The more pertinent question, the court said, was whether the evidence conveyed to the Secretary of the Senate under Rule 43 could form the basis for a Government decision to prosecute, or at least alert law-enforcement authorities to the likelihood of wrongdoing. In reviewing the apparent factual situation, the court found the information filed by Senator Cannon under Rule 43 had revealed only that Mr. Sobsey was authorized to solicit and handle campaign contributions. "And because Sobsey could have discharged this function without neglecting his official duties," said the court, "the Rule 43 filing by itself cannot be deemed to have adequately informed the Government of possible wrongdoing by either Senator Cannon or his aide." [Id. at 1378] The court concluded that since the Rule 43 filing did not adequately inform the Government of possible wrongdoing, the district court improperly predicated its dismissal on the fact that a Rule 43 filing had been made. The court then turned to the issue of justiciability of the plaintiff's allegations. The court recognized the functional limitations on the ability of the judiciary to deal with certain types of problems. Constitutionally, said the court, Federal courts may decide only cases and controversies, and although these terms cannot be described precisely, the court would not consider a matter that was not appropriate to judicial resolution. The court of appeals stated that the issue of justiciability went to both inherent limitations on the capabilities of judicial tribunals, as well as to the doctrine of separation of powers. The court reasoned that political questions were not subject to judicial review for two reasons: (1) courts would be intruding into the jurisdiction of coordinate branches of Government; and (2) courts are not equipped to formulate national policy or develop standards of conduct that are not legal in nature. "A challenge to the interworkings of a Senator and his staff member raises at the onset the specter that such a question lurks." [Id. at 1379] Quoting Baker v. Carr, 369 U.S. 186, 217 (1962), the circuit court enunciated the prominent characteristics of political questions: a textually demonstrable constitutional commitment of the Using this definition, the court found a complete absence of judicially discoverable and manageable standards for resolving the question of whether Senator Cannon could use paid staff members in his campaign activities. The court could find no guidelines, judicial or administrative, to establish a standard for determining whether public compensation of Mr. Sobsey was permissible when performing campaign activities. The plaintiff had argued that appropriated funds could be used solely for statutorily enumerated purposes. The court reasoned that assuming the appropriated funds were intended solely to compen sate staffers for performance of their official duties, the issue was whether campaign work was an official activity. It concluded that not even the Senate itself could reach a consensus on the propriety of using staff members in election campaigns. In reviewing the legislative history, the court found that the Senate Select Committee on Standards, which in 1968 had recommended passage of Rule 43, stated in its report that the committee did not intend for the Rule to be used to deter campaign activity by Senate employees beyond involvement with campaign monies. The court further noted that it was not until after Senator Cannon's 1976 re-election campaign that the Senate began to reconsider the role of staff in senatorial campaigns. The court also noted that the Senate was still studying the question. The court stated that in 1976 (and at present) there were no manageable standards to apply to staff participation in a Senate re-election campaign. In addition, the Senate, which was authorized to do so, could not resolve the issue. Thus, the interpretation of the False Claims Act urged by the plaintiff "would license the court to monitor every action taken by a Senator and his aide in an effort to determine whether it is sufficiently 'official' or too 'political.'" [Id. at 1384] The court concluded its discussion on this issue by stating: In the absence of any discernable legal standard-or even of a congressional policy determination-that would aid consideration and decision of the question raised by appellant's first count, we are loathe to give the False Claims Act an interpretation that would require the judiciary to develop rules of behavior for the Legislative Branch. We are unwilling to conclude that Congress gave the courts a free hand to deal with so sensitive and controversial a problem, or invited them to assume the role of political overseer of the other branches of Government. Accordingly, we affirm the District Court's dismissal of appellant's first claim. In doing so, we do not, of course, say that Members of Congress or their aides may defraud the Government without subjecting themselves to statutory liabilities. We simply hold that under the facts alleged in count one of appellant's complaint, no cause of action has been made out under the Act. [Id. at 1385] The plaintiff's second argument was that at unspecified times unnamed members of Senator Cannon's staff rendered personal services to the Senator and his family while collecting their Government salaries. The circuit court concurred with the district court which had held that this allegation did not state a claim upon which relief could be granted because the plaintiff had not pointed to one specific instance in which a member of Senator Cannon's personal staff was paid out of public funds for personal tasks performed. The court noted that Rule 9(b) of the Federal Rules of Civil Procedure requires that "[i]n all avernments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." The court continued, stating: It cannot be doubted that "[n]ormally this means that the pleader must state the time, place and content of the false misrepresentations, the fact misrepresented and what The court found that the plaintiff's allegations were too generalized and vague: no staff members were specified, no personal services were cited, no precise time was given, no neglect of duties was averred. The court did note that the rules of civil procedure should not be strictly construed, and a litigant ought not be denied his day in court merely on the ground that his complaint was inartfully drawn. Nonetheless, although the usual manner of treating a poorly drawn complaint is to grant leave to amend or to dismiss the complaint without prejudice, in this case the circuit court upheld the district court's dismissal based on the fact that the plaintiff had more than eleven months to remedy the deficiencies of the original pleading but failed to do so. On February 12, 1981, the plaintiff filed a suggestion for a rehearing en banc which was denied by the appeals court on March 2, 1981. On June 1, 1981, the plaintiff filed a petition for a writ of certiorari in the U.S. Supreme Court [No. 80-2036], arguing that the "decision of the Court of Appeals significantly undermines the purpose of the False Claims Act to protect the Federal Treasury from raids by those who want to use Federal funds for their own purposes. [Petition for Writ of Certiorari, June 1, 1981, at 6] In effect, said the plaintiff, a special exemption from the act had been carved out for Members of Congress. Turning first to the issue of justiciability in view of the political question doctrine, the plaintiff asserted that the appeals court decision was actually in conflict with Baker v. Carr. Although, said the plaintiff, the lower court identified the correct criteria set forth in Baker for determining whether a case presented a nonjusticiable political question, it "applied the criteria incorrectly." [Id. at 8] Contending that the Senate would likely never reach a decision on the role of staff in campaigns, the plaintiff asserted that the courts must intervene to establish some standards: While the Senate has been "struggling" with the issue concerning use of staff in political campaigns, . . . it may never issue a "decision." It is not unreasonable to assume that the Senate does not intend to regulate itself and its members. The Senate has no incentive to restrict the campaign activities of staff members. If the Senate does not re strict campaign activities of staff, then Senators will main- Congress passed into law 31 U.S.C. § 628, providing that This case, like Baker v. Carr, concerns the allocation of political power. Baker involved the allocation of political power within a State. 369 U.S. at 226. This case concerns the allocation of political power between the incumbents and those seeking Congressional office. Insuring that every citizens' vote is equal is similar to insuring that incumbent candidates do not take unfair advantage of their office privileges; both preserve equal protection of the law. A Senator should know the difference between legislative work and campaign work, just as he must know the difference between a political contribution and a bribe. Although these lines may be difficult to draw, ultimately the courts must draw them. [Id. at 9-10] The plaintiff in his petition also argued that because there was a division between the circuits concerning the justiciability of claims against Government officials involving the use of staff for campaign purposes (citing Shakman v. Democratic Organization of Cook County, 435 F.2d 267 (7th Cir. 1970)), and because the instant case presented "important federal questions," the Supreme Court should grant certiorari. On June 18, 1981, the defendant filed an opposition to the petition for a writ of certiorari, arguing that "not only is the decision of the court below not in conflict with Baker v. Carr, supra, but rather relies on it and is consonant with it." [Brief for the Respondents in Opposition, June 18, 1981, at 6] The defendants claimed that the Senate itself had considered the role of staff and had "not seen fit to restrict staff in the area of campaign activity except with respect to receipt of campaign funds.“ [Id. at 7] Therefore, the defendants maintained, the matter was "inappropriate for judicial scrutiny." [Id. at 11] As to the plaintiff's argument that there was a conflict between circuits on the justiciability question which the Supreme Court should resolve, the defendants noted that the Shakman case was distinguishable because it did not involve the False Claims Act and dealt with an identifiable system of abuses, involving a single county, not a coordinate branch of government. "In any event," the brief concluded, "Shakman turned on standing while the case at bar turned on prudential considerations." [Id. at 10] Status-The case is pending in the U.S. Supreme Court, the petition and opposition brief having been circulated to the Justices on June 24, 1981. The complete text of the January 30, 1981 opinion of the circuit court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981. II. Civil Liability for Criminal Offenses United States v. Eilberg Civil Action No. 79-1623 (E.D. Pa.) and No. 81-1693 (D.D.C.) In October 1978, U.S. Representative Joshua Eilberg of Pennsylvania was indicted under a Federal conflict of interest statute. In February 1979, Rep. Eilberg pled guilty to the charge and was fined $10,000 and placed on probation for five years. As a follow-up to that criminal prosecution, the Government filed a civil action against Rep. Eilberg on May 7, 1979 in the U.S. District Court for the Eastern District of Pennsylvania. The Government's complaint contained three counts. The first count alleged that from June 1975 through 1976 the defendant, while a Member of Congress, was also a member of the law firms known as "Eilberg, Corson, Getson and Abramson" and "Corson, Getson and Abramson". The Government claimed that these firms represented Hahnemann Medical College and Hospital of Philadelphia ("Hahnemann") in its attempt to obtain a $14.5 million grant from the Community Services Administration, an Executive branch agency. As a result of this representation, Rep. Eilberg received legal fees in the approximate amount of $35,172, which constituted his distributive share of the entire legal fee paid by Hahnemann. By representing Hahnemann, the Government asserted, Rep. Eilberg placed himself in a conflict of interest and breached his fiduciary duty to the United States, in violation of 18 U.S.C. § 203. This statute, which is the same statute Rep. Eilberg was convicted under in the earlier criminal action, makes it a crime for any member of Congress, except as provided by law, to receive compensation for services rendered in any proceeding, before a Federal agency or department, in which the United States has a substantial interest. Count II repeated the allegations of Count I and further charged that the defendant violated his agency relationship with the Government, breached his implied contract of employment, and was unjustly enriched, again in violation of 18 U.S.C. § 203. Count III alleged that during the period from May 1973 through January 1978, Rep Eilberg used, and permitted his family and friends to use, his official telephone credit card to charge personal calls to the House of Representatives. Allegedly, the defendant, for each of 57 consecutive months, falsely and knowingly certified to the Clerk of the House that all calls charged to his official credit card and billed to the House by the phone company were made in the course of his Congressional duties, when in reality they were not. Such acts were said to constitute violations of 31 U.S.C. § 231 (False Claims Act) which provides, in pertinent part: * * * * * * * * * Any person * who shall make or present* * * |