages should not have been certified as eligible for land selections under ANSCA." The letter did not specify any particular villages, but we think it compromised the appearance of the Secretary's impartiality.,, D.C.
Federation of Civic Assn's v. Volpe, 148 U.S. App. D.C. 207, 2229 459 F.2d 1231, 1246, cert. denied, 405 U.S. 1030 (1972); see Pillsbury Co. v. FTC, supra, at 964. Nevertheless, a remand to the Secretary, rather than a reinstatement of the BIA decisions, is the proper remedy in this case. Assuming the worst-that the letter contributed to the Secretary's decision in these cases-we cannot say that 3 1/2 years later, a new Secretary in a new administration is thereby rendered incapable of giving these cases a fair and
dispassionate treatment.

9 We of course intimate no view as to the validity of the Congressman's
criticism.
[Slip Opinion at 19-20.]
On April 28, 1978, the cases were remanded to the District Court for remand to the Secretary for redetermination of the appeals.
The appeals were remanded by the District Court to the Secretary on July 31, 1978.
On September 25, 1978, the villages filed a petition for writ of certiorari in the U.S. Supreme Court.
In their petition, the villages noted several questions as being presented, including, inter alia, whether a District Court, having found that administrative proceedings have (a) violated plaintiffs' rights to due process and (b) been tainted by Congressional intrusion into the administrative process, exceeds the bounds of its discretion in fashioning a remedy by reinstating the last untainted determination where Congress has required that the matter before the agency be resolved rapidly and with certainty.
Petitioners sought review of the appellate court's decision with respect to (1) standing, (2) the remedy fashioned by the District Court, (3) the authority of the Secretary to redetermine residence for purposes of village eligibility, and (4) the propriety of the appellate court's remand order in the case of Salamatof Village. Among the reasons to grant certiorari put forth by petitioners is the assertion that the court has the responsibility to mark the appropriate limits of the investigatory power of Congressional committees and to assure the proper functioning of the Federal judiciary.
A brief in opposition to the petition for writ of certiorari was filed for the Secretary of the Interior on November 16, 1978. In the brief it was argued that the decision of the Court of Appeals was correct and was not in conflict with any decision of the Supreme





58
Court, and that the issues presented were not of recurring importance.
The petition for writ of certiorari was denied on December 11, 1978.
Status.-No further action has been taken.
That portion of the District Court's opinion which is of interest to the House of Representatives is printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, Part 1, April 15, 1977.
The opinion of the Court of Appeals is printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, Part 4, May 15, 1978.
Exxon Corp. v. Federal Trade Commission
No. 77-1302 (D.C. Cir.)
No. 78-1176 (U.S. Supreme Court)
Kerr-McGee Corp. v. Federal Trade Commission
No. 77-1303 (D.C. Cir.)
No. 78-1176 (U.S. Supreme Court)
and,
Union Carbide Corp. v. Federal Trade Commission
No. 77-1304 (D.C. Cir.)
Brief. -On May 7, 1976, Union Carbide Corp. (hereinafter "Union Carbide") filed a complaint for injunctive and declaratory relief against the Federal Trade Commission (hereinafter "FIT"), and the Chairman, Commissioners, and Secretary of the FTC, to prevent the FTC from "releasing to two Congressional committees, and thus to the public, commercially sensitive trade secrets relating to plaintiffs' coal and nuclear business, which the Commission is required to keep confidential under Section 6 of the Federal Trade Commission Act, 15 U.S.C. 46(f), and under common law protections for trade secret information." [Verified Complaint for Injunctive and Declaratory Relief, Union Carbide Corp. v. FTC, Civil Action No. 760793 (D.D.C.).] Union Carbide states that pursuant to an FTC subpoena dated January 31, 1975, they turned -over to the FTC commercially sensitive data and trade secrets, and notified the FTC of the confidential nature of the data. The complaint states that Union Carbide and the FTC entered into an agreement that the FTC would give Union Carbide 10 days' notice before releasing any information. On May 5, 1976, the FTC notified Union Carbide that it was considering releasing the data to the Senate Judiciary Committee's Antitrust and Monopoly Subcommittee and to the House Interstate and Foreign Commerce Committee's Subcommittee on Oversight and Investigations, and that the commissioners expected to vote unanimously to release the material by May 7, 1976. Furthermore, despite the 10-day notice agreement, the FTC said that Union Carbide might not receive any further notice. Union Carbide asserted that on numerous previous occasions commercially sensitive trade secret data submitted to Congressional committees and subcommittees had become public. They also alleged that if the FTC released this information it






1 59
would be in violation of 15 U.S.C. 46(f), which says the FTC may make public information it obtains "except trade secrets and the names of customers," and that the release of the data would also violate Union Carbide's common law right of confidentiality of its trade secrets. Union Carbide asked the court to enjoin the defendSt ants from releasing the information to anyone outside the FTC, C. including, but not limited to, any committee or subcommittee of 5t Congress, and to issue a declaratory judgment that the release of
such data would violate 15 U.S.C. 46(f) and Union Carbide's iP common law right to preserve its trade secrets. 11 U.S. District Judge John H. Pratt issued an order on May 7,
1976, enjoining the FTC from releasing the information to any person outside the FTC until 10 days after the disposition of Ashland Oil Co. v. FTC, No. 76-1174 (D.C. Cir.), since it appeared to the court that the same issue was before the U.S. Court of Appeals in that case. [For a brief of Ashland Oil Co. v. FTC, see Court Proceedings and Actions of Vital Interest to the Congress, Part 2,
August 15, 1977, at 25.]
Separate complaints were filed on May 11, 1976, by Exxon Corporation (hereinafter "Exxon") [Exxon Corp. v. FTC, Civil Action No.
76-0812 (D.D.C.)] and Kerr-McGee Corporation (hereinafter "KerrMcGee") [Kerr-McGee Corp. v. FTC, Civil Action No. 76-0814 (D.D.C.)] against the same defendants as in Union Carbide, stating that they had turned over to the FTC certain confidential data relating to uranium mining, milling, exploration and production pursuant to FTC subpoenas issued in early 1975. Their complaints state that they emphasized to the FTC the confidential nature of the information when the materials were turned over to the FTC.
They further state that on May 5, 1976, the staff of the FTC notified them that the Commission was considering the imminent release of the data to the Senate Judiciary Committee's Antitrust and Monopoly Subcommittee and/or individual members of the committee. On May 10, 1976, the staff of the FTC advised them that the material would be turned over on May 11, 1976. Both Exxon and Kerr-McGee assert that "the record of commercially sensitive trade secret information finding its way into the public domain from Congress" shows that there is a high probability that submission of the data to a Congressional subcommittee would result in their release to the public. Both alleged that release of the information by the FTC would violate 1.5 U.S.C. 46(f), 18 U.S.C.
1905, and plaintiffs' common law right to protection of confidentiality of trade secrets. Both asked the court to enjoin the defendants from releasing the information to anyone outside the FTC, including, but not limited to, any committee or subcommittee of Congress, and to issue a declaratory judgment that the release of such information would violate 15 U.S.C. 46(f), 18 U.S.C. 1905, and plaintiffs' common law right to preserve their trade secrets.
The plaintiffs also filed motions for injunctive order similar to the
one granted in Union Carbide.
On May 11, 1976, Judge Pratt issued injunctions in these cases
similar to the one issued on May 7, 1976, in Union Carbide.
On July 8, 1976, the court granted the defendants motion for an
extension of time to file an answer until 20 days after a decision by
the U.S. Court of Appeals in Ashland Oil.




60
On September 20, 1976, the U.S. Court of Appeals issued its decision in Ashland Oil Co. v. FTC, essentially affirming the decision of the District Court that the materials could be turned over to a committee of Congress, without violating 15 U.S.C. 46(f). The Court of Appeals in Ashland then entered a stay of its order until it could rule on a motion for rehearing.
On October 1 1976, Judge Pratt continued the temporary restraining orders in Union Carbide, Exxon, and Kerr-McGee until either he disposed of Union Carbide's motion for a preliminary injunction or the Appeals Court removed its stay in Ashland Oil.
On October 15, 1976, defendants filed their motions to dismiss, based upon the disposition in Ashland OIL
On March 2, 1977, the Appeals Court denied the motion for rehearing in Ashland Oil.
On March 29, 1977, the court in Union Carbide, Exxon, and KerrMcGee concluded that the transmission of data from the FTC to a Congressional committee "does not constitute public disclosure within the meaning of * 15 U.S.C. (Supp. V) 46(f); and that such transmission in this case would not cause irreparable harm to the plaintiff," citing Ashland Oil. The court denied the motions for summary judgment, granted defendants' motions to dismiss and dismissed the cases with prejudice, denied as moot the plaintiffs' motions for a preliminary injunction, and denied the plaintiffs' requests to stay the orders pending appeal.
On March 29, 1977, all three plaintiffs filed notices of appeal.
On March 30, 1977, the U.S. Court of Appeals for the District of Columbia consolidated the appeals of Exxon (No. 77-1302), KerrMcGee (No. 77-1303), and Union Carbide (No. 77-1304) for purposes of appeal, and stayed the order of the District Court. In addition, the Senate Judiciary Committee was asked to advise the court whether it still sought the data originally requested.
On May 3, 1977, a motion by the three companies to expedite the proceedings was denied.
On May 6, 1977, the Appeals Court denied the companies motions for injunctions or stay pending appeals and vacated its stay of March 30, 1976 of the District Court's order. Chief Judge George E. MacKinnon considered it improper to surrender this material to any Member of Congress on a mere request, but felt he was bound by the decision in Ashland Oil.
On August 26, 1977, a- per curiam order was filed dismissing appellant's motion for injunction pending appeal as moot.
On September 30, 1977, Congressman John E. Moss filed a motion for leave to file a brief as amicus curiae.
On October 25, 1977, a Clerk's order was filed granting Congressman Moss' motion for leave to file a brief as amicus curiae and giving appellants 14 days to file a brief in response.
Congressman Moss' brief as amicus curiae and appellant's brief in response thereto were both filed on October 25, 1977.
The consolidated appeals were argued on February 13, 1978.
The Court of Appeals issued its opinion on October 19, 1978, affirming the judgment of the District Court in its entirety. In the opinion for the court filed by Circuit Judge MacKinnon, the question at issue was posed as whether any protective measures should be imposed on the FTC with respect to the divulging to Congress of





61
"trade secrets" obtained by the FTC under the compulsion of a subpoena.
The opinion noted that some of the information that the appellants sought to protect, specifically data concerning Union Carbide's coal holdings, had already been disclosed, and that the appeal was moot as to this material. As to the issues which were not moot, the status of as yet undivulged material, the request for notice prior to disclosure, and the request for steps to be required to ensure that Congress keep such trade secret information confidential, Circuit Judge MacKinnon noted that most represented an attempt to have the court virtually engage in rulemaking for the FTC, which would be inappropriate and potentially overreaching.
Turning to appellants' prayer for a permanent injunction requiring 10 days advance notice to affected parties before the FTC could disclose confidential data pursuant to Congressional request, the Court of Appeals determined first that the material which the FTC proposed to divulge was fully within the scope of the legitimate investigatory powers of Congress. In rejecting the request for a permanent injunction, Circuit Judge MacKinnon stated:
For this court on a continuing basis to mandate an
enforced delay on the legitimate investigations of Congress whenever these inquiries touched on trade secrets could seriously impede the vital investigatory powers of Congress and would be of highly questionable constitutionality.
While normally reasonable advance notice can be required, in exigent circumstances Congress has full authority to issue forthwith subpoenas and formally request immediate disclosure. To impose a mandatory notice period would skirt dangerously close to being at least the temporary "equivalent to an order quashing [the official request or subpoena] which is generally an impermissible frustration of the congressional power to investigate * and hence [would raise] serious constitutional issues," United States v. American Tel. & Tel. Co., 551 F.2d 384, 388 (D.C.
Cir. 1976), citing, Eastland v. United States Servicemen's Fund, 421 U.S. 491, 506 (1975). It would also abrogate the broad discretion of the Commission, e.g., FTC v. Lonning, 539 F-20 202 211 (D.C. Cir. 1976)-through which the FTC can make use of its considerable expertise to balance the private and public interests involved-to formulate its own reasonable confidentiality protections, see FTC v. Anderson, 442 F. Supp. 1118 (D.D.C. 1917). [Slip Opinion at 9.
(Footnote omitted.)]
To impose, any mandatory advance notice would, the Court of Appeals concluded, run directly contrary to the spirit of the U.S. Supreme Court's decision in Eastland v. United States Servicemen's Fund, supra, which emphasized the necessity for courts to refrain from interfering with or delaying the investigatory functions of Congress.
Furthermore, the court found no indication that disclosure to the subcommittee would in any way harm the appellants, since such disclosure does not constitute public disclosure. Reaffirming its rationale in Ashland Oil Inc. v. FTC, 548 F.2d 977 (D.C. Cir. 1976),





62
the opinion stated that absent a showing that it is evident that Congress intends to make trade secrets divulged to it by the FTC publicly available, the FTC may, upon proper demand, release such secrets to the Congress without the necessity of prior notice to the parties involved, unless such information was obtained upon an agreement to give prior notice.
The Court of Appeals also rejected appellant's contention that the FTC should be required to obtain assurances that confidential information will not be publicly disclosed unless a majority of the members of the committee or subcommittee vote to do so. The opinion stated that for the court to establish such a requirement on the record in this case would clearly involve an unacceptable judicial intrusion into the internal operations of Congress. In regard to the possibility of leaks, the Court of Appeals stated:
If, in fact, a Member or congressional staff member improperly "leaks" confidential data, the injured parties have a recourse against that individual directly, and the possibility of such action will serve to deter unjustified disclosure of trade secrets. Beyond provision for such suits, and in the absence of a concrete violation of law, rule or regulation, the courts are unable to aid the appellants in their request to oversee the activities of the legislature, allegations of the prevalence of "leaks" from some commit, tees notwithstanding. The FTC should, and does, alert Congress when the information made available to it is confidential. In fact, some such cautionary statement could be impliedly required from the prohibition on the public disclosure of trade secrets imposed by 15 U.S.C. 46(f). If the Commission failed to alert Congress to the fact that information being supplied to it was by statute prohibited from "public" disclosure the Commission would violate a duty implicitly imposed upon it by the statute. To impose further protective procedures upon Congress, without some immediate threat of illegal disclosure, would impermissibly interfere with the legislative branch-an action we refuse to take. [Slip Opinion at 15. (Footnote omitted.)]
The Court of Appeals also declined to restrict the right of the FTC to discuss with Members of Congress or their staff, prior to Congressional demand, the general nature of available data and thus inform Congress about relevant information of which it may be unaware. The opinion noted that barring some prohibition, governmental agencies may interchange information, and that most problems in this connection will be obviated if the Commission merely notifies Congress whenever confidential trade secrets are requested or involved in potential delivery.
The opinion emphasized that the denial of appellants' requested injunctive and declaratory relief designed to limit the manner in which the FTC may respond to a subpoena or formal request, did not address the question of when a formal request or subpoena has been properly issued. The Court of Appeals stated that it is important that disclosure of information can only be compelled by authority of Congress or its committees or subcommittees, not solely by individual Members; and only for investigation and Congression-





63
at
C al activities. In regard to ordinary publicly available information,
there is no need to require the FTC to determine whether or not a request for such information is in fact a proper formal request or ie subpoena, which satisfies the requirement of the controlling Conal gressional rule. Trade secrets, however, may not be divulged except
at upon verified legally authorized requests, the opinion noted. While al noting that it did not clearly appear that the request sent to the ie FTC by Senator Hart was a formal request authorized by the ie subcommittee, the Court of Appeals assumed that the FTC had
verified that the request had been properly authorized.
in The opinion also noted that in appealing a refusal to grant
equitable relief, appellants bore heavy a burden and that to grant such relief the Court of Appeals would be required to interfere in the operation of Congress and also to depart from traditional doctrine concerning the availability of equitable relief.
On November 2, 1978, appellants filed a petition for rehearing
and a suggestion for rehearing en banc, which were both denied on
December 6, 1978.
Exxon and Kerr-McGee filed a petition for a writ of certiorari
in the U.S. Supreme Court on January 26, 1979.
Status.-The petition for writ of certiorari is pending before the
U.S. Supreme Court.
The complete text of the orders of the District Court are printed
in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress., Part 2, August 15, 1977, at 247 (Union
Carbide), 243 (Exxon), and 245 (Kerr-McGee).
The opinion of the Court of Appeals is printed in the "Decisions"
section of the report Court Proceedings and Actions of Vital Interest to the Congress, current to December 31, 1978.
NOTIZ.-In a footnote to its orders of March 29, 1977, the District
Court stated that it was aware of footnote 63 in a decision by the Court of Appeals in FTC v. Texaco, No. 74-1547 (D.C. Cir. Feb. 23,
1977). Footnote 63 states:
We think it not unreasonable to require notice to the producers even in the event of a proposed release to Congress, since the circumstances surrounding such a disclosure cannot presently be ascertained. [See Ashland Oil v.
FTC 548 F.2d 977.]
The court concluded: "we believe that action to be legally and t factually distinguishable from the case at bar." In Texaco, the FTC I had undertaken an investigation to determine whether certain corporations were violating Section 5 of the Federal Trade Commission Act by deliberately understating gas reserves in southern i Louisiana. After an informal investigation effort proved inadequate, the Bureau of Competition of the FTC determined that the issuance of subpoenas would be necessary, and on June 3, 1971, the Commission issued a resolution directing the use of compulsory process in a nonpublic investigation. The companies refused to comply with the subpoenas which were subsequently issued, and the FTC filed petitions for enforcement in the Federal District
Court.





64
The companies argued that the accuracy of the gas reserves estimates had already been determined by the Federal Power Commission in ratemaking proceedings before that body prior to 1971, and therefore it was improper for the FTC to subpoena documents for the same purpose. The District Court agreed, and determined, in general, that the FTC could only receive documents from 196971 and could use them only to investigate the possibility of a conspiracy in reporting reserves, but could not use them to determine reserves. In addition the court ruled that the documents used in that investigation could only be reviewed by FTC personnel assigned to that investigation, and had to be returned to the companies at the conclusion of the investigation, unless the court ruled otherwise.
A Court of Appeals panel upheld the decision of the District Court, but the panel's decision was vacated by the en banc Court of Appeals when it decided to rehear the case en banc. Among the parts of the District Court's order which the en banc court modified in its opinion and order of February 23, 1977, was the part dealing with protection of confidentiality of the information claimed by the companies. The en banc court concluded that until the FTC had a chance to review the documents and rule on specific requests of confidentiality the District Court's order was premature and improper. They continued:
Accordingly, we accept with some modifications, the FIPC's proposed confidentiality protection, which would provide notice to the producers of any FTC decision. Specifically, we order that the FTC not disclose any of the documents produced which a company designates as confidential to any person [fn. 63] outside the employ of the FTC (other than an outside consultant retained by the FTC who has agreed not to disclose the documents) without first giving the company ten days' notice of its intention to do so. Such a procedure would, of course, provide an opportunity for judicial review at some later date, if the producers believe that a particular proposed disclosure is improper. [FW v.
Texaco, No. 74-1547 (D.C. Cir. Feb. 23, 1977); Slip Opinion
at 43-44.]
United States v. Berrellez
Cr. No. 78-00120-01 (D.D.C.)
and,
In re United States of Amerka
No. 78-2158 (D.C. Cir.)
Brief -On March 20, 1978, a six-count information was filed in U.S. District Court for the District of Columbia against Robert Berrellez. The first count charges the defendant with a violation of 18 U.S.C. 371 (Conspiracy). Specifically, Mr. Berrellez is charged with conspiring with Harold V. Hendrix, who is not charged in the information, and other persons from March 1972 to March 21, 1973, to: (1) obstruct a proceeding of the Subcommittee on Multinational Corporations of the Committee on Foreign Relations of the U.S. Senate (hereinafter "Subcommittee"), (2) commit perjury, and (3)





65
Is
defraud the United States of and concerning its right to have the business of the Subcommittee conducted honestly and impartially.
The second count charges the defendant with violating 18 U.S.C.
1505 (Obstruction of Proceedings) by giving false and blatantly evasive testimony before the Subcommittee concerning communications and relationships between employees, officers, and directors of the International Telephone and Telegraph Corporation (hereinafter "ITT") and Central Intelligence Agency (hereinafter "CIA") officials and communications and relationships between employees, officers and directors of ITT and certain Chileans. The third and fourth counts charge defendant with violating 18 U.S.C. 1621 by committing perjury before the Subcommittee. The fifth count charges the defendant with perjury before a panel of arbitrators of the American Arbitration Association (hereinafter "Panel"). Mr.
Berrellez had testified in June 1974, before the Panel, which was seeking to ascertain, in the course of conducting an arbitration proceeding, what activities of ITT were undertaken in Chile and elsewhere with regard to the 1970 Chilean Presidential election. On the basis of the same testimony upon which count five is based, the sixth count charges Mr. Berrellez with violating 18 U.S.C. 1001 by knowingly and willfully making false and fictitious statements and representations as to material facts in connection with a matter within the jurisdiction of an agency of the United States, specifically, the Overseas Private Investment Corporation.
Defendant pleaded not guilty on March 29, 1978.
On April 27, 1978, defendant moved to dismiss the information.
Mr. Berrellez' motion to dismiss was argued on August 18, 1978,
and taken under advisement. On August 21, 1978, the motion to
dismiss was denied.
On September 29, 1978, Mr. Berellez moved to dismiss counts 5
and 6 of the information for failure to state an offense against the United States. The motions to dismiss counts 5 and 6 were denied
on October 18, 1978.
,On October 18, 1978, the Government moved for a protective
order requiring that, for reasons of national security, defendant and/or his attorney shall not disclose any information, question any witness, nor shall any witness volunteer any information regarding the past or present location of any CIA station, base, installation, or facility, or the presence of any CIA officer or employee in any location except for Langley, Virginia, Buenos Aires, Argentina, Santiago, Chile, and Miami, Florida, or the past and present relationship and/or communications between any Chilean and the CIA or any CIA officer or employee without the prior authorization of the court, or reveal any CIA source or contact other than an ITT official. And requiring that the Government be given notice and an opportunity to obtain an in camera judicial determination of relevance before such information is divulged in
court.
On October 23, 1978, the Government's motion for a protective
order was heard and denied and the oral motion of the Government to strike various alleged overt acts from the information was
heard and granted, and a jury and alternator were called.
On October 24, 1978, the jury and alternates were dismissed and
a status call set for October 30, 1978. At the status call, the Gov-





66
ernment stated that it would seek a writ of mandamus from the Court of Appeals regarding the District Court's denial of the protective order and Judge Robinson order the trial continued until a ruling from the U.S. Court of Appeals regarding mandamus.
On November 8, 1978, the Government moved in the District Court to amend pages 4 through 7 of the information to reflect the changes made by the motion of October 23, 1978.
On November 9, 1978, the Government filed a petition for writ of mandamus in the U.S. Court of Appeals for District of Columbia Circuit (In re United States of America, No. 78-2158), requiring District Judge Robinson to issue the protective order providing for in camera judicial determination of relevance and to rule, in connection with such an in camera determination, "that information that is not relevant to an element of the offenses charged or to a legally cognizable affirmative defense may not be elicited in open court for the purpose of seeking to influence the jury to exercise its power of multification and "that the defendant may not elicit extremely sensitive national security information based on the theory that he was induced to commit the crimes charged by Government agents whose purpose was not to obtain evidence in order to commence a criminal prosecution against him."
Mr. Berrellez filed a response in opposition to the Government's petition for a writ of mandamus on December 13, 1978, contending that the petition was essentially an attempt to obtain interlocutory appellate review of matters within the trial court's discretion not properly raised by means of a writ of mandamus and incapable of being decided in advance of trial.
On January 2, 1979, the Government filed a reply brief in support of its petition.
On January 26, 1979, the Court of Appeals issued a per curiam order denying the petition for writ of mandamus. In an accompanying memorandum, the petition was termed premature and not a case warranting piecemeal, interlocutory appeal. The memorandum also noted that the District Court has shown a proper sensitivity to the requirements of national security. At a status call on February 8, 1979, Iin the District Court, the Government moved orally for dismissal of the information. The motion was heard and granted and Mr. Berrellez was discharged. Status.-The case has been closed. The order and accompanying memorandum of the Court of Appeals is printed 'in the "Decisions" section of this report at 227.
United States v. Gerrity
Cr. No. 78-00121-01 (D.D.C.)
Brief -On March 20, 1978, a six-count information was filed in U.S. District Court for the District of Columbia against Edward J. Gerrity, Jr. The first count charges the defendant with violating 18 U.S.C. 1505 (Obstruction of Proceedings) by giving false and blatantly evasive testimony before the Subcommittee on Multinational Corporations of the Committee on Foreign Relations of the United States Senate (hereinafter "Subcommittee") in March and April of 1973. The testimony was given in the course of an investigation being conducted by the Subcommittee into actions by or on behalf





67
of the International Telephone and Telegraph Corporation (hereinafter "ITT") in relation to the course of the Presidential election in a Chile in 1970. The second and third counts, also arising from
defendant's testimony before the Subcommittee, charge him with violating 18 U.S.C. 1621 (Perjury). The fourth count charges Mr. ie Gerrity with a violation of 18 U.S.C. 1622 by suborning perjury by

)f Harold V. Hendrix in testimony before the Subcommittee. The fifth
count charges the defendant with perjury before a panel of arbitrators of the American Arbitration Association (hereinafter "Panel"). 19 Mr. Gerrity had testified in June 1974, before the Panel, which was
seeking to ascertain what activities of ITT were undertaken in Chile and elsewhere with regard to the 1970 Chilean Presidential n election. On the basis of the same testimony upon which count five a is based, the sixth count charges Mr. Gerrity with violating 18 n U.S.C. 1001 by knowingly and willfully making false and fictitious S statements and representations as to material facts in connection it with a matter within the jurisdiction of an agency of the United' e States, specifically, the Overseas Private Investment Corporation. Y Defendant pleaded not guilty on April 28, 1978.
On May 19, 1978, the Government moved for a protective order
and filed its response to Mr. Gerrity's motion for a bill of particuS lars.
9 Defendant moved on June 2, 1978 to dismiss Count 1 for failure
to state a violation of Title 18 U.S.C. 1505 and on grounds of t vagueness; to dismiss Counts 2 and 5 on grounds of duplicity; to
dismiss Count 4 on grounds of improper venue; to dismiss Counts 2, 3, and 4 on grounds of incompetency of the tribunal and immateriality of the inquiry; to dismiss Counts 5 and 6 for failure to state an offense against the United States and for failure of a material matter; and to dismiss Count 6 as inappropriate in this information, or in the alternative, to force the Government to elect between Counts 5 and 6. Mr. Gerrity also moved on June 2, 1978 to dismiss the information on the ground that his waiver of the
constitutionally-required indictment was ineffective.
On August 18, 1978, at a hearing on Mr. Gerrity's motions to
dismiss, the Government stated that it would not prosecute Counts 4, 5 and 6 of the information. Therefore, the motions pertaining to those counts were not argued. The motion to dismiss the entire information because of ineffective waiver of indictment was submitted on pleadings. The other motions attacking the information were argued and taken under advisement. The motions were
denied on August 21, 1978.
On September 27, 1978, the Government moved to dismiss
Counts 4, 5 and 6 of the information. The counts were dismissed on
October 5, 1978.
On November 8, 1978, the trial which had been set for December
4, 1978, was continued to a day not less than, 45 days after a verdict
or other resolution in United States v. Berrellez (Cr. 78-120).
On March 7, 1979, the information was dismissed on the motion
of the Government.
Status.-The case has been closed.




68
Holy Spirit Association for the Unification of World Christianity et
aL v. Fraser et aL
Civil Action No. 78-1153 ( D.D.C.)
Brief -This suit was filed in the U.S. District Court for the District of Columbia on June 22, 1978. Plaintiffs are the Holy Spirit Association for the Unification of World Christianity, (hereinafter "the Unification Church") and Bo Hi Pak, a South Korean citizen. Named as defendants in the suit are Donald M. Fraser, a U.S. Representative from Minnesota and chairman of the Subcommittee on International Organizations of the House Committee on International Relations (hereinafter "Subcommittee") and two staff members of that Subcommittee, Edwin H. Grogert and Martin J. Lewin.
The complaint contains two counts. The first count alleges a conspiracy by defendants to deprive the plaintiffs and the members of the Unification Church of their constitutional rights. Specifically, it is claimed that defendants and other unnamed individuals have conspired to deprive plaintiffs and "all persons associated with the Unification Church and Bo Hi Pak" of their rights of free speech, freedom of association, freedom of expression and freedom of reli ion. Plaintiffs allege that Congressman Fraser distributed defamatory materials regarding plaintiff, attempted to "deceive and trick" Bo Hi Pak during Pak's testimony before the Subcomtee, caused the payment of fees to witnesses who testified before the Subcommittee, and leaked, or permitted leaking of testimony given by Bo Hi Pak in Executive Session. The plaintiffs claim that these activities, in addition to violating their rights of freedom of religious exercise and association, damaged their reputation and resulted in financial damage to them due to curtailment of their activities and a reduction in financial contributions to the Unification Church. As relief under the first count, plaintiffs seek an injunction barring defendants from violating or conspiring to violate plaintiffs' rights under the First, Fourth, or Fifth Amendments and $5 million in compensatory damages and $10 million in punitive damages. I
The second count asserts that defendants have deprived plaintiffs of their constitutional rights. It is also specifically alleged, in addition to the acts alleged in count one, that defendants Grogert and Lewin, representing themselves as architects, gained entry to a Washington, D.C., Unification Church building. Plaintiffs claim that as a result of this action by Grogert and Lewin, their rights to the free expression and exercise of their religion were abridged, their right of free association was impaired, they were subject to a warrantless search, and they were deprived of the due process of the law. Plaintiffs contend that the activities complained of in count two also resulted in damage to their reputations and financial harm. Their demands include an injunction, $5 million in compensatory damages and $10 million in punitive damages under count two, the same relief demanded under count one.
On October 10, 1978, defendants moved to dismiss the complaint or, in the alternative, for summary judgment.
On January 25, 1979, the Unification Church riled an amended complaint. The amended complaint, while restructuring the allegations of the original complaint, contains each of the allegations





69
set out in the original. Additionally, count one of the amended complaint also contains allegations which had not been made in the original complaint. The allegation is made in the amended complaint that Congressman Fraser intentionally and maliciously and without any valid legislative purpose publicly distributed outside the halls of Congress various materials regarding plaintiffs or persons associated with plaintiffs which were false, defamatory n,
S. and libelous per se. The alleged statements were to the effect that
the Unification Church was organized by a director of the Korean Central Intelligence Agency who has used it as a political tool; ff that Colonel Pak "was in trouble because he had attempted to J initiate into his church (i.e., to have sexual relations with) the
wife of a visiting ROK official"; that the Unification Church a interprets the Bible in sexual terms and maintains that religious
experience is interrelated with sex; and that Sun Myung Moon, the leader of the church, was once arrested because of the sexual practices of the church. Plaintiffs claim in the amended comd plaint that they advised defendants that the statements were false
and defamatory. Plaintiffs also allege that the committee, prior to publication of the subcommittee's Final Report, at the direction of Congressman Fraser, falsely and fraudulently represented to plaintiffs that subcommittee procedures prevented advance notice
and comment on materials to be published.
On March 14, 1979, the court having found that the plaintiffs'
amended complaint should be clarified before defendants are required to file a responsive pleading or motion, ordered that plainf tiffs file a more definite statement setting out those facts on
which they intend to rely.
Status.-The case is pending in the U.S. District Court.
In re Beef Industry Antitrust Litigation
No. 78-3344 (Fifth Cir.)
Brief.-In the course of conducting investigations of marketing
restrictions and unfair competition in the beef industry, the Subcommittee on Oversight and Investigation of the House Committee on Interstate and Foreign Commerce and the Subcommittee on Small Business Administration and Small Business Investment Companies of -the House Committee on Small Business, issued subpoenas duces tecum to some of the plaintiffs in In re: Beef Industry Antitrust Litigation. At least some of the documents sought by the committees were subject to a protective order previously issued by
the court on November 23, 1976.
Those parties who were recipients of the committees' subpoenas
asked the court to either clarify or modify its order to allow compliance with the committees' subpoenas. A hearing was held on the motion on March 22, 1978. On April 4, 1978, the motion was
denied.
On May 30, 1.978, the Subcommittees and the Clerk of the House
filed with the District Court a "Motion For Leave to File". In the motion, the Subcommittees and the Clerk supported plaintiffs' earlier motion for leave to comply with the Subcommittees' subpoenas.
On July 27, 1978 the District Court held a hearing on the motion
filed by the Subcommittees and the Clerk of the House.





70
On August 17, 1978, United States District Judge Taylor, in a memorandum opinion, denied the motion of the Congressional movants for clarification or modification of the protective order. Judge Taylor stated that the sole question was whether Congress can subpoena documents in the hands of a litigant who would not otherwise have them except for the discovery procedure of the Federal courts when there has been no showing of extraordinary circumstances. The memorandum opinion noted that the persons subpoenaed would not have, had the documents but for the discovery rules of the Federal courts and that the Congressional movants had not based their motion on any extraordinary need for the documents to be subpoenaed front those particular individuals. Judge Taylor held that Congress, by subpoenaing the documents was interfering with the processes of a Federal court in an individual case. Furthermore, the memorandum opinion stated, had a protective order not been in force covering the documents, a motion for one would have been entertained by the court.
On September 11, 1978, the Congressional movants, filed a notice of appeal with the United States Court of Appeals for the Fifth Circuit of the denial of their motion for clarification or modification of the protective order.
On November'27, 1978, the Congressional-appellants filed a motion that their appeal be separated from other appeals growing out of this multidistrict litigation, with which it was docketed; for expedited oral argument; and for an early decision as soon as practicable after oral argument.
On December 4, 1978, appellee, Iowa Beef Processors, Inc., filed a memorandum in opposition to appellants' motion to expedite, on the grounds that appellants have not acted expeditiously themselves and that appellants have made no showing to justify expedited treatment.
On December 5, 1978, appellee, The National Provisioner, Inc., filed a motion to dismiss the appeal of the Congressional-appellants for lack of jurisdiction and as unauthorized. On December 7, 1978, United States Circuit Judge, Robert A. Ainsworth, Jr., issued an order, dismissing that portion of the Congressional-appellants' motion to separate their appeal, since the Clerk had separately docketed other appeals growing out of this multidistrict litigation; and granted that part of their motion to expedite subject to the classification of the case under the court's screening procedures.
On February 2, 1979, a 3-Judge panel of the Fifth Circuit Court of Appeals issued its unanimous decision. The panel's opinion focused upon the status of the Congressional litigants seeking modification of the District Court's protective order and did not reach the substantive questions on Congressional access to documents involved Iin judicial actions,,
The panel initially characterized the status of the Congressional litigants as that of intervenors. The court noted that these litigants had not sought to comply with Rule 24(c) of the Federal Rules of Civil Procedure governing intervention in actions before the Federal courts, but had instead characterized their involvement in the action as seeking leave to file a motion to grant the




71

request of a party to clarify or modify the protective order. The panel'iconcluded that:

There is no question that the procedurally correct
course for the chairmen would have been first to obtain status in the suits as intervenors. See SEC v. Lincoln Thrift Association, supra, 577 F.2d at 603. However, we note that the district court denied the plaintiffs' motion for leave to comply with the congressional subpoenas, "without prejudice to the right of the Committee and its counsel to appear before this court and ask for the relief that it seeks." This could be construed as an invitation to the chairmen to file their motion without first seeking formal intervention; indeed, the appellees use the words permittedd to intervene" when referring to the appellants' status in the motion to dismiss. See West v. Radio-KeithOrpheum Corp., 2 Cir. 1934, 70 F.2d 621, 624, cited in SEC v. Lincoln Thrift Association, supra, 577 F.2d at 602 (creditors had standing because they were "brought in in invitum"). Compare United States v. United Fruit Co., supra, 410 F.2d at 544 ("The [protective] order provided that third parties could not, without an express order of the
court inspect or copy any document submitted *")
Roach v. Churchman, supra, 457 F.2d at 1104 (affording relief to a participant without formally naming it as a party deemed "equivalent to authorizing" intervention).
In view of our lenience in the past and the fact that the district court's acts might be considered equivalent to authorizing intervention, we will not dismiss for the failure to comply with Rule 24(c), but we will assume that the district court implicitly authorized the chairmen to intervene. However, we reiterate that a formal motion for intervention should have been filed pursuant to Rule
24(c)..
[Slip Opinion at 3067; this report at 234-235.] The court next turned to the question of whether authorization by the House of Representatives was a necessary requirement for the congressional litigants participation in the case. The court declared:

In response to the appeal filed by the chairmen, one of
the defendants, the National Provisioner, Inc., filed a motion to dismiss because neither subcommittee had obtained authorization from the House of Representatives before it sought to file the motion in the district court; we note ourselves that neither has obtained authority to appeal. The premise of the motion to dismiss is that authorization is required by Rule XI, cI. 2(m)(2)(B) of the Rules of the House of Representatives for the 95th Congress, H.R. Doc. No. 94-663, 94th Cong., 2d Sess. (1977), before a congressman may appear in court on behalf of a
committee or subcommittee; that rule provides:

43-774 0 79 6





72
Compliance with any subpoena [sic] issued by a committee or subcommittee * may be enforced only as authorized or directed by the House. The position of the chairmen is that authorization under this rule is not required both because they seek modification of a court order rather than judicial enforcement of a congressional subpoena and also because they do not desire to retain outside counsel to represent their subcommittees in court. However, they point to no other rule and to no statute that confers general authority to prosecute or intervene in law suits or
undertake other actions in the courts. [Slip Opinion at 3068; this Report at 235.1
The court noted that Congressman Moss, one of the litigants here, had earlier sought House approval for his intervention in Ashland Oi4 Inc. v. F.T.C., DDC 1976, 409 F. Supp. 297, affd 179 U.S. App. D.C. 22, 548 F.2d 977 (per curiam). In reviewing the House's grant of authority in that action the court stated:
The resolution passed by the House authorized Congressman Moss to "intervene and appear" in the pending action in district court on behalf of the committee. The report accompanying the resolution, H.R. Rep. No. 94756, explained why the resolution was necessary. It noted, "The Supreme Court has ruled that a committee (or subittee) must have specific authority from the appropriate House in order to undertake any court action.
Reed v. County Commissioners, 277 U.S. 376, 48 S. Ct. 531,
72 L. Ed. 924 (1928). 4 (Emphasis supplied.)
4 In Reed v. County Commissioners, 1928, 277 U.S. 376, 48 S. Ct. 531, 72
L. Ed. 924, the Supreme Court dismissed a suit brought to compel the production of documents because the members of the committee were not specifically authorized by the Senate to bring suit. Specific authorization has also been required in the context of prosecutions for contempt of Congress. Cf. Gojack v. United States, 1966, 384 U.S. 702, 716, 86 S. Ct. 1689, 1698, 16 L. Ed. 2d 870, 880 ("The line of authority from the House to the Committee and then to the subcommittee must plainly and
explicitly appear").
H.R. Rep. No. 94-756 at 22. The resolution was approved with unanimous consent. 121 Cong. Rec. 41707 (1975). After obtaining authorization, Congressman Moss sought and was granted leave to intervene in
the suit pursuant to F.R.C.P. 24(a). 409 F. Supp. at 301.
[Sl*p Opinion at 3068-3069; this Report at 236-237.1
Continuing its analysis of the Ashland Oil case, the panel noted that in that action 'Congressman Moss was seeking the lifting of a temporary restraining order, not the modification of a protective order and that in Ashland Oil the hiring of special counsel to represent the Congressional interest was authorized. Addressing itself to these distinctions the panel declared:
In Ashland Oil, Congressman Moss was not seeking to
obtain judicial enforcement of a congressional subpoena; he intervened to obtain the dissolution of the temporary





73
restraining order that prevented the FTC from sending requested documents to his committee, and to oppose any temporary or permanent injunction that Ashland Oil might have sought to prevent the transfer of the documents for a longer period. Moreover, although special counsel was authorized in H.R. Res. 899, that was not the sole purpose of the resolution; it is clear that the resolution was submitted and passed because the Congressman himself stated that he needed such authorization. See, e.g., H.R. Rep. No. 94-756 at 20-21. Neither the resolution nor the accompanying report provide any basis to supIS port the view that under the House rules authorization is
in required only when special counsel is to be retained.
19 [Slip Opinion at 3069; this Report at 237.] e In conclusion the panel stated:
Thus based on the practice in the House of Representatives,'as revealed by Congressman Moss's actions in the Ashland Oil case, it is apparent that Rule XI, cl.
2(m)(2)(B) requires House authorization not only for direct enforcement of a subpoena but also in any iinstance when a House committee seeks to institute or to intervene in litigation and, of course, to appeal from a court decision, particularly when the purpose is, as here, to obtain the effectuation of a subpoena. Congressman Smith and Moss failed to obtain a House resolution or any other similar authority before they sought to intervene in the beef industry case. If every subcommittee of the Congress is to have inherent authority to intervene in pending suits, to file motions in litigation throughout the nation and to prosecute appeals from district court decisions, a general grant of authority by statute or resolution would appear appropriate. In the absence either of such a general authorization or specific authorization for the actions here taken, the motion to dismiss the appeal
5
Js granted.
51n view of our disposition of the case, we need not consider, sua
sponge, the question of the mootness of the congressional subpoenas.
Since the 95th Congress has adjourned, the subpoenas may no longer be ,d in force. See Eastland v. United States Servicemen's Fund, 1975, 421 U.S.
I a 491, 512 95 S. Ct. 1813, 1826, 44 L. Ed. 2d 324, 341. Neither need we
Ve consider the validity of the technical objection that, in ling the appeal,
the chairmen 'appeared to act individually and not in fheir official 10 capacities on behalf of their committees. For the purpose of this opinig ion, we have assumed, without deciding, that Congressmen Smith and
Moss are acting on behalf of their respective committees.
[Slip Opinion at 3069; this Report at 237-238.1
Status.-The case is still pending before the U.S. District Court.
The memorandum opinion of the District Court is printed in the
"Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, Part 5, September 15, 1978.





I4
The complete text of the opinion of the Court of Appeals is printed in the "Decisions" section of this Report at 229.

Iowa Beef Processors, Inc. v. Smith (formerly Bagley)
No. 78-1281 U.S. Supreme Court
Brief -On August 1, 1977, Iowa Beef Processors, Inc. (hereinafter "W") filed suit against a number of defendants in the United States District Court for the Northern District of Iowa (C.A. No. 77-4040, N.D. Iowa). Named as defendants were Lex Hawkins, John 0. Cochrane, and Hughes A. Bagley, among others. The complaint alleged that Mr. Bagley, a former vice president of IBP, had taken a number of documents with him when he left the employ of IBP in 1975. These documents allegedly contained confidential business information which would damage IBP's business if disclosed. The complaint also alleged that Mr. Bagley had in fact disclosed certain confidential information and records to Mr. Hawkins, Mr. Cochrane, and others in violation of both contractual obligations and common law fiduciary duties. Mr. Hawkins and Mr. Cochrane are lawyers who have been involved in a number of consolidated private antitrust suits brought by members of a group known as the Meat Price Investigators Association (hereinafter "MPIA") against IBP.
Chief Judge McManus, in an order issued February 13, 1978, deciding various pretrial motions, granted IBP's motion, which had been filed on October 28, 1977, for a protective order preventing disclosure of IBP's confidential business information and limiting its use to defense counsel and to Hawkins and Cochrane for purposes of the consolidated antitrust cases.
In October 1978, the Subcommittee on SBA and SBIC Authority and General Small Business Problems (hereinafter "Subcommittee") of the Committee on Small Business of the United States House of Representatives (hereinafter "Committee"), served a subpoena duces tecum on Mr. Bagley requiring him to produce a number of documents covered by the protective order.
Mr. Bagley filed a motion on November 1, 1978, to lift the protective order or in the alternative for guidelines. On November 13, 1978, IBP filed a brief in opposition to the motion. On November 24, 1978, Clilef Judge McManus issued an order modifying the protective order to allow Mr. Bagley to comply with the subpoena. The order stated that the court could ascertain no q great interference in proceeding with the suit by allowing the ji Committee to examine and copy the records as long as the original t] copies remained accessible to the parties in the suit. It was noted f( by Judge McManus that IBP was free to approach the Committee in regard to the scope of the use of the documents. i(
On November 27, 1978, a subcommittee investigator took physi- 2 cal possession of seven boxes of the documents. 0
IBP filed a notice of appeal from the District Court's order lifting I the protective order. The appeal was docketed on December 4, 1978. ti A petition for writs preserving appellate jurisdiction and a stay of h the District Court's order was filed by IBP on December 4, 1978. On d the same day, the District Court's order was stayed to and includ- h





75
ing December 16, 1978. The motion for a stay was argued on
December 12, 1978.
On December 14, 1978, the Court of Appeals, in a per curiam
order, denied IBP's motion for a stay pending appeal and for extraordinary writs preserving appellate jurisdiction. The order concluded that a stay of the District Court order was both inappropriate and unnecessary at that time. The "very limited" scope of Judge McManus' order and the fact that the protective order re0. mained otherwise in effect were noted. The Court of Appeals cons, sidered the fact that disclosure was to be made to a subcommittee 0- of the House of Representatives and stated:
In regard to the disclosure to the Subcommittee, it has of represented in its papers filed in this court and during
oral argument that it has no intention of making public any of these documents, if ever, until after the House of Representatives begins its next session in January, 1979.
In good faith, we must accept these representations made by members of a coordinate branch of government at face value. We are further assured that the Subcommittee and of its Special Counsel will take all appropriate precautions to
1P insure that these documents are disclosed only to the
extent necessary to allow the Subcommittee staff to begin the job of collating and classifying the information contained therein. In present circumstances any disclosure beyond the immediate needs of the Subcommittee and its ig staff would appear to be both unnecessary and a matter of
Ig a grave import for all concerned.
Given the Subcommittee's representations to us and the
limited nature of Judge McManus' order, we are of the opinion that granting a stay and compelling the return of the documents at this time is both unnecessary as a practiess cal matter and inappropriate as a matter of comity. Such
action would inevitably, albeit erroneously, be viewed as a an expression of our lack of faith in the Subcommittee's
representations to us. Such an expression would be particularly inappropriate in view of the Subcommittee's past ,ie cooperation with-this court. [Iowa Beef Processors, Inc. v. er Bagley, No. 78-1855 (8th Cir., Filed Dec. 4, 1978); Slip

er Opinion at 4-5.]
th Stating that the case presented jurisdictional and substantive lo questions and implicated fundamental concepts of legislative and qe judicial authority, the Court of Appeals deemed it appropriate that al the case be heard on an expedited basis and ordered it scheduled
for argument on the merits on January 9, 1979.
ee On February 7, 1979, the Court of Appeals issued another opinion in which it held that the District Court's order of November 24, 1978 was not subject to review by appeal. However, the notice of appeal was treated as a petition for a writ of mandamus, which ag was granted. In granting the writ, the Court of Appeals vacated !S. the District Court's order and remanded the case with directions
to reinstate the protective order in full. The Court of Appeals declined to compel the Subcommittee to return the documents Iit
had acquired as a result of the subpoena.





76
The District Court's order, the opinion stated,, was not appealable under 28 U.S.C. 1291 nor under any statutory or judiciallycreated exception to the finality doctrine embodied in that statute. The Court of Appeals determined first that the order was not a final order appealable of right under 28 U.S.C. 1291 nor an order appealable under the statutory exceptions of the Interlocutory Appeals Act, 28 U.S.C. 1292.
The Court of Appeals then considered and rejected IBP's argument that the order was appealable as a "collateral order" within the meaning of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). That case had held that 28 U.S.C. 1291 and 1292 do not disallow appeals from decisions "which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case Iis adjudicated." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949). Noting that most courts, including the Eighth Circuit itself, have held that orders compelling the production of documents or testimony are not appealable as collateral orders or otherwise, the Court of Appeals stated that it viewed an order partially lifting a protective order as the functional equivalent of an order compelling production of documents or testimony and therefore held that it had no appellate Jurisdiction. The Court of Appeals accepted IBP's contention that this was an appropriate case for the invocation of the discretionary writissuing authority of the court under the All Writs Act, 28 U.S.C. 1651(b) and turned to, the merits of the District Court's order. The opinion noted first that the District Court, by entering the ori inal protective order, had implicitly conceded that any further disclosure would unduly harm IBP, and yet had allowed disclosure to the Subcommittee without any constraints on the Subcommittee's use of the documents and without any showing that intervening circumstances had in any way obviated the potential prejudice to IBP.
In further criticism of the District Court, the opinion stated:
Even more important than this abrupt and unexplained
turnabout is the fact that the documents ordered disclosed to the Subcommittee were an important part of the subject matter of the underlying lawsuit. That is, IBP alleged that Bagley had breached both contractual and fiduciary obligations to IBP by disclosing the contents of these documents and sought an injunction preventing further disclosure and compelling the return to IBP of all such documents. In these circumstances, the district court should have maintained the status quo by carefully Hmlitling disclosure of these documents pending determination of the merits of IBP's claim. The court's order allowing disclosure to the Subcommittee,, without any limitation on its use of the documents, could well render





77
a. moot in part IBP's claims for relief in the underlying V.
lawsuit.,'
ot 6 We, of course, express no opinion as to the merit, if any, of 1131",
claims for relief in the underlying lawsuit.
[Slip Opinion at 10-11; this Report at 246.1
The Court of-Appeals concluded that the District Court's order
partially lifting the protective order was a clear abuse of discrein tion and therefore it granted the petition for a writ of mandamus, 'S, vacated the District Court's order of November 24, 1978, and do remanded the case with instructions to reinstate in full the prone tectlive order of February 13, 1978. ed The Court of Appeals next turned to a consideration of IBP's le. request that the Subcommittee be ordered to return the docuon ments in question to the District Court and to refrain from rerl. vealing their contents. In this regard, the opinion noted first that
the Subcommittee was not a party to the underlying litigation nor If a party to the appeal. IBP had argued that the Subcommittee had or acquired the documents in an unlawful manner, specifically in h violation of Rule 62(a) of the Federal Rules of Civil Procedure. e IBP had contended that Rule 62(a) operated automatically to staN a for ten days the order partially lifting the protective order an el. that the Subcommittee had violated the protective order since it Y had taken the documents only 3 days after the order partially
lifting the protective order. The Court of Appeals rejected this !as claim, by noting that Rule 62(a) applied only to judgments and
that the term "judgment" was defined by Rule 54(a) as a decree or order from which an appeal lies. Since the Court of Appeals had already determined that the District Court's order partially lifting he the protective order was not appealable, it concluded that the ier automatic 10-day stay provision of Rule 62(a) was inapplicable lo. and that the Subcommittee had therefore not violated the protecm. tive order.
ff. Summarizing its conclusions in regard to the Subcommittee ej. and its actions, the Court of Appeals stated:

)d: Because the Subcommittee has neither been made a
party to this litigation nor acted Iin such a manner as to violate existing court order, we find no basis on the record now before us to compel the Subcommittee to return the papers it acquired as a result of its subpoena.
[Slip Opinion at 13; this Report at 248.1
Finally, the Court of Appeals commented generally on the overall
dispute in the following fashion:
We are aware that this opinion Iis probably not the
final word in this controversy. As we have noted, however, the scope of our inquiry at this stage is severely limited. Any further action in this matter should be pursued in a district court of competent jurisdiction 2 or before
the Subcommittee itself.
We are also cognizant of the fact that this dispute has,
at least Iin part, passed into the political arena. Indeed,





78 1
from the very beginning, it was apparent that non-juris.
prudential considerations have played an important part in the parties' litigation strategy. We dare to suggest that those concerned would have been well-advised to have worked out an arrangement among themselves which would take into account the competing interests,, rather than attempting to foist upon this court the responsibility for resolving questions which are either beyond the scope of appellate judicial authority or outside the meager
record, of this case.
[Slip Opinion at 13-14; this report at 248.1
9 At least one court has held that jurisdiction and venue in actions
against congressional committees and their members are normally proper in the United States District Court for the District of Columbia. See
Liberation News Service v. Eastland, 426 F. 2d 1379 (2d Cir. 1970).
On February 16, 1979, IBP filed a petition for writ of certiorari in the U.S. Supreme Court and a motion for a preliminary injunction requiring the return of the documents and preserving their confidentiality pending disposition of the petition for certiorarL In its petition, IBP listed the following questions as presented for review:
1. Whether a District Court order modifying a protective order under Federal Civil Rule 26(c)(7) to permit the custodian of privileged documents produced during discovery to comply with a congressional subcommittee's subpoena Iis a final decision from which an appeal lies under 28 U.S.C 1291 and the "Collateral Order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541
(1949), so that(a) The modification order is immediately appealable by the party whose documents and privilege are at stake, but who otherwise would have no opportunity for appellate review of its claim;
and
(b) The modification order Iis a "judgment"
within the meaning of Federal Civil Rule 54(a), S
and the automatic stay provision in Rule 62(a) applies to preclude enforcement of the modification order and the Subcommittee's subpoena for
10 days.
2. Whether the Circuit Court, having granted manda- t
mus review of the merits and found clear error in the modification of the protective order, should have ordered the Subcommittee to return the privileged documents and protected their contents against disclosure, using either its contempt power to remedy a violation of the protective order or its residual power under the All Writs Stat- 9
ute (28 U.S.C. 1651(a)) to preserve the integrity of its appellate jurisdiction and 113P's right to effective appellate review of the modification order.
3. Whether a congressional subcommittee may subpoe- S
na privileged documents in the custody of a party to





79
federal court litigation which are subject to a protective order without obtaining Congressional approval and filing a formal intervention so that the terms and conditions of its access to the documents may be controlled by
the Court.
[Petition for Writ of Certiorari at 2-31
Neal Smith, chairman of the subcommittee was named as respondent on the petition for writ of certiorari.
The motion for a preliminary injunction was denied on February 26, 1979.
Status.-The case is pending before the U.S. Supreme Court.
The order of the District Court of February 13, 1978 is printed in
the "Decisions" section of the report Court Proceedings and Actions of Vital Interest to the Congress, current to December 31,
1978.
The order of the District Court of November 24, 1978 is printed all in the "Decisions" of the report Court Proceedings and Actions of Re* Vital Interest to the Congress, current to December 31, 1978. eir
The per curiam order of the Court of Appeals of December 14,
1978 is printed in the "Decisions" section of the report Court for Proceedings and Actions of Vital Interest to the Congress, current
to December 31, 1978.
The complete text of the opinion of the Court of Appeals is
printed in the "Decisions" section of this Report at 239.
United States v. Powell
Cr. No. 78-251 (N.D. Ga.)
Brief.-Claude Powell, Jr., was charged with contempt of Congress, a violation of 2 U.S.C. 192, in an indictment filed by a Federal grand jury on August 8, 1978 in the U.S. District Court for the District of Columbia. The indictment charges that on February 6, 1978, Mr. Powell deliberately and intentionally refused and failed to appear to testify before the Subcommittee on the Assassination of Dr. Martin Luther King, Jr. (hereinafter "Subcommittee") of the Select Committee on Assassinations (hereinafter "Committee") of the U.S. House of Representatives, in defiance of a subpoena which had been issued on January 17, 1978 and served on Mr. Powell on January 20, 1978. According to the indictment, the subpoena had been issued in connection with information which had been obtained by the Committee and the Subcommittee to the effect that Mr. Powell and his brother Leon Powell had alleged that they had been asked in the fall of 1967 or the spring of 1968, in Atlanta, Ga., whether they might be interested in making a
large sum of money by killing Martin Luther King, Jr.
On September 27, 1978, the case was transferred to the U.S.
District Court for the Northern District of Georgia.
On October 11, 1978, Mr. Powell was arraigned and at that time
tendered a plea of guilty and filed a petition to enter a plea of
guilty.
On December 13, 1978, Mr. Powell was again arraigned. His plea
of guilty was entered and he was sentenced to serve 1 month imprisonment and fined $100.00. The term of imprisonment was
suspended and he was placed on probation for 3 months.
Status.-The case has been closed.













IV. CONSTITUTIONAL POWERS OF THE CONGRESS
Chadha v. Immigration and Naturalization Service
No. 77-1702 (9th Cir.)
Brief.-This is a petition for review of an order of the Immigration and Naturalization Service (hereinafter "INS"). The INS had promulgated an order which exempted the petitioner, Jagdish Rai Chadha, from deportation as an alien. That order was subsequently vetoed by the passage of a resolution by the U.S. House of Representatives. A new order which required Chadha's deportation was then issued. The petition challenges the constitutionality of the "one-House veto" by which the original order was overturned.
As set out in petitioners' brief, the facts are these: Petitioner was born and raised in Kenya, although his race was East Indian. In 1966, he was issued a passport to the United Kingdom. He was lawfully admitted to the United States as a student in 1966 and continuously resided in the United States since that time, except for one short trip to Canada.
After obtaining B.S. and M.A. degrees from an Ohio university, he discovered that neither the United Kingdom nor Kenya would allow him to return because of his race. He moved to California in 1971 to seek work but was unable to obtain work because he did not have lawful status in the United States. However, the petition asserts, he was able to meet expenses from personal savings and from financial help from his family overseas.
Since his visa had expired in 1972, he was summoned to show cause why he should not be deported pursuant to 241(a)(2) of the Immigration and Nationality Act (hereinafter "INA"), 8 U.S.C. 1251(a)(2). A hearing was held. before an immigration judge on January 11, 1974, at which Mr. Chadha requested a suspension of deportation pursuant to 244(a)(2) of the INA, 8 U.S.C. 1254(a)(2). Evidence presented as to his good character was uncontested.
On June 25, 1974, the immigration judge issued his decision, ordering that the deportation be suspended pursuant to 244(a)(1) of the INA.
Section 244(a)(1) of the INA provides that suspensions may be granted when an alien (1) has been physically present in the United States for at least 7 years immediately preceding his application, (2) is of good moral character, and (3) would suffer extreme hardship if deported. (Although this authority is granted to the Attorney General, it has been delegated to the "immigration judges," with an appeal to the Board of Immigration Appeals.)
Once the decision to suspend deportation is made, notice of' the action is transmitted to Congress with a detailed explanation and justification for the decision. The suspension does not become efTective until the close of the session of Congress following the one in which the decision is transmitted, and then it only becomes efTective if during both sessions neither House has passed a simple
(81)





82

resolution disapproving the decision, pursuant to 8 U.S.C. 1254(c)X2).
Mr. Chadha and five aliens whose deport-ation had been suspend ed by immigration judges lost their suspensions when on Deembe 12, 1975, the House of Representatives passed H. Res. 92, 94t Cong., 1st Sess. (1975).
On August 4, 1976, the immigration judge ordered Mr. Cah deported in view of the House resolution, and on apeltth Board of Immigration Appeals, the Board affirmed teodro deportation on February 11, 1977.
Mr. Chadha filed a petition for review of the deportato order with the U.S. Court of Appeals for the Ninth Circuit on Juy 18 1977. The filing of the petition automatically stayed his dpra tion.
The petition challenges the constitutionality of the one-Hous veto. It argues that neither the constitutional provisionzsgatn Congress the power to regulate immigration nor the"Neesr and Proper" clause empowers Congress to contravene othercosi tutional provisions, and it asserts that the one-House veto does ti in three ways. First, it says, the one-House veto violates theseation of powers doctrine. Petitioner claims the constitutionalhitr of this doctrine demonstrates that one branch cannot performth functions or control the performance of another, and that snethe one-House veto allows a single House of Congress to perform nne gislative functions and control the actions of an executive qgeny it is unconstitutional.
Next, Mr. Chadha argues, the one-House veto deprives the Pei
dent of the opportunity to exercise his veto power under Article!1, Section 7. The Framers of the Constitution intended that a snl executive would be given the opportunity to veto every Cnrs sional action having the effect of law, but, since the one-Houevt is not subject to Presidential veto, it is unconstitutional.
Finally, Mr. Chadha asserts that the one-House vetoprvso violates the requirement of a bicameral legislature. Accrigt Mr. Chadha, the Framers of the Constitution intended thatevr power of the legislative branch not expressly granted to a snl House must be exercised by both concurrently. Therefore, &ic h one-House veto provision allows a single House to make law wthout the concurrence of the other, it is unconstitutional. On October 27, 1977, respondent INS filed a suggestion to invite the submission of amici curiae briefs by the U.S. Senate and Hos of Representatives.
Clerk's letters were sent on November 17, 1977, invitigf h President of the Senate and the Speaker of the House to file bif amicus curiae within 30 days.
On February 27, 1978, an amicus curiae brief on behalf o h Senate, pursuant to Senate Resolution 338 of the 95th Conges and a separate amicus curiae brief on behalf of Representiv Frank Thompson, Jr., Chairman of the Committee on HouseAd ministration of the U.S. House of Representatives, were filed. Ec of the briefs opposed Mr. Chadha's petition and contended, inter alia, that the one-House veto is constitutional and that Cah lacked standing to challenge the constitutionality of the one -Hous veto.





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The petition was argued on April 10, 1978.
~d. Status.-The petition is pending before the U.S. Court of Appeals erfor the Ninth Circuit. No further action has been taken.
Nt IVxon v. Sampson
1ha C.A. Nos. 74-1518, 74-1533, 74-1551 (D.D.C.) the Brief -Following the resignation of former President Richard M, of Nixon, the special prosecutor's office advised counsel to President
Ford and counsel to Mr. Nixon of its continuing interest in Presider dential materials and tape-recorded conversations housed in the
SWhite House, the Executive Office Building, and elsewhere, which
Were relevant to investigations and prosecutions within the jurisdiction of the special* prosecutor. Thereafter counsel for President us Ford requested an opinion from then-Attorney General William B. ing Saxbe on the issues of ownership of the Presidential materials and a7 tapes and the responsibilities of the Ford Administration with rekij. spect to them. A response to that request indicated that in the h opinion of the Attorney General, the Presidential materials and tra tapes belonged to Mr. Nixon, but the Government had a right to'
o use said materials. Following that advisory opinion a "depository the agreement" (Nixon/Sampson agreement) was signed by Mr. Nixon the and Arthur F. Sampson, Administrator of the General Services e- Administration (hereinafter "GSA"), on September 7, 1974. icy, Thereafter, Jack Anderson, a well-known columnist, and others
filed a petition with GSA seeking access to these materials pursuesi ant to appropriate provisions of the Freedom of Information Act. e 1, The petitions were denied by GSA. igle On October 17, 1974, Mr. Nixon filed a suit against Mr. Sampson r& and others in the United States District Court for the District of ,et Columbia seeking a temporary restraining order and preliminary
injunction to compel compliance with the Nixon/Sampson agreeio ment and to prevent unauthorized access to the materials and t tapes. Mr. Anderson, and the special prosecutor, and others moved
eqto intervene, seeking a temporary restraining order and prelimiigle nary injunction to prevent the implementation of the Nixon/Sampthe son agreement. U.S. District Judge Charles R. Richey issued a ith. temporary restraining order on October 21, 1974, prohibiting the
implementation of the agreement until a full hearing could be held
,ion Mr. Nixon's motion for a preliminary injunction. [Nixon v. ueSampson, Civil Action No. 74-1518 (D.D.C.).] On October 21, 1974, a suit was filed by The Reporters Committhe tee for Freedom of the Press, and several other parties, to gain 6e access to these materials. [The Reporters Committee for Freedom of
the Press v. Sampson, Civil Action No. 74-1533 (D.D.C.).]
the Then, on October 24, 1974, Lillian Hellman and several other
individuals also filed suit to gain access to the materials. [Hellman jive v. Sampson, Civil Action No. 74-1551 (D.D.C.).] Ad- Mr. Nixon filed a motion on October 29 to consolidate the three ac cases, which the court did by an order issued on October 31, 1974. ,ter [Hereinafter these three cases will be referred to as the "consoliih dated cases."]
use A petition for leave to participate as amici curiae in these cases was filed and granted on behalf of then-Senator Sam J. Ervin, Jr.,





8 4

Senators Gaylord Nelson and Jacob Javits, then-Representative Wayne L. Hays, and Representative John Brademas on November 11, 1974. The Congressional petitioners sought leave to participate in the proceedings in order to bring to the attention of the court "their intense interest-as Members of Congress having 'Special responsibility with pending legislation dealing with the subject matter' before the court-in the maintenance of the status quo 1 pending consideration by the Congress of matters falling within its primary and fundamental authority." [Memorandum of Ervin et al. I as amici curiae, Nixon v. Sampson, Civil Action No. 74-1518f (D.D.C.).]I
At the time of the filing of the Ervin petition the Senate hadv passed a bill, S. 4016, which, while making no determination as to L the ownership of the Presidential materials, provided for the pres-t ervation of access to materials by placing them under the control of the Administrator of GSA, with all the materials to remain in Washington, D.C. The bill had been transmitted by the Senate toI the House and referred to the appropriate House committee which had not then had an opportunity to act on it. t
Each of the Congressional participants-the amici-bore a spel c I responsibility with regard to this legislation. As noted in aa memorandum prepared on their behalf:
Amicus Ervin, Senator from North Carolina, is Chairman of the Senate Committee on Government Operations, which has jurisdiction over such legislation in the Senate.
Amicus Nelson, Senator from Wisconsin, is the sponsor of the pending bill. Amicus Javits, Senator from New York, is an original co-sponsor thereof. Amicus Hays, 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 Chairman of the relevant Subcommittee
of the House Administration Committee. [Id.]
The action sought by the amici was set out in this language: Amici respectfully urge that the safeguarding of these 1
materials pending Congressional action is a matter of the most compelling public interest. Accordingly, in light of
these considerations of fundamental significance to amici C
and their colleagues in the legislative branch, amici urge 01
that the Court grant a preliminary injunction to maintain the status quo. Such an injunction will insure an opportu- f
nity for orderly consideration of the issues by the repre- fo
sentatives of the public in the exercise of their special P Constitutional responsibilities as trustees of the people. It u
will insure that nothing untoward can happen to these cUo
materials while the people's representatives decide how
best to exercise their responsibilities. [Id.] Of
leav tofilean mics bref as aso raned o Noembe 11 af
Separate motion by Representative Elizabeth Holtzman for o
1974. Although the Holtzman petition fully supported the status quo position of the Ervin petition, Ms. Holtzman's memorandum was submitted for another purpose-to call to the court's attention





85
'tile the fact that the principal issue in this action was the ownership of iber the tapes and papers. Ms. Holtzman contended that since the' AtPate torney General had already expressed his opinion in writing that 34 all of the disputed papers and tapes belonged to Mr. Nixon, the cial "level of vigor" with which the Department of Justice would )ject pursue the defense of any action brought by Mr. Nixon-to obtain quo either the return of, or compensation for, the property which both I i he and the Attorney General already agreed were his-would be tal. less than adequate. Moreover, she maintained that the matter was 1518 further complicated because the Department was currently representing Mr. Nixon in several suits brought against him while he had was President, thus raising an ethical question as to whether it 6 to could represent his adversary (the United States) in litigation over )res- the ownership of the papers and tapes in question. To remedy the itrol situation, Ms. Holtzman informed the court that she intended to n in introduce legislation to provide for a Special Counsel, in lieu of the k to Department of Justice, to represent the United States in all litigak tion relating to the ownership of the papers and tapes at issue in
this case.
spe- Judge Richey held a hearing on the petitions on November 15 in a and 18, 1974, but withheld any decision and asked counsel for
amici to provide him with additional information regarding the effect of the pending lawsuit on the bill then before the Congress.
Subsequently, after a series of amendments, the Congress passed
S. 4016, on December 9, 1974. The bill, the Presidential Recordings and Materials Preservation Act (hereinafter "Act"), was signed into
law on December 19, 1974 [Pub. L. 93-526].
On the day after the Act went into effect, Mr. Nixon brought an
action in the U.S. District Court for the District of Columbia to enjoin its enforcement on the grounds that it transgressed the Constitution. [Nixon v. Administrator of General Services'. Civil Action No. 74-1852 (D.D.C.), filed Dec. 20, 1974.] At the same time, Mr. Nixon asked that a three-judge court be convened pursuant to 28 U.S.C. 2282 and 2284 to hear and determine the constitutioniage: al claims asserted. The case was assigned to Judge Richey, before
whom the consolidated cases were then pending. The same issues, namely, the ownership of the materials and tapes and privilege against their disclosure, which were raised in the consolidated cases, were then extended to Mr. Nixon's more recent challenge.
On January 3, 1975, Mr. Nixon moved for a preliminary injunction
against operation of the Act.
It was alleged that on five separate occasions, during the 5 weeks
following institution of Mr. Nixon's action of December 20, 1974, Mr. Nixon had requested Judge Richey to initiate the statutory procedure leading to the formation of a District Court of three t Judges. During that period, Judge Richey was preoccupied with the
consolidated cases and planned to complete work on them before turning his attention to the challenge case. [Nixon v. Administrator
of General Services, supra.]
n for Having failed to convince Judge Richey that the appointment of !r 11, a three-judge court took priority in this matter, Mr. Nixon filed a tatus petition for a writ of mandamus in the U.S. Court of Appeals for .iduin the District of Columbia circuit, directing Judge Richey to grant ,ntioR the application for a three-judge court immediately and give the





86

challenge case priority over the consolidated cases as assertedly required by 105(a) of the Act. [Nixon v. Richey, No. 75-1063 (D. C. Cir.).]
The Appeals Court, in a per curiam. order and opinion filed. January 31, 1.975, denied Mr. Nixon's petition, stating that the issuance of a writ of mandamus was unnecessary. It held, however, that Judge Richey erred in delaying action on the application for a threejudge panel. Although the court stated that an application for the convening of such a court is statutorily entitled to expeditious treatment under 28 U.S.C. 2284, it held that beyond these considerations, the Act requires the trial judge to give priority to such an application. It declared:
Beyond these considerations, the Recordings and Materials Act independently supports petitioner's claim that the District Judge should have acted weeks ago on the threejudge application. Section 105(a) of the Act confers upon the District Court for the District of Columbia "exclusive jurisdiction to hear challenges to the legal or constitutional validity of this title," and specifically provides that "[a]ny such challenge shall be treated by the court as a matter requiring immediate consideration and resolution.
* *" (emphasis supplied). It is clear that the case for which petitioner sought the three-judge court was a "challenge to the legal or constitutional validity of' the Act. It is equally clear that, as an integral part of his "challenge,"
petitioner's application for such a court was "a matter
requiring immediate consideration and resolution.
In these views, we need not consider contentions by one of the amici curiae that 2282 and 2284 are inoperable in the situation at bar. [Nixon v. Richey, 513 F-2d 4271, 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 appellate opinion. On the same day the Appeals Court issued its order and opinion, January 31, 1975, Judge Richey released a 98-page opinion in the consolidated cases. [Nixon v. Sampson, 389 F. Supp. 107 (D.D.C. 1975).] At the same time, Judge Richey issued a summary and synopsis of his opinion which appears in its entirety as follows:

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

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





87
These actions are before the Court on the following motions: plaintiff Nixon's motions to dismiss the Hellman, et
ed al., and Anderson suits for lack of standing; the governhe ment defendant's motion to dismiss all the actions, except
that by the Special Prosecutor, on the ground that they ,r I are moot; and on motions for summary judgment or par:a tial summary judgment by plaintiffs Anderson, The Reon porters Committee for Freedon of the Press, et aL, Lillian
Hellman, et al., and the Special Prosecutor, on his counterclaim, for declaratory relief, 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. JUSTICIABIMTY
The Court finds that although the Presidential Recordings and Materials Preservation Act of December 19, 1974, nullifies the Nixon-Sampson Agreemp.nt 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. the
rd. D. SUMMARY JUDGMENT
on, Because the Court finds that there are no genuine issues
the of material fact in dispute in these proceedings, the parties
).Cl are clearly entitled to summary judgment on the issues as ind a matter of law.
A
&OWNERSHIP
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 principle of law that that which is generated or kept in the administration and performance of the powers and
duties of a public office belongs to the government.
2. Former President Nixon's assertion of ownership of
the documents, papers, tapes and other materials generated or retained by himself or others on his behall in the performance of his duties as the President of the United

43-774 0 79 7





88

States is contrary to the nature of the Office of the President and the Constitution.
3. The inherent continuity of the Office of the President negates a claim by former President Nixon that the independence of the Office requires that his assertion of ownership be sustained.
4. There is no precedent which compels a finding that the "Presidential materials and tapes' are the personal property of former President Nixon.
5. The historical practice of past Presidents does not evidence a clear and constant recognition of ownership of the materials generated and retained in the conduct of the Off-ice of the President.
6. Congress has not sanctioned the personal ownership of "Presidential materials and tapes" generated and retained in the conduct of the Office of the President.
7. Materials and tape-recorded conversations generated by Executive departments and agencies, although 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. PRIVILEGE
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 Presidential 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 general 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. REMEDY
The Court will require the following procedure with re i gard to effectuation of the November 9th Agreement, with regard to any requests for Presidential materials and