§ 46 (g). The Clerk interposed three major objections to the applicability of the statute. First, he argued, the statute was no longer valid law, having been superseded in effect by numerous House Administration Committee Orders (issued pursuant to its statutory authority under 2 U.S.C. § 57 (a)) which varied the terms of the telephone allowance. Second, he maintained, even if the statute was not a nullity, the Committee had virtually abandoned it for purposes of regulating the telephone allowance. Finally, he contended that the legislative history of 2 U.S.C. § 57 revealed no intent to do anything other than apportion responsibility between the full House and the Committee on House Administration regarding allowances, and did not support the contention that the Government was to be involved in the regulation of the House allowance system.

In rebuttal, the Government asserted that the Committee had exercised its authority under 2 U.S.C. § 57 only to regulate changes in the amounts of allowances, and it did not thereby render the "strictly official" limitation contained in 2 U.S.C. § 46 a nullity.

On June 26, 1980, District Judge Pollak granted the July 1979 motion of Lawrence Corson and Allan Getson, Rep. Eilberg's former law partners, to intervene in the case. In a memorandum accompanying the order, Judge Pollak ruled that the existing parties clearly would not represent the interests of Messrs. Corson and Getson, that they had "an interest in" the property that was the subject of the suit (the distributive share of the law firm's fee paid by Hahnemann), and that their ability to protect that interest would, as a practical matter, be impaired if they were not permitted to intervene.

On July 25, 1980, a second hearing was held in the district court. on the Government's motion for a determination of materiality and relevancy of documents called for in the subpoena to be issued to the Clerk of the House. The arguments related to the effect of 2 U.S.C. § 46 (g).

On September 30, 1980, Judge Pollak issued an order denying the defendant's motion to dismiss the complaint and granting the Government's motion for a determination of materiality and relevancy of documents. On October 22, 1980, the Judge handed down a 52 page opinion in support of his order. [United States v. Eilberg, 507 F. Supp. 267 (E.D. Pa. 1980)]

With regard to Rep. Eilberg's dismissal motion, the court ruled that even though no statutory cause of action existed to support the first and second claims for relief (seeking Rep. Eilberg's share of the Hahnemann fee based on a theory of either a breach of fiduciary duty or of his implied agency contract with the United States), the Government had an implied Federal common law remedy for a Federal official's alleged fraud. In so holding, Judge Pollak rejected the defendant's contention that Congress had fashioned a particular statutory remedy for the benefit of the United States as a companion to successfully-maintained criminal proceedings (18 U.S.C. § 218), and that this remedy was preemptive, foreclosing the pursuit by the Government of any pre-existing common law remedies for Rep. Eilberg's acknowledged crime. The court concluded:

Reliance on Section 218 to oust the common law cause of action is not only syntactically vulnerable, it imputes to Con

gress a policy judgment which has no discernible supporting
rationale. Section 218 comes into play after a conviction under
Section 203 or some cognate provision of Chapter 11 of Title
18. Under Mr. Eilberg's reading of Section 218, a criminal
conviction would not make rescission of a tainted grant an
available remedy additional to recoupment from the public
malefactor of his illicit fee. It would insulate the malefactor
from recoupment, in exchange for a remedy of rescission very
frequently not directed at the malefactor and whose invoca-
tion might in many instances be deemed by the President or
his surrogate not to be in the interests of the United States.
[507 F. Supp. at 271]

Turning next to Rep. Eilberg's claim that 2 U.S.C. § 95 precluded the use of the False Claims Act to recover for alleged fraudulent reimbursement from the House contingent fund, Judge Pollak, citing U.S. v. Bramblett, 348 U.S. 503 (1955), ruled that "Congressmen enjoy no general exemption from judicial pursuit for pressing false claims on the federal fisc ... [and] section 95 should not be read to bar effective implementation of the Act." [Id. at 273] The Judge also found that Rep. Eilberg's alleged false certification constituted a false "claim" within the meaning of the False Claim Act.

Finally, Judge Pollak rejected the Clerk's contentions regarding a finding of materiality and relevancy concluding that the "strictly official" limitation of 2 U.S.C. § 46 (g) was still in effect and that the executive and judicial branches could determine whether Members' phone calls had been properly charged to the House. After a lengthy review of the legislative history of the relevant provisions, and with particular emphasis on the Senate's concurrence in their enactment, the court concluded:

Against this background of Senate housekeeping legislation, it overwhelms credulity to attribute to the Senate in 1971 the intention, via Section 57 of Title 2, to liberate Members of the House from the statutory directive that chargeable longdistance telephone calls be "strictly official."

I therefore conclude-on the basis of the legislative record both in the House and in the Senate-that Members of the House are today, and have been at least as far back as 1949, constrained by a statutory norm of "officialness" in determining which credit card telephone calls are properly chargeable to the United States and, per contra, which the United States is entitled to reimbursement for. [Id. at 284]

At the same time, the court also rejected the Clerk's more basic argument that even if the "strictly official" limitation still was on the statute books, enforcement through litigation of a statutory norm governing the House's internal housekeeping involved a delegation of House authority to the executive and the judicial branches which was incompatible with the separation of powers and political question doctrines. In finding the third claim for relief justiciable, Judge Pollak noted that "the prevailing congressional practice has for several decades been to delegate much of the policing of the behavior of Senators and Representatives to the executive and the judiciary." [Id. at

27, Only those "legislative acts" protected by the Speech or Debate Clause Lave been immune from inquiry: not all activity incidental to the exercise of these central legislative functions has been so protected. the coort med

Although the court held that the Clerk must comply with the subpoena, it concluded the opinion with the following footnote:

The granting of this motion resolves the over-all question of justiciability; it is not to be understood as precluding the Clerk from questioning the "materiality" and or "relevancy" of particular documents falling within the letter of the United States' broad subpoena. Nor is the granting of the motion to be understood as precluding the Clerk, or Mr. Eilberg, from raising such particularized "Speech or Debate" contentions as may be thought to render some proposed evidence inadmissible. [Id. at 287, n. 13]

Discovery has continued in this case through the first months of

1981.

Status-The case is pending in the U.S. District Court for the Eastern District of Pennsylvania.

The complete text of the October 22, 1980 opinion of the district court is printed in the "Decisions" section of this report at p. 608. Hansen v. National Commission on the Observance of International Women's Year

No. 78-2210 (9th Cir.)

On September 21, 1977, Congressman George Hansen of Idaho filed suit in the U.S. District Court for the District of Idaho to enjoin the National Commission on the Observance of International Women's Year ("Commission") from spending Federal funds for allegedly prohibited lobbying activities. Along with the Commission, nine cabinet members, the Administrator of the General Services Administration, the Chairman of the Federal Reserve System, the Administrator of NASA, and the Director of the United States Information Agency were named as defendants. The complaint alleged that the agencies headed by these defendants disbursed Federal funds to the Commission which were used for proscribed lobbying purposes, including efforts in state legislatures to ratify the Equal Rights Amendment. In addition to temporary and permanent injunctive relief, the complaint sought an order of mandamus to compel each agency head to institute proceedings to recover from the Commission all funds which were allegedly improperly disbursed, and an accounting of the funds along with an order directing the Commission to reimburse the Treasurer of the United States for those amounts purportedly unlawfully expended.

On January 23, 1978, the Federal defendants filed an opposition to the request for a temporary injunction and a motion to dismiss on behalf of all defendants. In a memorandum accompanying these motions, the defendants asserted that the action merely repeated allegations which had previously been raised in other cases and dismissed. Additionally, the defendants contended that Rep. Hansen lacked standing to bring the action and that the complaint failed to state a

claim upon which relief could be granted. Finally, the defendants argued that the activities complained of did not violate the anti-lobbying provisions of the relevant statutes (P.L. 94-167 and 94-303), and that therefore the plaintiff was unable to demonstrate the likelihood of success on the merits and, as a result, was not entitled to injunctive relief.

On the standing issue, the memorandum declared that Rep. Hansen's claim that his official position as a House Member conferred upon him a special access to the Federal courts had been "uniformly rejected". Like other taxpayers and citizens, the defendants argued, Rep. Hansen had to demonstrate a "distinct and palpable injury to himself" to gain access to the Federal courts. In this case, however, Rep. Hansen had demonstrated at most no more than a "generalized grievance" shared in substantially equal measure by a large class of citizens. That, according to the defendants, was an insufficient basis for standing.

With respect to the issue of interagency funding, and the plaintiff's claimed lack of an adequate remedy at law, the memorandum asserted that "it is up to the Congress and the Comptroller General, not the plaintiff, to take remedial action, if any is necessary." [Memorandum in Support of Federal Defendants' Motion to Dismiss, January 23, 1978, at 11]

On the question of whether the Commission violated the antilobbying provisions of its relevant governing statutes, the defendants' memorandum contended that U.S. Supreme Court decisions had clearly defined the term "lobbying" to mean solely "representations made directly to the Congress, its members, or its committees" (United States v. Rumley, 345 U.S. 41, 47 (1953)), not the "expansive and erroneous" list of activities noted in the complaint such as contact with state legislatures regarding the Equal Rights Amendment. The defendants concluded on this point by arguing that if the Commission was not in violation of the anti-lobbying provisions, "it stands to reason that other federal agencies by virtue of funding the National Commission are also not in violation of any anti-lobbying provisions applicable to them. The plaintiff therefore fails to state a claim upon which relief can be granted." [Id. at 16]

Finally, with respect to the question of injunctive relief, the defendants contended that while Rep. Hansen faced no serious harm if it were not granted, the Commission would be injured in an immediate and irreparable manner if it were prevented from discharging its statutory obligations.

On February 27, 1978, Rep. Hansen filed an opposition to the defendants' motion to dismiss. The memorandum articulated various theories in support of according standing to the plaintiff including through a qui tam interest under 31 U.S.C. § 231 (False Claims Act.) (This was not pleaded in the original complaint.) On policy grounds, the plaintiff asserted:

The meaning of the statutes at issue can be decided only by this Court, and the only way to bring the issue before it is through a Congressional Plaintiff. As has been shown, such a plaintiff sustains a special injury when Congressional policy is ignored. The public suffers a broader injury, of

course, but Members of Congress lose the effectiveness of the
Constitutional right to make legislative policy when the Ex-
ecutive abrogates its oath to uphold the laws of the land.
Members of Congress lose their prerogative to legislate, all the
more, when they are denied access to the Courts over the pre-
cise issue of whether enforcement of one of their enactments
will lie. [Opposition to Defendants' Motion to Dismiss, Feb-
ruary 27, 1978, at 4]

The memorandum also argued that Congress clearly intended the anti-lobbying provisions to apply to the activities in which the Commission was involved, particularly the lobbying of state legislatures for passage of the Equal Rights Amendment.

On the same day that the plaintiff's opposition memorandum was filed, U.S. District Court Judge McNichols issued an order, without opinion, denying the request for a temporary injunction and granting the defendants' motion to dismiss the complaint. [Hansen v. National Commission on the Observance of International Women's Year, Civil Action No. 77-1158 (D. Idaho, February 27, 1978)]

On April 28, 1978, the plaintiff filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit, and subsequently filed a statement of issues on appeal which identified the questions to be considered as whether the court had subject matter jurisdiction; whether the plantiff had standing; whether the Commission had engaged in prohibited "lobbying activities"; and whether the plaintiff would suffer irreparable harm if an injunction was not issued. In their briefs, the parties essentially reiterated the arguments made in the district court. In their January 3, 1979 brief, the defendants did note additionally, however, that the question of injunctive relief was moot, since under its enabling statute the Commission terminated its existence on March 31, 1978.

Oral argument was held in April, and on September 18, 1980, the court of appeals issued its opinion affirming the district court decision. [Hansen v. National Commission on the Observance of International Women's Year, 628 F.2d 533 (9th Cir. 1980)] District Judge Spencer Williams, sitting by designation, stated that Rep. Hansen had no standing to bring the suit. He explained:

The injury alleged by appellant is an injury which he suffers along with all other citizens of the United States. He has not presented any facts which show he has sustained or is imminently in danger of sustaining an actual personal injury. Since appellant has suffered only an injury in the abstract, standing cannot be invoked. Schlesinger v. Reservists, 418 U.S. at 217-219, 94 S.Ct. at 2930–2931. [628 F.2d at 534]

The court also held that the Congressman did not state a cause of action under the False Claims Act since he had not alleged that the defendants had fraudulently taken the money from the United States. That act, the court found, was limited to actions involving false demands (for either payment of money or the transfer of property) that had been presented to an official of the United States for appraisal.

Status-The case is closed.