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sion. To rule otherwise, would transform virtually every dis-
missal from state or federal employment into a matter pro-
tected by the fifth or fourteenth amendment. [Id. at 2-3]

The court also disagreed with Ms. Boland's contention that Rule 11.6(b) "entitled" her to her position with the Committee. Judge Richey reasoned:

Although Ms. Boland was subject to termination at will by a majority of the Committee, the conditions attaching to her dismissal do not serve to create the type of interest which the fifth amendment protects. She was basically in a non-tenured position which lacked the slighest guarantee of permanence. Because under committee rules she could have been dismissed at any time, for any reason, she had no property interest in her job protected by the constitution [Id. at 3]

The court found that the failure of the Committee to comply with its own rules did not alter the outcome. "Rule 11.6 (b) is merely a procedural mechanism to effectuate dismissal at will", Judge Richey declared. "To declare that Ms. Boland had a property interest in the rule and that defendants' alleged impropriety deprived her of this "property"—would bootstrap procedure into property." [Id. at 4]

In the same order, Judge Rickey denied the defendants' motion to disqualify Richard Sprague as Ms. Boland's counsel.

On January 18, 1980, the plaintiff filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit. [No. 801085] On February 15, 1980, the defendants filed a notice of crossappeal from that part of the order denying their motion to disqualify plaintiff's counsel. [No. 80-1203] The cases were subsequently consolidated.

On June 24, 1980, the defendants moved to dismiss their appeal in No. 80-1203. On July 16, 1980, Chief Judge J. Skelly Wright granted the motion.

In No. 80-1085, the issues have been briefed and oral argument scheduled. The questions presented in the district court were again raised by the parties on appeal: (1) Does the Speech or Debate Clause provide immunity on the facts of this case?; (2) Did Ms. Boland's dismissal violate her due process rights under the Fifth Amendment even though no reason was given for her termination and there was no allegation that the defendants had publicly disseminated the reason for her firing?; and (3) Did the lower court err in failing to permit Ms. Boland to prove that she was foreclosed from future employment?

Ms. Boland's brief, filed on August 4, 1980, argued again that the "right to seek employment unimpaired by any unreasonable arbitrary or capricious Governmental restrictions is a basic liberty interest protected by the due process clause of the fifth amendment." [Appellant's Brief, August 4, 1980, at 8] she contended that she was deprived of this constitutional right when she was not told of the reasons for her discharge. Further, Ms. Boland asserted, even though there was no allegation that information regarding her termination was disseminated publicly by the Committee, her claim was not barred since, in any event, the stigma which attached to her dismissal from Government employment directly impacted on her ability to pursue her chosen

profession. Finally, she contended that the district court acted prematurely under the Federal Rules in dismissing the complaint without allowing her to present "pertinent evidence" that her liberty to seek and obtain future employment had been impaired.

The defendants in their brief filed on October 8, 1980, reiterated their arguments that: (1) the action was barred by the Speech or Debate Clause, and (2) the complaint failed to allege any infringement of a protected liberty interest. As to the first point, the defendants contended again that the decision to terminate Ms. Boland was made "in the performance of the legislative business of Congress" [Appellees' Brief, October 8, 1980, at 4], and to allow suit would "undermine the doctrine of separation of powers and would interject the judiciary into the full range of daily employment decisions made by the legislative branch of government." [Id. at 12] As to the second point, the defendants argued that even if the action were not barred by the Speech or Debate Clause, the complaint should be dismissed because "[m]ere speculation that the absence of stated reasons for dismissal from employment permits prospective employers to imply a full range of adverse reasons is insufficient to constitute a claim upon which relief can be granted." [Id. at 5] They concluded that "the failure to allege a stigmatizing reason for her dismissal or a dissemination of dismissal reasons by appellees is dispositive of appellant's claim." [Id. at 22]

In a subsequent reply brief, the plaintiff argued that her dismissal was not in fact "legitimate legislative activity" protected by the Speech or Debate Clause and that no legislative immunity applied under the facts of the case. "No distinction', said Ms. Boland, "exists between Davis [v. Passman] and the instant case." [Appellant's Reply Brief, October 24, 1980, at 7]

Status-The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit. Oral argument was scheduled for April 14, 1981.

The complete text of the December 19, 1979 order of the district court is printed in the "Decisions" section of this report at page 283. Boland v. Blakey (11)

Civil Action No. 80-2068 (D.D.C.)

On August 15, 1980, Colleen T. Boland filed a second civil action in the U.S. District Court for the District of Columbia against the House Select Committee on Assassinations ("Committee"), each Member of the Committee, and Robert Blakey, the Chief Counsel and Staff Director of the Committee. (For a synopsis of the proceedings in the initial Boland v. Blakey action, No. 78-1921 (D.D.C.), see page 187 of this report.) The complaint was based on the same facts as gave rise to the first action and sought damages against the defendants, both individually and in their official capacities, for violation of Ms. Boland's Fifth Amendment rights arising out of the defendants' allegedly wrongful termination of her from her position on the Select Committee. The complaint was in fact identical to the initial complaint with two exceptions. First, in this case, Ms. Boland sued the defendants as individuals, and sought damages directly from their personal assets as distinct from damages from the Federal Government. Second, in this suit, Ms. Boland alleged only a deprivation of her "liberty interest" as protected by the Fifth Amendment, while in the first action she alleged a violation of both her liberty and property interests.

By way of relief, Ms. Boland asked for damages equal to all unpaid wages due her, with interest, from the date of her termination until the present. She also sought expungement of any reference in her employment record to the termination, compensatory damages, reasonable costs and attorneys' fees.

On January 27, 1981, five of the fourteen defendants filed a motion to dismiss the complaint. (Although the arguments in the motion applied to all the defendants, the remaining defendants had not yet been served and therefore no response was filed on their behalf. Subsequently, when two further defendants were served, by motion on March 27, 1981, they joined in the earlier motion to dismiss.)

1

The motion to dismiss contended that the complaint was defective for three reasons: (1) the action was barred by the Speech or Debate Clause of the Constitution; 1 (2) the plaintiff had failed to identify any infringement of a constitutionally protected liberty interest; and (3) the action was barred by the doctrines of res judicata and/or collateral estoppel based on the earlier Boland v. Blakey suit. In a memorandum in support of the motion to dismiss, the defendants, on the first two points, made essentially identical arguments to those briefed in connection with the appeal in the initial suit. (For a discussion of these arguments, see page 191 of this report.)

On the res judicata point, the defendants argued that dismissal by the district court of the earlier claim against defendants in their official capacities should bar the plaintiff from litigating the same claim against them in their individual capacities, regardless of the outcome of the pending appeal. Citing recent case law, the defendants contended that the failure to raise all claims arising from a single course of conduct at the same time barred the suit. Otherwise, they intimated, litigants would seek redress in piecemeal fashion, thus wasting the time and resources of the courts and needlessly burdening defendants. Status-The case is pending in the U.S. District Court for the District of Columbia.

Lewis v. Chisholm

No. 79-1153 (D.C. Cir.)

O'Dell Lewis, a former legislative assistant for U.S. Representative Shirley Chisholm of New York, along with his ex-wife Judy Ann Lewis, filed this suit in the U.S. District Court for the District of Columbia on February 3, 1978. Named as defendants were Rep. Chisholm; Carolyn J. Smith, Rep. Chisholm's administrative assistant; Muriel Morrissey, chief legislative assistant for Rep. Chisholm; and Colleen O'Connor, press secretary for Rep. Chisholm during the period of Mr. Lewis' employment with the Congresswoman.

The complaint contained five counts. Count I alleged that Mr. Lewis was discharged from his position on Rep. Chisholm's staff because of his sex. Such discharge was said to violate the House Fair Employment Practices Agreement.2 Count II charged employment discrimin

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. 11

2 The House Fair Employment Practices Agreement, which Rep. Chisholm allegedly signed on July 1, 1976. states. in pertinent part: "We the undersigned, hereby agree that we will not fall or refuse to hire. discharge, or otherwise discriminate against, any individual with respect to his or her compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, national origin, age, parental or marital status, or handicap: or because she or he has opposed any practice, has made a charge, testified, assisted, or participated in any manner in any investigation or proceeding under this agreement."

ation based on sex, in violation of the Fifth Amendment. Count III claimed Ms. Smith falsely and injuriously submitted a derogatory statement about the plaintiffs to the U.S. Department of Labor. Count IV alleged interference with a prospective advantage and defamation on the basis of a letter allegedly sent by Rep. Chisholm to a prospective employer of Mr. Lewis. Count V asserted a claim of libel and slander based on statements allegedly made to a reporter for the New York Post and printed in that newspaper.

The complaint sought $50,000 in compensatory damages, $500,000 in punitive damages, and an order prohibiting the defendants from making statements concerning the plaintiffs.

Defendants Chisholm, Smith and O'Connor filed an answer on February 23, 1978. Included in the answer was a counterclaim by defendant Smith for compensatory and punitive damages in the amount of $250,000. The counterclaim alleged that Mr. Lewis' claim against Ms. Smith was spurious, malicious, and brought in bad faith, solely for the purpose of harassing Ms. Smith.

Defendant Morrissey filed a separate answer on February 27, 1978. On March 8, 1978, the plaintiffs filed an answer to Ms. Smith's counterclaim.

On October 17, 1978, the defendants filed a motion to dismiss the complaint in which they argued that an action for money damages could not be brought under the due process clause of the Fifth Amendment. In support of this contention the defendants cited the Fifth Circuit's opinion in Davis v. Passman, 571 F.2d 793 (1978) (en banc). The district court agreed, and on November 29, 1978 the complaint was dismissed.

On June 22, 1979, the plaintiffs filed a motion for summary reversal with the U.S. Court of Appeals for the District of Columbia circuit. The plaintiffs cited the U.S. Supreme Court opinion in Davis v. Passman, 442 U.S. 228 (1979) reversing the decision of the Fifth Circuit. On August 24, 1979, defendant Morissey consented to the plaintiffs' motion for summary reversal.

On September 10, 1979, the court of appeals granted the motion for summary reversal and remanded the case to the district court for further proceedings.

On October 6, 1980, the district court ordered the case dismissed. with prejudice for failure by the plaintiffs to appear at their deposition and to serve answers to interrogatories.

On October 14, 1980, the plaintiffs filed a motion opposing the motion to dismiss. On the same day, the plaintiffs also filed a motion for a protective order and to reconsider the order of October 6, 1980. The plaintiffs' motion to reconsider was denied by Judge Robinson on October 17, 1980.

Status-The case is closed.

Chadha v. Immigration and Naturalization Service

No. 77-1702 (9th Cir.)

Jagdish Rai Chadha, a native of Kenya, was lawfully admitted to the United States as a student in 1966. When his authorized period of stay expired in 1972, he was summoned by the Immigration and Naturalization Service ("INS") to show cause why he should not be deported pursuant to section 241 (a) (2) of the Immigration and Na

tionality Act ("INA") (8 U.S.C. § 1251 (a) (2)). A hearing was held before an immigration judge on January 11, 1974, at which Mr. Chadha requested a suspension of deportation pursuant to section 244 (a) (2) of the INA (8 U.S.C. § 1254 (a) (2)).

On June 25, 1974, the immigration judge issued his decision, ordering that the deportation be suspended pursuant to section 244(a) (1). Section 244 (a) (1) provides that suspensions may be granted when an alien: (1) has been physically present in the United States for at least 7 years immediately preceding his application; (2) is of good moral character; and (3) would suffer extreme hardship if deported. (Although this authority is granted to the Attorney General, it has been delegated to "immigration judges," with an appeal to the Board of Immigration Appeals.)

Once the decision to suspend deportation is made, notice of the action is transmitted to Congress with a detailed explanation and justification for the decision. The suspension does not become effective until the close of the session of Congress following the one in which the decision is transmitted, and then only if during both sessions neither House has passed a simple resolution disapproving the decision, pursuant to section 244 (c) (2) of the INA.

Mr. Chadha and five aliens whose deportation had been suspended by immigration judges lost their suspensions when on December 12, 1975, the House of Representatives passed House Resolution 926 [95th Cong., 1st Sess. (1975)]

On August 4, 1976, the immigration judge ordered Mr. Chadha deported pursuant to the House resolution. The Board of Immigration Appeals affirmed the order on February 11, 1977.

Mr. Chadha filed a petition for review of the deportation order with the U.S. Court of Appeals for the Ninth Circuit on July 18, 1977. The filing of the petition automatically stayed his deportation.

The petition challenged the constitutionality of the one-house veto as contained in INA section 244 (c) (2). It argued that neither the constitutional provisions granting Congress the power to regulate immigration nor the Necessary and Proper Clause of the Constitution empowers Congress to contravene other constitutional provisions, and it asserted that the one-house veto did this in three ways. First, section 244 (c) (2) violated the separation of powers doctrine. The petitioner claimed that the constitutional history of this doctrine demonstrated that one branch cannot perform the functions or control the performance of another, and that since section 244 (c) (2) allowed a single House of Congress to perform nonlegislative functions and control the actions of an executive agency, it was unconstitutional.

Next, Mr. Chadha argued, section 244 (c) (2) deprived the President of the opportunity to exercise his veto power under Article I, Section 7. The Framers of the Constitution, said Mr. Chadha, intended that a single executive would be given the opportunity to veto every Congressional action having the effect of law. Thus, since section 244 (c) (2) was not subject to Presidential veto, it was unconstitutional.

Finally, Mr. Chadha claimed that the one-house veto provision violated the requirement of a bicameral legislature. According to Mr. Chadha, the Framers of the Constitution intended that every power of the legislative branch not expressly granted to a single house would be exercised by both concurrently. Therefore, since section

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