staff work purportedly had been conducting an investigation of the American Postal Workers Union contract with the Postal Service, was slandered by the Postal Service and Union defendants in order to discredit his investigation. According to the complaint, defendants Downey and Cipola "adopted the accusations" made against the plaintiff "in order to insure continued political support" from the Postal Workers Union. [Complaint, August 27, 1979, at 5] The complaint sought damages of $2 million each from Rep. Downey and Ms. Cipola, $10 million each from Donald Stanchfield (Director of Motor Vehicle Craft of the American Postal Workers Union-Hicksville, N.Y. Local), the Union (Hicksville Local), and Anthony Passaro (a Postal Service employee and member of the Union).

On November 2, 1979, the plaintiff filed a motion for a default judgment, asserting that the defendants had not responded to the complaint within the required time. With respect to the Congressional defendants, he contended that service had been accepted on their behalf by a New York attorney, Kevin Brosnahan.

On January 10, 1980, the General Counsel to the Clerk of the House filed an opposition to the plaintiff's motion and moved to be substituted as the counsel of record for the Congressional defendants. In his pleading the General Counsel noted that attorney Brosnahan had not been properly designated as an agent for service of process pursuant to New York law and that therefore mailing of the summons and complaint to him was not service upon the defendants. Furthermore, the General Counsel maintained that the Congressional defendants had several meritorious defenses to the allegations, including absolute immunity under the Speech or Debate Clause;1 statutory permission (under Title 2 of the United States Code) to supervise and terminate Congressional employees, with or without cause; and common law official immunity.

On March 21, 1980, Justice Paul T. D'Amaro of the Suffolk County Supreme Court denied the motion for a default judgment, citing both the "strong public policy favoring a trial on the merits" and the possible meritorious defenses to the action. Additionally, the court noted that the plaintiff had not shown he was seriously prejudiced by the failure of the defendants to answer the complaint in a timely

manner.

On April 4, 1980, the Congressional defendants moved to dismiss the action as to them because the complaint did not contain the exact words allegedly used by Rep. Downey and Ms. Cipola in slandering the plaintiff, as was required by New York law. According to the General Counsel, since the particular words were not pleaded there was no valid claim of slander per se. Second, the defendants contended, they were absolutely immune from common law torts as long as they were acting within the scope of their authority. Finally, the defendants argued, the first cause of action alleged no wrongdoing on the defendant's part and made no allegation of special damages.

1 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]

The plaintiff cross-moved for an order allowing him to replead after discovery the exact words allegedly used by Rep. Downey and Ms. Cipola in slandering him. This was opposed by the Congressional defendants in an affirmation filed on September 23, 1980, which also supported their motion to dismiss the complaint. On October 21, 1980, Judge Orgera denied the motion to dismiss with leave to replead after submission of the proper papers. Subsequently, on February 9, 1981, the General Counsel refiled the motion to dismiss and a supporting memorandum on behalf of the Congressional defendants. Status-The case is pending in the Supreme Court of New York, Suffolk County.

Holy Spirit Association for the Unification of World Christianity v. Fraser

Civil Action No. 78–1153 (D.D.C.)

This suit was filed in the U.S. District Court for the District of Columbia on June 22, 1978 by the Holy Spirit Association for the Unification of World Christianity ("Unification Church") and Bo Hi Pak, a South Korean citizen. Named as defendants in the suit were Donald M. Fraser, a U.S. Representative from Minnesota and Chairman of the Subcommittee on International Organizations of the House Committee on International Relations ("Subcommittee") and two staff members of that Subcommittee, Edwin H. Gragert and Martin J. Lewin.

The complaint contained two counts. The first count alleged a conspiracy by the defendants to deprive the plaintiffs and the members of the Unification Church of their constitutional rights. Specifically, it was claimed that the defendants and other unnamed individuals conspired to deprive the plaintiffs and "all persons associated with the Unification Church and Bo Hi Pak" of their rights of freedom of speech, freedom of association, freedom of expression and freedom of religion. The plaintiffs alleged that Rep. Fraser distributed defamatory materials regarding the plaintiffs; attempted to "deceive and trick" Bo Hi Pak during Pak's testimony before the Subcommittee; caused the payment of fees to witnesses who testified before the Subcommittee; and leaked or permitted leaking of testimony given by Bo Hi Pak in executive session. The plaintiffs claimed that these activities, in addition to violating their rights of freedom of religious. exercise and association, damaged their reputation and resulted in financial damage to them due to curtailment of their activities and a reduction in financial contributions to the Unification Church. As relief under the first count, the plaintiffs sought an injunction barring the defendants from violating or conspiring to violate the plaintiffs' rights under the First, Fourth, or Fifth Amendments and $5 million in compensatory damages and $10 million in punitive damages.

The second count asserted that the defendants deprived the plaintiffs of their constitutional rights. It was also specifically alleged, in addition to the acts alleged in count one. that defendants Gragert and Lewin, representing themselves as architects, fraudulently gained entry to a Washington, D.C. Unification Church building. The plaintiffs claimed that as a result of this action by Mr. Gragert and Mr.

Lewin, their rights to the free expression and exercise of their religion were abridged, their right of free association was impaired, they were subjected to a warrantless search, and they were deprived of the due process of the law. The plaintiffs contended that the activtites complained of in count two also resulted in damage to their reputations and financial harm. Their demands under count two included an injunction, $5 million in compensatory damages and $10 million in punitive damages, the same relief demanded under count one.

On October 10, 1978, the defendants moved to dismiss the complaint or, in the alternative, for summary judgment.

On January 25, 1979, the Unification Church filed an amended complaint, which, while restructuring the allegations of the original complaint, contained each of the allegations set out in the original. Additionally, count one of the amended complaint contained an allegation which had not been made in the original complaint: that Rep. Fraser maliciously and without any valid legislative purpose publicly distributed outside the halls of Congress various materials regarding the plaintiffs, or persons associated with the plaintiffs, which were defamatory and libelous per se. The alleged statements were to the effect that the Unification Church was organized by a director of the Korean Central Intelligence Agency who used it as a political tool; that Colonel Pak "was in trouble because he had attempted to initiate into his church (i.e., to have sexual relations with) the wife of a visiting ROK official"; that the Unification Church interpreted the Bible in sexual terms and maintains that religious experience is interrelated with sex; and that Sun Myung Moon, the leader of the church, was once arrested because of the sexual practices of the church. The plaintiffs claimed in the amended complaint that they advised the defendants that the statements were false and defamatory. The plaintiffs also alleged that the committee, prior to publication of the subcommittee's final report, at the direction of Rep. Fraser, falsely and fraudulently represented to the plaintiffs that subcommittee procedures prevented advance notice and comment on materials to be published.

On April 13, 1979, the Unification Church filed a second amended complaint. While the amended complaint charged only Rep. Fraser with maliciously and without any valid legislative purpose publicly distributing outside Congress various materials regarding the plaintiffs or persons associated with plaintiffs, which were defamatory and libelous per se, the second amended complaint charged all the defendants with this allegation. Also, added to the alleged statements nade by the defendants were statements made by Rep. Fraser during his election campaign for the Senate to the effect that the plaintiffs "may have been responsible for setting fire to Congressman Fraser's Washington home shortly after the Minnesota primary"; that the plaintiffs campaigned against Rep. Fraser in his reelection campaign; and that there were "links between the Korean CIA and Rev. Sun Myung Moon."

Added to the charges previously mentioned in the amended complaint was the assertion that some of the alleged statements were contained in a government document which was printed and distributed, with the approval of defendant Fraser, in a quantity in excess of that reasonably required for the legislative function.

On May 14, 1979, Rep. Fraser, Mr. Gragert, and Mr. Lewin filed a motion to dismiss the second amended complaint, or in the alternative, for summary judgment. The defendants' first argument was that injury to reputation did not constitute a violation of a constitutionally protected right and therefore could not be the basis for a suit for money damages in Federal court. Next, the defendants stated that Rep. Fraser's involvement in the Government publication in question consisted solely of voting in favor of its being published. Citing Doe v. McMillian, 412 U.S. 306 (1973), they argued that under the Speech or Debate Clause,1 one may not challenge a Member's decision to vote to print a publication, even when the number of such publications printed is excessive or goes beyond the reasonable requirements of the legislative function. As to the defamatory statements allegedly made by Rep. Fraser during his election campaign, the defendants contended that the statements did not possess the characteristics of official action necessary to form the basis for any claim of constitutional violations. Finally, the defendants took the position that the plaintiffs were asserting the First Amendment rights of Unification Church members whose claims were not before the court. Thus, said the defendants, the plaintiffs lacked standing.

On June 18, 1979, the plaintiffs filed a memorandum in support of their opposition to the motion to dismiss. They characterized their complaint as being based upon violations of specific First Amendment rights, not upon the common law of defamation, and argued that the action was therefore cognizable by the Federal courts.

On September 21, 1979, the defendants filed a memorandum in reply to the plaintiff's opposition to the defendants' motion to dismiss the second amended complaint. The defendants charged that the suit was vindictive and frivolous and that the plaintiffs' opposition to their motion to dismiss was without merit and was an attempt to cloud the issues with matters that had nothing to do with the plaintiffs' complaint. The plaintiffs, the defendants alleged, for the fourth time attempted to raise issues not previously raised in the lawsuit. The defendants cited Supreme Court decisions in support of their argument that the Speech or Debate Clause was a complete bar to the action.

On October 19, 1979, the plaintiffs filed a memorandum in response to the September 21, 1979 memorandum. The plaintiffs maintained that all matters raised by the defendants had previously been addressed. In addition, the plaintiffs argued that the Speech or Debate Clause did not bar the litigation because the conduct of Rep. Fraser and his staff exceeded the proper functioning of the legislative process. They also reasserted that the unauthorized search of the plaintiffs' church was a violation of their Fourth Amendment rights and that distributing and printing denigrating statements about the plaintiffs violated their First Amendment rights.

There has been no docketed activity in the case since October 1979. Status-The case is pending in the U.S. District Court for the District of Columbia.

1 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]

Food Service Dynamics v. Holtzman

Civil Action No. 79C-2074 (E.D.N.Y.)

During the summers of 1976 and 1977, Food Service Dynamics, Inc. ("FSD"), a New York corporation, participated in the Summer Food Service Program for Children, a Federally-funded feeding program administered by the United States Department of Agricul ture ("USDA"). The services provided by FSD consisted of providing meals to, and managing the food service for, sponsors who provided food services under the program. USDA did not allow FSD to participate in the 1978 summer program.

On July 10, 1979, FSD filed a civil action in the Supreme Court of the State of New York, Kings County, against U.S. Representative Elizabeth Holtzman of New York and three officials of the USDA responsible for the administration of the program for the summer of 1978. The complaint charged that: (1) the USDA defendants unlawfully revoked FSD's registration as a vendor authorized to participate in the program for the summer of 1978; (2) Rep. Holtzman and the USDA defendants conspired to deprive FSD of its right to so participate; and (3) Rep. Holtzman defamed FSD at a June 26, 1978 press conference. With respect to this last claim, FSD charged that Rep. Holtzman stated that: (1) officials of the USDA had approved vendors who previously engaged in questionable bidding practices, including FSD; (2) bidder FSD supplied food for some affiliates of B'nai Torah Instiute, several officers of which were convicted of fraud in the summer feeding program; and (3) the USDA had failed to take action to remove any of the eight caterers accused previously of rigging bids or serving poor food. The complaint sought $6,500,000 in actual damages and $6,000,000 in punitive damages from defendant Holtzman.

On August 8, 1979, Rep. Holtzman and the USDA defendants filed a joint petition and bond for removal to the U.S. District Court for the Eastern District of New York. The petition was subsequently granted.

On September 4, 1979, Rep. Holtzman answered the complaint, denying the material allegations and setting forth certain affirmative defenses. On that same day, Rep. Holtzman served a document request and a notice of deposition on FSD.

In her answer, Rep. Holtzman asserted first that FSD had failed to state any claim upon which relief could be granted. Second, she maintained that the acts alleged in the complaint were committed within the scope of her Congressional office and in furtherance of her duties to investigate and speak out on matters of public interest and to examine and report upon the implementation of legislation. Third, defendant Holtzman claimed her actions were privileged under the Constitution of the United States and Federal common law. Fourth, she argued that the statements made related to matters of public concern, including public health and safety, the administration of a Federally-sponsored program, and the expenditure of Federal funds. Fifth, Rep. Holtzman contended that statements to the USDA mentioned in the complaint were statements regarding matters within the jurisdicion of that agency, which was charged with the responsibility of acting in the public interest in its administration of the program.