UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, PLAINTIFF,

V.

JOSHUA EILBERG, DEFENDANT

Civil Action No. 81-1693

Filed October 19, 1981

MEMORANDUM OPINION

This matter comes before the court on a motion to quash a deposition subpoena served upon the Honorable Edmund L. Henshaw, Jr., Clerk of the United States House of Representatives. The defendant in this case, Representative Joshua Eilberg, has intervened in the motion to quash of the Clerk. For the reasons expressed below, the motion is denied.

BACKGROUND

The current dispute stems directly from a civil case pending in the Eastern District of Pennsylvania, in which the United States has sued Representative Eilberg for funds allegedly owed the government. United States v. Eilberg, Civ. Action No. 79-1623 (Ē.D. Pa.). The third count of the complaint, grounded in the False Claims Act, 31 U.S.C. §231 et seq., alleges that Representative Eilberg falsely certified that numerous telephone calls charged to his congressional office were "official," when actually those calls dealt with matters entirely unrelated to Representative Eilberg's congressional responsibilities.

On August 10, 1979, the United States Attorney for the Eastern District of Pennsylvania filed a motion for a determination of materiality and relevancy of documents. Such a determination is required by House Resolution No. 10, as a prerequisite to the issuance of a subpoena to the Clerk of the House of Representatives. H. Res. 10, 96th Cong., 1st Sess., 125 Cong. Rec. H.17 (daily ed. Jan. 15, 1979).1 The subject matter of the United States Attorney's motion and the subpoena now under scrutiny, include:

Any and all billings and other records maintained by the Clerk... relating to telephone calls from or charged to the office of former Representative Joshua Eilberg . . . for the period from and including January of 1978; and all controlling House regulations pertaining to such billings and records.

Pursuant to local rule, the United States notified the Clerk of the House that the motion for a determination of relevancy and

'There is considerable dispute between the parties as to whether the motion for a determination of relevancy and materiality was required to have been submitted to Judge Pollack or whether it could have awaited this court's consideration and accompanied the actual subpoena. Because the Clerk has not argued that Judge Pollack was legally precluded from entertaining and ruling on the motion, there is no apparent reason for the court to reach the question of the government's obligation to submit the motion to Judge Pollack for consideration.

materiality had been filed and the Clerk was given an opportunity to file an opposition. The Clerk filed a lengthy memorandum in response, arguing that the government's underlying claim and, therefore, the desired subpoena raise a non-justicable, political question. The essence of the Clerk's argument was that the question of whether particular phone calls are "official" is a matter reserved solely for the House under the Constitution's Rulemaking Clause, Article I §5, Cl. 2. Concomitantly, the Clerk urged, a court could not discern adequate standards for assessing the executive's contention that particular phone calls were not within the realm of official congressional activity.

The United States Attorney responded that it is not unconstitutional for the executive to bring civil actions against congressional members when a statute, such as the False Claims Act, delegates to the executive the authority to police against violations of House rules and regulations. In supporting his argument, the United States Attorney referred Judge Pollack to a statute which he claimed expressly delegatges to the executive and judicial branches the responsibility for ascertaining the legality of congresspersons' telephone calls. That statute, 2 U.S.C. §46(g) provides, in pertinent part, that "there shall be paid out of the contingent fund . . . such amount as may be necessary to pay (1) toll charges on strictly official long distance telephone calls." The United States contended that by enacting this legislation the Congress clearly intended that individual members be subjected to judicial enforcement actions for phone calls determined by the executive and the courts not to be "strictly official."

There followed a series of written exchanges between the Clerk and the United States concerning the present legal validity and effect of 2 U.S.C. § 46(g). This debate focused on the Committee on House Administration's apparent abandonment of the stipulations in the provision and the impact of 2 U.S.C. § 57 on section 46(g)'s current validity. On its face, section 57 completely apportions responsibility for assessing the legitimacy of members' phone calls between the full House and the Administration Committee, leaving no role for the Department of Justice.

On October 22, 1980, Judge Pollack issued and extensive opinion on the case, the vast majority of which focused on the motion for a determination of relevancy and materiality. The court ruled on the motion in favor of the United States, concluding that section 46(g) was still valid law and therefore, the executive had been delegated the power to sue members of Congress for phone calls not "strictly official." Further, Judge Pollack found that this delegation does not contravene the constitutional scheme of separation of powers. Emphasizing heavily the decision in United States v. Brewster, 408 U.S. 501 (1972), Judge Pollack determined that a clear provision of authority to the executive to "police" members' extralegislative activities (as he found section 46(g) to be) is not barred by the Constitution.

Relying on Judge Pollack's favorable ruling on the motion for a determination of materiality and relevancy, on April 6, 1981, the United States Attorney served the Clerk of the House of Repre sentatives with a deposition subpeona issuing from this court, which ordered the production of the documents described earlier.

See p. 1, supra. On May 11, 1981, the Clerk filed the motion to quash which is the present focus of this controversy. On June 23, 1981, Representative Eilberg intervened in the motion to quash.

DISCUSSION

It is clear that the Clerk's motion to quash the deposition subeona seeks to have this court reconsider arguments exhaustively nade to and considered by Judge Pollack. Ordinarily, under the octrine of "law of the case," a court should refrain from deciding sues that have already been definitively resolved by itself or anther court. While the doctrine does not jurisdictionally bar a court om reconsidering issues previously concluded, as does the related xctrine of res judicata, the principle of law of the case directs a urt not to alter a previous judicial determination unless unusual rcumstances are present. See Southern Railway Co. v. Clift, 260 S. 316 (1922); Messenger v. Anderson, 225 U.Š. 436 (1912). The refully circumscribed discretion with which a court should apoach an issue already reached was recently described by our Cirit Court in Laffey v. Northwest Airlines, Inc., 642 F. 2d 578 (D.C. r. 1980):

If justice is to be served, there must be at some point an end to litigation; on that account, the power to recall mandates should be exercised sparingly. To warrant divergence from law of the case, a court must not only be convinced that . . . an . . . earlier decision was erroneous; it must also be satisfied that adherence to the law of the case will work a grave injustice.

2 F. 2d at 585. See also Greater Boston Television Corp. v. FTC, 3 F.2d 268 (1971), cert. denied, 406 U.S. 950 (1972).

These general tenets of the law of the case have been applied to lations where a federal district judge is presented with a prior ision of another district judge. The accepted doctrine, consistent h the principles just expressed, is that a district judge has ver to overrule or ignore an earlier decision but this power uld only be used in extraordinary circumstances. See, e.g., PetiA of United States Steel Corp., 479 F. 2d 489 (6th Cir. 1973); Petiof Kinsman Transit Co., 388 F. 2d 821 (2d Cir. 1968); Adley Exis Co. v. Highway Truck Drivers & Helpers, Local No. 107, 349 F. p. 436 (E.D. Pa. 1972); Kaminsky v. Abrams, 281 F. Supp. 501 .N.Y. 1968); Peterson v. Hopson, 306 Mass. 597, 603, 29 Ñ.E. 2d ,142 (1940) ("A judge should hesitate to undo his own k... Still more should he hesitate to undo the work of aner judge.").

f even direct hearing on the case at hand, a district judge ng in aid of a proceeding in another district court will defer to law of the case established by that court, unless clearly compelreasons for not doing so exist. See, e.g., Compton v. Societe Eurisse, S.A., 494 F. Supp. 836 (S.D. Fla. 1980) (where federal judge viously authorizing subpoena had "meticulously" considered all rmation and arguments, that judge's decision must be followed he law of the case); Steamship Co. of 1949 v. China Union Lines, g Kong, 123 F. Supp. 802 (S.D.N.Y. 1954) (validity of subpoena

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and examination thereunder established by prior ruling of Texas federal court).

Applying these guidelines to the instant subpoena, it is evident that Judge Pollack'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 presented 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 Pollack came to his conclusion following complete briefing by the parties. The opinion identified and thoroughly considered all arguments raised by the Clerk, as well as those propounded by the United States Attorney. The opinion painstakingly maps out the circumstances surrounding the passage of sections 46(g) and 57, prior to determining that section 46(g) delegates authority to the executive and, derivatively, to the judiciary, to assess whether phone calls of members of Congress are "strictly official. Finally, the opinion, upon consideration of leading Supreme Court precedents, concludes that the delegation discernible in section 46(g) does not violate separation of powers principles embodied in the Constitution.

Notwithstanding the exhaustive and thoughtful nature of Judge Pollack's opinion, the Clerk of the House of Representatives contends that the law of the case doctrine should not prevent this court from reconsidering the justiciability of the government's claim against Representative Eilberg. In essence, the Clerk sug gests that unusual circumstances justify laying aside the law of the case doctrine in this instance.

First, the Clerk argues that the law of the case principle should not be applied because Judge Pollack's determination of materiality and relevancy was neither final nor appealable. This argument misapprehends the doctrine of law of the case. The doctrine does not require as a precondition to its application, the issuance of a final, appealable judgment, resolving all rights and liabilities of the parties. Instead, seeking to minimize expenditure of judicial resources and energy on matters already decided, the doctrine is triggered once a final decision is made on a particular issue. The doctrine is regularly applied to prevent reconsideration of a host of "non-final," non-appealable orders, including rulings which concern pretrial discovery disputes, see, e.g., SEC v. Timetrust, 33 F. Supp. 590 (N.D. Cal. 1940), and those involving the entire range of motions made prior to entry of a binding judgment. See In re Walton Hotel Co., 116 F.2d 110 (7th Cir. 1940); Compania Masitima del Nervion v. Amerop Commodities Corp., 237 F. Supp. 73 (E.D. Cal. 1964).

Thus, while the intermediate status of an order may be a relevant consideration in deciding whether to apply the law of the case doctrine where other unusual circumstances are present, First National Bank of Hollywood v. American Foam Rubber Corp., 530 F.2d 450 (2d Cir. 1976), such status alone does not nullify the effect of the doctrine. Accordingly, the fact that Judge Pollack's resolution

of the motion for a determination of relevancy and materiality was interim in nature does not in itself undercut the rationale for applying Judge Pollack's decision as the law of the case.2

Second, the Clerk maintains that this court should reconsider the justiciability issue because Judge Pollack's determination preceded the decision of our Circuit Court in United States ex rel. Joseph v. Cannon, 642 F.2d 1373 (D.C. Cir. 1981). A judge's failure or inability to consider important matters of law or fact is certainly a relevant factor in whether the original ruling should be regarded as the law of the case. See, e.g., Adley Express Co. v. Highway Truck Drivers & Helpers Local No. 107, 349 F. Supp. 436 (E.D. Pa. 1972); Goldstein v. Doft, 236 F. Supp. 730 (S.D.N.Y. 1964). In this instance, however, the Clerk has not raised a new statement of law so contrary to Judge Pollack's decision that his order must be overruled. Instead, he Cannon decision is sufficiently distinguishable from the case at and so that an overall weighing of factors still favors treating Judge Pollack's decision as the law of the case.

Cannon involved a False Claims Act action against Senator Cannon. The gravamen of the complaint was that the Senator had authorized his administrative assistant to work exclusively on the Senator's campaign for reelection and that salary payments for uch work constituted a fraud on the government. The court conluded that the suit presented a nonjusticiable controversy princially because of the absence of satisfactory standards for assessing whether Senators may use paid staff members in their campaign ctivities. The court stressed that Senate deliberations revealed hat the Senate itself had been completely unable to reach agreenent on the propriety of using staff members in reelection camaigns. 642 F.2d at 1380.

In contrast, Judge Pollack found, after a rigorous analysis of legslative developments, that section 46(g) unequivocally expressed he House's determination that phone calls not "strictly official" annot be charged to the public coffer. Thus, Judge Pollack found a pecific statutorily prescribed standard for judicial assessment of le propriety of Representatives' phone calls, whereas the court in annon could perceive no coherent Congressional command conerning the legality of employing personnel in reelection camaigns.

The Clerk, however, argues that this distinction is more fictional an real. Essentially, he contends that the "strictly official" lanlage is so vague that it could not genuinely assist a court atmpting to analyze the propriety of a Representative's phone calls. hus, just as the court in Cannon could not discern adequate critea for reviewing salary payments to staffers, there are no standrds in this case, even assuming the viability of the "strictly offi

* The clerk's argument on the non-appealable nature of Judge Pollack's ruling goes further. e clerk contends that not only is Judge Pollack's ruling presently non-appealable but that cause the Clerk never intervened in the case there will never be a final decision from which could appeal. The Clerk does not provide any precedent which holds that an interested arty's inability to appeal a decision negates the law of the case doctrine. At most, the nonapalability of a ruling would be one factor to be considered in applying the doctrine. Where, as re, the complaining party has received a thorough and complete hearing, and another party, presentative Eilberg, can and will surely appeal any adverse ruling, the doctrine should conque to be applied. Another factor justifying this conclusion is that the Clerk was, apparently, barred in any way from intervening in the case in Pennsylvania and thereby preserving a ght to appeal from Judge Pollack's holding.