to do so yet. You have prospectively declined each kind of case we have brought up. Mr. GOLDBLOOM. I cannot say we would accept the representation, but should either House of Congress be sued in a suit such as the present Common Cause case, which is a broadscale attack upon the franking privilege, I believe we would, perhaps, consider representation. Again, it is not an individualized attack upon a specific Senator or Congressman's use or alleged abuse of the franking privilege. Senator ABOUREZK. If it were brought, the likelihood is that it would be brought against an individual Member because as one way of getting the case before the courts, and it would be in essence, although one Member would be a defendant, it would be an attack upon the entire franking privilege system. Mr. GOLDBLOOM. It would have to depend upon the facts of the particular case and the way the issues are drafted. Senator ABOUREZK. With that knowledge, with that advanced knowledge then, would not Common Cause feel comfortable in bringing an individual action against a Member of Congress, with the advanced knowledge that the Justice Department would probably not defend that Member? Mr. GOLDBLOOM. I cannot speak for how Common Cause would feel about it. Thus far they have been very comfortable in their presently existing lawsuit against the Postmaster General and the Secretary of Treasury. Senator ABOUREZK. What about tort cases? Would you decline tort cases brought against a Member of Congress? Mr. LEE. This gets you into the old law school problem of whether he was on a frolic of his own. The controlling question would be whether the acts on which the claim is based were related to the Congressman's official responsibilities or not. Senator ABOUREZK. What if it were related to his official responsibility? You would defend him? Mr. LEE. Oh, yes. This McSurley v. McClellan case has elements of alleged tortious conduct in it,' and is one example. We are defending it on speech or debate grounds. We also have a suit by an individual, a constituent, against an individual Member of the House of Representatives on tort grounds that really fell in the gray area on the issue whether it related or did not relate to his official responsibilities, and we resolved that one in favor of representation. Senator ABOUREZK. What is the name of that case? Mr. LEE. Congressman Latta, Jordan v. Latta. It is pending in his district, I do not remember just where. [Supplemental question and answer follows:] Question. Would the Department agree to represent a Congressman in a case such as Davis v. Passman, civil action No. 74-745-M (W.D. La.); Lippincott v. McGovern, civil action no. 1723-72 (D.D.C.); or Jeru-Ahmed v. Giaimo, civil action No. 1236-71 (D.D.C.)? Was the Department approached or did it represent the Congress in Freeman v. United States, civil action No. 72-C-380 (D.D. Ind.) or Nosworthy v. Various Federal Officials, civil action No. 72-C 1 A copy of the March 1969 complaint in McSurely appears as exhibit 2 in the appendix at pp. 198 to 204. The opinion of the U.S. Court of Appeals for the District of Columbia in McSurely appears at 521 F. 2d 1024 (D.C. Cir. 1975). A copy of the April 1975 complaint in Jordan appears as exhibit 3 in the appendix at pp. 205 to 206. 509 (E.D.N.Y.)? If not, would the Department have agreed to represent Congress in such cases? Answer. In regard to the question of whether the Department would represent a Congressman in Lippincott v. McGovern, civil action No. 1723-72 (D.D.C.) the answer is that in that case the Department did represent the Senators and Congressman involved upon their request.1 The other two cases cited were not reported or available in the Department.2 The Department was 1 The following description of the Lippincott case is set forth in the Report of the Joint Committee on Congressional Operations Identifying Court Proceedings and Actions of Vital Interest to the Congress, December 1974, at 82-83: Lippincott v. McGovern Civil Action No. 1723-72 (D.D.C.) Brief.-H. Shepherd Lippincott, a private attorney practicing in Arlington, Virginia, filed this action on behalf of himself and of the United States in U.S. District Court for the District of Columbia to recover all compensation and allowances paid to certain named Members of Congress for periods during which they were absent from Congress and engaged in non-legislative activities. Named as defendants in the action are Senators George S. McGovern, Hubert H. Humphrey and Edmund S. Muskle and Representative Paul N. McCloskey, Jr. The complaint alleges that "during a substantial period of time" these members of Congress "were absent from Congress" and "were engaged in creating, maintaining, counselling, supervising, and funding a political organization on behalf of themselves, or another, to fulfill their own personal ambitions in the seeking of high office in the executive department of Government, or in aiding and assisting others seeking the Presidency of the United States, and that they were also taking unauthorized vacations." Plaintiff cites a number of constitutional and statutory provisions governing the attendance and conduct of Members of Congress and the expenditure of public funds. Among these are 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. ..", and section 39 of Title 2, United States Code, which provides: "The Secretary of the Senate and Sergeant at Arms of the House, respectively, shall deduct from the monthly payments of each Member or Delegate the amount of his salary for each day that he has been absent from the Senate or House, respectively, unless such Member or Delegate assigns as the reason for such absence the sickness of himself or of some member of his family." Plaintiff sought an injunction and damages in the amount of double the loss to the U.S. Treasury resulting from the allegedly improper payments. Status.-A motion to dismiss, or, in the alternative, for summary judgment, filed on behalf of defendants, was granted by U.S. District Judge Matthew F. McGuire on November 27, 1972. Plaintiff then moved for reconsideration of the dismissal; that motion was denied. No appeal was taken from the action of the district court. 2 The Report of the Joint Committee, April 15, 1975 at 13 describes the case of Davis v. Passman as follows: Davis v. Passman Civil Action No. 75-1691 (Fifth Cir.) Brief.--Plaintiff, Shirley Davis, served as deputy administrative assistant on the staff of Representative Otto E. Passman from February 1, 1974 through July 31, 1974, on which date her employment was terminated by Mr. Passman. 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 Administrative Assistant be a man.' Representative Passman filed a motion to dismiss the complaint, stating: (1) The alleged conduct of the defendant is not violative of the Fifth Amendment; (2) the law affords no private right of action to plaintiff; and (3) the doctrines of legislative and sovereign immunity bar any action against the defendant. Status. 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 sovereign and official immunity were not well founded. An appeal by Ms. Davis, filed on March 20, 1975, is pending before the U.S. Court of Appeals for the Fifth Circuit. The Report of the Joint Committee, December 1972, at 12 describes the case of JeruAhmed v. Giaimo as follows: Jeru-Ahmed v. Giaimo Civil Action No. 1236-71 (D.D.C.) Brief. Col. Hassan Jeru-Ahmed, director of the Blackman's Development Center in Washington, an inner city education and drug treatment project. filed this action against Representative Robert N. Giaimo in the U.S. District Court for the District of Columbia in June 1971, claiming $10 million for libel and slander, following a speech by Mr. Giaimo before the New Haven (Conn.) Jewish Community Council, meeting in Washington. in which he called for an audit of a federally funded drug program operated by the center and a review by the Federal department concerned. Attorneys for Representative Giaimo filed a motion for summary judgment. Status. In an order dated October 22, 1971, the district court granted Representative Giaimo's motion for summary judgment and dismissed the case with prejudice. approached and did represent Congress in Freeman v. United States, civil action No. 72–C–380 (D.D. Ind.).' As to Nosworthy v. Various Federal Officials, civil action No. 72-C-509 (E.D.N.Y.), the case was dismissed by the district court on its own motion for numerous reasons. When the case was appealed, the Department filed an amicus brief on behalf of the United States of America. The approximately 545 defendants comprising the leaders of all three branches of the U.S. Government, had not been properly served or had not appeared at any stage of the proceedings. It would appear to be a friviloustype case which the Department would have agreed to have represented the Congress if requested. Mr. LEE. I would think that most of those would probably fall within this political arena and would essentially involve partisan politics kinds of issues and Justice Department representation therefore would not be appropriate. Senator ABOUREZK. What if, in the New Hampshire case, just as an example, what if an election were contested and finally the Senate, which is presumed under the Constitution to be qualified to determine the membership, its own membership, what if the Senate finally decided in that New Hampshire case that they would pick Wyman or Durkin, and the losing candidate brought a lawsuit against the 1 The Report of the Joint Committee, December 1974, at 76 describes the Freeman case as follows: Freeman v. United States No. 74-11 (U.S. Supreme Court) Brief-In this class action, filed in the U.S. District Court for the Southern District of Indiana, plaintiff, Lewis G. Freeman of Kokomo, Indiana, challenged the constitutionality of the Gun Control Act of 1968 [Pub. L. 90-168, 82 Stat. 1213]. Named as defendants in the action were the United States Government, United States House of Representatives and Senate, and the late, former President Lyndon B. Johnson, from each of whom plaintiff sought damages in the amount of ten dollars. The 1968 Act was alleged by plaintiff to be violative of the First, Second, Fourth, Fifth and Eighth Amendments of the Constitution. A motion to dismiss the case, filed on behalf of defendants, was granted in the district court on June 20, 1973, after which plaintiff filed an appeal in the U.S. Court of Appeals for the Seventh Circuit on July 16, 1973. In an unpublished order dated May 3, 1974, the dismissal order of the district court was affirmed on appeal in accordance with a rule of that circuit waiving the requirement for formal briefing of the issues and oral argument before the court. STATUS--Plaintiff filed a petition for writ of certiorari in the Supreme Court on July 25, 1974. That petition was denied on November 12, 1974. The Report of the Joint Committee, December, 1972, at 26 describes Nosworthy as follows: Nosworthy V. Various Federal Officials Civil Action No. 72-C-509 (E.D.N.Y.) Brief. This class action was brought in the U.S. District Court for the Eastern District of New York by present and former members of the U.S. Armed Forces, most of whom are described as having served in Indo-China, for the impeachment of six of the nine Justices of the U.S. Supreme Court, for a declaratory judgment that the military actions of the United States in Vietnam, Cambodia, and Laos have been in violation of the Constitution and certain, named international agreements and for injunctive relief to restrain further prosecution or expansion of the military operations in Indo-China. Named as defendants were Chief Justice Burger, Justices White, Marshall, Blackmun, Powell, and Rehnquist, all members of the House and Senate, the President, Vice Presi dent, Attorney General, and Secretary of Defense, all of whom were served with copies of the complaint. On April 28, 1972, 4 days after the filing of the complaint, Judge George Rosling dismissed the action on his own motion, stating that the court did not have jurisdiction of the subject matter, that no cause of action had been stated as to any of the defendants. and that the complaint was not in compliance with certain provisions of the Federal rules. Further, Judge Rosling noted that any further lawsuit similar to this action would be assigned to him as a related case, and, contrary to the procedure in the instant action, that no service orders would be signed by the Clerk, but would be submitted to him for appropriate action. The text of Judre Rosling's order dismissing the action is printed in the "Recent Decisions" section of this report, page 411, infra. Status-A notice of appeal was filed by plaintiffs in the United States Court of Appeals for the Second Circuit on May 2 1972 [Civil Action No. T-1226 (temporary)]. Plaintiffs later filed a petition for a writ of mandamus, which was denied by the court of appeals on June 1, 1972. The Justice Department has advised that the case is now closed. Majority Leader of the Senate, the President pro tem? 11 Would not the Justice Department defend? Mr. LEE. That looks very much like Powell v. McCormack. It has an additional wrinkle because it has a Democrat versus Republican underlying aspect. My answer to that-and I can only give my gut reaction to the problem-is that I probably would represent if requested to do so. In Powell v. McCormack, as the chairman will probably recall, we were not requested to do so. [Supplemental question and answer follows:] Question. Was the Justice Department ever approached by the House of Representatives regarding the Department's willingness to represent the House in the Powell case? Was the Justice Department willing to represent the House in that case? Please submit any letters or memorandum relevant to these questions. Answer. The files of the Department of Justice do not reflect any request for representation from the Speaker of the House in Powell v. McCormack. No memoranda or letters could be found addressing the hypothetical question of whether such representation would have been accorded had it been requested.3 Senator ABOUREZK. What about State criminal cases in which individual Members are involved? Mr. LEE. We would. Senator ABOUREZK. You would defend them? Mr. LEE. Yes; so long as it fits the qualifications I mentioned earlier. [Subsequent to the hearing the Justice Department provided the following statement:] There are no known instances where the Department provided counsel in State criminal cases for Congressmen or judges. As far as executive employees, the only cases we can presently locate is one of a DEA agent indicted under California law for murder, State of California v. Lloyd C. Clifton, Eureka, Calif., 35 Cal. App. 3rd 654 (1974); another is the case of an FBI agent, Milton Leon Scott, accused of homicide in Baton Rouge, La., in which no true bill was returned by the grand jury. U.S. attorneys with some degree of frequency provide representation to civilian and military personnel cited by State or local authorities for violation of traffic laws, usually of a minor nature Authorization to represent is most commonly done by phone because of time constraints and no "case" file is opened on the matter. There is no means whereby names and cities to cases could be retrieved in any meaningful way. Senator ABOUREZK. Could you indicate approximately how many congressional cases your Department is presently handling? Mr. LEE. Let us see. What I have, Mr. Chairman, what I would be happy to submit for the record is a list of cases that have arisen over a period of time, I guess within the last 5 years. I could submit the list for the record. Senator ABOUREZK. Is not that the list compiled by Mr. Jaffe? Mr. LEE. No; it is an updated list. The one by Mr. Jaffe was as of 1973. This is one that we have redone. Senator ABOUREZK. We would like to take that for the record. 1 After protracted debate in 1975, the Senate declared the New Hampshire Senate seat racant rather than select the winner. 121 Cong. Rec. 14254-14257 and 14289-14277 (July 30, 1975). 2395 T.S. 486 (1969). 3 By adoption of H. Res. 376 the House of Representatives authorized the Speaker to "appoint and fix the compensation of such special counsel as he may deem necessary to represent the House . . ." 113 Cong. Rec. 6040-6049 (March 9, 1967). The list of congressional cases handled by the Department prepared by Mr. Jaffe in 1973 appears as part of exhibit 54 in the text at pp. 22 to 28. The 1973 list sets forth 32 such cases. [The list of cases provided by the Department appears as exhibit 81 following:] Exhibit 81 List of known cases filed in the past 5 years in which officers, Members, employees, or agencies of Congress have been party defendants where the Justice Department has provided counsel: 1. Bynum v. Washington, 611–70 (D.D.C.). 6. Pichler v. Jennings, 72 Civ. 548 (S.D.N.Y.). 11. Williams v. Albert, 27–73 (D.D.C.). 12. Mauro v. Jennings, 447-73 (D.D.C.). 13. Berg v. Senate Comm. on Public Works, 73-C-2438 (N.D. Ill.). 14. Stewart v. Kyros, 14-115 (D. Maine). 15. Cope v. Stennis, 74-883 (D.D.C.) 16. Ficker v. House of Representatives, 74–928 (D.D.C.). 17. Parker v. Allen, 74–1846 (D.D.C.). 18. Banta v. U.S. Senate, 75–1014 (D.D.C.). 19. Bowie v. Congress, 74–1642 (D.D.C.). 20. Clay v. Congress, C-1-74-321 (S.D. Ohio). 21. Kelly v. House Judiciary Committee. 22. Johnson v. Senate Committee, 1637–73 (D.D.C.). 23. Freeman v. United States, 72-C-380 (S.D. Ind.). 24. ACLU v. Jennings, 1967-72 (D.D.C.). 25. Socialist Workers v. Jennings, 74–1338 (D.D.C.). 26. Lippincott v. McGovern, 1723-72 (D.D.C.). 27. Townsend v. Eastland, 966-72 (D.D.C.). 28. Consumers Union v. Periodical Correspondents Association, 1328-73 (D.D.C.) 73-2253 (D.C. Cir.). 29. Gerardi v. Rodino, 2206–73 (D.D.C.). 30. Weinger v. Congress, 74-375 (D. Colo.). 33. Watts v. Albert, 74-401-H (S.D. Ala.). 34. Buckley v. Valeo, 75-0001 (D.D.C.) 75-1061 (D.C. Cir.). 35. Goad v. Jackson, 75-0595 (D.D.C.). 36. Jordon v. Latta, C75–166 (N.D. Ohio). 37. Gardaret v. Saxbe, 73-4289-M (D. Mass.). 38. Ferrell v. Gibbons, 74-438 Civ.-T-K (M.D. Fla.). 39. Doe v. McMillan, 56–71 (D.D.C.) 71-1027 (D.C. Cir.). 40. Fellmeth v. Garmatz, 1636-72 (D.D.C.). 41. Roberts v. Mumford, 2259–72 (D.D.C.). 42. Washington Activity Group v. White, 72-1445 (D.C. Cir.). 43. Bailey v. Eastland, 1805–72 (D.D.C.). 44. Ringer v. Mumford, 2074–72 (D.D.C.). 45. Simons v. Allen, 2788-70 (D.D.C.). 46. Keener v. Congress, 2419 (N.D. Fla.) 72-1725 (5th Cir.). 47. Weniger v. Congress, W-4767 (D. Kan.). 48. Common Cause v. Jennings, 2379–72 (D.D.C.). 49. Mink v. McLellan, 690–70 (D.D.C.). 50. U.S. Servicemen's Fund v. Eastland, 24279, 71-1717, 71-1609, 71-1693, 24412, (C.A.D.C.). 51. Sanders v. McClellan, 24507, 24728, (C.A.D.C.). 52. Ansara v. Eastland, 24816, (C.A.D.C.). 53. Davis v. Ichord, 23426, 23427, (C.A.D.C.). 54. Liberation News Service v. Eastland, 776 Docket 34688, (C.A.N.Y.). 55. Hentoff v. Ichord, 3028-70 (D.C.D.C.).1 1 Most of these cases are described in the series of publications of the Joint Committee on Congressional Operations entitled Court Proceedings and Actions of Vital interests to the Congress. |