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earlier, that even assuming the case was ripe for review the action was barred by the Speech or Debate Clause and the political ques tion doctrine. This was true, said the defendants, regardless of whether declaratory relief, injunctive relief, or both were sought Finally, the defendants contended that because the requested in junction would violate traditional equity principles, the complaint failed to state a claim for relief. The first of these principles, said the defendants, was that Federal courts of equity lack jurisdiction to enjoin proceedings concerning the removal of public officers. The second principle was that courts may not enjoin legislatures from considering public issues.

On January 15, 1982, Senator Williams filed a memorandum ir opposition to the motion to dismiss. In it, he repeated many of the arguments made in support of his application for a temporary re straining order.

On February 3, 1982, District Judge Louis F. Oberdorfer issuet an order granting the defendants' motion to dismiss. In his accom panying memorandum, Judge Oberdorfer explained why the ripe ness and political question doctrines, along with the Speech o Debate Clause, required the dismissal of the complaint:

Plaintiff's arguments and authorities fail to meet defendant's contention that the claim is not ripe for adjudiccation. Plaintiff is asking this Court to impose a prior restraint upon Senate consideration of an explusion resolution. Yet, as Judge Gesell pointed out in the hearing on the temporary restraining order, "plaintiff cannot know what representation and opportunity to present evidence the Senate will authorize until he has presented to that body the claims he makes here." Transcript at 5. No Senate decision about procedures for consideration of S. Res. 204 “has been formalized” nor have the effects of any such decision been “felt in a concrete way ..” Cf. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-9 (1967). It is fundamental that federal courts should not “decide questions of a constitutional nature unless absolutely necessary.” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J. concurring); cf. Chandler v. Judicial Council, 398 U.S. 74, 86-88 (1970). As this Circuit ruled long ago,

courts “cannot enjoin legislative debate ...

Hearst v. Black, 87 F.2d 68, 72 (D.C. Cir. 1936).

Defendants' claim that the case is not ripe for adjudication is reinforced by the Speech or Debate Clause. The Supreme Court has held that the prohibitions of the Speech of Debate Clause are absolute within the sphere of legitimate legislative activity-see, e.g., Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503 (1975)-or with respect to other matters which the Constitution places within the jurisdiction of either House, Gravel v. United States, 408 U.S. 606, 625 (1972). In addition, Article I, Section 5, Clause 2 of the Constitution textually commits to the Senate the power to:

determine the Rules of its Proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds, expel a

member. The doctrine of separation of powers further weakens plaintiff's claim. Baker v. Carr, 369 U.S. 186, 217. Nor is it ripe for consideration as a declaratory judgment. Pauling v. Eastland, 288 F.2d 126, 130 (D.C. Cir.), cert. denied, 364 U.S. 900 (1960). Accordingly, the accompanying order will grant defendant's motion to dismiss. [Memorandum, Feb

ruary 3, 1982, at 2-3] On February 12, 1982, Senator Williams filed a motion to reconsider the court's February 3rd ruling. On February 18, 1982, the court, noting that the case was still not ripe for adjudication, and that “the Speech or Debate Clause remains an obstacle to plaintiff's claims,” issued an order denying the Senator's motion to reconsider Status—The case is closed. The complete transcript of the November 27, 1981 oral argument and decision by the district court on Senator Williams' application for a temporary restraining order is printed in the “Decisions” section of this report at page 655.

The complete text of the February 3, 1982 memorandum and order of the district court is printed in the "Decisions" section of this report at page 667. 3. Other Actions: United States er rel Joseph v. Cannon

No. 80-2036 (U.S. Supreme Court) On March 15, 1977, Joel D. Joseph, a private citizen, filed suit in the U.S. District Court for the District of Columbia against U.S. Senator Howard Cannon of Nevada and Chester B. Sobsey, the Senator's administrative assistant, under 31 U.S.C. $8231 and 232 False Claims Act). The complaint alleged that from March 1975 to November 1976 defendant Sobsey worked extensively and exclusively on Senator Cannon's re-election campaign or on related tasks not part of the Senator's official duties, and that during this period Senator Cannon knowingly authorized, and Mr. Sobsey knowingly accepted, regular pay for services ostensibly performed as administrative assistant, although such services were not performed or were done in a "perfunctory or nominal manner.” [Complaint, March 15, 1977, at 3] The complaint further alleged that during the relevant period, and at other times, Senator Cannon had other members of his staff "perform services to him and his family, which were not part of Senator Cannon's official legislative and representational duties, but were nevertheless paid with public funds." (Id.]

Sections 231 and 232 allow a private citizen, the "relator," to file a claim on behalf of the United States against any person making a false claim for money upon the United States. Anyone convicted under section 231 shall pay $2,000, plus double the amount of damages the United States suffered as a result of the false claim, as

well as the costs of the suit. Under section 232 the relator is re quired to notify the Justice Department of the suit and the Depart ment is then allowed 60 days in which take over the case. If an ap pearance is entered by the Government, the private citizen may be awarded fair and reasonable compensation, in amount not exceed ing one-tenth of the amount recovered, for disclosure of informa tion or evidence not in the possession of the United States when the suit was brought. If the case is not taken over by the Govern ment, the relator may be awarded up to one-fourth of the amoun recovered as compensation for his services.

On May 27, 1977, the Justice Department declined to enter a appearance on behalf of the United States.

On June 7, 1977, the defendants filed a motion to dismiss th complaint.

On May 25, 1978, District Court Judge William B. Bryant filed memorandum and order granting the motion of the defendants t dismiss the action. (United States ex rel. Joseph v. Cannon, Civi Action No. 77–0452 (D.D.C. May 25, 1978)] The court found that i had no jurisdiction under the terms of the False Claims Act, sinc that act denies jurisdiction over private false claims if the evidenc or information on which the suit is based was already in the pos session of the Government. This was so in the instant case, th court found, since Senator Cannon had, pursuant to Senate Rul 43, notified the Secretary of the Senate that Mr. Sobsey was a aide authorized to receive and distribute campaign contributions

With regard to the claim of fraud, Judge Bryant held that th plaintiff had failed to state a claim upon which relief could b granted since he had not identified one specific instance in which member of Senator Cannon's personal staff was paid out of publi funds for personal tasks.

Mr. Joseph filed a notice of appeal to the U.S. Court of Appeal for the District of Columbia Circuit on May 26, 1978.

The court of appeals issued its opinion on January 30, 198 (United States ex rel. Joseph v. Cannon, 642 F.2d 1373 (D.C. Ci 1981)] Regarding the authorization of salary payments to M Sobsey while he was not performing official legislative and repr sentational duties, the court upheld the district court's dismissa but on different grounds. The court ruled that the mere fact tha the Government held some information related_to an alleged false claim did not mean that a suit under the False Claims A was barred:

To require that the evidence and information possessed by the United States be a mirror image of that in the hands of the qui tam plaintiff would virtually eliminate the bar. On the other hand, to permit the bar to be invoked when the United States possesses only rumors while

* In 1969, when Senator Cannon made his filing under Senate Rule 43, the Rule read: No o cer or employee whose salary is paid by the Senate may receive, solicit, be the custodian of, distribute any funds in connection with any campaign for the nomination for election, or t election of any individual to be a Member of the Senate or to any other Federal office. T prohibition does not apply to any assistant to a Senator who has been designated by that ser tor to perform any of the functions described in the first sentence of this paragraph and who compensated at a rate in excess of $10,000 per annum if such designation has been made writing and filed with the Secretary of the Senate. The Secretary of the Senate shall make t designation available for public inspection.

the qui tam plaintiff has evidence and information would
be to permit the bar to repeal effectively much of the
False Claims Act. Between these extremes lies the answer.

More precisely, the answer rests in that area where it is possible to say that the evidence and information in the possession of the United States at the time the False Claims Act suit was brought was sufficient to enable it adequately to investigate the case and to make a decision whether to prosecute. [642 F.2d at 1377, quoting Pettis ex rel. United States v. Morrison Knudson Co., 577 F.2d 668, 674 (9th Cir. 1978)] 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. Cart, 369 U.S. 186, 217 (1962), the circuit court enunciated the prominent characteristics of political questions:

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judically discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent

resolution without expressing lack of the respect due co

ordinate branches of government. [Id.] Using this definition, the court found a complete absence of judi cially discoverable and manageable standards for resolving th question of whether Senator Cannon could use paid staff member in his campaign activities. The court could find no guidelines, judi cial or administrative, to establish a standard for determinin whether public compensation of Mr. Sobsey was permissible wher performing campaign activities.

The plaintiff had argued that appropriated funds could be use solely for statutorily enumerated purposes. The court reasoned tha assuming the appropriated funds were intended solely to comper sate staffers for performance of their official duties, the issue wa whether campaign work was an official activity. It concluded tha not even the Senate itself could reach a consensus on the propriet of using staff members in election campaigns.

In reviewing the legislative history, the court found that th Senate Select Committee on Standards, which in 1968 had recon mended passage of Rule 43, stated in its report that the committe did not intend for the Rule to be used to deter campaign activity b Senate employees beyond involvement with campaign monies. Th court further noted that it was not until after Senator Cannon 1976 re-election campaign that the Senate began to reconsider th role of staff in senatorial campaigns. The court also noted that th Senate was still studying the question. The court stated that i 1976 (and at present) there were no manageable standards to app to staff participation in a Senate re-election campaign. In addition the Senate, which was authorized to do so, could not resolve th issue. Thus, the interpretation of the False Claims Act urged b the plaintiff "would license the court to monitor every action take by a Senator and his aide in an effort to determine whether it 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 tim unnamed members of Senator Cannon's staff rendered person

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