ceeding and Actions of Vital Interest to the Congress, September 1, 1982 for a discussion of that case), the Clerk maintained that:

Based on this Circuit's clear recognition that the "False
Claims Act . . . [does not] require the judiciary to develop
rules of behavior for the Legislative Branch. .. with re-
spect to prescribing what constitutes “official” duties for
congressional staff aides, ... the False Claims Act does
not provide authority for the executive and the judiciary
to prescribe for the legislature what constitutes official
and non-official telephone use. [Clerk's Memorandum at

12] The Clerk contended that like the situation with respect to the definition of "official" duties for Congressional staff at issue in the Cannon case, there was a complete absence of judicially discoverable and manageable standards for determining "official” telephone use by the Congress. According to the Clerk, not only was there no legislative history concerning the correct parameters of telephone use for legislators, but, on a practical level, in order to classify calls as "official" or "non-official" it would be necessary to review the content of the conversations as well—"a far more problematical and intrusive inquiry than that posed by the Cannon complaint.” (Id. at 14] Moreover, said the Clerk, “in terms of sheer volume, such an exercise takes on Herculean proportions where the review entails telephone charges from or to a Congressional office for a five year period." (Id.]

In conclusion, the Clerk put forward three other reasons why the subpoena presented a political question: (1) the issue of proper and reimbursable telephone usage by Members of Congress was “textually committed” to the Legislative branch; (2) it would be impossible to decide whether a call was "official" without an initial policy determination of a kind clearly for nonjudicial discretion; and (3) judicial oversight of daily legislative activities like telephone use, without any Congressionally endorsed standards, would imply a lack of respect for a coordinate branch.

On June 5, 1981, the Government filed its response to the Clerk's motion to quash, maintaining in essence that the Clerk had merely reiterated the identical arguments which had been presented to the Pennsylvania district court and conclusively disposed of by Judge Pollak. In the Government's view, the Pennsylvania decision was "the law of the case" and the Clerk was therefore barred from relitigating the propriety of the subpoena in another district court which was simply acting in aid of the Pennsylvania proceeding (by issuing the subpoena). Furthermore, the Government pointed out that:

the United States had no other choice than to apply to Judge Pollak for a determination of materiality and rel. evancy. Congress itself established the requirement that such a determination be sought before service of a subpoena. The necessity of a motion to quash is thus obviated. Therefore, Congress' own requirement mandated that Judge Pollak make the determination rather than the District Court for the District of Columbia. In attempting to

relitigate the materiality and relevancy question, the
Clerk is asking this Court to ignore the procedure which
Congress established and which the Clerk has insisted that
the United States follow in seeking the telephone records.

[Response To Motion To Quash, June 5, 1981, at 5) Even if the District of Columbia court found that it should independently reconsider the issues raised and ruled upon by Judge Pollak, the Government contended, no new arguments had been offered by the Clerk which would justify a different result. According to the Government, the Cannon case relied on by the Clerk was "clearly distinguishable" from the one at bar:

The Cannon court was concerned that the Senate had
been unable to reach a consensus on the propriety of using
staff in campaigns. In our case the question, if it is a politi-
cal one, has been resolved by the House and the Congress
as a whole by passage of a resolution and enactment of the
resolution into law. The statute which creates the “strictly
official” limitation on phone calls which may be paid for
from the contingent fund is 2 U.S.C. $ 46(g). There is not a
“Lack of Statutory, Administrative and Case Law” as con-
cerned the Cannon court. . . . Here the House and Senate
have grappled with the issue and decided to put in the lim-
itation which was not always there. See Plaintiff's Memo-
randum on the Viability of 2 U.S.C. $ 46(g) and the effect
of 2 U.S.C. $ 57, attached as Exhibit 7 to the Clerk's Memo-
randum. To analogize Cannon to our case, it is as if (1) The
Committee finally decided that staffers could not be paid
for campaign work, (2) The limitations were enacted into
statute and (3) a Senator falsely certified to the Clerk that
his staffer was entitled to salary for official duties when in
fact the Senator knew the staffer's time had been on the
campaign and not other congressional duties. The Con-
gress by enacting the statute has committed to the Courts
the authority to make the distinctions of whether particu-
lar calls were official. This is not an unusual task for the
judiciary. The legal standard of "strictly official" and the
congressional policy determination of what type
should be paid for by the public exist in this case where as
the Court found they did not in Cannon . . . There is a ju-
dicially discoverable and manageable standard in this case.

[Id. at 6-7] On June 17, 1981, the Clerk filed a reply memorandum disputing the Government's contentions that: (1) the District of Columbia court was barred by the “law of the case” doctrine from deciding the issues raised by the motion to quash; and (2) the Cannon case was distinguishable.

Initially taking issue with the Government's characterization of the facts of the case, the Clerk argued that: (1) the Government had never produced evidence to support the issuance of a subpoena for a coordinate branch's records; (2) the records sought were internal House records, not “simply monthly bills generated by the telephone company,” since they contained monthly certifications provided by Rep. Eilberg to the Clerk; (3) since the Government admitted that it was already in possession of the records, it was abusing the subpoena process of the court; (4) despite its assertion to the contrary, the Government was in fact seeking to put into question calls made by the Congressman; and (5) House Resolution 10, under which the finding of materiality and relevancy was sought, did not require that the determination be sought from the Pennsylvania court rather than the District of Columbia forum.

Turning to the "law of the case" doctrine, the Clerk argued first that it was inapplicable because Judge Pollak's decision did not meet the necessary standards of finality and appealability:

At the time of Judge Pollak's decision no subpoena had
been served on the Clerk. Not being a party to the action
then pending before Judge Pollak the Clerk was unable to
even raise all of his concerns regarding the subpoena let
alone obtain a final decision from which he could appeal.
One indicia of the finality of a decision is its appealability.
28 U.S.C. § 1291. Again, since the Clerk was not a party to
the action pending in Philadelphia he could not obtain ap-
pellate review. To imbue a non-appealable order with the
high degree of finality necessary to invoke the law of the
case doctrine would procedurally deprive a litigant of the
right of appellate review of a district court's decision. The
"law of the case doctrine” was never intended to operate
in such a fashion, particularly with respect to a coordinate
branch of government. [Reply Memorandum of the Clerk

of the House of Representatives, June 17, 1981, at 5] Second, the Clerk asserted that the Government was wrong in its contention that the doctrine barred relitigating the propriety of the subpoena. According to the Clerk, the doctrine was purely discretionary and was not an iron-clad rule requiring foreclosure of the issue.

Focusing next on the Cannon case, the Clerk termed the Government's assertion that it was clearly distinguishable "myopic" and "wholly untenable." He noted:

The theory of Plaintiff's claim in that suit was the same as
the United States Attorney's here, namely

namely that
“[a]ppellant theorizes that Senator Cannon's authorization
of salary payments to Sobsey while the aide was not per-
forming official legislative and representational duties'
made out an actionable false claim,” 642 F.2d at 1376, and
that “Senator Cannon was unaware of the nature of his
assistants' activities, yet authorized these salary pay-
ments." [Id.] In fact, the plaintiffs in each case have exact-

ly the same theory of liability. (Id. at 7] The Clerk concluded:

The United States Attorney next asserts that the lack of a consensus within the Senate on standards for campaign work by staff has been resolved in the House with respect to telephone use through adoption of 2 U.S.C. $ 46(g) and the so-called "strictly official” standard. First, as the


Cannon Court stated, and which the Response blithely ig-

Even assuming, as we fairly may, that the funds
appropriated were intended solely to compensate
staffers for performance of their official duties,
we are left with the perplexing question whether
campaign work is official activity.

642 F.2d at 1380.
The Cannon Court assumed an "official" standard and
determined it lacked the tools to resolve the question.
Moreover, there is no evidence whatsoever to which the
United States Attorney can point evidencing that the
House and Senate “have grappled” with what constitutes
official telephone use, either in the legislative history of 2
U.S.C. § 461g), or elsewhere. The United States Attorney
simply begs the question by stating that the “strictly offi-
cial" standard has been adopted, without a hint of how a
court will apply that standard to legislative telephone use.

The adoption of the statute relied upon by the United
States Attorney is indistinguishable from the standard of
“official” assumed to govern appropriated monies and fails
to advance the political question analysis established by

Cannon. [Id. at 8-9] On June 23, 1981, Rep. Eilberg filed a motion to intervene in the motion to quash the subpoena and a separate motion to quash. In the latter, he incorporated by reference the arguments made by the Clerk and further asserted that the compelled production of the documents pursuant to the subpoena would violate the Speech or Debate Clause.

Also on June 23, the Government filed a response to Rep. Eilberg's motion in which it incorporated its response to the Clerk's motion to quash. The Government further maintained that Rep. Eilberg's Speech or Debate Clause argument was without merit because the Clause provided only a testimonial and use privilege and immunity as to legislative acts, “rather than a cloak of secrecy”. Citing In Re: Grand Jury Investigation, 587 F.2d 589, 597 (3rd Čir. 1978), the Government asserted that the privilege as applied to the records and third-party testimony sought in this case “is one of nonevidentiary use, not of nondisclosure.

On September 23, 1981, the Government filed a motion for a protective order covering the telephone records it was attempting to obtain by subpoena from the Clerk of the House. In an accompanying memorandum, the Government noted that such records might generally be disposed of after a certain period of time and it had received no assurances from the Clerk that the documents would in fact be preserved until the conclusion of the litigation regarding the subpoena.

On October 2, 1981, the Clerk filed an opposition to the Government's motion for a protective order, stating that the "records at issue are no more in jeopardy of destruction than they were on the day the United States Attorney first caused a subpoena for their production.” (Opposition of the Clerk of the House to Motion for a Protective Order, October 2, 1981, at 1] Arguing that Congress and

its officers enjoy a “presumption of propriety” with respect to their handling and treatment of documents, the Clerk contended that the Government could not point to a single instance where he had destroyed evidence determined by the courts to be necessary. To the contrary, he declared, “[i]n the last several years alone, the Clerk and other officers and employees have complied with scores of subpoenas for records, further belying any predicate for rebutting Congress' presumption of propriety and regularity.” [Id. at 3] Finally, the Clerk asserted:

Aside from the lack of a basis for the relief requested, the protective order seeks nothing less than the resolution of the ultimate issue in this case: the justiciability of a lawsuit by the United States Attorney seeking to define the scope of official congressional telephone use. That issue needs to be resolved before the rights of a coordinate

branch are pre-emptorily cut off. [Id. at 4] On October 9, 1981, District Judge Thomas A. Flannery issued an order denying the Government's motion for a protective order. The judge found that the Government had not met its burden of showing that “good cause” existed for the issuance of such an order since it had offered no specific evidence to indicate that the subpoenaed documents were in any tangible danger. According to the judge, the Government had not even contended that the entity with final authority to guarantee the preservation of the documents—the House-had in any way jeopardized the materials. Given the "presumption of propriety enjoyed by Congress and its officers, Judge Flannery found that fact fatal to the Government's argument.

On October 19, 1981, Judge Flannery issued an order denying the Clerk's motion to quash the subpoena. In a memorandum opinion filed simultaneously, Judge Flannery found that “[i]t is clear that the Clerk's motion seeks to have this court reconsider arguments exhaustively made to and considered by Judge Pollack (sic)" in his ruling on the motion for a determination of relevancy and materiality in the U.S. District Court for the Eastern District of Pennsylvania. [Memorandum Opinion, October 19, 1981, at 4] Therefore he ruled that under the "law of the case" doctrine he should refrain from deciding an issue which had already been definitively resolved by the Pennsylvania court. Judge Flannery explained:

[I]t is evident that Judge Pollak's decision granting the
motion for a determination of relevancy and materiality
would normally constitute the law of the case in this
matter. The ruling on the motion for a determination of
relevancy and materiality decided the precise issue pre-
sented by the Clerk's motion to quash the subpoena:
whether the underlying claim by the United States against
Representative Eilberg presents a non-political, justiciable
controversy involving the application of discernible judicial
standards. See, e.g., ACF Industries, Inc. v. Guinn, 384 F.2d
15 (5th Cir.), cert. denied, 390 U.S. 949 (1967). Judge Pollak
came to his conclusion following complete briefing by the

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