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In an order issued on December 5, 1967, the three-judge court overruled the McSurelys' objections to the subpoenas. The court ordered Mr. Ratliff to comply with the Congressional subpoenas by allowing committee representatives to make copies of the materials in his possession pursuant to the court's order. A five-day stay was granted in order to allow the McSurelys to seek Supreme Court review.

On January 20, 1968, Justice Stewart again stayed the threejudge court's order. The stay was conditioned on the McSurelys filing an appeal of the October 30th order with the Supreme Court. (390 U.S. 914)

On March 18, 1968, the Supreme Court declined to hear the case and dismissed the unperfected appeal in a per curiam order. (390 U.S. 412] The Court, however, continued the stay to allow the McSurelys to apply to the Sixth Circuit Court of Appeals for a stay. By the time the McSurelys' appeal to the Sixth Circuit was taken, the time for the state to appeal the three-judge court's order of September 14, 1967, finding the Kentucky statute unconstitutional, had expired.

In July of 1968, the Sixth Circuit decided that since time for appeal of the September 14th order had run, "the right of the court to retain possession of the seized documents, which include no contraband, has expired.” [McSurely v. Ratliff, 398 F.2d 817, 819 (6th Cir. 1968)] The appeals court ordered that the materials be returned to the McSurelys without prejudice to the Subcommittee's right to proceed with the enforcement

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.2d at 818]

On November 8, 1968, the seized materials were returned to the McSurelys, who were immediately served with new Subcommittee subpoenas similar to the original Subcommittee subpoenas. They refused to comply with the new subpoenas.

The McSurelys filed a civil action in the U.S. District Circuit for the District of Columbia on March 4, 1969, the date named in the subpoenas for their appearance before the Subcommittee. They sought a declaration that compliance with the subpoenas was not required; a preliminary and permanent injunction against institution of criminal proceedings against them for their failure to comply with the subpoenas; 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, in their civil action, they filed an amended and supplemental complaint seeking only compensatory and punitive damages. The McSurelys alleged that the defendants (Senator McClellan, three members of the Subcommittee staff–Jerome Adlerman, Donald F. O'Donnell, and John Brick-and Mr. Ratliff) 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 viola-
tion and derogation of their rights under the First, Fourth,
Fifth, and Fourteenth Amendments to the U.S. Constitu-
tion and the laws of the United States. (Plaintiff's Amend-
ed and Supplemental Complaint, January 29, 1971, at 13-

14] In the criminal action for contempt of Congress, the McSurelys were convicted and sentenced in June 1970. The convictions were appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The decision of the appeals court, reversing the contempt of Congress convictions of the McSurelys, was filed on December 20, 1972. The 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, the Subcommittee's subpoenas were inadmissible as the fruit of an unlawful search and seizure. [United States v. McSurely, 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 Solicitor General decided not to petition the Supreme Court for a writ of certiorari.

In the civil proceedings brought by the McSurelys, Chairman McClellan and the three Subcommittee staff members filed a motion to dismiss or, in the alternative, for summary judgment in the district court on October 26, 1971. In support of the motion the defendants argued that:

(1) Defendants are 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 U.S. Senator or employees of the Senate of the United States at all times material to this cause. (3) Plaintiffs are barred by collateral estoppel from relitigating issues previously settled by the judgment of this court in United States v. Alan McSurely and Margaret McSurely, Criminal Nos. 1376-69, 1377-69 [Defendants' Motion to Dismiss or in the Alternative for Summary Judgment,

October 26, 1971, at 1] The motion to dismiss was denied on June 12, 1973, and after a motion for reconsideration was rejected, the Federal defendants filed a notice of appeal.

In a 2 to 1 decision issued on October 28, 1975, the U.S. Court of Appeals for the District of Columbia Circuit reversed the district court's ruling and remanded the case for further action consistent with its holding. [McSurely v. McClellan, 521 F.2d 1024 (D.C. Cir. 1975)] The panel of 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

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by the investigator as the basis for Congressional subpoenas, and the issuance of contempt of Congress citations against them.

The appeals court left for the district court on remand the determination of whether the defendants actively collaborated in the original raid on the McSurelys' 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.

On December 10, 1975, after a petition by the McSurelys, the decision of the court of appeals was vacated and petition for a rehearing en banc was granted.

On December 21, 1976, the court of appeals en banc issued its opinion. (McSurely v. McClellan, 553 F.2d 1277 (D.C. Cir. 1976) (en banc)] 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 complaint pertaining to the Subcommittee staff's inspection of the 234 documents that Subcommittee investigator Brick 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 McSurely's home, appellants are entitled to dismissal on this point." [553 F.2d at 1299]

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's court's consideration and initial determination on remand were:

(1) whether any cause of action against defendants Brick and Alderman survives their deaths; (2) whether Brick's inspection of the seized material put in Ratliff's possession under the three-judge court's “safekeeping” directive, and Brick’s transport to Washington of copies of 234 documents, violated the McSurley' right 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 defendant 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. [Id.]

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]

21-618 0-83--13

As to the refusal to grant summary judgment on two allegations relating to dissemination of some or all of the documents outside the Subcommittee and 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.” [Id. at 1286]

As to the inspection 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 "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." [Id. at 1289] They hypothesized that the district court's "safekeeping” order in effect at the time of Mr. Brick's inspection and transportation of the documents to Washington for the Subcommittee's use precluded Mr. Brick from having access to the documents.

Judge Wilkey, writing for himself and four other judges, dissented. These judges did not believe that Mr. Brick's inspection and transportation of the documents constituted an unlawful search and seizure under the Fourth Amendment.

On May 19, 1977, the defendants filed a petition for a writ of certiorari with the U.S. Supreme Court, and on October 11, 1977, the petition was granted. In a one-sentence per curiam opinion, the writ of certiorari was dismissed as improvidently granted on June 26, 1978. [438 U.S. 189]

On August 31, 1978, Herbert H. McAdams II, executor of Senator McClellan's will, was substituted, by order of the district court, as defendant in lieu of the Senator, without prejudice to his right to claim that plaintiff's cause of action did not survive the death of Senator McClellan.

On January 17, 1979, U.S. District Judge William Bryant issued a memorandum and order granting the McSurelys' motion to substitute Mrs. Mary Brick as a party defendant in lieu of her husband, John Brick, and to substitute Mrs. Evelyn Adlerman as a party defendant in lieu of her husband, Jerome S. Adlerman, and denying the defendants' motion to dismiss the action as to the deceased defendants, Senator McClellan, Mr. Adlerman and Mr. Brick

Judge Bryant resolved the issue of substitution by determining that the time requirement of Federal Rule of Civil Procedure 25(a (1) had been met, since the plaintiffs had moved for substitution within 90 days after the deaths were suggested on the record. Defendants' argument that substitution was improper at that point because the identity of the deceased defendants' legal representatives had not been settled was rejected. Judge Bryant noted that this would merely mean that the 90 day period of Rule 25(a)(1) would still not have begun and that a successor of an estate as well as a legal representative is proper for purposes of substitution. He also stated that no circumstances were apparent which would make such substitution at that stage unfair. The defendants had argued that the requirement of Rule 25(a)(1) that the party's death not extinguish the claim had not been met and therefore, the case should be dismissed. The defendants had contended that constitutional rights are personal rights, the violation of which constitute personal injuries and that the District of Columbia survival statute, D.C. Code § 12-101, permits recovery only for pecuniary losses for personal injuries. Because pecuniary losses had not been alleged for the actions which remained at issue, the defendants argued that the action abated by operation of the survival statute. Judge Bryant rejected this argument and stated:

This argument is not persuasive given the nature of the actions underlying the alleged constitutional deprivations; hence, plaintiffs' remaining claims survive the defendants death whether the court applies federal policy governing survival of a Bivens-type cause of action, see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), or the District of Columbia survival statute, D.C. Code $ 12-101. Given the gradual acceptance by federal courts of the position that federally created torts do survive the death of a tortfeasor, see, e.g., Cox v. Roth, 348 U.S. 207, 210 (1955), Kirk v. Commissioner of Internal Revenue, 179 F.2d 619, 621 (1st Cir. 1950), this Court will not single out claims for injuries to constitutionally-protected rights as abating on the death of the wrongdoer. This is particularly so in light of the Supreme Court's emphasis on the increasing importance of the damage remedy in view of restrictions on the operation of the exclusionary rule. See United States v. Calandra, 414 U.S. 338, 454 n.10 (1974). To the extent that the right of recovery depends upon federal considerations, it should not be governed by archaic concepts of survivability of the common law, see Almond v. Kent, 459 F.2d at 204 but rather by the objectives of the statutes in question.

With respect to the District of Columbia survival statute, the alleged injury here cannot be categorized as strictly a personal injury, see Colpoys v. Foreman, 163 F.2d at 910, nor is it the case that pecuniary damages for the remaining claims have not been alleged. Defendants argue that the injuries were solely personal in nature, but the claimed violations of papers and property transcend that which is normally considered a personal injury. Moreover, those cases which permit recovery for pecuniary damages only from personal injuries, see Coleman v. Moore, 108 F. Supp. 425, at 427; Soroka v. Beloff, 93 F. Supp. 642, at 644, involve physical harm to the victim. In such situations, while no recovery is permitted for pain and suffering, some measure of recovery is allowed for the physical injury. Coleman v. Moore, 108 F. Supp. 425, at 427; Phillips v. Lust, 82 F. Supp. 63, 63 (D.D.C. 1949). Here, in contrast, to deny recovery for objectively nonqualifiable injury would be to deny the claim in its entirety. Such a position is inconsistent with the purposes of the survival statute. See generally Soroka v. Beloff, 93 F. Supp. at 644. The District of Columbia survival statute is thus no bar to the maintenance of plaintiffs' claims. (McSurely v. McAdams, Civil Action No. 516-69 (D.D.C. Jan. 17, 1979) Memorandum at 3-4)

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