when he was convicted of violating section 203 in the prior criminal proceeding. Further, if a civil cause of action did lie it would lie under the restitution statute, 18 U.S.C. § 3651(16)2), not section 203. As to Count III, Rep. Eilberg asserted that his actions regarding personal phone calls did not constitute false claims within the meaning of the Act. He reasoned that the second clause of section 231 prohibits using fraudulent vouchers to obtain the payment of "such claim" and that the term "such claim" refers to, and means, a false claim as mentioned in the first clause. Thus, since the phone company's bill to the Clerk of the House was clearly not a false claim, using a fraudulent voucher to obtain payment for the phone bill would not violate the statute. Second, the defendant cited 2 U.S.C. § 95 which reads, in part, "Payments made upon vouchers approved by the Committee on House Administration of the House of Representatives, . . . are declared to be conclusive upon all the departments and officers of the Government." The word "conclusive," he said, precluded the Government from questioning the propriety of documents submitted by a Member in connection with payments made to a third party out of the contingency fund. Moreover, such questioning was also barred by the Speech or Debate Clause of the U.S. Constitution."

In July 1979, Lawrence Corson and Allan Getson filed a motion for leave to intervene in the case as plaintiffs. They argued that as the defendant's former law partners they, and not the Government, would be entitled to any legal fees improperly received by Rep. Eilberg. Both the Government and the defendant opposed the motion for leave to intervene.

Also in July, the Government filed its memorandum in opposition to the motion to dismiss. In defending Counts I and II, the Government stated that it was not asserting an implied right of action arising out of the defendant's conviction under 18 U.S.C. § 203. Rather, those counts were based on the common law which provides the Government with remedies for breach of a fiduciary duty by one of its agents. The Government also said that the purpose of Counts I and II was not to restore funds to the Government, but to enforce the loyalty of its agent. In response to Rep. Eilberg's challenge to Count III, the Government took the position that the term "such claim" refers to any claim, not just one which is false. Lastly, the plaintiff asserted that the use of the telephone was not a protected legislative activity under the Constitution and that the legislative history of 2 U.S.C. § 95 reflected no Congressional intent to bar a cause of action under the False Claims Act.

In August 1979, the Government filed a motion for a determination of materiality and relevancy of documents called for in a subpoena to be issued to the Clerk of the House. Through the subpoena the Government would seek to obtain the defendant's telephone records from May 1973 through January 1978.

This motion was opposed by the Clerk of the House on the grounds that the separation of powers and political question doctrines precluded the court from issuing a finding of materiality and

The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1]

relevancy for the documents in question. The Clerk also challenged the request as being overbroad and infringing upon the confidentiality of Legislative branch records.

Rep. Eilberg also opposed the Government's motion and adopted the arguments put forth by the Clerk.

On February 1, 1980, a hearing was held by District Court Judge Louis H. Pollak on the outstanding motions, including the Government's motion for a determination of materiality and relevancy of documents. At this hearing, and in a subsequent memorandum filed on March 26, 1980, the Government disputed the Clerk's contention that the cause of action underlying the motion (involving the alleged telephone violations of the False Claims Act) was not a proper case or controversy for judicial determination in view of the separation of powers and political questions doctrines (since it would require the court to inquire into whether phone calls were "official").

In its memorandum, the Government argued that all of the positions previously taken by the parties must be "re-evaluated" in light of a "newly-discovered" statute, 2 U.S.C. §46(g), which provides, in relevant part, that "there shall be paid out of the contingent fund . . ., in accordance with regulations prescribed by the Committee on House Administration, such amounts as may be necessary to pay-(1) toll charges on strictly official long-distance telephone calls . . . made or sent by or on behalf of each Member not to exceed seventy-thousand units for each session. . . .” The Government contended that by enacting such a law, Congress had made the "strictly official" limitation on telephone usage by Members the "law of the land," thereby permitting the Executive and Judicial branches to investigate Members' telephone calls to ensure compliance with the law. The memorandum asserted that:

Enforcement of a purely internal House rule by the executive and courts would be an encroachment on the powers of the House, a violation of separation of powers, and a violation of the textual commitment clause. But where the involvement of a House rule is only incidental to enforcement of Acts of Congress by the executive and courts, there are no such violations. Though Congress could have changed the law 5 to allow for payment of unofficial calls, it did not, and Mr. Eilberg and all other congressmen are bound by both 2 U.S.C. Section 46(g) and the False Claims Act. It is clear that plaintiff is proceeding to enforce Acts of Congress and not House rules. It is also clear that since the "official" distinction appears in an Act of Congress and not solely in a House rule, the court is being asked to interpret the meaning of a word in an Act of Congress, not in a House rule.

5 Though Congress could change the law just as it could change a House rule, it would not be so simple a process. Instead of a matter for the House Committee on Administration, or the Speaker, it becomes a matter for the full Senate, and the Presidential veto power, and all under the scrutiny of the public eye on legislation. [Plaintiff's Reply to Memorandum filed by the Clerk of United States House of Representatives, March 26, 1980, at 4-5]

Under this theory, the Government maintained, punishment was not "textually committed" to the House, since Rep. Eilberg's behavior allegedly violated a statute as well as a House rule. "When behavior breaks both a rule and a statute," the memorandum contended, "the executive and courts may proceed on the statute." [Id. at 5]

Over the next several months the Government and the Clerk engaged in a debate by memoranda over the relevance and effect of 2 U.S.C. § 46(g). The Clerk interposed three major objections to the applicability of the statute. First, he argued, the statute was no longer valid law, having been superseded in effect by numerous House Administration Committee Orders (issued pursuant to its statutory authority under 2 U.S.C. § 57(a)) which varied the terms of the telephone allowance. Second, he maintained, even if the statute was not a nullity, the Committee had virtually abandoned it for purposes of regulating the telephone allowance. Finally, he contended, the legislative history of 2 U.S.C. § 57 revealed no intent to do anything other than apportion responsibility between the full House and the Committee on House Administration regarding allowances, and did not support the contention that the Government was to be involved in the regulation of the House allowance system.

In rebuttal, the Government asserted that the Committee had exercised its authority under 2 U.S.C. § 57 only to regulate changes in the amounts of allowances, and it did not thereby render the "strictly official" limitation contained in 2 U.S.C. § 46 a nullity.

On June 26, 1980, District Judge Pollak granted the July 1979 motion of Lawrence Corson and Allan Getson, Rep. Eilberg's former law partners, to intervene in the case. In a memorandum accompanying the order, Judge Pollak ruled that the existing parties clearly would not represent the interests of Messrs. Corson and Getson, that they had "an interest in" the property that was the subject of the suit (the distributive share of the law firm's fee paid by Hahnemann), and that their ability to protect that interest would, as a practical matter, be impaired if they were not permitted to intervene.

On July 25, 1980, a second hearing was held in the district court on the Government's motion for a determination of materiality and relevancy of documents called for in the subpoena to be issued to the Clerk of the House. The arguments related to the effect of 2 U.S.C. § 46(g).

On September 30, 1980, Judge Pollak issued an order denying the defendant's motion to dismiss the complaint and granting the Government's motion for a determination of materiality and relevancy of documents. On October 22, 1980, the Judge handed down a 52 page opinion in support of his order. [United States v. Eilberg, 507 F. Supp. 267 (E.D. Pa. 1980)]

With regard to Rep. Eilberg's dismissal motion, the court ruled that even though no statutory cause of action existed to support the first and second claims for relief (seeking Rep. Eilberg's share of the Hahnemann fee based on a theory of either a breach of fiduciary duty or of his implied agency contract with the United States), the Government had an implied Federal common law remedy for a Federal official's alleged fraud. In so holding, Judge

Pollak rejected the defendant's contention that Congress had fashioned a particular statutory remedy for the benefit of the United States as a companion to successfully maintained criminal proceedings (18 U.S.C. § 218), and that this remedy was preemptive, foreclosing the pursuit by the Government of any pre-existing common law remedies for Rep. Eilberg's acknowledged crime. The court concluded:

Reliance on Section 218 to oust the common law cause of action is not only syntactically vulnerable, it imputes to Congress a policy judgment which has no discernible supporting rationale. Section 218 comes into play after a conviction under Section 203 or some cognate provision of Chapter 11 of Title 18. Under Mr. Eilberg's reading of Section 218, a criminal conviction would not make rescission of a tainted grant an available remedy additional to recoupment from the public malefactor of his illicit fee. It would insulate the malefactor from recoupment, in exchange for a remedy of rescission very frequently not directed at the malefactor and whose invocation might in many instances be deemed by the President or his surrogate not to be in the interests of the United States. [507 F. Supp. at 271]

Turning next to Rep. Eilberg's claim that 2 U.S.C. § 95 precluded the use of the False Claims Act to recover for alleged fraudulent reimbursement from the House contingent fund, Judge Pollak, citing United States v. Bramblett, 348 U.S. 503 (1955), ruled that "Congressmen enjoy no general exemption from judicial pursuit for pressing false claims on the federal fisc. . . [and] section 95 should not be read to bar effective implementation of the Act." [Id. at 273] The judge also found that Rep. Eilberg's alleged false certification constituted a false "claim" within the meaning of the False Claims Act.

Finally, Judge Pollak rejected the Clerk's contentions regarding a finding of materiality and relevancy, concluding that the "strictly official" limitation of 2 U.S.C. § 46(g) was still in effect and that the Executive and Judicial branches could determine whether Members' phone calls had been properly charged to the House. After a lengthy review of the legislative history of the relevant provisions, and with particular emphasis on the Senate's concurrence in their enactment, the court concluded:

Against this background of Senate housekeeping legislation, it overwhelms credulity to attribute to the Senate in 1971 the intention, via Section 57 of Title 2, to liberate Members of the House from the statutory directive that chargeable long-distance telephone calls be "strictly official."

I therefore, conclude-on the basis of the legislative record both in the House and in the Senate-that Members of the House are today, and have been at least as far back as 1949, constrained by a statutory norm of "officialness" in determining which credit card telephone calls are properly chargeable to the United States and, per contra,

which the United States is entitled to reimbursement for.

[Id. at 284]

At the same time, the court also rejected the Clerk's more basic argument that even if the "strictly official" limitation still was on the statute books, enforcement through litigation of a statutory norm governing the House's internal housekeeping involved a delegation of House authority to the Executive and the Judicial branches which was incompatible with the separation of powers and political question doctrines. In finding the third claim for relief justiciable, Judge Pollak noted that "the prevailing congressional practice has for several decades been to delegate much of the policing of the behavior of Senators and Representatives to the executive and the judiciary." [Id. at 287] Only those "legislative acts" protected by the Speech or Debate Clause have been immune from inquiry; not all activity incidental to the exercise of these central legislative functions has been so protected, the court ruled.

Although the court held that the Clerk must comply with the subpoena, it concluded the opinion with the following footnote:

The granting of this motion resolves the over-all question of justiciability; it is not to be understood as precluding the Clerk from questioning the "materiality" and/or "relevancy" of particular documents falling within the letter of the United States' broad subpoena. Nor is the granting of the motion to be understood as precluding the Clerk, or Mr. Eilberg, from raising such particularized "Speech or Debate" contentions as may be thought to render some proposed evidence inadmissible. [Id. at 287, n. 13]

Discovery continued in this case into 1981. In March 1981, the Government filed a notice that it intended to take the deposition of the Clerk of the House, and on April 6 a "Deposition Subpoena To Testify or Produce Documents or Things" was served on the Clerk, calling for all billings he maintained relating to Rep. Eilberg's telephone calls from May 1973 to January 1978 and for "any controlling House Regulations pertinent to such billings and records." The subpoena, which also called for testimony from the Clerk or his designated representative, was issued by the U.S. District Court for the District of Columbia [F.S. 81-0126] upon application of the Assistant U.S. Attorney for the Eastern District of Pennsylvania.

On May 11, 1981, the Clerk filed a motion to quash the subpoena in the District of Columbia court. [Misc. No. 81-0105, subsequently changed to Civil Action No. 81-1693] In a memorandum accompanying the motion, the Clerk argued that although the Pennsylvania court had already determined that he would have to comply with such a subpoena (see pages 130-31, supra), the decision "only secondarily considered the larger, more delicate, issue of whether the courts and the executive can regulate legislative telephone usage." [Clerk's Memorandum of Points and Authorities in Support of Motion To Quash, May 11, 1981, at 11] Citing the decision of the U.S. Court of Appeals for the District of Columbia Circuit in United States ex rel. Joseph v. Cannon (see page 113 of Court Pro