t } COXXITTEE PRINT
or H DOC m~J
ON CONGRESSIONAL OPERATIONS
SECTION 402(a) (2) OF THE
LEGISLATIVE REORGANIZATION ACT OF 1970
COURT PROCEEDINGS AND ACTIONS OF VITAL
INTEREST TO THE CONGRESS
A FINAL REPORT
94TH CONGRESS DECEMBER 1976
P te for the use of the Joint Committee on Congressional Operations
94th Congress COMMITTEE PRINT
JOIN T COMMITTEE
ON CONGRESSIONAL OPERATIONS
SECTION 402 (a) (2) OF THE
LEGISLATIVE REORGANIZATION ACT OF 1970
COURT PROCEEDINGS AND ACTIONS OF VITAL INTEREST TO THE CONGRESS
Cumulative to December 31, 1976
Printed for the use of the Joint committee on Congressional Operations U.S. GOVERNMENT PRINTING OFFICE 80-341 0 WASHINGTON :1977
JOINT COMMITTEE ON CONGRESSIONAL OPERATIONS
CONGRESS OF THE UNITED STATES REPRESENTATIVE JACK BROOKS, Texas, Chairman SENATOR LEE METCALF, Montana, Vice Chairman
HOUSE OF REPRESENTATIVES SENATE
ROBERT N. GIAIMO, Connecticut MIKE GRAVEL, Alaska
JAMES G. O'IIARA, Michigan LAWTON CHILES, Florida
JAMES C. CLEVELAND, New Hampshire JESSE A. HELMS, North Carolina JOHN M. ASHBROOK, Ohio PETE V. DOMENICI, New Mexico
COURT PROCEEDINGS AND ACTIONS OF VITAL INTEREST TO THE CONGRESS
I. Constitutional Qualifications of Members of Congress:
Farris v. Wiggins ------------------------------- 1
Clancey v. Albert -------------------------------- 2
II. Constitutional Immunity of Members of Congress:
Davis v. Passrnan ------------------------------- 5
McSurely v. McClellan --------------------------- 5
Jordan v. Latta--------------------------------- 14
III. Powers of Congressional Committees:
Ashland Oil, Inc. v. Federal Trade Commission -19,
United States v. American Telephone and Telegraph
Co ----------------------------------------- 26
IV. Constitutional Powers of the Congress:
Nixon v. Sampson------------------------------- 31
Nixon v. Administrator of General Services ------------31
Public Citizen, Inc. v. Simon (formerly Shultz) --------43 Clarkcv. Valeo---------------------------------- 45
Atkins8 v. United States -------------------------- 50
V. Officers, Employees, and Agents ~- f the Congress: Socialist Workers v. Henshaw (formerly Jennings) -- 53 United States v. McPherson ----------------------- 55
Peroff v. Manuel-------------------------------- 55
Cervase v. Architect of the Capitol------------------ 56
VI. Other Actions Involving Members in a Representative
Dellums v. Powell------------------------------- 59
Common Cause v. Bailar (formerly Klassen)-------60 Harrington v. Bush (formerly Colby)-------------- 71
United States v. Gurney -------------------------- 73
Metcalf v. National Petroleum Council-------------- 74
National Tribal Chairmen's Association v. Abourezk - 77 Sportservice Corp. v. Steiger ----------------------- 78
Drinan v. Richardson (formerly Morton) --------------80
Simon v. United States Postal Service--------------- 82
Hutchinson v. Proxmire -------------------------- 83
Maremont Corporation v. Rumsfeld----------------- 84
Pressler v. Simon-------------------------------- 84
Reuss v. Balles --------------------------------- 88
United States ex rel. Hollander v. Clay-------------- 90
United States ex rel. Thompson v. Hays------------- 94
VT. Other Actions, Involving Members in a Representative
United States ex rel. Cennamo v. Ray--------------- 94
United States ex rel. Martin-Trigona v. Hays ----------94
United States ex rel. Martin-Trigona v. Daley ---------100
United States v. Hastings------------------------- 101
United States v. Heistoski------------------------- 101
United States v. Podell--------------------------- 101
Genesis P'ublications, Inc. v. Mondale ---------------101
Clay v. Bauman------------------------------- 102
Ward v. Wright -------------------------------- 102
Newcomb v. Brennan ---------------------------- 104
Misso'uri v. Coleman ---------------------------- 105
MeiSureiy v. McClellan --------------------------------- 109
Ashland Oil, Inc. v. Federal Trade Comnmission -------------- 239
Peroff v. Mfarnuel-------------------------------------- 271
Press ler v. Simon-------------------------------------- 285
United States ex rel. Hollander v. Clay -------------------- 293
Consolidated Cases------------------------------------- 303
United States ex rel. Thompson v. Hays
United States ex rel. Cennamiro v. Ray
United States ex rel. Alartin-Triqona v. Hays
United States ex rel. Martin-Trigona v. Daley---------------- 313
N~ewcomb v. Brenn~an ---------------------------------- 315
United States v. American Telephone and Telegraph Co -------321 Reuss v. Bailes----------------------------------------- 347
Members of the 94th Congress Parties to or Directly Concerned
With Litigation Affecting Congress ---------------------- 363
Table of Cases Reported--- -- -- -- -- -- -- -- -- -- -- -- -- -- -371
LEGISLATIVE REORGANIZATION ACT OF 1970 [Public Law 914101
TITLE IV-CONGRESS AS AN INSTITUTION
PART 1-JOINT COMMITTEE ON CONGRESSIONAL OPERATIONS
DuTiEs OF JOINT COMMITTEE
SEC.402. (a) The Joint Committee shall
(2) identify any court proceeding or action which, in the opinion of the Joint Committee, is of vital interest to the Congress, or to either House of the Congress, as a constitutionally established institution of the Federal Government and call such proceeding or action to the attention of that House of the Congress which is specifically concerned or to both Houses of the Congress if both Houses are concerned.
Digitized by the Internet Archive
In accordance with the statutory duty placed upon the Joint Comittee on Congressional Operations by Section 402 ( a) (2 ')of the Legislative Reorganization Act of 1970,, the committee initiated a cumnulative reporting practice in the 92d1 Congress to "identify any court proceeding or action which, in the opinion of the Joint Commiittee. is of vital interest to the Congrress, or to either House of the Congress. as a constitutionally established institution of the Federal Government."
The report, C'ourt Proceedings and Actions~ of Vital Interst to the Congress, is intended to meet the further statutory requirement that the Joint Committee shall "call such proceeding or action to the attention of that House of the Congress which is specifically concerned or to both Houses of the Congress if both Houses are concerned."
This report, the final report of the 94th Congress. contains case briefs, accounts of the status of court proceedings and the full texts of decisions in active cases the Joint Committee identified as of vital interest to the Congress since its last report in August 1976.
Two changes have been made in the presentation of the case briefs which the Joint Committee hopes will assist the reader. Cases being reported for the first time are -so designated. Additionally. major changes in the briefs will appear in bold type.
The Joint Committee will publish cumulative reports of court proceedingas and actions periodically throughout the 9.5th Congress. We welcome comments from all Members of Congress and others usingC these reports as an information source and research document, as well as your suggestions of relevant, pending court proceedings and actions-which do not appear' in this report-for inclusion in the future reports of the Joint Committee.
JACK BRooKs, Chairman.
LEE METCALF, Vice Chairman.
COURT PROCEEDINGS AND ACTIONS OF VITAL
INTEREST TO THE CONGRESS
1. CONSTIT=ONAL QUALrFiCATIONS OF MEMBERS OF CONGRESS
Farris v. Wiggins (New Case)
Civil Action No. 254235 (Orainge County Superior Court, California)
Bief.-This action was filed on September 29, 1976, by William Farris, a candidate for the congressional seat held and defended by Representative Charles Wiggins. Named as defendants were Representative Wiggins, the Orange County Registrar of Voters, the Orange County Clerk and others.
The complaint alleges that Congressman Wiggins is not constitutionally qualified to serve as a Representative from California because he is not an inhabitant of that State as required by Article I, Section 2, clause 2 of the United States Constitution.
The complaint also alleges that Representative Wiggins, who has served in Congress since 1967, has, because he -was not an inhabitant of California, been improperly receiving salaries and other expenses as compensation for service in the House.
Third, the complaint asserts tha t because Congressman Wiggins does not reside within the State of California, "he has been unaware of, and out-of-touch with, the problems * *" of the district he represents.
The fourth and final cause of action alleges that Representative Wiggins' name unlawfully appears on the voting rolls of Orange County and should be removed because of his alleged nonresidency.
The complaint asks: that Congressman Wiggins "be restrained rom representing * that he is qualified to be a Member of the United States House of Representatives * from California; that Congressman 'Wiggins be ordered to tell "the voters and citizens that he is not qualified to represent them in the United States House of
Representatives; that Congressman Wiggins "be restrained from representing to the Secretary of the United States Treasury * that he is qualified to be a Member of the United States House of Representatives and to inform him that he is not entitled to receive compensation or salary * "; that an order be issued directing the County Clerk and Registrar of Voters to remove Congressman Wiggins' name from the Register of Voters; that Congressman Wiggins be required to reimburse the plaintiff for "the amount that. plaintiff has expended and will expend, to inform the voters and citizens of the 39th Congressional District the truth about defendant's qualifications "for the costs of the suit, and for such other relief as the court deems just and proper."
Status.-On November 9th the court sustained a demurrer to the complaint without leave to amend as to the first three causes of action, but with leave to file an amended complaint within 20 days as to the fourth case of action. No amended complaint has yet been Aled.
Clancey v. Albert (New Case)
Civil Action No. CV76-982-ViTPG (C.D. Calif.)
Brief.-Michael Patrick Clancey a resident of the 40th Congressional District of California in his complaint names as defendants Representative Carl Albert, individually and as Speaker of the United States House of Representatives; Representative John J. Flynt, individually and as Chairman of the House Committee on Standards of Official Conduct; Representative Andrew J. Hinshaw, individually and in his official capacity as Congressman in the United States House of Representatives; Edmund L. Ilenshaw, Jr., individually and in his official capacity as Clerk of the United States House of Representatives; and the United States House of Representatives.
The complaint alleges that the defendants have denied plaintiff and other United States 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 precludes Congressman Andrew J. Hinshaw, who was convicted on two felony counts in the California courts, from voting or participating in congressional matters. Rule XLIII, clause 10 of the United States I-louse 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 XL11I, clause 10, is unconstitutional in that it contravenes Article 1, Section 5 of the. United States Constitution and other provisions and thereby, results in taxation without representation.
He also contends that fhe House Rule which bars participation by Representative Hinshaw is defective and inappropriate, that it should be replaced by a House proposal to amend the Constitution to provide additional qualifications for Members of Congress in addition to 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 wrongdoings.
Defendants Albert and Flynt filed a motion to dismiss on the grounds that (1) the court lacks jurisdiction over the subject matter of the Complaint, and (2) the United States House of Representatives may not be sued in that name, and (3) this action is barred against the Defendant Congressmen by virtue of the Speech or Debate Clause of the Constitution, and (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 Court entered the following Orders:
(1) that the United States House of Representatives is dismissed f roin the above action on the ground that the action as against the
said defendant is barred b-v the doctrine of sovereign immunity: and
(2) that Congressmen Carl Albert and John J. Flynt, Jr., are dismissed from the action on the grounds that the action as against them is barred b~y the Speech or Debate clause (Article 1, Section 6. clause 1).
Status.-The Clerk of the House is still a defendant in the action, which is pending in the district court.
II. CONSTITUTIONAL IMMUNITY OF MEMBERS OF CONGRESS
Davis v. Passman
Civil Action No. 75-1691 (Fifth Cir.)
Bief.-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. Plaintiff then filed this complaint, naming Representative Passman as defendant, in the U.S. District Court for the Western District of Louisiana on August 7, 1974, alleging that she had been discriminatorily dismissed from defendant's congressional staff 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 Adminiistrative Assistant be a man."
Representative Passman filed a motion to dismiss the complaint, stating: (1) The alleged conduct of the defendant is not violative of the Fifth Amendment; (2) the law affords no private right of action to plaintiff; and (3) the doctrines of legislative and sovereign 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 plaintiff's complaint on the grounds that it failed to state a claim against Mr. Passman upon which relief could be granted. The court held that the alleged sex discrimination by Mr. Passman is not violative of 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, in his response filed with the Court of Appeals on June 9, 1976, while supporting the district court's decision to grant his motion to dismiss, reasserted his contention that the doctrines of "sovereign and official immunity" are a bar to Mrs. Davis' claim.
Status.-Oral argument was heard on April 12, 1976. The case is still pending before the U.S. Court of Appeals for the Fifth Circuit. McSurely v. McClellan
Civil Action No. 73-1991 (D.C. Cir.)
Bi ef.-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 United States Marshal
for the Eastern District of Kentucky;
(3) Ratliff and the LU.S. Marshal make an inventory of the
seized material and file it with the record of the case;
(4) Ratliff return to the MeSurelys such materials as he
determined -were not relevant to the investigation and prosecution of the MeSurelys.
That same day the McSurelys were indicted by a Kentucky grand jury.
On the 14th of September, 1967, the three-judge Federal district court rendered its decision holding the Kentucky statute unconstitutional and enjoining prosecution of the McSurelys. The court directed that Ratliff retain the seized materials "in safekeeping until final disposition of this case by appeal or otherwise."
On September 25, 1967, Lavern Duffy, Assistant Counsel on the staff of the Permanent Investigations Subcommittee of the Government Operations Committee, called Ratliff by phone to ask about the seized documents. Subsequently, on October 8, 1967, Committee investigator John Brick went to Kentucky, talked with Ratliff and confirmed that the seized material in Ratliff's possession contained information relating to the activities of a number of organizations in which the subcommittee was interested.
At some point before Brick was first given access to the seized material, Ratliff has claimed that 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 Minority Opinion) that the judge agreed to Brick's examining and copying the material. [MeSurely v. McClellan, Civil Action No. 73-1991 (D.D.C. 1976); Slip Opinion (MNinority) at 10; this report at 171.]
On October 12, Brick examined the material for about 4 hours. He took notes, made copies of 234 of the documents, and then returned to Washington.
Four days later, on October 16th, Senator M~cCellan directed Brick to prepare subpoenas duces tecurn for the seized material in iRatliff "s custody, wX.hich the Senator had determined was relevant to the subcommittee'ls investigations of an April 1967 riot in Nashville, Tenn. 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 McSurelvs 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 MeSurelys).
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 IRatliff's custody be returned to them and that a restraining order be issued enjoining release of the materials requested "by a Committee of the United States." 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 ceo href as the committee considers pertinent to its inquiry **[Slip Opinion (Minority) at 11-12; this report at 172-173.]
On November 1, 1967, a motion for reconsideration and rehearing of the October 30th order was denied. The court granted a 24-hour stay to allow the McSurelys to apply to the Supreme Court for review, and directed that pending such review the material not be removed from Ratliff's custody and that "copies thereof shall not be made on or before 2:00 p.m. Eastern Standard Time, November 2, 1967." [Slip Opinion (Minority) at 12; this report at 173.]
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 comimittee representatives to make copies of the materials in his possession pursuant to the court's orders. A7 5-day stay was ordered in the compliance required by the order to allow the MeSurelys 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 c'uriam order [390 U.S. 412 (1968) ], but continued the stay to allow the MeSurelys to apply to the Sixth Curcuit Court of Appeals for a stay. By the time the McSurely's appeal to the Sixth Circuit was taken, the time for appealing the threejudge court's order of September 14, 1967, had expired.
In July of 1968, the Sixth Circuit decided that since time for appeal of the September 14th order, which had declared the Kentucky statute unconstitutional, had run, "the right of the court to retain possession of the seized documents, which include no contraband, has expired." [398 F. 2d 818.] The appeals court ordered that the materials be returned to the McSurelys without prejudice to the subcommittees' right to proceed with the enforcement of its subpoenas: [Q] uestions [as to the subpoenas] may be adjudicated under the appropriate procedure for challenging subpoenas of Congressional Committees." [398 F. 2(1 818, cited Slip Opinion (Minority) at 14; this report at 175.]
On November 8, 1968, the seized materials were returned to the McSurelys. The McSurelys were immediately served with new subcommittee subpoenas similar to the original subcommittee subpoenas. The McSurelys refused to comply with the new subpoena duce8 tecumr issued by the subcommittee.
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 ap-
pearance before the subcommittee, see king a declaration that compliance with the subpoena was not required, a preliminary and permanent injunction against institution of criminal proceedings against them for their failure to comply with the subpoena, 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, they filed an -amended and supplemented complaint seeking only compensatory and punitive damages. The MeSurelys alleged that the defendants, Senator McClellan, three members of the subcommittee staff, and 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. Constitution and the laws of the United States." [Plaintiffs' Amended and Supplemental Complaint, at 1314.]
In the criminal action for contempt of Congress, the MeSurelys 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 Confrress convictions of the McSurelys, was filed on December 20, 1972. TIhe 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 invalid as the fruit of an unlawful search and seizure. [United States v. MeSurely, 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 decision of the Solicitor General was 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 aire 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 United States Senator or employees of the Senate of the United States at all times material to this cause.
(3) Plaintiffs are b-arred by collateral estoppel from relitigating issues previously settled by the judgment of this court in United States v. Alan McSurely and Margaret Me-
Surely, 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 holding and remanded the case for further action consistent with its holding.
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 oria-inal raid on the McSurelvs' home and. if so, whether there was sufficient evidence of such collaboration to merit a trial on that issue.
In addition, the appeals court remanded to the lower court the question of whether the defendants distributed copies of documents to individuals or agencies outside Congress-and, if so, whether such distribution was actionable. [1cSurely v. 1cClelan 521 F. 2d 1024 (D.C. Cir. 1975).]
The McSurelys filed a petition for a rehearing by the court of appeals sitting en bant.
On December 10, 1975, the decision of the court of appeals was vacated and the petition for a rehearing en bane was granted.
On December 21, 1976, the court of appeals en banc issued its opinion.
A majority of the court held that as a matter of law the Federal defendants were entitled to summary judgment on:
(1) "allegations in the amended complaints pertaining to the subcommittee 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 McSurelys' home, appellants are entitled to dismisal on this point." [Slip Opinion (Majority) at 44; this report at 152.]
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 Adlerman survives their deaths; (2) whether Brick's inspection of the seized material put in Ratliff's
80-341 0 77 2
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 Washington copies of documents he knew to be wholly unrelated to the legislative inquiry, and, if so, whether such conduct was actionable under the applicable law; (4) whether any other federal defendants acted in concert with Brick in action for which he enjoys no legislative immunity; (5) whether any of the federal defendants 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. [1d.]
As to the refusal to grant summary judgment on two allegations relating to dissemination of some or all of the documents outside of the subcommittee and the Congress, the court of appeals found that such activity "is not legislative activity entitled to absolute immunity by force of the Speech or Debate Clause, in the absence of a claim of legislative purpose." [Slip Opinion (Majority) at 16; this report at 124.)
As to the insiDection 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." [Slip Opinion (Majority) at 22 this report at 130.1 They concluded 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-takinr" (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 investigative agency to another is not a 66 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 sDecific holding of the Ninth Circuit in United States v. Sherwin 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. [Slip Opinion
(Minority) at 5; this report at 166.]
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 * V' [Slip Opinion (Majority) at 35; this report at 143.] The majority noted: "The fact that Brick took and transported concededly extraneous material-and it is significant that he seized 6some personal letters'a-takes this case outside the protection of legislative immunity." [Slip Opinion (Majority) at 37; this report at 145.] 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." [Slip Opinion (Majority) at 38-39; this report at 146-147.]
To thi's 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's Inspection and copying of the private papers of Mrs. McSurely may amount to a cause of action at common law for "intrusion" upon her privacy. McSurelys' amended complaint, however, does not allege any such common law or statutory violation, but alleges rather a violation of the Fifth Amendment, which, of course, protects each person from deprivation by a federal official of life, liberty or property, without due process of law.
Presumably, the MeSurelys 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 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. [44 U.S.L.W. 4337 (23 March 1976).] [Slip
Opinion (Minority) at 4849; this report at 209-210.]
Turning to the question of whether the documents selected and transported by Brick "were needed by him for the performance of his duties," the minority attacked the majority's conclusion that the documents were irrelevant. While the minority agreed that Brick had conceded that some of the documents might have been irrelevant to the committee's inquiry, it stated: "This (the majority] decision still amounts to 'second guessing' the legislative process since it overrides an independent estimate of relevance that could be 'Plausibly interposed,' and it appears to override a judgment of relevance inferable from the subpoenas [which were subsequently issued by the Committee.]" [Slip Opinion (Minority) at 54; this report at 215.]
The minority noted that the documents which were purported to be irrelevant may in fact have been relevant to the committee's investigation. The Senate investigator was required to take such documents to the committee for its determination of relevance since "[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." [Slip Opinion (Minority) at 55; this report at 216.]
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 rsic] 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 MeSurelys) 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, af ter 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. [Slip Opinion (Minority)
at 58-60 (footnotes omitted); ths report at 219-221.]
In its conclusion, the minority objected strenuously to the majority's decision to remand on these points, noting:
The purpose of an absolute immunity is to cut off
claims against protected parties at the outset. To be true to this purpose, a court should make every effort to determine 'if a claim is inside or outside the protection of the Speech or Debate clause. A remand for further factual proceedings on the issue of absolute immunity itself should be required only in the case of clear need. Otherwise the "mini-trial" that the defendant is forced to undergo constitutes an erosion of the principle of absolute immunity. The 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 Brick 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. [Slip Opinion (Minority) at 63; this report at 224.]
In a separate dissent, Judge Danaher, writing for himself and three other judges, concurred in Judge Wilkey's opinion, but also provided a general dissent from those portions of the majority's opinion which did not provide for complete dismissal of the complaint. He stated that:
A Subcommittee of the United States Senate was engaged in the truthfinding process which it had been com-
manded 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
It is respectfully submitted that this case should be
remanded to the District Court with directions to dismiss the complaint. [Slip Opinion (Dissent) at 13-14; this report at 237-238.]
Status.-No further action has been taken in the case.
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 Con qress, December, 1972.
The full text of the decision of October 28, 197,5, of the court of appeals was printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, December 31, 1975.
The full text of the decision of December 21, 1976, of the court of appeals en banc is printed in this report at 109. Jordan v. Latta
Civil Action No. C75-166 (N.D. Ohio)
Brief.-Plaintiff is a member of the International Brotherhood of Teamsters who lives in Cecil, Ohio, within the Fifth Congressional District. Defendant Delbert L. Latta is the U.S. Representative for the Fifth Congressional District, and defendants Larryv Paul and George Blue work for the Federal Bureau of Investigation (FBI) in the Bureau's Toledo, Ohio office.
The complaint, filed April 22, 1975, alleged the following: that on or about April 4, 1975, plaintiff called Congressman Latta at his home in Bowling Green, Ohio, requesting his assistance in a labor dispute in which plaintiff was engaged with his trucking firm employer, a nd that 2 days later, at Representative Latta's request, he took some documents to the Representative's home. Two days later he again called and asked Representative Latta for his assistance in his capacity as a U.S. Congressman, and the Congressman indicated that he had prepared a letter indicating what plaintiff could do. Three days later, on April 11, 1975, the plaintiff called again asking about the letter and once more requesting assistance. Congressman Latta indicated that he could not help, but that he had pre-pared a letter regarding the problem. Plaintiff then stated that he would remember how to vote, and Congressman Latta said that was fine, he could vote any way he wanted.
The complaint then alleges that on April 14, 1975, defendants Paul and Blue called plaintiff and indicated they wanted to talk with him. They met him that day at his home and said that Congressman Latta had filed a complaint with the FBI alleging that plaintiff had put undue pressure on him, though indicating that no threat was made on his life by plaintiff. After discussing the situation with plaintiff for an hour, defendants Paul and Blue indicated to plaintiff that the whole incident should be kept quiet and not revealed to the press.
Plaintiff contended that he contacted his Congressman in order to petition his government for a redress of grievances, and that his appeal to Congressman Latta for assistance and intervention was protected by
the First and Fourteenth Amendments: that the utilization of the FBI was meant to curtail his rights to petition the government;: that he at no time put undue pressure on the Congressman, and the use of the FBI was meant to harass him in exercise of his right to petition his government; and that defendants' actions left him without an adequate remedy at law, since he was denied his right to contact his Congressman without suffering from the harassment of FBI investigations. He asked for the following relief :
That a declar'atory judgment issue declaring the following: (a) that Plaintiff as a citizen of the United States has a
right as guaranteed by the Constitution to petition his
(b) that Defendant Latta's action in reporting Plaintiff
to the FBI was violative of Plaintiff's rights as guaranteed by
(c) that the Defendants Larry Paul and George Blue's
investigation of the Plaintiff because of his contact with Defendant Latta was violative of Plaintiff's unencumbered right
to petition government.
That a preliminary and permanent injunction issue:
(a) requiring the Defendants Larry Paul and George Blue
to expunge any and all FBI records pertaining to Plaintiff as
a result of Defendant Latta's charges:
(b) enjoining the Defendants Larry Paul and George Blue
from harassing the Plaintiff by visitation to home, place of -work or anywhere else because 'of Plaintiff's exercise of his right to petition government, or as a result of this lawsuit.
That a writ and mandarnais issue against Defendant Latta
compelling Defendant Latta to do the following:
(a) carry out and perform his functions as a United States
Congressman in a manner so as not to deny Plaintiff his right
to petition government;
(b) to refrain from filing charges with the FBI regarding
Plaintiff because Plaintiff seeks to petition government
through Defendant Latta:
(c) to fulfill those duties owed Plaintiff by Defendant
Latta in his capacity as a United States Congressman: particularly to permit Plaintiff to seek a redress of his grievance and the right to petition government through Defendant Latta without becoming subject to FBI or any other governmental investigation.
That compensatory damages in the amount of 1$15).000.00 be
That punitive damages in the amount of $100,000.00 be
That reasonable attorney fees be awarded.
For any and all other relief the court. deems appropriate.
[Complaint at 5-6.1
In their "Motion to Dismiss or, in the Alternative for Summary Judgment." defendants stated that Congressman Latta had advised the plaintiff that the matter of plaintiff's request, to himn was within the jurisdiction of the National Labor Relations Boar'd. and that plain-
tiff had become so hostile that it caused Congressman Latta to believe he may have been threatened. The Congressman reported the incident to the FBI and left the matter to their discretion. The FBI, after consultation with an Assio-tant United States Attorney, decided to conduct an informal interview to clarify the possible threat. This was done with plaintiff's consent, and it was determined that no crime had been committed. Plaintiff was not detained against his will nor subject to any form of duress, and therefore he had failed to state a claim against any of the defendants. "Moreover, the named individual defendants in this action were engaged in official duties with regard to the allegations herein and are therefore immune from suit." The response said that Congressman Latta was protected in his actions by the Speech or Debate clause, or even if he wasn't, he was protected by the fact that he was carrying out his official duties as a Congressman.
The response also stated that Congressman Latta's exercise of his official duties is not reviewable by mandamus, since a Congressman is necessarily besieged with requests from individual constituents to take actions on their behalf, each of whom may earnestly believe that his case deserves immediate action as requested. It also said that because the United States had not consented to being sued in this case, it was protected by the doctrine of sovereign immunity.
Plaintiff countered that the doctrine of official immunity would not hold in this case because Congressman Latta had not called the FBI to investigate a possible crime but had sent the agents to deny plaintiff his constitutional rights of freedom of speech and the right to petition his government for the purpose of protecting Congressman Latta by warning plaintiff not to put anything in the papers that would harm Congressman Latta's political career. By the same reasoning, plaintiff argued that Congressman Latta was not engaged in a legislative function when he called the FBI, and is therefore not protected by the Speech or Debate clause.. Also, plaintiff claims that nwndamw is sought not to force Congressman Latta to grant him an audience, but to prevent the Congressman from filing charges with the FBI for plaintiff's attempts to petition him for assistance. Plaintiff also states that the United States is a proper party, not as to payment of damages, but as to havingan order issued by the court which will prevent retaliatory action against plaintiff by other government agencies.
Defendants reasserted their claim of official immunity as to all defendants and legislative immunity as to Congressman Latta, and stated further that even were these defenses to be denied, Congressman Latta could not be liable since all he had done was report suspicious circumstances to a law enforcement agency. They stated further that plaintiff Is claim that Congressman Latta had used the FBI to harass plaintiff and keep him from going to the press so that Congressman Latta could save his political career was without merit. "It is from just such frivolous allegations that the doctrines of official immunity and congressional immunity are intended to guard government officers and legislators, leaving them f ree to pursue their important official functions." [Plaintiff's supplemental memorandum in support of defendants' motion to dismiss or in the alternative for summary judgment and in reply to plaintiff's memorandum in opposition thereto, at 19.]
Defendants again stated that by interviewing the plaintiff, the agents for the FBI had not given plaintiff grounds for an action, even if done for an improper motive. Finally, they stated that the United States is not subject to an action seeking an injunction without its consent by statute.
In an Opinion and Order issued March 26, 1976, U.S. District Court Judge Don J. Young decided that the lawsuit could not be entertained at all because he found that the activities involved fell within the legitimate legislative sphere of Representative Latta's duties as a Congressman. Therefore he was cloaked with congressional immunity and could not be questioned in court concerning those activities. -Mr. Latta was performing the legitimate legislative function of listening to and attempting to solve the problems of his constituency. He appears to have performed said function in an honest and sincere manner. In order to insure that he continues to perform said function independently, he must be protected from lawsuits of this nature." [Opinion and Order at 3.] The court also found that the FBI agents were merely serving Congressman Latta in his legislative function and were thus also entitled to constitutional protection under the Speech or Debate clause as read in Poe v. Jfc.Ii/lan. 4112 U.S. 306 (1972). Also, since the United States had not consented to being sued in this case. it had to be dismissed as a party. The complaint was therefore ordered dismissed as to all defendants.
Status.-Time for appeal has expired. The full text of the court's "Opinion and Order" is printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congre8s, August 15, 1976.
III. POWERS OF CONGRESSIONAL CO-x.wrrI=ES
Ashland Oil Inc. v. Federal Trade Commission
Civil Action Nos. 76-1174 and 76-1-304 (D.C. Cii'.)
Biief.-This suit, filed on November 24 19 7.5. by Ashlkand( Oil, seeks declaratory and injunctive relief pursuant to Chiapter 7 of the Administrative Procedure Act (5 U.S.C. 701 et seq.).
On, or about April 15, 1975. the Federal Trade Commission served upon Ashland Oil an order ("Special Report") which required Ashland Oil to submit information, some of, which "was highly sensitive competitive data detailing the company's reserve estimates for all of its natural gas leases and contracts nationwide." LAshland O;!. Thc. v. Federal Trade Comm issiafl. Civil Action No. 75-1956 (D.D.C.) Slip Opinion at 31. Ashland's submission was accompanied by a letter from one of its vice presidents stating that the company's information onl gas reserves was confidential and of a proprietary nature, the disclosure of which would result in competitive injury. The letter further stated that such information was submitted to the Commission with the express reservation that Ashland could claim its right to have the materials therein provided "accorded confidential treatment and be protected from disclosure."
Following a rejection by the Federal T,"ade Commission of his request, as a Member of Congress, to make available to him data gathered by the Commission pertaining to lease extensions onl Federal lands, Congressman John E. Moss sent a second request as Chairman of the Subcommittee on Oversight and Investigations of the House Committee on Interstate and Foreign Commerce. Unlike its first response. in which it denied the Congressman's request for information which it considered to be exempt from mandatory disclosure under the Freedom of Information Act (5 U.S.C. 0 52 (b) (4) and (b) (9) ), the Commission treated the second request as a "formal Congress, ional request" and advised Chairman Moss that the requested information would be furnished. Subsequently. Ashland was advised of the Commission's decision to turn over the requested data to Congressman Moss.
On the same day that this suit was filed, Ashlanld moved for and was granted a temporary restraining order enjoining the Commission from releasing the information in issue, thus preserving the status qulo until the court considered the merits of Ashland's claims.
On December 2. 1975. a subpoena d17tees timwas served on the Chairman of the Federal Trade Commission which ordered him to appear before the subcommittee and to bring with him
any and all records within the Federal Trade Commission's control or custody or within the Federal Trade Commission's means to produce appertaining to or involving oil and/,or gas lease extensions on Federal lands, including Ashland Oil, Inc. and including all correspondence between the Federal
Trade Commission and Ashland Oil, Inc. relating in any manner to agreements or proposed agreements to hold such records confidential or to give advance notice of the release thereof. [See H.R. Rep. No. 94-756, 94th Cong., 1st Sess.,
at 3-4 (1975).]
By letter of December 3, 1975, Chairman Moss informed Mr. Lewis Engman (Chairman of the FTC) that the subcommittee would take no action to enforce compliance with the subpoena until the court had considered the issues arising in the instant case.
Following a hearing in open court, Congressman Moss' motion to intervene pursuant to Rule 24(a) of the Federal Rules of Civil Procedure, was granted on January 16, 1976.
This case came before Judge Howard F. Corcoran, of the United States District Court for the District of Columbia on Ashland's motion for preliminary and permanent injunction and Defendants Moss' and the Federal Trade Commission's motions for summary judgment or, alternatively, to dismiss.
In a memorandum and order filed February 2, 1976, the district court denied the plaintiff's motion, granted defendants' motion to dismiss, and dissolved the temporary restraining order issued November 24, 1975.
After addressing itself to the plaintiff's contention that Section 6(b) of the Federal Trade Commission Act prohibits the disclosure of trade secrets by the Commission to any third party-including the Conoress--and having determined that some of the data in issue do indeed constitute a "trade secret," within the purview of Section 6(f) of the FTC Act. and further, declaring that congressional investigatory power is not unlimited and the boundaries of the inquiry may be no broader than the "legitimate sphere of legislative activity," the court concluded:
In summary, we find that the particular investigation here
in issue is directly related to and in furtherance of "a legitimate task of Congress." Watkins v. United States, supra, 354 U.S., at 187. The Subcommittee, in issuing the subpoena, was acting under the clear mandate of the full committee and the House of Representatives to investigate within the "sphere of legitimate legislative activity" and that grant of authority is itself sufficient to show that the investigation upon which the. Subcommittee has embarked "concerned a subject on which 'legislation could be had'." Eastland v.
United States Serrwe'men's Fund, su'pra, 421 U.S., at 506; MJ/Gran v. Daitqherty, 273 U.S., at 177: see also Communist Party v. Control Board, 367 U.S. 1 (1961). [Ashland Oil Inc. v. Federal Trade Commission, 409 F. Supp. 297, 307
(D.D.C. 1976) ; footnote omitted.]
With respect to plaintiff's specific motion for preliminary and permanent injunction, the court said:
Injunctive relief is appropriate only "to prevent existing
or presently threatened injuries" and "will not be granted against, something merely feared as liable to occur at some indefinite time in the future." Connecticut v. Jfassaehusetts, 282 U.S. 660. 674 (1930), see also, General Fireprooflng
Company v. Wyman. 444 F.2d 391, 393 (2nd Cir. 1971). Injunctions will not be granted where the injuries complained( of are prospective and "which may. indeed. never o(ieur. (Kinmins v. America, Stock Exchange. Inc.. 34) F. Supp. 125, 1262 (S.D.N.Y. 1972). The injury complained of must be of such imminence that there is a "clear and present" need for equitable relief to prevent irreparable harm. Hershey Crea ery Co. v. Hershey Chocolate Corp.. 269 F. Supp. 45 (S.D.
N.Y. 1967) : see also Assn. of Professional ELgqineerin y Personnel v. Radio Corp. of America. 183 F. Supp. 834 (D.C.
N.J. 1960). And the required showing of irreparable injury is not eliminated simply by virtue of a claim alleging violation of statutory or constitutional rights (unless the requirement has been specifically eliminated by statute). Thus. in United Fuel Gas Co. v. Railroad Commission. 278 U.S. 300
(1928), the Supreme Court noted:
Suitors may not resort to a court of equity to restrain a threatened act merely because it is illegal or transcends constitutional powers but the act complained must inflict upon them some irreparable injury." 278
U.S.. at 310 (Stone. J.)
See also Vewtex R.S. Corp. v. United States. 107 F. Supp. 388 (S.D.N.Y.), aff'd. 344. U.S. 901: Ellis Raw Bar v. District of Columbia Redevelopment Land Agency. 433 F.2d 543
(D.C. Cir. 1970).
While Ashland couches its concerns in terms of "public
disclosure," any irreparable injury to it would result. more precisely, in disclosure to its competitors. Certainly, such injury might logically result as well from general dissemination. But the transfer of such data from the FTC to the Subcommittee and the Subcommittee's review of that information. does not lead inexorably to either public dissemination or disclosure to Ashland's competitors. Aoreover, the courts must presume that the committees of Congress will exercise their powers responsibly and with due regard for the rights of affected parties. See, AIsara v. Eastland. 442 F.2d 751. 754 (1971) : Uvited States v. Tobin, 195 F. Supp. 588, 613
(D.D.C. 1961). [Id. at 307-08: footnotes omitted.]
In response to Ashland's allegations that the subcommittee's handling of trade secrets in the past "has shown either a total incapacity to protect such trade secrets or a callous indifference to the proprietary nature of those secrets" (Plaintiffs Reply Memorandum, p. 59). the court stated:
While the Court can appreciate Ashland's concern under
these circumstances, it does not anpear to the Court that isolated instances of breached confidentiality in the past are sufficient to overcome the continuing presumption of Congressional propriety.
Through its staff counsel, the Subcommittee has indicated
that there is "no indication" that the Subcommittee "would release information originating from Ashland." (Affidavit
of Michael R. Lemov, Intervenor's Motion to Dismiss.) And
Chairman Moss, through counsel, has represented:
Of course, the Subcommittee -does not seek publication of Ashland's trade secrets; it seeks merely production documents in compliance with a Congressional subpoena. (Response of Chairman Moss to Ashland's Opposition to Motion to Dismiss, p. 6.)
Weighing all of these considerations, it appears to the
Court I on balance, that the irreparable injury which Ashland seeks this Court to prevent by the issuance of permanent injunctive relief is neither "presently threatened" nor "imminent." The injuries complained of are, rather, "prospective" in nature and "may, indeed, never occur." See Crimmins v. American Stock Exchange, supra. [346 F. Supp. 1256,
1262 (S.D.N.Y. 1972) ] [Id. at 308-09.]
In conclusion the court held that irreparable injury could not be established, that injunctive relief was not warranted, and that it need not reach the merits of Ashland's complaint.
However, on February 9, 1976, the court granted plaintiff's motion for an injunction pending appeal on terms identical to the temporary restraining order previously entered. The court said:
[I]tappears to the Court that (1) this action will be rendered moot in the absence of an injunction pending appeal; and that (2) the issues to be raised on appeal have not heretofore been definitively settled in prior case law and are of substantial import to the parties and the general public; but that (3) the countervailing legitimate interests of the legislative branch militate against indefinite protraction of interlocutory relief by this Court. [See Order and Statement of Reasons Pursuant to Federal Rules of Appellate Procedure
8 (a), February 9, 1976, at 1.]
Representative Moss filed a motion with the District Courton February 4 asking that Court to amend its findings in its order of February 2 by removing any implication that either he or the Subcommittee he chairs had at any thne, breached promises they had given to keep trade secret data confidential. Ashland filed a motion for a. rehearing on February 5. Both motions were denied by the Court on February 9.
On February 18, 1976, Ashland filed an appeal with the U.S. Court of Appeals for the District of 'Columbia, and also filed a motion for an in unction to preserve the status quo pending appeal. The motion for the injunction was -argued before the Court of Appeals on March 11, and was granted on March 26 in an order which also denied defendants' motion for summary affirniance.
Representative Moss then filed an appeal from the denial of his motion to amend the findings of the District Court. The appeal, filed on April 2, asked that his appeal and that of Ashland's be consolidated, which was done on April 23.
The consolidated cases were argued before the court of appeals on May 10, 1976.
On September 20, 1976, the Court of Appeals for the District of Columbia issued its decision essentially affirming the district court's opinion.
The majority held that "At a minimum", absent a showing that the material which the Federal Trade Commission was to turn over to the subcommittee would necessarily be made public, the Federal Trade Commission was not precluded by statute "f rom transmitting trade secrets to Congress pursuant either to subpena or formal request." [Ashland Oil, Inc. v. Federal Trade Commission, Civil Action No. 76-1174 (D.C. Cir. 1976); Slip Opinion at 4; this report at 242.]
As to Congressman Moss' appeal, the majority found "'no occasion to address the grounds of his separate appeal" since they did "not read the district court's opinion as findincr that Congressman Moss ever broke a promise of confidentiality". [Slip Opinion at 9, this report at 247.]
Nor did the majority f eel it necessary to address the issue of the validity of the subpoena noting that the "Federal Trade Commission's decision to turn over the materials in question was not based on-and in fact predated-issuance of the subpoena." [Slip Opinion at 4; this report at 242.]
Judge McKinnon in his dissent attacked the majority's conclusion that Ashland Oil's "trade secrets" "may be surrendered to Congress 'pursuant either to subpoena or f ormal request". [Slip Opinion (Dissent) at 1; this report at 249.]
The first trouble with this declaration is that the subpoena here is invalid under the House Rules. The second is that the Government at oral argument based its position solely on the subpoena and repeatedly refused to defend any claim that the agency had a right to comply with the "formal request," so that, with respect to a request short of a subpoena, the majority opinion is based upon a position that is not bef ore it and which was expressly disclaimed.
The Government stated at oral argument that it was
defending only the validity of the subpoena. That was the only issue the Government argued, and yet the majority would dispose of the case without even addressing the point. The reason for this is that the majority recognize that the subpoena is invalid, for the reasons hereafter stated. Given the invalidity, the case must be disposed of in appellant Ashland's favor because the Government relies on no other basis for surrendering the documents.
The majority opinion also misstates both the facts of
the Government's presentation at oral argument and the law with respect to the authority of the Department of Justice over the conduct of agency litigation. [Slip
Opinion (Dissent) at 1; this report at 249.]
After declaring that the Justice Department's oral argument had waived the position that the Federal Trade Commission
would have been bound to comply with a congressional request for information without the issuance of a formal subpoena, the dissent concluded that the Subcommittee's subpoena was not validly authorized.
Judge McKinnon noted that according to House Rule XI, clause 2(m)(2) (94th Congress) a subpoena could be issued "only when authorized by a majority of the members of the committee." The Committee on Interstate and Foreign Commerce had 43 members at the time; an absolute majority of the committee would be 22. Since the authorization of the subpoena was supported by only 21 committee members, Judge McKinnon concluded, "the subpoena issued by the Subcommittee was not properly authorized * *." [Slip Opinion (Dissent) at 10; this report at 258.]
Judge McKinnon reached this conclusion over the objection of Congressman Moss in spite of a letter addressed to Representative Moss from Speaker Carl Albert which stated:
Dear Mr. Chairman:
I have received your letter of May 11, 1976, regarding the
interpretation of House Rule XI, clause 2(m), which authorizes committees of the House of Representatives to
There is no indication in the legislative history of the
rule, which was adopted in the 93d Congress to become effective January 3, 1975, of any intent to require a different procedure for voting on subpoenas than on other votes taken in House committees. Under the customary and correct practice of the House of Representatives, which derives its rule-making authority f rom the Constitution (Article 1, Section 5, which provides that a majority of the House shall constitute a quorum for doing business), committee action is valid which is authorized by a majority of those Members voting, a quorum being present. It would create an anomalous situation to require a more stringent standard for authorizing the issuance of a subpoena than for finding a witness in contempt of a committee for refusing to honor such a subpoena, or for taking a final committee action in ordering a measure or matter reported to the House. [Slip Opinion (Dissent)
at 11; this report at 259.]
Judge McKinnon responded that the Speaker's contention that the legislative history of the House Rule supported the assertion that only a majority of a quorum was needed to authorize a subpoena was erroneous. The judge noted:
When the House of Representatives in the 2d Session of
the 93d Congress adopted H. Res. 988 it sought to reform the subpoena-issuing practices of its committees. The resolution changed the prior rule, which had allowed a "majority of a quorum," into a requirement of "a majority of the members" to issue subpoenas. See, e.g., Rules of the House of Representatives, 93d Cong. XI, cl. 2.(b) and id..
94th Cong. XI, cl. 2. (m) (2) (a), supra. The resolution making this change in the long-standing rule was entitled
the "Committee Reform Amendments of 1974." Requiring "a majority of the members of the committee," rather than a majorityy of a quorum," to authorize the issuance of subpoenas was a part of that reform. Accomanying the Resolution to the floor of the House was the Report of the sponsoring Select Committee on Committees, which, with
respect to the "SUBPE NA POWER," stated:
The select committee proposes certain standardized procedures and safeguards covering subpoenas that would apply uniformly to all committees. The Committees on Appropriations, Government Operations, and Standards of Official Conduct would continue to have standing subpoena authority, while others would be required to receive House authorization for each activity or series of activities. However, in the case of all committees, a majority of the membership of each committee would be necessary to authorize the issuance of a subpoena or group of subpoenas. Compliance could be enforced only as authorized or directed by the House.
This clearly indicates that the intent of the authors of the Rule was to require the votes of a majority of the "membership"-and since the membership of the Committee is just one figure-4.3--the Rule would clearly require 22 votes to issue a subpoena. We find no distinction between "a majority of the membership of each committee," as used in the Report, and "a majority of the members of the committee,"9 as used in the Rule which the Report discussed. The "membership" of the Committee is 43 and there are 43 "members of the committee."9 [Slip Opinion (Dissent) at 15-16; this report at 263-264.]
Additionally Judge McKinnon rejected the subcommittee contention "that the House ratified the subpoena when it voted to authorize Subcommittee Chairman Moss to appear as an intervenor in this action, in which the validity of the subpoena is in question." [Slip Opinion (Dissent) at 20; this report at 268.]
This assertion of ratification Judge McKinnon found unacceptable because:
The argument fails to comprehend the scope of the subpoena rule. The intent of that rule is to provide for the orderly consideration by the committee as to whether subpoenas should issue and to assure that a majority of the members of the committee are sufficiently convinced of the necessity and importance of issuing the subpoena to attend the committee meeting and vote in f avor of that action before the subpoena issues. Shelton t, United States, 117 U.S. App. D.C. 1155, 327 F.2d 601 (1963). The committees of Congress must strictly conform to their rules in obtaining testimony before its committees. Yellin
v. United States, 374 U.S. 109 (1963); Christoffel v. United States, 338 U.S. 84 (1949); United States v. Reinecke,
U.S.App.D.C. 524 F.2d 435 (1975). Further,
it does not appear from the language of the Resolution that there was any intent to ratify the subpoena, even if that could be done. Such intent must be evident, and it must also be evident that the ratifying party has knowledge of the material facts, in this case, the material fact of a violation of the House Rules. Western Nat. Bank v.
Armstrong, 152 U.S. 346, 352 (1894); Bloomfield v. Charter Oak Nat. Bank, 121 U.S. 121, 135-36 (1887). [Slip Opinion
(Dissent) at 20; this report at 268.]
Judge McKinnon concluded that since the subpoena was invalid an injunction prohibiting its enforcement should be issued. He did note, however, that "this does not foreclose the commission from conveying the material to the subcommittee pursuant to a subpoena that is properly authorized." [Slip Opinion (Dissent) at 21; this report at 269.]
A stay has been issued by the Court of Appeals and was extended on October 5, 1976 until an order is issued disposing of appellant's petition for rehearing.
Atat.s.-Petitions for rehearing have not yet been filed. The case is still before the court of appeals.
The full text of the court of appeals opinion appears in the "Decisions section of this report at 239. The district court's memorandum and order of February 2, 1976, was printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, April 15, 1976.
United States v. American Telephone & Telegraph Co.
Civil Action No. 76-1712 (D.C. Cir.)
Brief.-On July 22. 1976 the Justice Department filed this action in the District Court for the District of Columbia seeking a temporary restraining order enjoining American Telephone and Telegraph (A.T. & T.) from complying with a subpoena issued by the Chairman of the I-louse Committee on Interstate and Foreign Commerce pursuant to a vote by the Subcommittee on Oversight and Investigations. The Chairman of the Subcommittee, Representative Moss, filed a motion to intervene as a party-defendant which was grant ed. (Civil Action No. 76137'2 (D.D.C.).)
The information sought pursuant to the subl)oena included letters from the Federal Bureau of Investig'ation (FBI) to subsidiaries of A.T. & T. requesting (1) that a leased telephone line be provided at the usual commercial rate. (2) a statement that the request was made upon ,t specific authorization of the Attorney General for purposes of national security. (3) the phone number, location, or other information relating to the lines to be intercepted, and (4) the statement that A.T. & T. was not to disclose the existence of the request because such disclosure would obstruct and impede the investigation.
The letter includes the p)hone number, the address. or some other indication identifvinfr the object of the electronic surveillance. Such a request is necessarv because the information intercepted is moved from the point of interception (i.e., the telephone line leading to the
object structure) to the point of monitoring (which may be the local FBI office) by way of a leased telephone line, which can be installed only by A.T. & T. and its subsidiaries.
Paragraph one of the subpoena seeks such "national security request letters."
The return date on the subpoena was originally set for June 28, 1976, but because of continuing negotiations the compliance (late was extended to July 23rd.
The executive branch presented the committee with an alternative proposal which the court described thus: "Under this proposal, following A.T. & T.'s preparation of an 'inventory' of the request letters held by A.T. & T., the FBI would identify by date those which were 'foreign intelligence surve il lances' and those which were 'domestic surveillances.' In regard to the past domestic surveillances, the FBI would furnish to the Subcommittee the memoranda on which the Attorney General based his authorization for such surveillances, with only minor deletions necessary to protect ongoing investigations. From the 'foreign intelligence surveillances,' the Subcommittee could select sample items for any 2 years, and representatives of the Subcommittee would be given access to the memoranda on which the Attorney General based his authorization of those surveillances with names, addresses or other information identifying targets and sources e .leted." [United States v. American Telephone and Telegraph, 419 F. Supp. 454,458-59 (D.D.C. 1976).]
President Ford "also proposed a procedure whereby verification, and resolution of any questions, would be accomplished by the direct participation of the Attorn)ey General and if necessary by the President himself." This proposal was rejected by Subcommittee Chairman Moss. On July 92, 1976, the President wrote to Representative Harley 0. Staggers, Chairman, Committee on Interstate and Foreign Commerce, stating:
I have determined that compliance with the subpoena
would involve unacceptable risks of disclosure of extremely sensitive forei g'n intelligence and counterintelligence information and would be detrimental to the national defense and foreign policy of the United States and damaging to the national security. Compliance with the Committee's subpoena would, therefore, be contrary to the public interest. Accordingly, I have instructed the American Telephone and Telegra~ph Company, as an agent of the United States, to respectfully decline to comply with the Committee's subpoena. [Id.
The suit was filed by the executive branch wben it became clear that notwithstanding the. President's order, A.T & T. was prepared to turn over the subpoenaed documents to the Committee.
Chairman Moss asserted that the Speech or Debate clause of the Constitution was an absolute bar to judicial interference with a congressional subpoena issued in the conduct of a legitimate legislative investigation.
The Justice Department countered that the suit should only be considered one seeking to restrain a private party from releasing docitments in its possession. By doing that, the department argued, the
court need not consider the applicability of the Speech or Debate clause, since the immunity of that constitutional provision runs only to Members of Congress and their close aides when defending against a lawsuit, and does not afford any protection to a private entity such s A.T. & T. This argument was advance(t, the Justice Department said, so that the court could avoid dealing with a constitutional confrontation between two of the three branches of Government.
On July 30th the court issued its decision. Rejecting the Department's approach, the court said:
[T] o take this avenue would be to place form over substance. The effect of any injunction entered by this court enjoining the release of materials by A.T. & T. to the Subcommittee would have the same effect as if this court were to quash the Subcommittee's subpoena. In this sense the action is one against the power of the Subcommittee and should be treated as such, assuming that Representative Moss has authority to
speak for the Subcommittee. [Id. at 458.]
The court determined that it was confronted with a direct contest between the investigatory power of the Congress and the invocation of executive privilege. Rejecting the contentions of absolute rights asserted by both Chairman Moss and the Justice Department, the court determined that :
Here, by nature, the extent and the relative importance of
the power of one coordinate branch of government must be balanced against that of the other. Neither can be considered
in a vacuum. [Id. at 459.]
In balancing the competing interests the court noted several factors which, it concluded, must be considered. These included:
(1) whether the information requested is essential to "the responsible fulfillment of the Committee's functions." Senatc Select Comin/tiee v. Nixon, 498 F.2,d 725. 731 (D.C. Cir. 1974) (concerning a congressional subpoena of Executive documents 'not related to national security).
(2) Whether there is "an available alternative" which might provide, the required information "without forcing a showdown on the claim of privilege." United States v. fec'/iolds, 345 U.S. 1, 11 (1952).
(3) The circumstances sui'rour ding nnd the basis for the Presidential assertion of privilege. Id.; Urnted States v. Axon, 418 U.S. 683, 710-711 (1974).
The court concluded:
In the context of this case, and the court emphasizes that
this decision is limited to the circumstances of this case, the court. determines that there are alternative means available for obtaining the information required by the Subcommittee, that the particular form in which that information is sought is not absolutely essential to the legislative function, and that the President's determination that release of this material would present an unacceptable risk of disclosure of matters concerning the national defense, foreign policy and national security out weighs the Subcommittee's showing of
necessity. [id. at 460.]
In deciding to grant the permanent inj unction against compliance with the subpoena, the court considered the likelihood that the subpoenaedi material if turned over to the 6ubcoininitue m1ight, be mnade public. Thie court noted the President's determiniationi that release of tlie, material would present an unacceptable risk of discos _--to national security and loreign policy and that:
if the materials were turned over to the Subcommittee, the information could legally be released upon the majority vote of a quorum (8 Memibers) of the Subcommittee unless such a determiination were reversed by the affirmative action of the House. In addition, eacht of the 435.NMembers of the House of Representatives would have access to such material pursuant to Rule Xl (2) (e) (2) of that Chamber's Rules. The potential for disclosure of this highly sensitive information, if put into the hands of so many individuals, has been determined by the President to be an unacceptable risk. Such
a determination is entitled to great weight.
The court is not implying that the Members of the Subcommittee, or of the House of Representatives, will act negligently or in bad faith if they have access to these documents.
But it does appear to the court that if a final determination as to the need to maintain the secrecy of this material, or as to what constitutes an acceptable risk of disclosure, must be made, it should be made by the constituent branch of government to which the primary role in these areas is entrusted.
[Id. at 460-61.]
Defendant-intervenors filed an immediate appeal with the court of appeals and asked for an expedited briefing period. On August 6, 1976, the U.S. Court of Appeals for the District of Columbia set anl expedited schedule and designated the case for hearing in the October 14 to November 3 session of that court.
On August 26, tL. House of Representatives passed House Resolution 1420, authorizing Chairman Moss to proceed in this action on behalf of the House of Representatives and the House Committee on Interstate and Foreign Commerce. Chairman Moss, on September 1, filed a motion f or substitution of parties to reflect the change in his status pursuant to the House resolution. The motion was granted on September 14th and the caption of the case was changed by deleting the words "Member, United States House of Representatives" and inserting in lieu thereof; "Individually and on behalf of the U.S. House of Representatives and the House Committee on Interstate and Foreign Commerce" In his suggestion that the appeals court hear the case en banc, Representative Moss set forth the issues he felt were present in the appeal:
Appellant submits that the issues presented by this
appeal are of exceptional public and constitutional importance, and should be decided by the Court en bane.
Among such issues are the following:
a. Whether the District Court erred in holding that
the President has the unreviewable power to prevent Con-
gress from receiving documents from a private company pursuant to an admittedly lawf ul Congressional subpoena, merely by asserting that Congress' receipt of such documents would be detrimental to national security ,
b. Whether the District Court erred in issuing an injunction that requires Congress to accept the opinion of the District Court as to the manner in which Congress should exercise its discretion in conducting an
admittedly lawful investigation; and
c. Whether, contrary to the decision of the District
Court, Congress has the constitutional power and responsibility to inform itself as to the nature and extent of warrantless wiretapping by the executive branch within
the United States.
In its response to the suggestion f or hearing en banc, the Justice Department noted:
The issue upon which this case turns is whether, under
our system of government, the President of the United States, or the House Committee on Interstate and Foreign Commerce, ultimately must determine the acceptability of recognized risks to the national security.
On October 8th, Chairman Moss' petition for hearing en banc was rejected.
On December 30, 1976, the court of appeals issued its opinion. The court, noting that both a new House and a new President would be in office early in 1977, remanded the case without decision on the merits to the district court. The appeals court expressed the hope that through further negotiations the parties could reach agreement "without requiring a judicial resolution of a head-on confrontation * [United States v. American Telephone and Telegraph Company, Slip Opinion at 3, this report at 323.] between the legislative and executive branches of Government. The court of appeals further ordered that the district court report to the appeals panel within 3 months on the progress of the negotiations.
Although the court of appeals stated that it was not ruling on the merits of the injunction against compliance with the congressional subpoena, it did direct the district court to modify the injunction which it (the district court) had issued so as "to exclude request letters pertaining to, taps classified by the FBI as domestic, since there was no contention by the Executive nor any finding by the district court, of undue risk to the national security from transmission of those letters to the subcommittee." [Slip Opinion at 25, this report at 345.] Status.-No further action has been taken.
IV. CONSTITUTIONAL POWERS OF THE CONGRESS
Nixon v. Sampson
Civil Action No. 74-1518 (D.D.C.)
Nixon v. Administrator of Gen. Servs.
No. 75-1605 (U.S. Supreme C(ourt)
Brief.-Following the resignation of former President Richard M. Nixon. the special prIosecutor s office advised counsel to President Ford and counsel to the former President of its continuing interest in presidential materials and tape-recorded conversations housed in the White House. the Executive Office Building, and elsewhere, which were relevant to investigations and prosecutions within thle juris iction of the special prosecutor. Thereafter counsel for President Ford requested an opinion fromI then Attorney General WVillianli B. Saxbe on the issues of ownership of the presidential materials and tapes and the responsibilities of the Ford Administration with respect to them. A response to that request indicated that in the opinion of the Attorney General the presidential materials and tapes b)elongedt to the former President, but the Government had a right to use said materials. Following tlat advisory opinion a "depository agreement" [NixoniSampson agreement] was signed by the former President and Arthur F. Sampson, Admlinistrator of the General Services Administration, on September 7. 1974.
Thereafter. Jack Anderson. a well-known columnist, and others filed a petition with the General Services Administration seeking ,arce>s5 to these materials pursuant to appropriate provisions of the Freedom of Information Act. The petitions were denied by GSA.
On October 17. 1974. the former President filed a suit against Sampson and others in the United States I)istrict Court for the District of Columbia seeking a temporary restraining order and preliminary injunction to compel compliance with the "'Nixon Samp on ag reement" and to prevent unauthorized access to the materials and tapes. Mr. Anderson. and the special prosecutor. and others moved to intervene, seeking a temporary restraining. order and prelinlmnar injunction to prevent the implementation of the "Nixon Sampson ag(reenent." '.S. Dl)istrict (Court Judge ( Charles R. Richev issued a telinporary restraining order prohibiting the implementation of the agreement until a full hearing could be held on the former President's motion for a preliminary injunction. [YA.on v. Sm )on. Civil Action No. 74-1518 (I).D.C.).]
A petition for leave to participate as amiUci ne' in this case was filed and granted on behalf of then Senator Sam J. Ervin. Jr.. and Senators Gaylord Nelson and Jacob Javits and Repres entatives Wayne L. Hays and John Brademas on November 11, 1974. A separate motion by Representative Elizabeth Holtzman for leave to file an amicus brief was also granted on the same day.
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 courtin the maintenance of the status quo pending consideration by the Congress of matters falling within its primary and fundamental authority." [Memorandum of Ervin et al. as ainici cur~iae, Nixon v. Sampson, Civil Action No. 74-1518 (D.D.C. Nov. 11, 1974).]
At the time of the filing of the Ervin and Holtzman petitions, the Senate had passed a bill, S. 4016, which, while making no determination as to the title of the presidential materials, provided for the preservation of access to materials by placing them under the control of the Administrator of the General Services Administration, with all the materials to remain in Washington. The bill had been transmitted by the Senate to the House and referred to the appropriate House committee which had not then had an opportunity to act on it.
Each of the congressional participants-the amici-bore a special responsibility with regard to this legislation. As noted in a 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 am ici was set out in this language:
Amnici respectfully urge that the safeguarding of these materials pending Congressional action is a matter of the most compelling public interest. Accordingly, in light of these considerations of fundamental significance to amici and their colleagues in the legislative branch, amici urged that the Court grant a preliminary injunction to maintain the status quo. Such an injunction will insure an opportunity for orderly consideration of the issues by the representatives of the public in the exercise of their special Constitutional responsibilities as trustees of the people. It will insure that nothing untoward can happen to these materials while the people's representatives decide how best to exercise their responsibilities. [Id.]
Although the Holtzman petition supported the status quo position of the Ervin petition fully, Ms. Holtzman's memorandum was submitted for another purpose-to call to the court's attention the fact that the principal issue in this action was the ownership of the tapes and papers. Accordingly, Ms. Holtzman contended that since the Attorney General had already expressed his opinion in writing that all of the disputed papers and tapes belonged to the former President, the "level of vigor" with which the Department of Justice would pursue the defense of any action brought by Mr. Nixon-to obtain
either the return of, or compensation for, the property which both he and the Attorney General already agreed were his-would be less than adequate. Moreover, she maintained that the matter was further complicated because the Department was currently representing Mr. Nixon in several suits brought against him while he was President, thus raising an ethical question as to whether it could represent his adversary (the United States) in litigation over the ownership of the papers and tapes in question.
To remedy the situation, Ms. Holtzman informed the court that she intended to introduce legislation to provide for a Special Counsel, in lieu of the Department of Justice, to represent the U nited States in all litigation relating to the ownership of the papers and tapes at issue in this case. [Memorandum of Congresswoman Elizabeth IIoltzman as amicu, cuia.e, Nixon v. Sampson, Civil Action No. 74-1518 (D.D.C. Nov. 11, 1974).]
Judge Richey held a hearing on the petitions on November 15 and 18, 1974, but withheld any decision and asked counsel for amid 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, was signed into law on December 19, 1974 [Pub. L. 93-526].
On the day after the Act went into effect, the former President brought an action in the U.S. District Court for the District of Colum.bia to enjoin its enforcement on the grounds that it transgressed the Constitution. [See Nixon v. Administrator of Gen. Ser,'s., 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, 2284 to hear and determine the constitutional claims asserted. The case was assigned to Judge Richey, before whom the consolidated cases aforementioned were then pending. The same issues, namely, the ownership) of the materials and tapes and privilege against their disclosure, which were raised in the consolidated cases were now extended to Mr. Nixon's most recent challenge. On January 3, 1975, Mr. Nixon moved for a preliminary injunction against operation of the Act.
It was alleged that on five separate occasions, during the 5 weeks following institution of Mr. Nixon's action of I)ecel ber 20. 19741 he (Mr. Nixon through counsel) requested Judge Richey to initiate the statutory procedure leading to the formation of a district court of three judges. During that period, Judge Richey was preoccu)ie(l with the consolidated cases and planned to complete work on tlem before turning his attention to the challenge case. (Nvxon v. Administrator of Gen. Sevs., supra.)
Having failed to convince Judge Richey that the appointment of a three-judge court took priority in this matter, Mr. 'Nixon filed a petition for a writ of mandamwgm in the U.S. Court of Appeals for thle District of Columbia Circuit, directing Judge Richey to grant tfle application for a three-judge court immediately and give the clhi'lenge case priority over the consolidated cases as asserted(ly required by section 105(a) of the Presidential Recordings and Mate*rials Preservation Act. [Nixon v. Richey, Civil Action No. 95-1063 (D.D.C.).]
The appeals court, in a per curiam order and opinion filed January 31, 1975, denied the former President's petition stating that the issuance of a writ of mandamus was unnecessary. It did, however, hold that Judge Richey erred in delaying action on the application for a three-judge panel. Although the court stated that an application for the convening of such a court is statutorily entitled to expeditious treatment under 28 U.S.C. 2284, it held that beyond these considerations. the Presidential Recordings and Materials Preservation Act requires the trial judge to give priority to such an application:
Beyond these considerations, the Recordings and Materials
Act independently supports petitioner's claim that the District Judge should have acted weeks ago on the three-judge application. Section 105(a) of the Act confers upon the District Court for the District of Columbia "exclusive jurisdiction to hear challenges to the legal or 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 Sections 2282 and 2284 are inoperable in the situation at bar. [Nixon v. Richey.
513 F.2d 4217, 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 (January 31) in which the appeals court had i-sued its order and opinion. Jud-e Richey released a 98-page opinion in the consolidated cases.[Nixon, v. Sampson. 389 F. Supp. 107 (D.D.C. 197 ).] At the same time. Judce Richey issued a summary and synopsis of his opinion which appears in its entirety as follows:
SU313fARY AND SYNOPSIS OF OPTNTION OF CHARLES R. RICHEY,
UNITED STATES DISTRICT JUDGE
These consolidated cases present a unique controversy, the
heart of which concerns the ownership of and the right to assert or waiive a privilege with respect to the "Presidential materials and tape-recorded conversations" of the Nixon
These actions are before the Court on the following motions: plaintiff Nixon's motions to dismiss the Hellman. et al., and Anderson suits for lack of standing; the government defendant's motion to dismiss all the actions. except that by the Special Prosecutor, on the ground that they are moot: and
on motionS for summary judgment or partial sunimary jli(1ment by plaintiffs Anderson, The Reporters (Conmit te for Freedom of the Press, et al.. Lillian Hellman. et al., and the Special Prosecutor. on his oufnterclai for (aticlarato *y relief. and as the intervenor-defendant in Y;.ron v. 'n(IlPOs.. et al., (C.A. No. 74-1518).
The Court finds that plaintiffs Anderson. Ilelbnan. 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.
The Court finds that although the Presidential Recordings and Materials Preservation Act of December 19. 1974. nullifies the Nixon-Sampson Agreement of September 7, 1974. the said Act does not resolve the basic questions of ownership of the Presidential materials and tape 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 toMr. Nixon's asserted Fourth Amendment claims.
D. Summary Judgment
Because the Court finds that there are no genuine issues of material fact in dispute in these proceedings, the parties are clearly entitled to summary judgment on the issues as a matter of law.
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 behalf in the performance of his duties as the President of the United 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 he sustained.
4. There is no precedent which compels a finding that the "Presidential materials and tapes" are the personal property of former President Nixon.
5. The historical practice of past presidents does not evidence a clear and constant recognition of ownership of the materials generated and retained in the conduct of the Office of the President.
6. Congress has not sanctioned the personal ownership of "Presidential materials and tapes" generated and retained in the conduct of the Office of the President.
7. Materials and tape-recorded conversations generated by Executive departments and agencies, although 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.
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.
The Court will require the following procedure with regard to effectuation of the November 9th AgroTeement, with regard to any requests for Presidential materials and tape recordings made pursuant to court order or subpoena, or with regard to any requests made under the Freedom of Information Act:
1. Dorm.ewnts: The government, defendants, or
their agents, prior to any governmental examination of the materials, shall permit Mr. Nixon or his counsel, (a) to segregate from any box or file, any docuIment which is deemed personal, as defined by this Court: (b) to mark those portions of any document which are deemed private, as defined by this Court, without destroying or impairing the integrity of that portion or any other portion of the document;
2. Tapes: The government defendants or their
agent s, prior to any governiiieital examination of the tape-recorded converisat ions, shall pern it Mr.
Nixon or his counsel to listen to those tape-recorde-d conversations and, if any such tape-recor'ded olniversation contains matters which are deemed private, as defined by this Court. then Mr. Nixon or his
counsel shall so designate.
This procedure is to be effectuated as follows:
(a) The defendants shall specify one indi vidlual
official of the government having expertise in the use of tape recording mechanisms (hereinafter, "olperator") who at all times shall operate the mechanisms chosen by the operator for use in the procedure; and
(b) The operator shall employ two tape recorders,
one (hereinafter, "recorder A") of which shall include the following features: (1) a single -listening device, commonly known as head-phones, and (2) a digital "counter"; the other (hereinafter, "recorder B") shall include the capacity to duplicate the recording from recorder A; and
(c) When Mr. Nixon, or his counsel, are in the
process of listening to the tapes, he shall utilize the
single-listener device; and
(d) The operator shall play the tape on iRecorder
A and duplicate the tape onto Recorder B, and when Mr. Nixon or his counsel deem any conversation or portion thereof as private, as defined by this Court, the operator shall stop recorder B at the commencemnent of that conversation or portion thereof so as not to record that conversation or portion thereof on the tape on recorder B at the termination of the conversation [or] portion thereof designated as private, and the operator shall also, utilizing the "counter," mark in a log the digital number of the commencement and termination of the conversation or portion thereof designated as private. When a dlispute arises within respect to the validity of a claim that a particular item, or portion thereof. is private, upon notice of counsel, the (ourt shall examine the material or- tape-recorded conversation, or portion thereof,,in camera, This shall be followed 1w' a hearing under the procedure set forth in the Opinion.
The burden of proof as to whether a particular
paper or t ape-recordled conversation, or portion
thereof is personal, shall be borne by Mr. NI\ixon.
Followin~r the release of Judge Richey's opinion. the former President sought reconsideration of the appeals court's earlier refusal of a writ. of itualoamu in Nixon v. Ilichey.
The appeals court, in an opinion and order of February 14, 1975, continued its stay of January 31 of any order implementing Judlge' Richev's opinion. Thie court rioted that sice a three-judge panel was convened on February 5 to consider whether it properly should pass~
on the constitutional issue, no further action by the appeals court was needed in that regard.
The appeals court noted that in its earlier opinion [January 31] it took pains to alert Judge Richey to the peril of disposing of the consolidated cases before acting on the former President's application for a three-judge panel. The court said it was obviously referring to the doctrine of collateral estoppel. [Under the doctrine. a final judgment in a prior suit precludes relitigation of material issues decided in that suit.] The court continued that the former President might be barred "from urging in the challenge case [Nixon v. Administrator of -n. Cs., Civil Action No. 74-1852 (D.D.C.)] positions contrary io determinations which any decision of the consolidated cases [Nixon v. >m, o. (Civi l Action No. 74-1518 (D.D.C.) ] might yield." [Nixon v. ; i y, 513 F.2d 430,438.]
The appeals court proceeded to undertake a review of the history of the Presidential Recordings and Materials Preservation Act.
The court stated that there were two goals Congress intended to accomplish and did accomplish by the passage of the Act: (1) insuring the Federal Government's interest in acquiring control over and power to protect the Presidential materials, and (2) speedy determination of possible constitutional challenges to the validity of the Act.
The court noted that the three-judge requirement under procedures delineated in Section 2284 of Title 28 of the United States Code was elininated in Conference and the measure, with Section 105(a) of the Act. in its present form, which enables a single judge of the U.S. DI)is1rict Court for the District of Columbia to hear any constitutional challenge to this Act, was approved by the Conference Conmmnittee, ant subsequently enacted into law [.513 F. 2d at 439-442]
The Act did not. however, prohibit the petitioner from making an independent application under Section 2284, supra. The court said:
The remarks of Representative Brademas demonstrate that
Congress intended to preserve single-judge jurisdiction over the consolidated cases, even for consideration and decision of challenges to the constitutional validity of the new Act in the event that such challenges were asserted in those cases. The remarks plainly contemplated, too. that any such challenge would utilize that opportunity. But Representative Brademas was completely silent on the question whether such a challenge could only take that route. and so is the rest of the
We need not ponder whether Congress could validly have
imposed the requirement that such a challenge could only be entertained in the consolidated cases. Nowhere in the legislative history is there any suggestion that Sections 2282 and 2284 would not enable a separate suit presenting a constitutional challenge to the Act in the context of a demand for injunctive relief. It would have been simple for Representative Bradeinas to state, and indeed for Congress to require, that those sections would not apply to challenges to the Act, had that been what Congress had in mind. Neither, however, was done, and the courts are left with the problem of determining whether petitioner's separate-suit challenge requires the usual three-judge court, particularly in light of the general canon
of construction that repeal of a statute by implication is
It is much the clearer. however, that Coigiress deeiend indispensible to its objectives the inuinediate consideration and resolution of any challenge to the constitutional or legal validity of any provision of tlhe new Act. It was to mandate that degree of expedition that each of the bills initially passing the Senate and the Ilouise contained the requirement that such challenges be heard and determined by a three-judge court with direct appeal to the Supreme Court. and contained also the requirement that both courts proceed immediately
to consider and resolve the challenges.
& & & &S "
But what Congress expected, and what Section 105(a) as
enacted would permit. was that any and all challenges to the validit v of the Act would be made in the consolidated cases before Judge Richev as a single judge, after appropriate amendments and additions of parties for that purpose were accomplished. What Congress apparently did not anticipate was that petitioner. instead of pursuing that route, would institute a new, separate suit grounded on Sections 2:28 and 2284 to test in orthodox fashion the constitutionality of the Act before a three judge rather than a single-ijudge tribunal.
[513 F.2d at 442-443.]
The court added that what Congress wanted "was speed in judicial handling of such [constitutional] *challenges' whether properly to be considered and determined by three judges or one. Just as plainly, the text and history of Section 105 (a) indicate that Congress did not share the same concern for speed in the resolution of litigation not amounting to a [constitutional] 'challenge'. That litigation is relegated to a position below the priority specified for 'challenge' actions." [513 F. 2d at 444-445.]
The court concluded by granting the former President's petition for mandamus and ordering a stay of the issuance of Juldge PRichey's order and of any further proceedings in the consolidated cases.
On April 2. 1975. Judge Richey removed himself from the consolidated cases in which he was trial judge and from the challenge case before the three-judge panel of which he was a member. He was replaced in both proceedings by Judge Aubrey E. Robinson.
In August. Rose Mary VWoods. who was Mr. Nixon's personal secretary when he was President. moved to intervene in the action before the court of appeals for the purpose of having the stay over the proceedings in the consolidated cases amended to allow her to intervene il those proceedings. On September 2, 19715. the court of appwals allowed her intervention and granted her motion to amend its order of January 31, 1975. Miss Woods was then admitted in the consolidated cases as an intervenor plaintiff seeking to obtain certain personal papers of her own from the Administrator of GSA. On December 2. 1975. her motion for judgment on her pleadings was granted. The decision was immediately appealed to the court of appeals. [N;ron v. Sampson. Civil Action No. 75-2194 (D.C. Cir.).]
In the meantime, the three-judge panel in the challenge case heard oral argument on September 22, 1975. In a unanimous opinion released on January 7. 1976, the three-judge court upheld the constitutionality of the act on its face. [Nixon v. A administrator of General Services, 408 F. Supp. 321 (D.D.C. 1976).] A summary of the court's opinion appears as follows:
Scope of Inquiry
The court, responding to its duty to avoid constitutional
questions whenever possible, considers only those questions of the Act's constitutional validity that are immediately ripe for resolution. As no regulations have yet taken effect, and as such regulations once effective are explicitly made subject to judicial review, the court considers only the injury to constitutionally protected interests of Mr. Nixon that is allegedly worked by the taking of his presidential materials into custody and their screening by government archivists. * *
Claims Relating to the Separation of Powers
The court finds nothing in the separation of powers doetrine to support the contention that the legislature may not pass a statute in any way touching upon the prerogatives of the Executive. The only genuine separation of powers, claim is that the Act might invade the presidential privilege that attaches to the small f raction of the materials that genuinely implicate presidential confidentiality. Although the court thinks it doubtf ul that a former President, rather than the incumbent, may assert such privilege, at the very least such a claim is entitled to relatively less weight in the balance of competing considerations. And the infringement upon presidential confidentiality caused by screening by trained and discreet government archivists, who have been employed to perform identical tasks for the materials of every President since Herbert Hoover, is very slight. The court finds, on the other hand, that Congress had ample reason to mandate screening by government archivists rather than control by Mr. Nixon, who lacks their expertise and disinterestedness.
The two most important of the interests served by preservation and responsible treatment of presidential materials are (1) maintaining a complete and accurate historical record and (2) assuring the availability of the materials potentially needed for continuity in executive policymaking. Other interests served by the Act include informinoy the public about the Watergate matters and ensuring the availability of materials that may be relevant to legislative investigations or judicial proceedings. Because of the manner in which personal materials are intermin~led with official ones, comprehiensive screening represents the only feasible manner of protectingy these important interests. The court finds that the slight inroad on presidential confidentiality caused by such screeninQ' is ontwei(Yhed by the need to further these important legislative objectives.***
Claims Relating to Privacy
It appears from the record that plaintiff can validly claim a privacy interest in only a small fraction of the materials. Yet due to the historical practice of de fadco control by Presidents of presidential materials, the court finds that regardless of where ownership of the materials lies-a question that need not be reached-plaintiff has a reasonable expectation of privacy in these materials, an interest that is infringed even by mere screening by government archivists conducted under legislation with retroactive application. In light of the intermingled nature of the materials, the court finds such infringement of privacy interests to be an inescapable concomitant of any attempt to serve the important legislative objectives underlying the Act. The private materials are far outnumbered by those that are non-private and related to those objectives. The court further finds that any invasion of privacy caused merely by archival processing-rather than by public access, which need not yet be considered-is not wide-ranging. In addition, less justification is needed when, as may be the case here, any invasion of privacy constituting a search and seizure does not serve law enforcement objectives. In light of these factors and the unavailability of less intrusive means of furthering the important legislative ends, the court concludes that any intrusion upon plaintiff's privacy interests has adequate justification. * *
Freedom of Speech and Association
Plaintiff's First Amendment claim is predicated upon the assumption that all materials-including those implicating privacy in political association-will be open to public access. The court finds no basis for that assumption. Rather, reaching only that infringement of First Amendment interests caused by screening by government archivists, the court finds any injury to protected interests arising from a confidential review process to be insubstantial. * *
The court finds that any difference in treatment between plaintiff and other Presidents is adequately justified. As respects immediate past Presidents, their papers had already been deposited in presidential libraries where, on the whole, their availability to promote important governmental interests was assured. As respects current and future Presidents, legislating with respect to them risked disrupting current executive policymaking, and would be unwise before the Commission study of the sensitive and complex problems involved in regulating the records of federal officials had been completed. Only plaintiff has finished his service as President but has not yet established a presidential library. Prompt congressional action was reasonably deemed necessary to assure that the materials would remain preserved, and to begin the
80-341 0 77 4
lengthy process of reviewing and classifying them. Finally, Congress could legitimately consider plaintiff to be less likely than his immediate predecessors or successors to dispose of
the materials responsibly. * *
Bill of Paim and Penalti68
There is, in the court's view, no evidence in the legislative
record to support theclaim that the Act was designed to impose, constitutes, punishment within the meaning of the Bill of Attainder C)ause. The court finds there. are other legislative objectives served by the Act which Congress could legitimately-and did-consider. Rather than possessing traditional indicia, of a punitive enactment, the Act includes provisions that indicate a concern for plaintiff's interests, provisions that are wholly inconsistent with the hypothesis of
punitive intent. * *
The court ordered that the preliminary and permanent injunctive relief sought by Mr. Nixon be denied, and his complaint be dismissed as without merit. Pending the final disposition of any appeal of the decision, the defendants were enjoined from "processing, disclosing, inspecting, transferring, or otherwise disposing of any materials be they documents, papers, tape recordings or other items" which might fall under the provisions of the act, except for legal proceedings, inspection by Mr. Nixon or his designated agent, or use for current business by the executive branch.
The court also noted that the court of appeals had stated in Nixon v. RicAey, 513 F.2d at 448 that it would dissolve its stay of January 31, 1975, in the consolidated case proceedings, whenever the three-judge court indicated it believed the need for the stay no longer existed. "Having now entered judgment in this action, we are simultaneously requesting the court of appeals to dissolve the stay, thus permitting the consolidated cases to proceed in whatever manner seems fit in light of the possibility of appeals in this action * [513 F.2d at 333].
The court of appeals removed the stay on the consolidated cases on February 5,1976.
On March 25, 1976, the court of appeals refused to grant a summary affirmance of Judge Robinson's order of December 2, 197511 which granted Rose Mary Woods summary judgment on her motion. Pending a decision on the merits of the appeal, the court ordered the parties to stipulate those materials as to which no controversy exists, and to make intermittent reports to the court. The parties have made several such reports to the court.
On March 5, 197 6, Mr. Nixon filed a notice of appeal to the Supreme Court of the decision of the three-judge court on January 7, 1976.
Status.-The consolidated cases are before Judge Robinson in the U.S. District Court for the District of Columbia. No changes have occurred in their status.
The appeal of the order granting Miss Woods summary judgment is pending before the court of appeals. The parties continue to meet with each other under the direction of the court, stipulating the materials as to which there is no conflict over Miss Woods' ownership.
On November 29, 1976, the Supreme Court noted probable jurisdiction of Mr. Nixon's appeal.
The full text of the U.S. (Court of Appeals Itecisions an I of [.. District .Judge Rihe. opinion were printed in 1ie I) ii s tion of the report f (ou rt Pt'roce(dinds aI Actios of Iia! Ictrest to the ('ongress. April 15, 1975. and the full text of the t1lreejudge court's opinion and order was printed i tllhe report of ( o'rt Proceedings aal Actions of VFitdal Iterest to the (ragress, April 15. 1976.
Public Citizen, Inc. v. Simon (formerly Shultz)
Civil Action No. 74-2025 (D.C. Cir.)
Bricf.-This action, filed in the U.S. District Court for the 1)istric of Columbia on November 16, 1972, sought to recover the saiiarie. paid certain members of the White House staff for periods during which they were allegedly devoting substantially full-time to the 197" Nixon presidential re-election campaign, rather than to their official duties.
Filed by Public Citizen, Inc. (a nonprofit citizen's organization of some 65,000 members, a self expressed objective of which is to ensure that government officials carry out their duties in accordance with the law and that such laws are enforced) and its founder. Ralph Naer,. the action named as defendant then Secretary of the Treasury George P. Shultz. The former members of the White House staff named in the complaint were Charles Colson. Special Counsel to the President. Robert HI. Finch, Counselor to the President, Herbert G. Klein, Director of Communications for the Executive Branch, and various members of the'r staffs. the White House. staff, and the staff of th.( then Vice President.
The complaint was based upon Article I. Section 9 of the Constitution, which provides, in part, that "[n]o money shall be drawn from the Treasury. but in Consequence of Appropriations made by Law * *." It was alleged that payments to staff persons. "devoting substantially all of their working time to the re-election campaign of President Nixon," from public moneys violates this constitutional provision and the provision of Section 628 of Title 31, United States Code, since such payments were not authorized by an appropriation of Congress. The code provision states: "Except as otherwise provided by law, sums appropriated for the various branches of expenditure in the public service shall be applied solely to the objects for which they are respectively made, and for no others."
On March 8, 1973. U.S. District Judge June L. Green denied a motion by defendant to dismiss the suit for lack of standing on the part of plaintiffs. Subsequent to that denial, the Supreme Court decided two cases involving the issue of standing and defendant renewed his motion to dismiss, asking the court to review its previous- holding in light of these two recent decisions. Judge Green agreed to do so.
In a memorandum opinion handed down September 30. 1974. Judge Green granted defendant's motion to dismiss, concluding that "[iin view of these recent narrow interpretations of taxpayer standing [United States v. Richardson. 418 U.S. 166 (1974) and Schlesin.qer v. Reservists Committee to Stop the War, 418 U.S. 208 (1974)] this
Court is constrained to conclude that the plaintiffs at bar fail to establish standing to proceed with this case." [Pttblic Citizen v. Simon, Civil Action No. 2280-7 2 (D.D.C. Sept. 30, 1974), Slip Opinion at 4.]
Judge Green elaborated in her opinion:
In the Richardson and Reservists cases*** the Supreme
Court reviewed and reaffirmed its conclusion that in order to establish standing as a taxpayer, one must meet the narrowly defined tests enunciated in Flast v. Cohen, 392 U.S. 83 (1968),
"(a) Challenging an enactment under the taxing
and spending clause of Art. I, 8 of the Constitution and (b) claiming that the challenged enactment exceeds specific constitutional limitations imposed on
the taxing and spending power." ** *
** The Supreme Court made it abundantly clear [in
Richardson and Reservists] that taxpayer standing can be shown only when one challenges Congressional enactments
under the taxing and spending clause of Article 1, 8.
Plaintiffs herein fail in both respects. They are concerned
with Executive action, and they base their claims not on Article I, 8, but on Article I, 9, clause 7 of the Constitution. [Slip Opinion 2-3.]
On June 25, 1976, the court of appeals affirmed the district court's granting of the motion to dismiss, rejecting Public Citizen's assertion of standing. The Court held: "[Tihe fair implication of appellants' position is to recognize tax-payer standing to attack any executive action that draws on an outstanding appropriation on the ground that the purchases or services are not in accord with the congressional intent in passing the appropriation. This would place the judiciary in the role of management overseer of the Executive Branch. Such oversight is a function of Congress. Taxpayer standing here would bring into play the separation of powers concern pervading Frothingham, Richardson and Schlesinger.
"Appellants' final argument is that if they are not granted standing the constitutional violation alleged -will go unremedied and the funds diverted to the Nixon re-election campaign will never be recouped. We need not~ consider whether there is a 'better plaintiff' than a taxpayer to maintain the instant challenge. If not, the taxpay er's claim is still barred. In Richardson the Court rejected this factor as a basis for finding taxpayer standing, and viewed 'the absence of any particular individual or class' litigant as lending 'support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process."' [Slip Opinion at 13-14.]
Statuw.-The time for appeal has expired.
A copy of the appeals court's opinion is found in the "Decisions"~ section of the report of Co'urt Proceedings and Actions of Vital Interest to the C ongress, August 15, 1976.
The fullI text of the district court's memorandum opinion w"as printed. in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, Final Report, December 1974.
Clark v. Valeo
Civil Action No. 76-1227 (D.D.C.)
Brief .-This suit was filed on July 1. 1976, by former Attorney General Ramsey Clark, then a candidate for the Democratic nomination for I'.S. Senator from New York. Named as defendants were Francis R. Valeo. the Secretary of the Senate: Edmund L. Henshaw, Jr., the Clerk of the House of Representatives: and the Federal ,Election Commission (FEC). The action seeks d(leclaratory and injunctive relief from certain provisions of the Federal Election Campaign Act of 1971, 2 U.S.C. 431, et r sq.. as amended (hereinafter the "FECA") and Subtitle H of the Internal Revenue Code of 1924 26 U.S.C. "
9001 et seq.. as amended (hereinafter "Subtitle H") and against their administration and enforcement by defendants. on the ground that these provisions, which allow a single House of Congress to disapprove regulations of the defendant Federal Election Commission (hereinafter "FEC"'). violate the constitutional doctrine of separation of powers and destroy the constitutional system of checks and balances established by Articles I, II and III of the I nited States Constitution and deprive plaintiff of due process of law under the Fifth Amendment of the United States Constitution. [Plaintiff's "Complaint for Declaratory and Inijunctive Relief," at pages 2-3.]
Plaintiff alleged that in the primary for the Democratic nomination he would be opposed by Representative Bella Abzug. among others. who, as a Member of the House of Representatves, was authorized to, had and would continue to vote on whether to disapprove certain regulations of the FEC affecting elections for the U.S. Senate: and that in the general election he would be opposed by. among others. Senator James Bucklev. who. as a Member of the Senate. was authorized to. had and would continue to vote on whether to disapprove the regulations of the FEC when they affect elections to the Senate. Mr. Valeo and Mr. Henshaw are sued (1) in their official positions whose duties include furnishing certain services and facilities and cooperatinz with the FEC in carrying out its duties. (2) as custodians of the FEC of certain reports and statements submitted pursuant to the FEC's regulations, and (3) as erp ofVfr-o members of the FEC.
The complaint stated that the FEC is empowered to prescribe rules and regulations to carry out the provisions of the FECA and S title HIT. but before any such rule or regulations may be put into effect. a statement containing the proposed regulation or rule and a detailed explanation of it must Te transmitted to the appropriate House. Statemrnents concerning candidates for the Senate go to the Senate and statements concerning candidates for the House go to the IHouse. All other statements must be transmitted to both Houses. If within 30 legislative days after receipt either House disapproves a rule or regulation or part thereof, the FEC may not put the rule or regulation or part disapproved into effect.
Plaintiff stated that on July 30. 1975. the FEC sent to both Houses a regulation pertaining to office accounts, which usually consist of excess campaign funds, used by Members of Congress to support various activities, and that a modified version of the regulation. intended to comply with certain suggestions hv Members of both Houses, was sent to both Houses on September 3.0. 1975: that on October R 1975. the Senate rejected a modified version of the regulation by a single vote:
that Senator Buckley, who himself has an office account, voted against the modified regulation; and that the Senate then rejected both regulations by a voice vote. Plaintiff further stated that on August 1, 1975, the FEC sent to both Houses a regulation which would have required Members to file all reports and statements in the first instance with the FEC, instead of allowing them the special privilege of filing them with the Clerk of the House or the Secretary of the Senate (as appropriate) in the first instance, which plaintiff alleged delays the reporting to and investigation by the FEC for at least a week; that on October 22, 1975, the House of Representatives disapproved the regulation; and that Representative Abzug voted to disapprove the regulation.
He also stated that several other regulations were referred to the appropriate House prior to the Supreme Court's decision in Buckley v. Vaieo on January 30, 1976, which had not been disapproved, and on
-which the 30 legislative days had not yet run on that date, and that Congress subsequently provided that even rules and regulations adopted by the FEC before the date of enactment of the 1976 amendments to the FECA would not be effective unless they were resubmitted and subjected to the congressional veto system. He stated that no such resubmissions had been made. Finally, plaintiff argued that since the FEC was then considering rules and regulations which have not yet been, but which must eventually be, sent to the appropriate House to see if it disapproved, the FEC had and would continue to modify proposed rules and regulations in ways it perceived would meet the desires and wishes of Members, at times modifying its proposed rules in such a way as to give incumbents advantages over nonincumbents.
The complaint stated that the FECA and Subtitle H: (1) deprive plaintiff of his constitutional rights by allowing a single House to disapprove rules and regulations adopted by the FEC. and by denying the President the opportunity to veto such congressional actions in violation of Articles I, II, and III of the Constitution; (2) deprive him of his constitutional right to have laws affecting him enacted by the full legislative process, including passage by both Houses with an opportunity for a Presidential veto, and invidiously discriminate against him by allowing incumbent Members of both Hoiises to veto rules and regulations of the FEC in violation of plaintiff's right to due process under the Fifth Am-endment; and (3) deprive him of his constitutional rights by delegating the discretion to disapprove the FEC's regulations and rules to a single House of Conqrress and by delegating such authority without giving any standards or criteria to govern the exercise of such discretion or requiring any reason to be given for the use of such discretion.
Plaintiff alleged that unless the court~ enjoined the enforcement of the provisions of the FECA and Subtitle H which allow a single House of Congress to disapprove the rules and regulations of the FEC that hie would suffer irreparable injury and would suffer constitutional. impairment of his rights to vote, to participate effectively in the political process, and to compete without discri mi nation in the electoral process. He asked the court to (1) immediately appoint a three-judgre court to hear the issues raised by the complaint as to Subtitle HT, and (2) certify to the U.S. Court of Appeals for the District
of Columbia all issues of constitutionality raised concerning the FECA. Further he asked: That the docket be expedited pursuant to 2 U.S.C. 437h and 26 U7.S.C. 9011(b) (2); that the court order, adjudge, decree and declare that the FECA and Subtitle Ti provisions which allow the FEC's rules and regulations to be disapproved are repugnant to the Constitution and violate plaintiffs cost itutional rights; and that the court permanently enjoin and restrain defendants from transmitting any rules or regulations to any body of Congress pursuant to the foregoing provisions of the FECA and Subtitle H and require the FEC to 1)rescril)e rules and regulations upon adoption by their own body.
That same day plaintiff filed a motion to convene a three-judge court as required by 26 U.S.C. 9011 and 28 U.S.C. 22-82 with regard to those issues raised concerning the constitutionality of Subtitle IH of the Internal Revenue Code, a motion to reduce defendants time to answer from the usual 60 days to 30 days, and a motion to certify questions about the constitutionality of the FECA to the U.S. Court of Appeals for the District of Columbia. The motion for an expedited answer should be granted, plaintiff claimed, because the FEC was about to adopt new rules and send them to each House of Congress (where they could then be disapproved), Congress had directed that the docket in these cases be expedited (thus recognizing the need for prompt rulings in these cases) plaintiff had hand-delivered copies of the complaint to the U.S. Attorney and the Attorney General on the same date the action was filed (thus avoiding the usual delays in their receiving the complaint due to the size of the Justice Department). and the defendants had just briefed and argued the very issue raisedthe constitutionality of the congressional veto systen-in the U.S. Supreme Court in B.uckley v. Valeo, although the Court in that case found it unnecessary to decide the issue at that time.
Plaintiff claimed that this question is now in the proper posture for resolution and asked the court to certify several questions to the court of appeals.
On August 6, 1976, the Justice Department moved to intervene as a party plaintiff in the action, stating that no party would adequately represent the interest and the position of the executive branch that 2 U.S.C. 438(c) (2) and (c) (4), 26 U.S.C. 9009(c) (2) and
(c) (4), and 26 U.S.C. 9039 (c) (2) and (c) (4) are unconstitutional. The motion alleged that these sections impermissibly intrude upon those areas reserved by the Constitution to the executive branch. It alleged the following constitutional infirmities: The one-House veto provisions of the Federal Election Campaign Act of 1971, as amended, violate the constitutional principle of separation of powers as embodied in Articles I, II, and III of the Constitution; the one-House veto provisions illegally and unconstitutionally permit the evasion of the Presidential veto requirements of Article 1, 7, clauses 1, 2, and 3 of the Constitution; the one-House, veto provisions constitute an unlawful and unconstitutional delegation of legislative power to one House of Congress; the one-House veto provisions are in derogation of Article I of the Constitution in purporting to endow a House of Congress with powers outside of those specifically enunierated in the Constitution; and that, if permitted to operate, the challenged provisions will deprive the President of powers committed to his office and
the executive branch of Government by the Constitution and will allow each House of Congress to separately perform legislative acts in derogation of Articles I and 1I.
A hearing was held on August 13, before the U.S. District Judge, Charles R. Richey. The court ordered that plaintiff "s motions to convene a three-judge court and to certify certain constitutional questions to the court of appeals be held in abeyance until a hearing on August 30. It also said that it would not rule upon the defendants' argument that the case should be dismissed because plaintiff had not shown he met the requirements of Article III of the Constitution as to ripeness and standing; instead, the court would certify those, questions and others to the court of appeals because that is what was done in Buckley v. Valeo, 387 F. Supp. 135 (D.D.C. 19705), and because of the time factor involved here. However, it said that despite this ruling the defendants could still file motions to dismiss. The court also granted plaintiff "s motion for an expedited schedule for arguing the motions.
On August 18, 1976, each defendant filed a motion to dismiss, stating that there was no case or controversy, as the issues were not ripe and plaintiff had no standing, and therefore the district court should dismiss the suit on the Article III grounds without even having to consider whether it should certify y certain questions to the court of appeals or convene a three-judge court.
Also filed that day by defendants Valeo and Henshaw were memoranda opposing the application of the United States to intervene. Defendant Valeo argued that intervention authorized by the Rule 24 (a) (1) of the Federal Rules of Civil Procedure ("FRCP") and 28 U.S.C. 2403, can only be used to defend the validity of a law where the constitutionality of such law has been drawn into question. He also stated that the Justice Department's alternative, for permissive intervention as "the United States" under Rule 24(b)(2) of the FRCP, should be denied because the Justice Department does not represent the interests of all of the Government in this case, but only of the executive branch, and even then not all of it, since the FEC is a defendant in the case. Finally, he argues that the court should allow the President to intervene on his own only if he can show that the requirements of Rule 24(b)(2) are met -as to himself and that a case or controversy exists.
Defendant Henshaw made similar points in his motion and stated that:
To allow the "United States" to intervene in these circumstances, either as of right or permissively, finds no precedent in the annals of Federal jurisprudence. Never before has the "United States" sought to intervene in a suit against Representatives or agents of the legislative branch of the United States in order to protest-in the name of the "United States"-the constitutionality of certain actions or procedures of that legislative branch. [Memorandum of Defendant Henshaw Opposing Application for Intervention, Clark v. Valeo, Civil Action No. 76-1227 (D.D.C.), held Auzust 8,1975.]
On August 23, the FEC filed a response stating that it had no objection to the Justice Department's motion to intervene. All three defendants filed answers to the complaint that same day,
a joint statement of proposed findings of fact necessary for cert1ification, and joint admissions and statements of additional facts in response to plaintiff Clark's request for admissions.
The court granted the motion of the United States to intervene on August 27. That same day, plaintiff Clark filed an amended motion for certification of constitutional questions and for certification of findings of fact.
On August 31, the plain ti ff-intervenor United States filed its proposed constitutional questions to be certified to the court of appeals. The following day it filed its complaint in intervention. On September 3, 1976, Judge Richey granted the application for three-judge court and asked the court of appeals to convene such court. He also certified the following constitutional questions to the court of appeals for their determination:
1. Does this action challenging the constitutionality of
315(c) of the Federal Election Campaign Act (FECA), 2 U.S.C. 438(c), and 9009,(c) and 9039(c) of Subtitle H of Internal Revenue Code of 1954,26 U.S.C. 9009(c) and 9039(c), present a justiciable case or controversy under
Article III of the United States Constitution?
2. Do 2 U.S.C. 438(c), and 26 U.S.C. 9009(c) and 9039
(c), which allow a single House of Congress to disapprove rules and regulations, or selected portions thereof, adopted by the Federal Election Commission, violate the principles of separation of powers and checks and balances established by Articles 1, 11, and III of the Constitution; are they in derogation of the Presidential veto power in Article I of the Constitution and are they in excess of the legislative powers enumerated in Article I
of the Constitution?
3. Do the challenged provisions specified ip questions 1
and 2 violate the right of a candidate for Federal office to Due Process of Law under the Fifth Amendment of the United States Constitution by: (a) Depriving him of the right to have laws affecting him enacted by the full legislative process, including passage by both Houses of Congress with the opportunity for a Presidential veto; and (b) invidiously discriminating against him in allowing incumbent officeholders, but not challengers, to veto
rules and regulations of the Commission?
4. Do the challenged provisions violate the Constitution by delegating the discretion to disapprove regulations of the Federal Election Commission to a single House of Congress without fixing any standards or criteria to govern the exercise of such discretion and without requiring any statement of reasons for the exercise of such discretion?
5. Do the challenged provisions, by allowing a single
House of Congress to disapprove rules and regulations, or selected portions of such rules and regulations, adopted by the Federal Election Commission, create an extra-Consitutional legislative process in violation of Article I of
the United States Constitution
The court of appeals issued an order on September 3, preliminarily deeming the questions to have been properly certified and stating that the court would hear the matter en bane.
The case was argued before the court of appeals sitting en bane and the three-judge court at the same time on September 10, 1976.
Status.-The case is pending before both the three-judge district court and the United States Court of Appeals for the District of Columbia Circuit.
Atkins v. United States (New Case)
Nos. 41-76, 132-76, and 357-76 (Consolidated) (U.S. Court of Claims)
Brief .-Plaintiffs in these cases are 140 judges of United States District Courts or United States Courts of Appeals. Originally filed in the United States Court of Claims on March 25, 1976, the complaint is based on Article III, Section I of the Constitution of the United States which says "The Judges, both of the supreme and inferior Courts, shall * receive for their Services, a Compensation, which shall not be diminished during their continuance in Office." Plaintiffs allege that there were two reasons why the Founding Fathers placed this provision in the Constitution-to protect the independence of the judges by preventing financial dependence, and to insure that highly qualified members of the bar are not dissuaded from accepting judgeships or remaining in their offices. They claim that the executive and legislative branches of Governmnent are therefore forbidden by the Constitution from reducing "directly or indirectly" the dollar amount of judicial salaries.
The complaint states that from March 15, 1969, to October 1, 1975, the salaries of judges on both courts remained the same, and that their salaries were actually greatly diminished because of inflation; that in 1973, the Commission on Executive, Legislative, and Judicial Salaries ("Commission") ,pursuant to the Federal Salary Act of 1967 (2 U.S.C. 351 et seq.), recommended to the President that judicial salaries be increased by 25 percent explicitly only to off set the effects of inflation from 1969 to that time, that then -President Nixon rejected that~ proposal and recommended increases of 71/ percent effective each March from 1974 to 1976, and that even these increases were prevented by a veto of the Senate. I
The complaint alleges as a first cause of action that in approving the Executivxe. Sal ary Cost-of-Living Adjustment Act (Pub. L. 9482) on August 9, 1975, -which states, inter alia, that adjustments to Federal judicial salaries would be effective on October 1, 1975, based upon the salaries of 1969. Congress has acted affirmatively to perpetuate the diminution in salaries which had already occurred in the intervenin g 6 years, and that they further acted afrmatively when they rejected the Commission's recommendation of an) 8.6 percent increase and instead approved the President's recommendation of a 5-percent increase. Plaintiffs claim that this violates the Constitution in two bay- permitting a substantial diminution in judicial salaries, and byaffirmat ivelyv preventing the required adjustment. As a second cause of action, the complaint states that the Federal Salary Act of 1967 requires the President to submit to the Congress every fourth year a proposed salary increase. President Nixon did this in 1974, and then, pursuant to 2 U.S.C. 359 (1) (B), the Senate
passed Senate Resolution 293 on March 16, 1974. which vetoed the reconiuendations. The plaintiffs claim that this was an unlawful. unconstitutional, and void exercise by the legislative branch( f Executive power reserved by Article II. Section I to the PIresident. and that to give effect to this action would also violate Article I. 1eton I which states that the legislative power is vested in both IHouses, and Article I. Section 7 which allows the President to veto acts of Congress.
The complaint asks for appropriate mnioney damages as allowed by the court and such other relief as may be deemed proper.
In oral argument before the Court of Claims. Mr. Iex E. Lee. Assistant Attorney General, Civil Division, Department of Justice. "admitted that 2~ U.S.C. 359(1) (B) is unconstitutional. Brief Amicus Curiac on Behalf of Frank Thompson, Jr., Chairman. Conmmittee on House Administration, United States House of Representatives, Atkins v. United Stats,. Nos. 41-76, 132-76. 357-76 (Ct. Cl. November 23, 1976).]
The Clerk of the Court of Claims. in a letter dated October 14. 1976. notified the President of the Senate and the Speaker of the House of Representatives of the action of Mr. Lee and invited them to submit responses.
The Speaker of the House directed that a brief an i us curae be
filed on behalf of Representative Frank Thompson, the Chairman of the Committee on House Administration. This was done on November 23, 1976. In its introduction, the brief alleges that there was no effort by counsel for the United States to preserve and defend the constitutionality of 359(1) (B) : that it was questionable whether the Justice Department, acting in the name of the I iUnited States. could admit or concede that any law enacted by Congress and signed by the President was unconstitutional, especially where no notification is given; that the President is under an express constitutional duty to see that the laws are faithfully executed, which duty runs to the executive departments, and which duty was breached in this case: and that the Department should have defended the validity of the statute or, if it was not going to, it should have notified Congress so that Congress might defend the statute. As constitutional arguments for upholding the validity of 359(1) (B), the House argued that the Canstitution commits to the Congress the exclusive power to ascertain judicial compensation and permits it to exercise this power by any means "necessary and proper:" that 359(1) (B) of the Salary Act of 1967. being one of the means deemed "necessary and proper," is not outlawed by the separation of powers doctrine or any provi-iol of the Constitution: that plaintiffs' second cause of action is nonjusticiable since it involves a political question; and that the pattern of cooperative accommodations between Congress and the Executive would be seriously jeopardized were the "one House veto" to be declared constitutionally invalid.
As President of the Senate, Vice President Nelson A. Rockefeller also submitted a brief amicus curiae on November 22. 1976. In defense of the validity of the statute, the brief stated that the manner and means selected by Congress for determining judicial salaries is within its legislative powers; the statutory scheme they selected is consistent with the separation of powers doctrine; the effect of the actions by the Congress and the President was not to contravene the constitu-
tional duties of each, but rather was to allow Congress to obtain in forination which prevents the President from raising salaries unilaterally and that on any law the President proposes, if one House doesn't sustain his proposal, it doesn't become law; and that legislative disapproval does not constitute the administration of a statute.
Status.-The case is pending in the United States Court. of Claims.
V. OFFICERS, EMPLOYEES, AND AGENTS OF THE CONGRESS
Socialist Workers 1974 National Campaign Committee v. Henshaw
Civil Action No. 74-1#38 (D.D.C.)
Brief.-On September 10, 1974, the Socialist Workers 1974 National Campaign Committee, other State and local Socialist Workers Party Organizations and individual members of the Soc ialist Workers Party filed suit in the U.S. District Court for the District of Columbia, asking the court to declare unconstitutional portions of the Federal Elections Campaign Act of 1971.
The defendants in the case are the Clerk of the House, the Secretary of the Senate and the Comptroller General of the United States, each of whom is designated as a "supervisory officer" with whom statements and reports required under the Act are to be filed.
The plaintiffs allege, inter alia. that the provisions of the Act requiring the disclosure of the identities of party members, contributors, and others who support "lawful, though controversial political activities deprive them of their freedom of association rights under the First Amendment. Plaintiffs also assert that the reporting and disclosure requirements "deprive the plaintiffs and their supporters of the right to associational privacy and to political anonymity under the First, Fourth, and Ninth Amendments to the Constitution. * "
On October 2, 1974, Common Cause moved to intervene as a defendant. The motion to intervene was granted and plaintiffs motion for a three-judge Federal district court to rule on the constitutionality of the law was denied on October 10, 1974. The denial was appealed, and on December 12, 1975, the district court granted plaintiTffs' motion for the three-judge court.
Plaintiffs sent interrogatories to and requested the production of documents from: W. Pat Jennings and his successor Edmund L. Henshaw as Clerks of the House of Representatives: Francis R. Yaleo. Secretary of the Senate: and Elmer B. Staats. Comptroller General of the United States. The House passed H. Res. 863 on November 13, 1975, authorizing the Clerk to answer the interrogatories and to provide copies of notifications of noncompliance or apparent violations sent by the Clerk to campaign organizations affiliated with the Socialist Workers Party from January 1, 1975 to date, if the court determined that such documents were material and relevant. The court so determined on November 19, 1975.
A second set of interrogatories and reonuests for the production of documents relatin to the Socialist Workers Party was received bv each of the defendants on March 8,. 1976. The House passed H. Res. 1122 on March 31, 1976. which had similar provisions to those of H. Res. 863 in allowing the Clerk to provide the court with copies of all "non-public" records or documents maintained by his ofice relat
ing to plaintiffs or to any previous Socialist Workers Party committee, candidate or official which were requested in the subpoena dwes tecum and were found by the court to be material and relevant.
On July 23, plaintiffs filed a first supplemental and amended complaint for declaratory relief, adding several State Socialist Workers Parties as plaintiffs and adding the Federal Election Commission (FEC) and Attorney General Edward Levi as defendants. The FEC was added because it is charged by the 1976 amendments ("Amendments"). to the Federal Election Campaign Act of 1971 ("Act") with monitoring and enforcing the recordkeeping and disclosure provisions of the Act and the Amendments, and Attorney General Levi was added because he is charged with enforcing the Act's criminal sanctions. The complaint states that under the Amendments the plaintiff must maintain -records of all contributors of $100 or more and identify them to the FEC, and that plaintiffs have not identified them on unnamed constitutional grounds. It states that recent information concerning government harassment and surveillance of persons associated with the Socialist Workers Party shows further proof that disclosure of these contributors would deter and intimidate persons from associating with, contributing to, and supporting the plaintiffs and their candidates. It asks the court to declare 2 US.C. 432 (b), (c), and (d), and 438 (a) (8) and 434 (b) (1) (8) unconstitutional on their face as applied to plaintiffs and to contributions and expenditures on behalf of their presidential candidate Peter Camejo, and to preliminarily and permanently enjoin their enforcement as to plaintiffs and as to candidate Camejo.
On August 31,1976 the Clerk of the House, Secretary of the Senate, and the Comptroller General moved for dismissal. These defendants asserted that as a result of the FECA Amendments of 1974, the duties they originally had under the FECA had been transferred to the Federal Election Commission which under the 1974 and 1976 Amendments has the responsibility to enforce and administer the disclosure provisions challenged by the plaintiffs.
On September 29, the Federal Election Commission filed its motion to dismiss. In support of its motion the Commission noted that it, not the courts, has exclusive primary jurisdiction over enforcement of the FECA. Additionally the Commission asserted that the issues raised by the plaintiffs' complaint are all within the exclusive primary jurisdiction of the Commission and that the court "should remit the plaintiffs to the processes established by law for enforcement of the statutes." [Points and Authorities in Support of Defendant Federal Election Commission's Motion to Dismiss the Action for Lack of Jurisdiction, at 9.]
On October 21, Attorney General Levi filed a motion to dismiss asserting that the plaintiffs' amended complaint failed to set forth a justiciable case or controversy between the plaintiffs and the Attorney General. The Attorney General noted that the plaintiffs had failed to allege that the Attorney General had either enforced or threatened to enforce against them the criminal provisions of the FECA and its amendments. The Attorney General also asserted that the causes of action alleged by the plaintiffs were directed at actions by officials other than the Attorney General.
Status.-On October 21 and November 4, Common Cause, intervenor-defendant, filed memoranda in opposition to the motions to dismiss made by the Commission and the Attorney General. The plaintiffs have filed a motion in opposition to the motion for dismissal sought by the Clerk of the House, Secretary of the Senate and the Comptroller. They have also sought an extension of time to file their oppositions to the other motions for dismissal pending bef ore the court.
United States v. McPherson
Criminal Action No. 76-136 (D.D.C.)
Brie f.-On March 31, 197 6, an information was filed in the U~nited States District Court for the District of Columbia charging Michael C. McPherson with mail fraud. The information stated that while serving as Administrative Assistant for Representative William L. (lay, McPherson placed on the staff payroll an individual who at all times was empDloyed as a school teacher in Los Angeles, Calif. Paychecks foithe individual (22 in all totaling over $32,000) were sent to her sister,~ Patricia A. Sanderson (who later became McPherson's wife) or to McPherson. The checks were signed by someone other than the individual and were deposited to the account of either Patricia Sanderson or .McPherson. MNcPherson pleaded guilty to one count of mail fraud on the same day the information was filed.
At a hearing prior to sentencing on June 23, 1976, U.S. District Judge William B. Jones ref used to accept the guilty plea and ordered the case sent to a grand jury for investigation. The Government moved for a dismissal of the information without prejudice on July 23, and the court granted the motion on July 26.'
A superseding indictment, charging Michael McPherson and his wife, Patricia A. McPherson, with 18 counts of mail fraud and 18 counts of filing false statements with a department or an agency of the United States, was filed on September 21, 1976. Michael McPherson entered a plea of guilty to two counts of mail fraud and Patricia A. McPherson entered a plea of not guilty.
Status.-On November 24, 1976, U.S. District Judge John L. Smith, Jr. sentenced Michael McPherson to 1 to 3 years on each of the two counts, with 6 months to be served in Federal prison and the remainder of the sentence suspended, with the prisoner to be on probation for the period of the suspended sentence. At this same appearance before Judge Smith the charges against Patricia A. McPherson were dropped upon oral motion by the Government. Peroff v. Manuel
Civil Action No. 76-0341 (D.D.C.)
Brie f.-Franklin Peroff, "-a former organized crime figure. who has operated as an undercover agent for several Government law enforcement agencies," [Peroff v. Jfartuel, Civil Action No. 76-0341 (D.D.C. 1976), slip opinion at 2;: this report at 272], and has appearedI as a conigressional witness, brought suit for damages against, Philip Manuel. an investigator for the Senate Permanent Subcommittee on linvestigrations and Dr. Elbert. T. Phelps, M.D., a private practitioner, in the Superior Court for the District of Columbia. Manuel successfully
moved for removal of the action to the United States District Court for the District of Columbia.
In exchange for plaintiff's testimony, the subcommittee had arranged for Mr. Peroff's protection and a new identity. During the course of the investigation and preparation of the witness, the witness became a patient of defendant Phelps. An unresolved dispute over payment of defendant Phelp's fees for professional services resulted in the employment of a collection aoency to collect his fee from Peroff.
The plaintiff alleges that a partial disclosure of his real identity made by Manuel to the physician and the efforts of the collection agency in connection with the unpaid medical fee resulted in threats and attempts upon his life.
Defendant Manuel denied that he had made any such disclosure to Phelps or anyone else and maintained that his role in the matter was confined to his official duties as a staff investigator for the subcommuittee, and that accordingly he was protected from suit by the immunity afforded legislators and their employees by the Speech or Debate clause, Article 1, Section 6 of the, Constitution. Manuel cited ais authority for this proposition the opinion of the U.S. Court of Appeals for the District of Columbia Circuit in the case of IIesurely v. McCleilan,,521 F.2d 1024 (D.C. Cir. 1975).
Because defendant Manumels immunity argument was made in the context of a -Motion for Summary Jitdgment of dismissal, which, in accordl with Federal rules of civil procedure must be predicated upon no dispute with respect to any material fact, plaintiff Peroff took exception to the Mkotioni for Summary Judgment on the ground that not all of the acts of defendant Manuel as alleged in the complaint were within the purview of the "official acts" doctrine covered by the Speech or Debate clause immunity.
On October 2, the district court, in a memorandum opinion, found that plaintiff Peroff had not borne the burden of proof with respect to certain of the alleged acts arguably beyond the scope of the immunity afforded by the Speech or Debate clause, and dismissed the action as to defendant Manuel, thereby removing the basis for the jurisdiction of the Federal district court.
8fvitus.-On October 4, 1976, the case was remanded to the Superior Court for the District of Columbia for further proceedings against the remaining defendant. [Opinion in this report at 271.] Cervase v. A rchitect of the. Capitol (New Case)
Civil Action No. 76-1164 (D.N.J.)
Brie f.-This action was filed on June 17, 1,976. by John Cervase, "ca citizen and a taxpayer of the United States and New Jersey," ztrainist, the Architect of the Capitol and the Congressional, Black Caucus, Inc. Plaintiff states that the Architect of the Capitol ("Architect") controls and supervises the House Office Buildings; that the Congressional Black Caucus, Inc. ("1CBC"1) is a private nonprofit corporation organized in 1.971 to promote the interests of black citizens; it selects its members on the basis of race; --all of its current members are black Members of Congress; it is a tax exem-pt organization; it has not been issued a nonprofit mailing permit; and it has its permanent office and headquarters in House Office Building Annex No. 1.
Plaintiff alleges that CBC has unlawfully occupied the office space and unlawfully used U.S. Government furniture, and utility, security, maintenance, repair, commnunicationi and other services, and that in addition CBC has not reimbursed the U.S. Government for the costs of the office, goods, and services. le charges that the A,*rchiitect owes him and the public at large the duty to initiate legal proceedings to evict the CBC and collect damages from them for their unlawful use of office, goods and services, that the Architect has breachedl this duty by not taking these actions, and that this breach of duty has injured him and the public at large "by permitting (a) a private organization to use public offices, goods and services for private piirposes, (b) invidious racial discrimiination on public property, and (c) public money to be spent for private purposes." The complaint prays for:
(1) a declaratory judgment that the CBC has unlawfully occupied its office space and used U.S. Government goods and services, and that the CBC unlawfully selects its members on the basis of race; (2) a mandamus directing the Architect to initiate legal proceedings to evict the CBC from its office and to collect damages from then for their unlawful use of office, goods and services, and to initiate legal proceedings to evict the CBC from any public building within the Architect's jurisdiction if the CBC is selecting its members on the basis of race; (3) an order directing the defendants to pay plaintiffs costs; and (4) such other relief as the court may deemn just and proper.
Status.-On the 16th of December the district court, in a brief order, dismissed the action.
80-341 0 77 5
VI. OTHER ACTIONS INVOLVING MEMBERS IN A ]REPRESENTATIVE CAPACITY
Dellums v. Powell
Civil Action Nos. 75-1974, 75-1975, 75-2117, 76-1418, and 76-1419 (D.C. Cir.)
Brie f.-This was an action for declaratory and injunctive relief and for damages, brought in the U.S. District Court for the District of Columbia on November 11, 1971, arising out of the arrest of some 1,200 persons assembled on the steps of the House of Representatives at the Capitol Building on May 5, 1971.
Representative Ronald V. Dellums, a plaintiff, brought the action as an individual for violation of his constitutional rights. and for interference with the discharge of his constitutional duties as a Member of Congress. The other plaintiffs, all -arrested demonstrators, sued individually and as members of their class, seeking damages, expungement of arrest records and destruction of illegally obtained fingerprints and photographs.
Defendants named in the complaint included the Chief of the Capitol Police, Chief of the Metropolitan Police Department, the District of Columbia and the U.S. Attorney General.
Numerous pretrial motions were filed on behalf of the parties to this action resulting in a number of rulings by U.S. District Judge William B. Bryant, in which he denied plaintiffs' motion for a preliminary injunction, granted plaintiffs' motion to maintain the action as a class action and required defendants to supply to plaintiffs the names and addresses of the persons arrested on the Capitol steps on May 5, 1971, in order that notices of the class action could be sent to them, and permitted extensive discovery through the use of interrogatories.
On January 16, 1975, a $12 million judgment against the District of Columbia for false arrest and infringement of basic rights under the First, Fourth and Eighth Amendments to the Constitution. was awarded to the 1L200 antiwar demonstrators. Representative Dellums was awarded $7,500 for deprivation of his rights of free speech under the First Amendment. [Dellums~ v. Powell, Civil Action _No. 2271-71 (D.D.C. 1975).]
Appeals were, filed by the defendants on October 1, 1975 (Civil Action Nos. 75-1974 and 75-1975). On October 22, 1975. plaintiffs filed an appeal (Civil Action No. 75-2117) from a final judgment by the district court dismissing defendant Richard Kleindienst as a party to the action, which was entered on October 20, 1975. At the t ime oft the arrest, Kleindienst was Deputv Attorney General.
On March 4, 1976, the d-strict court reinstated into the class three plaintiffs who had been dismissed from the suit as original plaintiffs. Defendants immediately appealed this decision (Civil Action Nos. 76-1418 and 76-1419).
All five cases were consolidated for purposes of appeal on June 3, 1976.
Statwx--The appeals are pending before the U.S. Court of Appeals for the District of Columbia..
Common Cause v. Bailar (formerly Kiassen)
Civil Action No. 1887473 (D.D.C.)
Brif.-Originally filed on"October 5, 1973, this action seeks declaratory and injunctive relief against Postmaster General B. F. Bailar and Secretary of the Treasury William E. Simon for actions they allegedly Performed or f ailed to perform, in the course of their official duties, relating to the congressional franking privilege.
Plaintiffs, Common Cause and John W. Gardner, Chairman of Common Cause, amended their original complaint on March 12, 1974, following the enactment of the Franking Act of 1973 [Pub. L. 93-191] on December 18, 1973, to incorporate references to the new statutory language.
Plaintiffs allege that the use of the frank for newsletters and -news releases by a Member of Congress-then a candidate for nomination or election or engaged in fundraisinig for a candidacy-and the use of the f rank on mail matter such as condolences, biographies, pictures or writings laudatory or complimentary to a Member on the basis of performnance of official dluties: (1) abridg'es plaintiffs' First Amendment rights; (2) denies their Fifth Amendment rights; (3) is an unlawful appropriation of public funds for nonpublic purposes; (4) violates the Postmaster General's statutory duty; and (5) is an unlawful disbursement of public funds contrary to the statutory duties of the, Secretary of the Treasury.
On MNay 31, 1974, the defendants filed a. motion to dismiss, together with supporting memorandum, asserting as grounds that:
The court lacks jurisdiction over the subject matter of this action in that. neither of the above-named defendants are proper parties to this proceeding, the plaintiffs have failed to exhaust the administrative remedies available to them, the plaintiffs lack standing to maintain this action, and ** the complaint, fails to state a claim upon which relief may be
granted. [Defendants' motion to dismiss, May 31, 1974]
On JTune 14, 1974, plaintiffs filed a memorandum in opposition to the defendants' motion to dismiss as well as an application to convene a three-judge district court. On June 26, 1974, U.S. District Judge John H. Pratt denied without opinion defendants' motion to dlisiss. On JTulv 1, 1974, Judge Pratt signed an order convening the three-judge-0 district court requested by the plaintiffs. A week later, on July 8, 1974, the defendants filed their answer to the amended complaint.
Since~ September .9, 1974. plaintiffs have attempted to depose and serve subpoenas dures tecmm on numerous individuals. A partial list follows: Victor C. Smiroldo, Staff Director of the, House Cornmission on Congressional Mailinog Standards; Benjamin R. Fern, Chief Counsel of the Senate Select Committee on Standards and Conduct; David Rainage. House Majority Clerk: Thomas J. Lankford, House Minority Clerk; Joseph J. Fahey, Supervisor of the
Senate Folding Room; Edmund L. Henshaw, then Assistant Sergeant at Arms of the House; John M. Scanner, Staff Director of the House Committee on Standards of Official Conduct; Eli Bjellos, Chief of the House Publications Distribution Service; Harold Needham, Sl'rintendent of the Senate Services Department; James Estep, Ma~iager of the Senate Computer Center; Buehl Berentson, Executive Director of the National Republican Senatorial Committee; Bill Goodwin of the National Republican Senatorial Committee: Lee MacGregor, former Aide to Senator Robert Griffin; Joyce Baker, a former employee of the Senate Republican Policy Committee: Richard Conlon, Staff Director of the House Democratic Study Group; Lynda E. Clancy, Richard P. Clifton, and Glee Gomien, Staff Assistants of the Republican Senatorial Campaion Committee; Jay Bryant, Special Assistant in the Office of the Minority Whip; Edward L. Beach, Staff Director and Secretary of the Senate Republican Policy Committee and Senate Republican Conference: Edwin F. Feulner. Executive Director of the House Republican Study Committee; Patricia Goldman, Director of the Wednesday Group; and Jay D. Sterling, Executive Director of the House Republican Research Committee. On October 9, 1974, the Senate passed S. Res. 423 regarding Mr. Fern, and on October 11, 1974, passed S. Res. 431 regarding Messrs. Estep, Needham and Fahey. The -resolutions stated that by the privileges of the Senate no evidence of a docume-iiary character under the control and in the possession of the Senate can be taken, without its permission, by the mandate of process of ordinary courts of justice: that the employees were authorized to appear before the court. but not to take with them any papers or documents on file in their offices or in their possession; and that when the court determined that any of the subpoenaed documents and papers had become part of the official transcripts of public proceedings of the Senate, and that they were material to the case. the court could receive copies of the documents. On November 22, 1074, a similarly worded S. Res. 436 was passed regarding Joyce Baker.
The subpoenas of House employees Bjellos. Swanner, Smiroldo. Ramage, and Lankford were presented by the Speaker to the House for its consideration on September 30. 1974. When the employees failed to appear for their depositions, plaintiffs filed motions to compel their testimony.
On October 21, 1974, two of the subpoenaed employes, Eli Biellos and John Swanner. wrote a letter to Judge Pratt after reeiving a copy of the motion filed by the plaintiffs to compel their testimony. Each informed Judge Pratt of his view that both by statute anl by custom of the House, they were forbidden to testify or to remove documents belonging to the House without the permission of the House. The letters also informed Judge Pratt that the question of the subpoenas was under active consideration by the House and that the two men were therefore awaiting further guidance from the House on the course of action they should follow.
On December 18. 1974, the House adopted H. Res. 1.517 which was similar to the Senate Resolutions, except that it resolved that:
When it appears by the order of the court or of the judge
thereof, or of any legal officer charged with the administra-
tion of the orders of such court or judge, that documentary evidence in the possession and under the control of the House is needful for use in any court of justice or before any judge or such legal officer, for the promotion of justice, this House will take such action thereon as will promote the ends of justice consistently with the privileges and rights of the House.
[H. Res. 1517,93d Cong. 2d Sess. (1974) ]
On January 23, 1975, the House again took up the matter of the subpoenas in iT. Res. 85, which observed that:
a large variety and volume of [the materials sought by plaintiffs from the five House employees] do not appear to bear any essential relationship to the causes of action and relief requested in the plaintiffs amended complaint. [H. Res.
85, 94th Cong. 1st Sess. (1975) ]
The resolution also stated that, consistent with its privileges, the Houso. would act "to promote the ends of justice * upon a determination of relevancy by the * court," and it authorized the Speaker to appoint counsel to represent the House and its employees in the proceedings.
On January 27, 1975, oral argument was held on a renewed motion to dismiss which had been submitted by the defendants. This motion raised the same arguments that had been made in defendants' first motion to dismiss, and made the additional allegation that plaintiffs had failed to join an indispensable partv-the Congress-as required by Rule 19 of the Federal Rules of Civil Procedure.
Also discussed at the beginning of the January 27 hearing were the subpoenas which plaintiff had issued. Counsel for the plaintiff, in answering an inquiry regarding the mass of material being sought, stated that although the challenge was to the constitutionality of the franking laws on their face, the discovery was necessary to show that the statute was designed for and beingused for political purposes. The court suggested that perhaps the volume of material sought could be reduced, probably through stipulation between counsel, since the ultimate argument seemed to be on constitutional issues in which the facts involved would be rather undisputed. The court directed plaintiff to submit an itemized list of the documents it was seeking within 10 days after it ruled on the motion to dismiss, if its ruling was a denial of the motion.
By a Memorandum and Order of Februarv 10, 1975, the court denied the defendants' renewed motion to dismiss. In rejecting the defendants' argument that the plaintiffs had failed to exhaust their administrative remedies, the court wrote:
The claim that plaintiffs have not exhausted their administrative remedies in failing to file complaints concerning violations of the statute with the House Commission on Congressional Mailing Standards or the Select Committee on Standards and Conduct of the Senate has no merit. Plaintiffs make no contention that there have been abuses or violations of the statute, consideration of which are in the sole jurisdiction of the House Commission or the Senate Committee, but rather that the statute on its face is unconstitutional, a matter
beyond the jurisdiction of such bodies. Obviously, the Hlouse Commission and Senate Committee have no lpoN~er to declare an act of Congress unconstitutional. It is well settle(1 that the doctrine of exhaustion does not apply where the administrative process is inadequate to dispose of the constitutional claim. Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 72(1947 ).
[Comnan Cause v. Kiassen. Civil Action No. 1887-73.
(D.D.C. 1975) ; Slip Opinion at 2; see complete text in "Decisions" section of Co'urt Proceediyq and Artions' of
Vital Interest to the Congress, April 15, 1975.]
In addition, the court said, neither Congress nor the membership of Congress is an indispensable party-and though defendants' third allegation-that plaintiffs lacked standing to sue-was more serious and required further exploration, it too, was without merit:
Plaintiffs sue as taxpayers with a taxable income of over $
billion annually and federal tax liability in excess of $1 billion each year. They assert that federal funds appropriated under the franking privilege are being used to finance the distribution of partisan political literature specifically authorized by Section 3210 and that such expenditures of federal funds violate the limitations upon the taxing and spending power of Congress under Article I, Section 8, and contravene the
First and Fifth Amendments of the Constitution.
Just as importantly, plaintiffs claim status as registered
voters, representatives of registered voters, candidates for Congressional office, and supporters of candidates. It is alleged that over fifty members of Common Cause challenged incumbent members of Congress in the last election and many of its members supported challengers to incumbents.
They assert that the present franking privilege confers substantial political benefits upon incumbents, while nonincumbent challengers and their supporters do not have the same advantage. As a result, the rights of challengers and their supporters to freely associate for political purposes are impaired, and the value of their votes is diluted and diminished, all in violation of the First Amendment. Baker v. Cc,r [Baker v. Carr 369 U.S. 186 (1962).] In addition., it is alleged that this practice invidiously discriminates 'in favor of incumbent members in violation of the clue process clause of the Fifth Amendment. In short, as citizens with a particularized interest in the electoral process, plainti ffs claim standing to attack Section 3210 as violative of their constitutional rights.
From the foregoing brief discussion, it is clear to us that
the plaintiffs, have met the test laid down in Flast [Fa9t V.
Cohen, 392 U.S. 83 (1968)] and subsequent cases. They have asserted (1) an injury in fact, not a generalized complaint common to all citizens and taxpayers, and they have demonstrated (2) a nexus between the injuries suffered and the constitutional infringements alleged. [Slip Opinion at 3-4.]
On February 21, 1975, plaintiffs submitted their "Itemized List of Documents Subpoenaed from House Employees." From Victor
Smiroldo, Staff Director and Counsel of the House Commission on Congressional Mailing Standards, and John M. Scanner, Staff Director of the House Committee on Standards of Official Conduct, plaintiffs sought:
* all complaints concerning possible violation of the
franking statute, and attachments thereto, or copies thereof, brought to the attention of the Commission and all memoranda or other writings or copies thereof which relate to or
reflect the disposition of these complaints[;]
* al) .: d-7isory opinions and attachments thereto, or
copies thereof, which relate to the mailing or contemplated mailing of franked mail, issued to any Member of the, House of Representatives or Member-elect, surviving spouse of any of the foregoing persons, or other House of Representatives
officials, their agents or employees[;]
* all letters, memoranda or other writings, and attachments thereto, or copies thereof, which relate, to or reflect information, guidance, assistance, advice or counsel given in connection with the mailing or contemplated mailing of
* all formal or informal correspondence, or copies
thereof received by the Commission requesting information, guidance, assistance, advice or counsel in connection with the
mailing or contemplated mailing of franked mail[;]
* all informal opinions and attachments thereto, or
copies thereof, issued by the Commission concerning use of
the franking privilege [; and]
* all regulations or proposed regulations or copies
thereof, governing the proper use of the franking privilege by any Member of the House of Representatives or Memberelect, surviving spouse of any of the foregoing, or other House of Representatives official, entitled to send mail as franked or any employee or agent of any and all of the foregoing persons. [Itemized list of documents subpoenaed from House employees, filed February 21, 1975, hereinafter "Itemized List".]
From David Ramage and Thomas Lankford, respectively the Majority and Minority Clerks of the House of Representatives:
* all documents, correspondence, memoranda, worksheets and other writings, or copies thereof, which reflect or relate to the printing or preparation of Congressional newsletters or news releases by the House Majority Room from December 31, 1973 through the date of this subpoeiia[; and]
* all documents, correspondence, memoranda, and
other writings, or copies thereof, including but not limited to books, records or receipts, which relate to or reflect a bill or payment for services provided by the House Majority Room in printing or preparing Congressional newsletters or news releases provided between December 3, 1973 and the date
of this subpoena. [Itemized List]
From Eli S. Bjellos, Chief of the House Publications Distribution Service:
* all documents, correspondence, memoranda, worksheets and other writings, or copies thereof, which reflect or relate to the monthly work units of the Publications Distribution Service from January 1, 1967 through the date, of this
* all documents, correspondence, memoranda, and
other writings, or copies thereof, including but not limited to books, records or receipts, which relate to or reflect a bill or payment for services provided by the Publications Distribution Service for the period from December 1, 1973 to
the date of this subpoena [ ; and]
* all documents, correspondence, memoranda, and
other writings or copies thereof, which relate to or reflect the manner of I or handling of mass mailed matter, including, but not limited to instructions on the handling of Congressional newsletters for the period from December 1, 1973 to
the date of this subpoena. [Itemized List]
Plaintiffs had also sought documents from certain Senate employees and when the employees, pursuant to the instructions of the Senate, failed to produce them, plaintiffs filed a motion to compel the production of the documents. On May 21, 1975, Senate employees Fern, Needham, and Estep filed memoranda in opposition to plaintiff's motion to compel them to produce documents, stating that the records sought were not material to the subjectmatter of the pending litigation, which is that the franking statute is unconstitutional on its face, and the records.sought involve use of the frank in specific instances, which question is not in issue. Furthermore, they stated that the records are internal administrative records of the Senate which are privileged; that the use of the Senate folding room and computer are part of the pay and allowances of Members of Congress which is a policy question and not a legal one; and, in Mr. Fern's case, that the lawyer-client privilege applies. Later the three Senate employees filed supplemental memoranda invoking the decision of the Supreme Court in Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975), as supporting their position of legislative immunity for the records.
On June 17, 1975, House employees Bjellos, Swanner, Smiroldo, Damage and Lankford filed their memorandum in opposition to plaintiff's motion to compel testimony and the production of documents. It claimed that plaintiffs' discovery should not be allowed since the data sought were irrelevant to a facial attack upon the constitutionality of the franking act, the information is privileged against forced disclosure under the Speech or Debate Clause of the Constitution, and the subpoenas were needlessly burdensome.
The motion by plaintiffs to compel testimony and the production of documents was argued on July 1-6, 1975. On July 30, 1975, the court issued a memorandum' and order which stated that:
Objections to this attempted discovery are phrased in terms
of (1) irrelevance (2) burdensomeness and (3) constitutional immunity under Article 1, Section 6 (The Speech and Debate
clause) or Article 1, Section 5 (power of each body of Congress to enact its own rules).
The claim of lack of relevance is predicated on the narrow theory that, irrespective of the relevance of the requested materials in other frames of reference, they're simply irrelevant in a case where the gravamen of the complaint is that the statute complained of is alleged to be unconstitutional on its face. Aside from plaintiffs' continuing burden of maintaining standing, it is clear to us that a proper resolution of the issues raised by the complaint calls for a complete record consisting of the type of documentary materials sought to be discovered. For this reason, we hold these materials to be relevant and necessary.
Likewise, the claims of constitutional immunity are without weight. The Brewster case and others clearly demonstrate that congressional immunity is limited to legislative activities and the claimed use of the franking privilege for political activities is not covered even by a most expansive definition of the Speech and Debate clause. That the use of the franking privilege is not within the language of Article 1, Section 5, requires no discussion.
The claim of burdensomeness is more serious. On the one hand, the materials requested are relevant to the issues raised by the complaint and plaintiffs are entitled to a substantial degree of discovery. On the other hand, there may be problems concerning the sheer bulk of the materials requested, about which we are not presently apprised. In addition, considerations of fairness dictate that the names of individual members of Congress not be disclosed, as far as it is possible to achieve this result without unduly hampering the full and expeditious processing of this lawsuit. Where possible, submission under protective order may be a reasonable alternative.
Fortunately, as to the House employees, we are not presently faced with any of these problems since these employees through counsel have offered to submit voluntarily information respecting the use of franked mail broken down as to
(1) categories of congressional membership to compare frequency and volume of franked mail as it varies between members depending on estimated difficulties to be faced at primary or at election, (2) sources of payment for materials mailed, and (3) certain non-public interpretive materials, including but not limited to advisory opinions and more informal advice. We commend this effort of House defendants' counsel and urge counsel for plaintiffs to consider and determine the adequacy of such proposal and, if unable to agree with House employees' counsel, to be prepared to demonstrate the need of further materials.
Unlike the House employees, the Senate employees have made no move to supply any of the requested materials. Being satisfied as to plaintiffs' entitlement to substantial discovery, we herein require that counsel for Senate employees confer with plaintiffs' counsel in an effort to work out an accommo-
dation along the general lines of the proposal made on behIalf of the House employees. [Memorandum and Ord(er, Cornmoi Camse v. Bailar. Civil Action No. 1877-73 (D.D.C. 1975),
Slip Opinion at 3-4.]
The court granted plaintiffs' motion to compel discovery f rom the Senate and House employees, "it being understood that the exact nature and bulk of the materials to be produced are left to further negotiation between counsel for the respective parties."
On March 1, 1976. the court issued an order approving a stipiilation between plaintiffs and Senate employees Estep and"Needham, and a stipulation between plaintiffs and House employees Ramage. L-ankford, Bjellos and Smiroldo.
The stipulation regarding Estep, Manager of the Senate Computer Center, and Needham, Superintendent, of the Senate Services Depai tment stated that plaintiffs were to receive a U~ser's Guide for the Senate Computer Center and a description of the computer programs used:a compilation of the work orders from Senators designatingr the cater gories of individuals who are to receive franked mail, the work-order number arnd week thereof; a compilation detailing the categories of names maintained by the Senate Computer Center for each Senator, the number of names in each category, and the code designation of each category; the number of address labels affixed to f ranked mail for each Senator for each day or week; and the right to inspect copies of newsletters in the posse-ssion of the Senate Service Department. The stipulation further provided that Estep and .Needham would not be further deposed.
Additionally, a protective order was issued defining: (1) the information on the volume of mail for each Senator that may be. publicly filed; (2) the information that is to be available 'to plaintiffs' counsel underse*al; and (3) the extent to which the information available to plaintiffs' counsel under seal may be publicly filed in this action. The Senate employees will be given a list of all Senators with certain characteristics of the State each represents. voting percentages in elections since 1966, information on reelection, section of the country, and other general information. The Senate employees will then substitute a code for the name of each Senator, the key to which will be kept in camera and not made available to plaintiffs "or defendants or their counsel or anyone else. If a party needs the information he must first serve notice on the Senate employees' counsel. Finally. all documents sought by plaintiff f rom others will first be submitted to the court and the code will be substituted for the Senator's name, deponents and witnesses will use only the code, and plaintiff will refer to individual Senators only by their code.
As for Senate employee Fern, Chief Counsel of the Senate Select Committee on Standards and Conduct, the court stated:
Plaintiffs seek production of the following internal documents of the Senate Select Committee on Standards and
(A) The actual text of (a) all complaints to the
Select Committee concerning the use of the frank by Members of the Senate and the disposition thereof,
(b) all written requests from Members of the, Senate to the Select Committee for advice concerning the use of the f rank and the written responses thereto and (c) deponent Fern's notes or other memoranda concerning oral requests for advice and oral responses, or, in lieu of the actual text of the docu-rnents a summary of each document with the full document made available to plaintiffs' counsel to
verify the accuracy of the summaries; and
(B) All internal memoranda of the Committee
coi)cerning the use of the frank which have been approved by the Select Committee or used as the basis for rendering advice to Members of the Senate.
Actual text was defined by plaintiffs' counsel as a copy of
the full text of the document or the original document itself, with only the identification of the Senator deleted. [Order, Comm-on Cause v. Bailar, Civil Action No. 1887-73 (D.D.C.
March 1, 1976) [hereinafter "Order"]; Slip Opinion at 3.]
The court noted that after the Select Committee had decided not to allow Mr. Fern to produce the documents, the Senate on December 17, 1975, had adopted a resolution reaffirming a previous Senate resolution prohibiting the disclosure of the internal records of the Select Committee. On January 27, 1976, the Select Committee had again considered the matter and determined that under order of the Senate it could make no change in its position. Fern had offered to supply summaries of documents in list (A) above, but plaintiffs had insisted upon inspection of the actual records to insure the accuracy of the, summaries, and the Select Committee had rejected this proposal. The court continued:
We have given careful thought to the contentions of the
parties. It is conceded that the documents themselves are relevant, to the issues in this case. Whether the documents are privileged may be determined by whether they relate to the business of Senators or the business of candidates for the Senate. This approa&es a capsule description of the ultimate issue in this case. We can agree that a privilege for Senatorial documents exists, without deciding that these
documents are Senatorial and therefore privileged.
At this stage in the lawsuit we think it better to act as if
the documents were Senatorial and privileged, with the ultimate decision reserved. Inspection by plaintiffs' counsel, even with all safeguards, would in some sense defeat the privilege, if in ultimate analysis these documents were found to be properly entitled to protection. However, there is no doubt that the privilege claimed, if it exists, is not absolute but is defensible upon a showing of proper need. As the recent Watergate experience has taught us, a President's claim of absolute privile ge on the grounds of confidentiality must yiel.d when a proper showing is made that the overriding considerations of the public interest require disclosure. The body to make such a determination is the judiciary after an in camera inspection of the material. United States v.
It is our judgment that plaintiffs have up to this point
failed to demonstrate the showing of particular need to overcome the Select Committee's claim of privilege. It ii-iay well be that the summaries themselves plus additional discovery in other areas will satisfy the plaintiffs" evidentiary problems and will make it unnecessary for us to, order at this time the production of the documents themselves. On the other hand, we see no reason why Mr. Fern should not be required also to supply summaries of "all internal memoranda" described in subparagraph (B) above. It is understood that the entire file of original documents is quite limited in size. Accordingly, it
is by the Court,
Ordered, that plaintiffs' motion to compel production of
original documents by the witness Fern be and is hereby denied without prejudice; and it is
Further ordered, that the witness Fern be and is hereby
ordered to produce summaries of all documents covered in
subparagraphs (A) and (B) above. [Order at 4-5. ]
The stipulation with the House employees stated that plaintiffs will receive: (1) the sources of f unds used to def ray printing costs for mass-mailed franked materials on a per seat breakdown, and the banks and account numbers where the proceeds of the printing operations are kept; and (2) access to the files of the House Publications Distribution Service (PDS) for the purpose of preparing compilations of the, per seat volume and timing of f ranked mail, w ith the research and results to be done either by, PDS at plaintiffs' expense or by plaintiffs, with PDS then compiling the information and using a code for a Member's name. The information will then be compiled and coordinated with coded numbers and a coded list of the att n**butes of the Member similar to those of the Senate, with similar access and protections. Plaintiffs will also receive from Mr. Smiroldo of the House Commission on Congressional Mailing Standards, at plaintiffs expense:
copies of all documents and other writings pertaining to all formal complaint proceedings, pending or completed. In addition, Plaintiffs will receive copies of all documents in the files of the Commission that embody (a) formal or informal advice rendered by the Commission and/or its staff to Members of Congress regarding their use of the franking privilege; or (b) policy statements or regulations of general applicability adopt d by the Commission regarding permissible uses of the franking privilege by Members of Congress: or (c) communications of the Commission or its staff with third parties outside the House of Representatives that relate to the franking privilege. The only omissions f rom these ma.terials will be such details as identify a particular
This voluntarily offered material included:
a. Correspondence and other communications from the Commission to Members of Congress or their staffs, advising a Member with respect to the f rankability of a, proposed
b. Correspondence and other communications from Members of the House Commission staff to Members of Congress
or their staffs that provide such advice.
c. Correspondence and other communications relating to the,
franking privilege, between, on the one hand, the House Commission or its staff and, on the other hand, individuals other
than Members of Congress or their staff .
d. Internal staff memoranda addressed to the Commission
in cases where staff memoranda have been adopted by the Commission as the basis for its final action in (i) rendering advice on the frankability of a proposed mailing, or (ii) adopting policies or regulations of general application with respect to permissible -uses of the franking privilege by Members of Congress. [Stipulation and Protective Order Regarding Production of Information and Documents By Certain Employees of the House of Representatives, Common Cause v. Railar, Civil Action No. 1887-73 (D.D.C. March 1, 1976)
(hereinafter "Stipulation"'); Slip Opinion at 5-6.]
Furthermore, still a different code will be used in place of Members' names in this compilation than in the previous one, and it was:
specifically understood and agreed that Mr. Smiroldo will not provide Plaintiffs with information or access to other materials consisting of (a) internal memoranda that were not adopted by the Commission as the basis for advice or policy decisions by the Staff or the Commission, (b) requests for advice by members, except as otherwise provided for above, and (c) either the identityor the code number for the members involved. [Stipulation; Slip Opinion at 6.]
Finally, the court's order stated that with respect to subpoenas issued by plaintiffs on February 15, 1976, to the administrative assistants or aides of all 100 U.S. Senators, which commanded each one to bring with him "all documents, correspondence, memoranda, and other writings or copies thereof, which relate to or reveal the types of lists, 'codes,' or groupings of names maintained for mailing purpose in the Senate computer since December 18, 1973," in conjunction with each one being deposed af 15-minute intervals from February 18 to 23 1976, it was understood that counsel for both parties were trying to work out a solution including the directing of one subpoena to a single staff member who would represent all 100 Senators in the furnishing of documents anonymously, and it ordered the proposed procedure as approved, with the court to be advised of the precise procedure agreed upon.
OnMarch 9, 1976, the House passed H. Res. 1082 giving its consent to the House employees to furnish the documents requested in the sti population.
The Senate passed S. Res. 411 on March 24, 1976, which authorized the preparation of a list showing the codes used by each Senator on work orders for mailings sent under the frank, and authorizing employees to furnish the meaning of such codes.
On April 7, 1976, the 100 administrative assistants moved for a protective order from the court limiting the scope of discovery to the terms of S. Res. 411.
On July 1, 1976, the House of Representatives passed H. Res. 1382 authorizing the House Commission on Congressional Mailing Standards to seek to intervene in the case. The motion to intervene was filed on August 6.
On September 9 an order was filed granting the Commission's motion.
In its answer to the complaint filed by Common Cause, the Commission denied the allegations asserted in each cause of action, contested the courts jurisdiction over the subject matter, attacked the standing of the plaintiffs, answered that the complaint failed to state a claim upon which relief could be granted, and asserted that the plaintiffs had failed to exhaust the administrative remedies available to them.
On September 24th Judge Pratt, without comment, denied the April 7th motion for a protective order filed by the Senate administrative assistants.
Status.-The case is pending before the three-judge court in the U.S. District Court for the District of Columbia.
The full text of the court's "Memorandum and Order" of July 30, 1975, the "Stipulation and Protective Order Regarding Production of Information and Documents By Certain Employees of the House of Representatives," filed on March 1, 1976, and the "Order"" of the court filed on March 1, 1976, were printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, April 15, 1976.
The full text of the memorandum and order of February 10, 1975, was printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, April 15, 1975. Harrington v. Bush (formerly Colby)
Civil Action No. 75-1862 (D.C. Cir.)
Rrief.-This action, filed December 27, 1974, in the U.S. District Court for the District of Columbia, concerns certain allegedly illegal activities of the Central Intelligence Agency including the procedures by which these and other activities of the Agency are reviewed and funded by the Congress.
The purpose of the suit, according to the plaintiff, Representative Michael Harrington, is to require the Agency to:
* operate within the limits imposed by law prohibiting
foreign covert political operations and domestic intelligence activities. * The oversight committees of Congress have repeatedly failed to exercise any real control over CIA operations, rendering legal limitations meaningless in practice. A long history of CIA covert operations abroad, including the Bay of Pigs invasion and the secret war in Laos, attests to the complete abdication of Congressional responsibility by those on the oversight committees. Evidence of domestic surveillance adds to the pressing need for a reassertion of applicable legal limitations on CIA operations. [Press Release of
Congressman Harrington, December 27, 1974.]
Named as defendants in the suit, in addition to the Director of the Central Intelligence Agency, were Henry Kissinger, in his capacity
as Security Advisor to the President, Chairman of the Intelligence Committee of the National Security Council and Chairman of the 40 Committee, and William E. Simon, in his capacity as Secretary of the Treasury.
Mr. Harrington brings this action in his capacity as a taxpayer and as a Member of Congress. He contends that as a Congressman his rights have been curtailed and his authority impaired in the following respects:
(a) Under Article I, Section 2, clause 5 and Article 2, Section 4 of the Constitution to consider, initiate, support or vote for the impeachment of the defendants Colby, Kissinger and
other civil officers of the United States;
(b) Under Article I, Sections 1 and 8 of the Constitution
to consider, initiate, support or vote for legislation, civil or criminal, prescribing the Agency"s activities and ensuring
that such prescriptions are obeyed;
(c) U nder Article I, Sections 1 and 8 and Article I, Section
I9 clause 7 of the Constitution, to consider, initiate, support
or vote for legislation prescribing or limiting the use by the
Agency of any public funds; and
(d) To take other legislative actions relative to the activities of the Agency.
Plaintiff's complaint alleges that the Agency has violated its statutory authority under 50 U.S.C. 403, et seq., in that it has participated in "activities designed and calculated to affect or manipulate political, military, economic or social development in foreign countries and in foreign affairs as distinguished from the activities of collecting, analyzing, integrating, interpreting and disseminating information." The complaint outlines specific instances of these alleged illegal activities; e.g., financial support to Chilean trade organizations opposed to the election of Salvador Allende as President of Chile. Plaintiff asserts, as well, that in light of recent statements made by President Ford and Director Colby such activities can be expected to continue.
As a second cause of action, plaintiff alleges that the expenditure of public funds drawn from the Treasury for Agency nonintelligence related activities violates Article L Section 9, clause 7 of the Constitution, which states that "[njo Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law; and a reorular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." Mr. Harr;.nzton contends that such activities of the Agency violate 50 U.S.C. 403f (a) (receipt of funds from other Government agencies) and 31 U.S.C. 11 628 696 (transmittal of the Budget to Congress,
application of moneys appropriated, and limitation on use of appropriations by agencies).
The final caiise of action in Mr. Harrington's complaint alleges that the Central Intelligence Agency violated its statutory authority by engaging in illegal domestic spying and surveillance, including collecting information and maintaining files on at least 10,000 American citizens. It is claimed that such files contain information regarding the political beliefs, activities and associations of American citizens and were obtained by the Agency through break-ins, burglaries,
wiretaps and surreptitious inspection of mail. Representative Hiarrington states that such activities are not within the authority of the Agency under 50 U.S.C. 403(d) (3) which states that "the Agencyv shall have no police, subpoena. law enforcement powers, or internal security functions. * *"
Plaintiff requests the court to declare the following activities of the CIA illegal: Foreign nonintelligence related activities: dominestwi surveillance and information gathering operations of the Agency directed at U.S. citizens; current appropriation and funding procedures; failure to publish in the Federal Register nonintelligence related aspects and domestic police-internal security operations; and failure of the Agency and Department of Treasury to identify specifically the receipt and expenditure of funds for nonintelligence and police-internal security functions. Harrington asks that defendants. and their successors in office, be permanently enjoined from engaging in such illegal activities. Plaintiff also requests that defendants. and their successors in office. be required to report Agency nonintelligence and police-internal security activities in compliance with 5 U.S.C. 552 (publication of information for the public record) and identify specifically the funding for such activities pursuant to Article I. Section 9. clause 7 of the Constitution and 31 U.S.C. A 1029 (receipt and expenditure of public money).
Plaintiff finally requests that the court preliminarily enioin the defendants from engaging in all alleged illegal activities pending final determination of this action.
Defendants motion to dismiss was granted on July 3. 1975. Plaintiffs then filed an appeal on July 28, 1975.
Sta~us.-Oral argument was held on September 15, 1976.
The case is pending before the U.S. Court of Appeals for the District of Columbia.
United States v. Gurney
Criminal Action No. 74-122-CR-J-K (O.D. Fla.)
Brief.-On July 10. 1974. former U.S. Senator Edward J. Gurney of Florida. two members of his staff and several other individuals were indicted by a Federal grand jury in Jacksonville. The 11-count indictment charged the Senator with bribery, conflict of interest. conspiracy to defraud the United States, and knowingly making false material declarations to a grand jury [.S 2. 201. 203. 371 and 1623 of Title 18. U.S. Code]. The Senator's aides were also charged with violating 2, 201. 203. and 371 of Title 18.
Senator Gurney and his aides pled not guilty to each count of the indictment.
On August 6, 1975. Senator Gurney was acquitted of bribery, receiving unlawful compensation and three counts of perjury. A mistrial was declared with respect to the conspiracy charge.
On September 1st the Justice Department announced it would drop the conspiracy charges against former Senator Gurney, but would proceed to try him on a charge of lying to a grand jury.
Status.-During the course of the trial certain portions of the charges were dismissed by the presiding judge, and on October 27 a verdict of not guilty was given to the remaining charges.
80-341 0 77 6
Metcalf v. National Petroleum Council
Civil Action N o. 76-1223 (D.C. Cir.)
Brie f.-Senator Lee, MNetcalf, on March 21, 1975, tiled this action in the U.S. -District Court for the District of Columbia, under the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 1 (Supp. 111, 1973), and the Federal Energy Administration Act of 1974 (FEAA),1 15 U.S.C. 761--186 (Supp., 197T-), to enjoin the Departmnent of Interior and the Federal Energy Administration from obtaining advice or re commendations from the National Petroleum Council until the Council "conforms to the provisions of the Federal Advisory Committee and the Federal Energy Administration Act [s]." In addition, the suit asked that the Council be enjoined from advising Federal agencies "until it is lawfully constituted and properly sanctioned by the Office of Management and Budget." Plaintiff Metcalf filed this suit as a residential and general consumer of petroleum products, and as a Member of the United States Senate. As a residential and general consumer of petroleum products, Senator Metcalf alleged that because "the Council membership presently is not fairly balanced or reasonably representative in accordance with law, and is inappropriately influenced by special interests," the advice and recoinmendat ions which it transmits to the executive agencies will not adequately consider or prevent potential environmental damage, thereby directly affecting the health and safety of his family.
As a United States Senator, plaintiff Metcalf sponsored and voted for the Federal Advisory Committee Act and voted for the Federal Energy Administration Act. The complaint alleged that because of defendants' f ailure to comply with requirements of current law he has had his votes for and legislative efforts to insure compliance with them effectively nullified. Moreover, the Senator alleged that in his work as a Member of the Senate Interior and Insular Affairs Committeewhich committee has jurisdiction over the Department of Interior's activities concerning mineral resources-he has been injured in the proper assessment of Interior~s requirements because of the effects of the allegedly illegal advice provided Interior by the Council.
Senator Metcalf was joined in his suit by Robert Clarke Brown who also sued as a residential and general consumer of petroleum products. The complaint alleged that as a result of defendants unlawful activities Mr. Brown has been paying higher prices for petroleum products and is further injured by the environmental damage and hazards associated with petroleum products which are threats to his health and safety.
Defendants in this case are the National Petroleum Council and each of its subgroups which the complaint alleged are advisory committees within the meaning of the Federal Advisory Committee Act and the Federal Energy Administration Act of 1974. Other named defendants are John E. Swearingen, Chairman of the Council and also Chairman of the Board of the Standard Oil Company of Indiana; Kenneth E. BeLieu, Executive Director of the Council; the Department of the Interior and its Secret ary, Rogers C. B. Morton; the Federal Energy Administration and its Administrator, Frank G. Zarb; and the Office of Management and Budget and its Director, James P. Lynn.
The complaint further alleged that about 140 of the approximately 155 Council members appointed by the Secretary of the Interior are affiliated with or employed by the petroleum industry, and virtually all of the additional members of the council subgroups are either employees of, paid by, or responsible to the petroleum industry. The complaint fur11tiuer stated that throughout the year the C.ouncil and its subgroups advised, informed, and influenced Interior, F EA,, and other Federal agencies on petroleum and energy related issues, all in violation of Section 5 (b) (2) and (b) (3) of FACA which states that the President and agency heads shall require "the membership of the advisory committee to be fairly balanced in terms of points of view represented and the functions to be performed by the Advisory Committee," and that the President and agency heads shall "insure that the advice and recommendation of the Advisory Committee will not be inappropriately influenced * by any special interest."
The case came before Judge John H. Pratt, United States District Judge for the District of Columbia on defendants' motion to dismiss or in the alternative for summary judgment.
The court granted defendants' motion to dismiss with prejudice and held that the plaintiffs lacked standing to maintain the action.
In its memorandum opinion of February 9, 19 76, the court. noted that both plaintiffs alleged three types of injury to themselves as consumers: (1) Anticipated higher costs for petroleum products; (2)) Potential environmental damage and threats to health and safety: and
(3) Anticipated denial of benefits from the development of alternative sources of energy. The court held that these allegations of consumer injury fail to establish a real and immediate injury or threat of injury-that at best they are speculative and represent grievances shared by all or most of the general public. The court concluded that the plaintiffs failed to make out a "case" or "controvers' and that "standing to sue may not be predicated upon an interest **which is held in common by all members of the public,"' citing Schlesinmger v. Reser~'iStS to Stop the War, 418 U.S. 208, 220 (1973) ; see also Uited States v. Richardson, 418 U.S. 166 (1973).
The court also dismissed Senator M'Netcalf's allegations that defendants' actions have diminished the effectiveness of his votes for the FACA and FEA.A- and have impaired him. in carrying out his legislative duties. The court said:
Plaintiff Metcalf in an affidavit supplementing plaintiffs'
opposition to defendants' motions spells out the type of injury claimed as a United States Senator. They are that (1) the data and information f rom Interior and FIEA. to the extent that such includes data and advice from the Council, are biased and unreliable. thereby impairing his legislative work because of his need for unbiased data and advice, and (2) further legislative activities in the direction of correcting these abuses will be adversely affected until the legal issues raised by the complaint are resolved. The very recital of these alleged injuries indicates their lack of substance.
Plaintiff Metcalf as a legislator of sophistication and long experience is not a neophyte. It is difficult to accept the premise that he is in any way misled by the data or information received from government, agencies such as Interior or
FEA. or that he is unable to identify and discount any bias arising froin the Council's input into that process. As for the necessity of a judicial declaration to determine his future legislative course of action, plaintiff Metcalf is not without a remedy. He is well aware that each standing committee of the Senate (and he is a member of such committee or committees) in the exercise of its legislative review function, is required to "make a continuing review of the activities of each advisory committee under its jurisdiction." (5 U.S.C.
App. 1, 1975 Supp. 5 (a).) In addition, it is no secret to him that both Interior and FEA are completely dependent on Congress for appropriations. In short, this suit is an effort to obtain an advisory opinion from this Court. Such is forbidden by the "case" or "controversy" requirements of Article
III. As was said in a recent case,
Pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptedly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency's action.
And it is equally true that the allegations must be true and capable of proof at trial." United States v.
SCRAPI 412 U.S. 6691 688-89 (1973). [Metcalf v.
National Petroleum Council, 407 F. Supp. 257, 260
Finally, the court added that there was a further defect in plaintiffs' position:
They have failed to show that their injuries came as a
result of the actions challenged herein. * In attempting to show that defendants' actions have caused and will cause their injuries, plaintiffs have assumed, if the Council's membership were changed, (1) that Council's advice would be different, (2) that Interior or FEA would act on a certain way or not act upon receipt of said advice, (3) that plaintiffs would not be harmed by such action or inaction, (4) that with different advice from the Council, Interior and FEA would act in a way different from their present actions, and (5) that assuming a different course of conduct by the governmental agencies, such changed conduct would favor plaintiffs' interests. These assumptions in every instance lack record support. They do not provide the factual foundation upon which one could reasonably infer that, in the absence of the defendants actions which plaintiffs seek to change, the injuries complained of would not and will not occur, and that, if the plaintiffs are granted the relief they seek, that
those injuries would cease and disappear. [Id. at 260-61.]
Plaintiffs filed an appeal with the United States Court of Appeals for the District of Columbia Circuit on February 23, 1976, asking for a summary reversal. On March 22, defendants filed a motion wi th the court of appeals asking for summary affirmance.
The appeals court denied both motions on 'May 12, 1976, and at the same time ordered the clerk of the court to s(.hIedule the case for oral argument.
Status.-The case was argued before the court of appeals on September 15, 1976, and is pending before that court.
The full text of the district courts, memorandum opinion is found in the report of Court Proceedivgs uwd Actios of Vital Iiaterv~st to the Co igres. April 15, 19 76.
National Tribal Chairmen's Association v. Abourezk
Civil Action No. 75-0803 (D.D.C.)
Br-ief.-On MNay 20. 1975., the National Tribal Chairmen's Association (hereinafter referred to as NTCA) filed suit against the American Indian Policy Review Commission and its Commissioners, -who include six Senators and Congressmen appointed to the Commission by the President Pro Temn of the Senate and Speaker of the House.
The Commission was created b-y a joint resolution of Congress with the approval of the President. Its five Indian representatives were appointed by the six congressional 'Members and selected from the Indian community as follows:
(1) three members * from Indian tribes ***recognized by the Federal Government;
(2) one member *** to represent urban Indians; and (3) one member *who is a member of an Indian group
not recognized by the Federal Government. [P.L. 93-5S0:
1 (c) ; 88 Stat. 1911.]
The Commission is to conduct a comprehensive review of the historical and legal developments underlying the Indian's unique relationship with the Federal Government in order to determine the nature and scope of the necessary revisions in the formulation of policies and programs for the benefit of Indians.
The NXTCA describes itself as a voluntary nonprofit, organization composed of those Chairmen. Presidents, Governors, or Chiefs of reservation Indians or of federally recognized tribes with Federal trust land who have been selected according to their tribal constitution as heads of their respective tribes. The NTCA includes the elected leaders of approximately 190 federally recognized tribes.
NTCA complains that the five Indian members of the Commission are "inferior officers" within the meaning of Article II, Section 2. clause 2 of the Constitution and that their appointment by six members of a Commission created by, but wholly distinct from. Congress to execute Public Law 93-580 is repugnant to the aforesaid provisions of the Constitution because such body is not lawfully vested -with the power of appointment. It also allege's that Public Law 93-580 is unconstitutional because it unlawfully vests the power of appointment of inferior officers in a body other than the President, the Courts of Law, or the Head of a. Department.
The selection of the Director and General Counsel of the Commission is also attacked because they were named prior to the appointmnent of the five Indian Commissioners. The Association further complains that they were neither appropriately selected under the formula prescribed by the joint resolution, nor refective of the diverse character of the Indian community.
The composition of the Commission is so unrepresentative, NTCA alleges, that it constitutes a breach of the trust relationship between the Federal Government and the federally recognized land based Indian tribes.
The Association asks that the Commission and its enabling statute be declared unconstitutional, that the appointment of the five Indian members of the Commission be declared unconstitutional, and that the members of the Commission be enjoined from carrying out their responsibilities or expending authorized funds.
The case came before a three-judge panel of the United States District Court for the District of Columbia on cross-motions for summary judgment.
On February 19, 1976, the panel granted defendants' motion for summary judgment and denied same to plaintiffs. In its order of the 19th the court found that:
(1) the powers and responsibilities vested in the American
Indian Policy Review Commission ("Commission") are exclusively legislative in nature, see AlcGrain v. Daugherty, 273 U.S. 135 (1927), Watkins v. United States, 354 U.S. 178 (1957), Barenblatt v. United States, 360 U.S. 109 (1959), Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975), and, consequently, neither the creation of the Commission nor the appointment of its membership by Congress, or designated subgroups thereof, is violative of the doctrine of separation of powers or the Appointments Clause of the
Constitution, art. IL 2, el. 2. Buckley v. Yaleo, U.S.
44 U.S.L.W. 4127, 4162-70 (U.S. January 30, 1976), cf. In re Hennen, 13 Pet. (38 U.S.) 230.,258 (1839), Collins v. United States, 14 Ct. Cl. 568 (1878), Springer v. Philippine Islands, 277 UT.S. 189 (1928); (2) the Indian members of the Commission are not "inferior officers" of the United States within the meaning of the Appointments Clause, Buckley v. IValeo, supra. 44 U.S.L.W. at 4164-70;~ (3) the present Indian membership of the Commission reflects the criteria for selection detailed in Section 1 (c) of the American Indian Policy Review Commission Act -("Act"), 25 U.S.C. 174 (1975) ; and (4) the Director and General Counsel of the Commission were appointed "by record vote of a majority of the Commission members," as required by Section 6 (a) of the Act.
[National Tribal Chairmen's Association v. Abourezk, Civil Action No. 75-803 (D.D.C.), Order at 1-2; footnotes omitted.]
Plaintiffs filed a notice of appeal to the United States Supreme Court on March 19, 1976.
Status.-On May 19, 1976, the plaintiffs, pursuant to Supreme Court rules, moved the three-judge district court to dismiss their own appeal. The district court granted the motion on August 26.
The full text of the district court's order of February 19, 1976, is found in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, April 15, 1976. Sporiservice Corp. v. Steiger
Civil Action No. C286651 (Superior' Court, State of Arizona for Maricopa County)
Brief.-Early in 1974 Sportservice Corporation and its subsidiaries. which are engaged in various businesses including horse racing, dog racing, and businesses identified with those activities, as well as the operation of food and beverage concessions, filed suit against Representative Sam Steiger, one of his former aides, and others alleging a conspiracy to damage plaintiff's business activities for defendant's personal benefit. The complaint asks $1,000,000 in damages.
Among other charges, Sportservice alleged that statements made by Representative Steiger and dissemination by him of material to certain publications were part of the conspiracy.
Representative Steiger i his answer denied any conspiracy, responded that all the statements he had made and the material he had furnished were true, and claimed that all acts done or performed were in his capacity as a Member of Congress in furtherance of his official duties. As such, Representative Steiger claimed that they were protected by the "doctrines of legislative privilege and legislative immunity." As for the statements made bv him and alleged 1 Sportservice to be defamatory, Representative Steiger asserted that his statements were true, made in good faith in the belief that they were true, and in any event, privileged as statements made in the public interest involving matters of public concern.
Representative Steiger's answer to Sportservice's complaint contained a counterclaim alleging that Sportservice was engaging in an effort to defame him and to damage his reputation individually and as a Member of Congress. Representative Steiger's counterclaim seeks $2,000,000 in damages.
During the course of the proceedings, the trial court ordered Representative Steiger's former aide to answer questions put to him in a discovery deposition. Representative Steiger asserted Speech or Debate clause immunitv to prevent the aide from respondin'. Snortservice then sought a court order to require the aide to answer. Such an order was issued by the trial court. but Representative Steier appealed. The matter came before the Arizona Supreme Court [Se?./er v. The S perior Covrt of the State of Arizona for Marieoia Caonty,
536 P.2d 689 (Ariz. 1975)] and was decided on June 4, 1975.
Before the State Supreme Court, Representative Steiger again asserted that the actions complained of by Sportservice were carried out in his official capacity and that Speech or Debate clause immunity was a bar to inquiry into his legislative activities.
The court held that while activities that are clearly related to the legislative process are immune from inquiry, even when general criminal statutes might otherwise apply. Speech or Debate clause immunity does not shield everything related to a congressman's office. Only acts done in the process of enacting legislation are protected. While Representative Steiger had asserted that the acts which were to have been the subject matter of the deposition were part of an investigation he was conducting, the court noted that there was no showing that the investigation was related to any pending congressional inquiry or legislation. The court also noted that more than one year after the acts occurred, Representative Steiger introduced a bill to provide criminal penalties for fixing certain horse or dog races. While the court said it was arguable that the impetus for the legislative proposal may have resulted from the investigation and as such
was related to the legislative process, it refused to accept that such a connection was sufficient to bring the acts within the protection of Speech or Debate clause immunity.
Status.-A trial on the merits is pending in the Arizona State court system. The decision of the Arizona Supreme Court in Steiger v. The Superior Court of the State of Arizona for Maricopa County is printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, August 15, 1975. Drinan v. Richardson (formerly Morton)
Civil Action No. 75-1916 (D.D.C.)
Brief.-On November 11, 1975, Representative Robert F. Drinan and 24 other Members of the House of Representatives filed suit, as Members of Congress, against Rogers C. B. Morton as Secretary of Commerce and Thomas Kleppe as Secretary of the Interior, alleging that certain actions and inactions of the defendants had violated Section 3 (5) of the Export Administration Act (hereafter referred to as C'Act'111).
Section 3 (5) of the Act provides as follows:
It is the policy of the United States (A) to oppose restrictive trade practices fostered or imposed by foreign countries against other countries friendly to the United States, and (B) to encourage and request domestic concerns engaged in the export of articles, materials, supplies, or information, to refuse to take any action, including the furnishing of information or the signing of agreements, which has the effect of furthering or supporting the restrictive trade practices or boycotts fostered or imposed by any foreign country -against
another country friendly to the United States.
The plaintiffs stated that under the Constitution, it is the duty of the Congress to determine and state national policy, and the duty of the executive department to implement and effectuate it and to refrain from actions that hinder, impair or frustrate it; that Israel is a country friendly to the United States; and that a number of countries in the N ear East and North Africa now and for many years have engaged in a systematic and continuing boycott of Israel and of American domestic concerns engaged in trading or doing business with or in Israel.
The complaint alleged that under Morton, the Commerce Department acted to hinder the implementation of the Act's policy by promoting business between the Near East and North African countries and American concerns that comply with their boycott policies and practices through publications encouraging businessmen not now doing business with those countries to begin doing so, and offering the services of the Department in helping them start. It stated that Morton wrote an article in a Department publication entitled "Mideast Trade and the Boycott," which failed to mention Section 3 of the Act. Further, the Department issued Export Regulations Section 369.1, which states that it is the -policy of the United States to oppose restrictive boycotts imposed by foreign countries against any country not included in a certain group, and all exporters are "encouraged and requested to refuse to take. (but are not legally prohibited from tak-
ing) any action" that would further the boycotts. The complaint stated that there is nothing which allows the executive branch of the Gov-erninent to advise American concerns that they can take actions directly contrary to the national policy as expressed by the Congress. that the statement is an erroneous statement of law, and that its only purpose can be to invite and encourage American concerns to violate the antiboycott policy of the United States. Finally, plaintiffs complained that the Department violated the policy (1) by circulating notices of trade opportunities or tenders f rom- 'Near East and North African countries to American concerns without informing them that these countries participate in boycott policies and practices against which Section 3 of the Act is specifically aimed; (2) by circulating such notices and tenders in which the inviting country expressly excludes concerns that are (or use materials manuf actured by concerns that are) officially boycotted by the inviting country; (3) by circulating such notices and tenders without stating that compliance with the terms violates the Act; and (4) by circulating such notices and tenders with a statement that compliance with the boycott provision is contrary to American policy but is not illegal or legally prohibited.
The complaint alleged that under Kleppe's direction or approval, the Department of Interior, in purchasing materials for use by its Geological Survey Bureau in Near East and North African countries required the Am~erican vendors to submit certification that neither the steamship on which the material was to be sent. nor the company insuring the materials were on the boycott list of the country involved.
The suit asked -for declaratory and injunctive relief to prevent defendants, from encouraging trade between American concerns and the Near East and Nor'th African countries.
On 'March 10, 1976. defendants filed a motion to dismiss, claiming that plaintiffs lacked standing, the complaint prIesen~ted a nonjusticiable question, and the action was moot. since the President and Departments of Commerce and Interior had announced policies and regulations to enforce the laws against discrimination based on religious or ethnic origins and against secondary boycotts based upon such discrimination.
Plaintiffs filed their opposition to the motion to dismiiss on June 2, alleging that they did have standing, as they were injured by having the effectiveness of their votes nullifid by the actions of the Executive. and because they have responsibilities to legislate with respect to the subject matter of the Export, Administrations Act. They also1- argued that once Congress has enacted legislation setting forthi specific policy with respect to foreign commerce, the question of whether the Executive is nullifying this policy is an~ appropriate subject for judicial review. They stated that it was not they who were attempting to challenge the foreign policy of the United States, as defendants claimed, but it was the defendants who were violating the foreign policy of the United States as spelled out by Congress. They argued that the Act presents a "clear and judiciable manageable standa-rd for resolving the issue in this case." Finally. they stated that the cont rove rsy, was not moot, since the actions of the President and the Depa rtm entts of Commerce and Interior cited by the defendants "hare either wholly irrelevant or so tentative and inadleluate as to bolster the thrust of this action and confirm the need for the relief sought. None of them is suffi-
cient to'moot the controversy raised by the complaint herein." [Plaintiffs' "Points and Authorities in Opposition to Defendants' Motion to Dismiss," at 23.]
Plaintiffs filed a motion on June 8 to substitute Elliott Richardson for Rogers C. B. Morton as Secretary of Commerce. The motion was granted on June 18.
On November 2, 1976, attorneys for both plaintiffs and defendants filed a stipulation for dismissal of the action without prejudice. The terms and conditions of the stipulation were:
(1) such dismissal is without prejudice to the rights of
the Plaintiffs to reinstate this Complaint on the grounds further stated herein and without prejudice to the rights of either the Plaintiffs or the Defendants with respect to the merits of the Complaint, should the case be reinstated; and (2) if the United States Congress enacts an anti-boycott policy substantially similar to that contained in the Export Administration Act, 50 App. U.S.C., Sec. 2402(5), the Plaintiffs will be free to move under FRPC Rule 60(b) for reinstatement of their complaint, and the Defendants will consent to a grant of such a motion, if it is made.
[Stipulation Regarding Dismissal of Complaint Without Prejudice, Drinan v. Richardson, Civil Action No. 75-1916
Status.-U.S. District Judge Oliver Gasch signed an order on November 2, 1976, dismissing the complaint, without prejudice, upon the terms and conditions set forth in the stipulation. Simon v. United States Postal Service
Civil Action No. 76-322 (D.D.C.)
B?4ef.-On February 26,1976, U.S. Representative Paul Simon and 50 other Congressmen and Senators filed suit against the U.S. Postal Service seeking injunctive and declaratory relief.
The complaint alleges that the Postal Service has been putting into effect a program which will cause the closing of small post offices which are operating at a loss. Such a program, the Representatives and Senators argue, is a violation -of 39 U.S.C. 101 (b). Additionally, the complaint alleges that the closings violate the statutory requirement that a change in the nature of postal service requires an advisory opinion froni the Postal Rate Commission prior to its beino, put into effect. (39 U.S.C. 3661.) Furthermore, the closings are alleged to be in violation of Postal Service regulations which require an official recommendation including a description of the proposed action and a 90-day waiting period between the time an action is proposed and its date of effectiveness.
The court granted a temporary restraining order and on March 3d heard argument on the plaintiffs' request for a preliminary injunction.
On March 5th the court granted the motion for a preliminary injunction. While the court rejected the argument that the Postal Service program violated the statutory provisions, as alleged, it found that the program conceived by the Postal Service did violate its notice and recommendation requirements.
In its order thecourt enjoined the Postal Service from closing or consolidating any post office until the regulatory requirements are met.
On March 22 the case was consolidated with National Assocation of Postmas ters of tlw Unitcd States v. Postal Ser:icf, Civil Action No. 75-1954 (D.D.C.).
On April 2, the Postal Service filed a motion to dismiss or in the alternative for summary judgment.
Statu&.-The case is pending before the U.S. District Court for the District of Columbia.
Hutchinson v. Proxmire
Civil Action No. 76-C257 (WV.D. Wis.)
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 (NSF) and the National Aeronautics and Space Administration (NASA) and the Office of Naval Research (ONR), 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. Subseiuentlv, a press release which consisted almost entirely of quotations from the Senator's floor statement was issued by Senator Proxmire's office. 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. Seven months later, Senator Proxmire appeared on a nationally syndicated television show. During that appearance Senator Proxmire made statements regarding the expenditure of Federal funds for a study of certain aspects of the behavior of monkeys, rats, and human beings. Dr. Hutchinson was not mentioned by name during this appearance.
On April 15. 1976, Dr. Hutchinson filed a $6 million slander and libel action 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 to have the case transferred to the District of Columbia.
On June 11 the court issued an order by U.S. District Court Judge Doyle in which he disqualified himself from the action.
Senator Proxmire filed a motion to dismiss or alternatively for summary judgment on July 9. In it he claimed: (1) that the alleged misconduct was legitimate legislative activity and, accordingly. absolutely privileged; (2) that his statements and inquiries of the use of public funds were privileged; and (3) that there is no factual basis which will support a finding for the plaintiff.
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. Status.-On December 23, 1976, the court granted defendants' motion for summary judgment, with a written opinion to be issued by January 23, 1977.
Maremont Corporation v. Rums feld
Civil Action No. 76-0895 (D.D.C.)
Bief.-Maremont Corporation and the entire Maine congressional delegation filed suit against the current and immediate past Secretaries of Defense anid the current Secretary of the Army. The complaint sought to enjoin the current officers either permanently or at least until such time as the Comptroller General had reached a decision as to complaints filed by Maremont with the GAO, from awarding a contract to a Belgian company for the production of a tank
The congressional plaintiffs asserted standing "on their own behalf as Members of the United States Congress and on behalf of those citizens of the State of Maine adversely affected ** by the action of the officials of the Department of Defense.
The complaint alleged that the Defense Department's decision to contract with the Belgian firm for the purchase of 18,191 machineguns at a cost of $1,517 each as opposed to $707 for equivalent Maremont-made weapons was violative of 41 U.S.C. 10a. et seq., the "Buy American Act," 723 of the 1976 Department of Defense Appropriation Act, P.L. 94-212, the military procurement statutes of the United States, including 10 U.S.C. 2304, the Armed Services Procurement Regulations, and the Fifth Amendment to the United States Constitution.
The complaint was filed on May 19, 1976. At the same time plaintiffs filed a motion for a preliminary injunction to prevent defendants from entering into a contract with the Belgian company until at least after GAO had issued a report on its findings. A hearing on that motion was held on July 1, 1976.
On July 2, 1976, Judge June L. Green of the U.S. District Court for the District of Columbia issued a memorandum order. Noting that defendants had violated their own regulations regarding procurement, and that GAO had stated that it could reach a decision within 25 days, the court granted the motion for a preliminary injunction and enjoined defendants from issuing the contract for production and/or purchase of the Belgian machineguns, until 5 days after GAO issued its ruling on Maremont's bid protest.
On August 20, 1976, the Comptroller General of the United States issued its Report B-156500(s) entitled "Selection of a Machine Gun For Armored Vehicles," and a Decision B-186276 "Matter of Maremont Corporation, August 20, 1976," which found the Belgian weapon to be superior in several respects to the Maremont weapon, and the selection of the former by the Army to be in accord with law.
Stat us.-On September 21, 1976, the case was dismissed with prejudice by agreement of all counsel. Pressler v. Simon
Civil Action No. 76-0782 (D.D.C.)
Brie f.-On May 7, 1976, Representative Larry Pressler filed suit in the district court for the District of Columbia challenging the constitutionality of "automatic annual" pay raises for Members of Congress.
The complaint, accompanied by an application for a three-judge district court. seeks a declaratory judgment that the Federal Salary Act of 1967 and the Executive Salary Cost-of-Living Adjustment Act, which set forth procedures for establishing new rates of compensation for Members of Congress, are unconstitutional. The complaint also seeks to enjoin executive officers, the Sergeant at Arms of the House., and the Secretary of the Senate "from requisitioning, authorizing payment of or disbursing increases in congressional salaries effected pursuant to the [acts]."
The 1967 Act established a Commission on Executive. Legislative and Judicial salaries which recommends to the President, at 4-year intervals, rates of pay for Senators, Representatives. Federal judges, cabinet officers, and certain other officials in the three branches of government. Based on the Commission's recommendation, the President submits, in his next proposed budget, his own recommendations for governmental salaries. The President's recommendation becomes effective 30 days after his proposals have been transmitted to the Congress unless either at least one House has passed a resolution disapproving of all or part of the recommendations or other rates have been enacted.
Congressman Pressler contends that the procedure. insofar as it provides a mechanism for adjusting salaries of Members of Congress, violates Article I 1 of the Constitution which provides that "[a]ll Legislative Power herein granted shall be vested in a Congress of the United States", and Article I 6 cl. 1 which provides -[t]he Senators and Representatives shall receive a Compensation for their services, to be ascertained by Law and paid out of the Treasury of the United States."
Congressman Pressler further contends that the Executive SalaryCost-of-Living Adjustment Act of 1975 which provides for an automatic ainual cost-of-living adjustment in the salaries of certain governmental officers, including Members of Congress. is unconstitutional. The Act states that the annual rate of pay for Members of Congress is to be the rate established pursuant to the provisions of the 1967 Act. Congressman Pressler asserts that insofar as the Akct establishes procedures for the establishment of salaries for 'Members of Congress, it also violates Article I 1 and Article I 6 el. 1 of the Constitution.
Congressman Pressler had initiated the action in his capacity as a citizen, as a taxpayer and as a Member of Congress.
Defendants argued that the complaint did not meet the "case or controversy" jurisdictional requirement of Article III of the Constitution for the reason that the issues presented raised a nonjusticiable "political question." Defendants also argued that Congressman Pressler did not have "standing" i.e., was not a proper party to raise these issues in that he failed to demonstrate any particular injury to himself that would qualify him to bring this action any more than any other citizen with a general interest in the subject matter.
On July 20,1976, the court dismissed the complaint without prejudice for want of prosecution. On July 23, 1976, the court granted plaintiff's motion for reconsideration and vacated its Order of July 20, 1976. On September 21, 1976, Representative James M. Jeffords was denied permission to intervene as a party plaintiff
but was granted leave to file an amicus brief in support of the plaintiff's position.
Also on September 21, 1976, the issues were argued before th(,: court on cross-motions for summary judgment, and defendants' motion to dismiss.
On October 12, 1976, the court handed down a memorandum opinion denying plaintiff's motion for summary judgment and dismissing the complaint. As to the challenge to Representative Pressler's standing, the court said:
A Congressman has standing to sue by reason of his
office where Executive action has impaired the efficacy of his vote, Kennedy v. Sampson, 511 F.2d 430, 436 (D.C. Cir.
1974); cf. Coleman v. Miller, 307 U.S. 433 (1939), or certain other congressional duties. Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973). The resulting injury under such circumstances is said to create a personal stake in the outcome sufficient to assure that a suit by a Congressman affected would be in a proper adversary context. Kennedy v.
Sampson, supra; see Baker v. Carr, 369 U.S. 186 (1962).
Congressman Pressler alleges not that the efficacy of his legislative vote was impaired by the Executive, but rather that his vote was impaired by the failure of other Members of Congress to assume an affirmative responsibility specifically placed on them by language of the Constitution. While it is clear that legislators have no special right to invoke court consideration of the validity of a statute passed over an objecting vote, Korioth v. Briscoe, 523 F.2d 1271 (5th Cir. 1975), where, as here, a member of Congress alleges he is prevented from voting to perform a specific legislative duty expressly mandated by the Constitution, the suit may be cognizable by the courts so long as there is no attempt being made to interfere with the
internal workings of the Congress.
Mr. Pressler's suit meets this requirement, but he must
also show that he. has been, or will be, injured before standing is recognized. Warth v. Seldin, 422 U.S. 490 (1975). Plaintiff's theory of injury is somewhat unclear, but sufficient facts have been alleged at this stage to support his claim of injury in fact. Under the Salary Act and the Adjustment Act the status quo as to congressional salaries may be altered without affirmative action by both Houses of Congress. While salaries may be changed in the traditional fashion, the availability of the procedures created by the statutes under attack make the vote of any single affected Congressman somewhat less efficacious.
In 1969, congressional salaries were raised by the new
process for the first time. But Mr. Pressler was not yet a Member of Congress and cannot claim his vote was impaired. In 1975, a proposed salary increase was vetoed by a Senate Resolution. The status quo was unaltered and we can see no injury to Mr. Pressler, though he was then a Congressman. While the next Commission should re-
port to the President shortly, any injury from this action
is far too speculative to support standing.
However, in October, 1975, congressional salaries, including Mr. Pressler's, were raised under the Adjustment Act. This change was effected without action by the House and Senate. This circumvention of the traditional legislative process impaired the efficacy of Mr.
Pressler's vote. He has, therefore, standing to challenge the Adjustment Act. But that Act increases, on a percentage basis, the compensation as determined by Salary Act procedures. For this reason, Congressman Pressler has standing to challenge both pieces of legislation. Accordingly, standing will be afforded under the unique circumstances of this particular case. [Pressler v. Simon, Civil Action No. 76-0782 (D.D.C., October 12, 1976);
Slip Opinion at 3; this report at 287-289.]
As for the merits of Congressman Pressler's argument that the phrase "to be ascertained by law" constitutes an explicit mandatory requirement that whenever the compensation of Members of Congress is redetermined it must be fixed at that time by a law which is debated and passed like any other law, and that Congress cannot in effect delegate that responsibility, the court considered this argument to be directed at a matter of form rather than substance, and pointed out that initially Congress did legislate, Members of Congress do serve on the Commission which recommends pay levels, and the delegation of authority is hardly absolute, since Congress explicitly reserved the right to enact legislation regardless of any recommendation it may receive from the President.
The court observed that "Congress continues to be responsible to the public for the level of pay its members receive. There is no concealment; indeed publication of the suggested rate of pay occurs in advance of the pay level taking effect. Moreover, with the growing complexity of all governmental functions a reasonable effort to coordinate congressional pay with pay in the executive and judicial branches was certainly not intended to be foreclosed by the ascertainment phrase. Congress must always account to the people for what it pays itself, but the Founding Fathers did not contemplate the inflexibility and rigidity which plaintiffs seeks." [Slip Opinion at 7; this report at 291.]
The court held that "The Salary Act and the Adjustment Act fix congressional comiDensation by law and these statutes are not prohibited by Article 1, Section 6. Neither of these acts insofar as they govern ascertainment of congressional compensation contravene the Constitution. Accordingly, plaintiff's motion for summary judgment is denied and the complaint is dismissed." [Slip Opinion at 8; this report at 291'.]
Stafys.-On October 22. 1976, the plaintiffs filed a notice of appeal to the United States Supreme Court.
The full text of the district court's memorandum opinion and order iis printed in the "Decisions" section of this report at 285.
Reus8 v. JBalles
Civil Action No. 76-1142 (D.ID.C.)
Brief .-Representative Henry Reuss brought this action (in a complaint filed on June 21, 1976, and in an amended complaint filed on July 7) against the individual members of the Federal Open Market Committee (FOMC) who are not members of the Board of Governors of the, Federal Reserve System and against the 12 Federal Reserve Banks.
The individual defendants are all presidents or first vice presidents of the Federal Reserve Banks, each of whom was appointed as an officer by his Bank's board of directors, with approval of the Board of Governors of the Federal Reserve System. Under 12A (a) of the Federal Reserve Act (12 U.S.C. 263 (a)), the FOMC consists of the seven members of the Board of Governors of the Federal Reserve System, plus five others (and their alternates) selected by the boards of directors of the Federal Reserve Banks who must be either presidents or first vice presidents of said Banks. Each board of directors of a Bank consists of nine members, three of whom are chosen by the Board of Governors of the Federal Reserve System and six of whom are chosen by the commercial banks who are the stockholders of said Bank.
Representative IReuss states that hie is "a Member of the House of Representatives and is Chairman of the Committee on Banking, Currency and Housing, which, pursuant to Rule X.1 (d) of the Rules of the House of Representatives, has jurisdiction of legi-slative matters relating, inter a~ia., to banks and banking, Federal monetary policy. money and credit, valuation and revaluation of the dollar, and international finance. The plaintiff is also Chairman of the Subcommittee on International Economics of the Joint Economic Committee established by the Employment Act of 1946 (15 U.S.C.. Chapter 21) ." He also states that he is the owner of certain marketable bonds whose aggregate cost, aggregate marketable value, and aggregate face value are in excess of $20,000. The complaint states that the FOMC makes decisions to buy or sell United States Government securities and the currencies of foreign governments, which decisions are then carried out by the Federal Reserve Banks, and that these purchases or sales have a substantial effect on the value of foreign currencies relative to the currency of the United States, and upon domestic bank reserves, bank credit, money supply, interest rates, overall credit conditions, economic activity, jobs, and prices. It states that the five defendant members of the FOMC have the same vote as the seven who are members of the Board of Governors of the Federal Reserve System, and that they exercise substantial power in the formulation of the decisions on open market policy.
Representative Reuss alleges that the method of selection of the five defendant members and their alternates violates Article 11, Section 2 of the Constitution because they have not been appointed officers of the Un ited States in accordance with the procedures outlined therein. He alleges that by voting on the FOMC they create for themselves de facto offices of the United States, thereby diminishing or usurping his legislative functions, both as a Member of the House and as Chairman of its Committee on Banking, Currency and Housing. He alleges he is affected in participating in the exercise of the following powers of Congress:
(a) Regulating the value of money and foreign exchange
under Article I. Section S. clause of the Constitution.
(b) Providing for offices under the United States not
otherwise e provided for 1y the Constitution: and establishing the qualifications therefor. prescribing the duties and compensation thereof, and providing for the terms of office and
grounds for removal.
(c) Regulating interstate and foreign commerce.
(d) Borrowing money on the credit of the United States.
(e) Participating in the process of selection of officers of
the Inited States as provided in Article II, Section 2. of the Constitution through negotiation with representatives of the Senate on issues and nominees in the context of the overall functioning of the legislative process in the Congress of the
He also alleges that the individual defendants can substantially and adversely affect the value of this property, thereby depriving him of property without due process, by increasing or decreasing interest rates on government securities and bv affecting the availability of money. The complaint asserts that in carrying out the orders of the FOMC, which are made by the allegedly unconstitutional participation of the defendant individuals, the defendant banks regulate the value of money and of foreign currency. thereby interfering with plaintiff's legislative functions under Article 1, Section 8. clause 5, and that these actions may also deprive him of property to the extent of more than S10.000 without due process of law.
The- suit asks that the defendant individuals and their successors be permanently enjoined from serving as members or alternate members of the FOMC. that defendant banks be permanently enjoined from complying with any FOMC decisions made while any of these individuals sit as members of it, and that the court render a judgment declaring void for repugnance to Article II. Section 2. clause :2 of the Constitution, such parts of section 12A(a) of the Federal Reserve Act as provide for the selection of members and alternates of the FOMC by the boards of directors of the Federal Reserve Banks.
Representative Reuss also made application for a three-judge court to hear the case pursuant to 28 U.S.C. 2282 on ,Jue 21. 1976.
Defendants filed an opposition to the convening of a three-judge court and a motion to dismiss on July 30. The motion to dismiss argues that plaintiff lacks standing to sue, both as a -Member of the House of Representatives and as an individual owner of securities.
They also filed an opposition to the convening of a three-judge court.
Plaintiff filed a motion on October 1 to amend the complaint to join the FOMC as a party defendant.
Oral argument on all motions was held on November 30, 1976.
In a memorandum opinion issued December 22, 1976, U.S. District Judge Barrington D. Parker granted defendants' motion to discuss the complaint. The court held that Representative Reuss lacked standing, both as a Congressman and as a bondholder, to bring the suit.
Each of the plaintiff's allegations of injury was considered by the court. As a Congressman, he first alleged injury in that the
80-341 0 77 7
Reserve Bank representatives were not properly designated as inferior officers and they therefore escaped the reach of the impeachment power. The court stated that since there was no specific allegation of wrongdoing, the claim was "remote, conjectural and insufficient." [Reuss v. JBalles, Civil Action No. 76-1142 (D.D.C. 1976); Slip Opinion at 12.] His argument that because these Reserve Bank members are not inferior officers of the United States that any delegation of congressional authority to them is improper and thereby injures him was also without merit. The maJority of the FOMC are clearly officers of the United States, and the other members had to be approved by the Board of Governors of the Federal Reserve, so it could not be argued that the FOMC was a private agency and the delegation of authority was improper. He also failed to show injury in fact in his assertion that he was harmed in his power to affect the confirmation process through negotiation with Members of the Senate, since it is the Senate. and not the House of Representatives, which confirms Presidential appointments made pursuant to the Appointments Clause.
Finally, service on the FOMC by the Reserve Bank members in no way affected his ability to perform his legislative duties because he could introduce legislation at any time to overrule the policies or the regulations of the FOMC. As to plaintiff's standing as a bondholder, the court stated that "[ajt best the plaintiff's contentions are generalized concerns of the public. and therefore the alleged injury is abstract and speculative." [Slip Opinion at 14-15.]
Status.-Plaintiff filed a notice of appeal on December 23, 1976.
The full text of the memorandum opinion is printed in the "Decisions" section of this report at
United States ex rel. Hollander v. Clay
Civil Act-ion No. 76-493 (D.D.C.)
Rrief.-This suit was filed by a private citizen pursuant to 31 U.S.C. S231-232, which allow private citizens to bring suits in the name of the United States against anyone making a false claim against the United States. The plainfiff is required to notify the Justice Department, which has 60 davs after receiving the notice to take over as plaintiff. If the Justice' Department takes over the case, the private citizen may be awarded up to one-tenth of the amount recovered for bringing facts and evidence to the attention of the government; if he must prosecute the case alone, hie may be awarded up to one-fourth of the amount recovered for his services.
The action, filed on March 26, 1976, alleged that Representative William Clay had, during the 6 years prior to the filing of the suit, made numerous claims, which Represenitative Clay knew to be false, upon the Finance Officer in the Office of the Clerk of the House. of Representatives for $212.80 each as reimbursement for the cost of a round trip by automobile from Washington, D.C., to Representative Clay's home in St. Louis. Mo.. for trips not actually made. It asked, pursuant to 31 UT.S.C. 232, that Representative Clay pay double the amount claimed, plus $2,000 for each claim falsely filed.
On JTune 4, 1976, the Justice Department took control of the litigation.