EXPLANATORY NOTE

The following summaries represent an attempt to highlight the most important-and relevant-principles of law involved in each case. They are not intended to be exhaustive of all issues raised or decided during the litigation. It is important to note that many of these cases are pending or are on appeal, and therefore that the holding of the court may be reversed or modified in the future. If the case has not been closed, its status is shown in brackets following the summary. In instances where the court has not yet rendered a decision, the most significant issues raised in the litigation have been indicated.

Allen v. Department of Defense [Not Reported] (D.D.C. 1983)

(1) Copies of materials relating to the investigation of the House Select Committee on Assassinations, generated by Congress but in the possession of the CIA, are protected from disclosure under the Freedom of Information Act when both the circumstances attending the creation of the documents, and the manifestation of Congressional intent when the documents were given for safekeeping to the CIA, demonstrate that Congress has retained control of its documents. (2) Memoranda, reports, and other correspondence specifically created by an agency in response to Congressional requests remain subject to release under the FOIA notwithstanding Congress' intent to control the documents. (3) Preexisting CIA documents, not generated by Congress or created by the agency in response to Congressional requests, are agency records disclosable under the FOIA. (4) A court will not decide whether the Speech or Debate Clause protects materials sought from an agency under the FOIA where no Member of Congress seeks to intervene as a party in the action or alleges impairment of the legislative process as a result of the plaintiff's FOIA request, and where the Clerk of the House appears in the case solely as amicus curiae. [This case is pending in U.S. District Court, although these holdings are final.] Allen v. Department of Defense [Not Reported] (D.D.C. 1981)

There is no authority or necessity for retaining the Clerk of the House of Representatives as a party defendant in a Freedom of Information Act suit seeking agency documents relating to a House committee investigation. [This case is pending in U.S. District Court, although this holding is final.]

Allen v. Federal Bureau of Investigation [Not Reported] (D.D.C. 1982)

(1) Copies of correspondence or records of communication between the Federal Bureau of Investigation and the House Select Committee on Assassinations relating to the Select Committee's investigation into the assassination of President Kennedy, and other

FBI documents pertaining to the Committee's investigation, do not constitute Congressional-and therefore nondisclosable-records under the Freedom of Information Act where letters from the Committee Chairman and the Clerk of the House (written after the Committee expired), a nondisclosure agreement, and a memorandum of understanding do not indicate a sufficient assertion of Congressional intent to retain control over the documents. (2) Communications sent from the Committee to the FBI in pursuit of a lawful Congressional investigation are an integral part of the deliberative and communicative process of Congress and are protected from disclosure by the Speech or Debate Clause of the U.S. Constitution. (3) FBI investigatory records, created before the Committee's existence and provided to the Committee, are outside the protection of the Clause. [This case is pending in U.S. District Court.]

American Family Life Assurance of Columbus v. American Broadcasting Companies, Inc. (S.C. N.Y County, N.Y.)

Issues raised.-(1) Are Congressional committee staff members liable under a conspiracy theory in a defamation suit arising out of their actions during a committee investigation? (2) What constitutes proper service of process on Congressional defendants in a suit in state court in New York? [This case is pending in the State Supreme Court in New York County, N.Y.]

American Foreign Service Association v. McPherson [Not Reported] (D.D.C. 1983)

(1) A person adversely affected by the failure of an Executive branch agency to comply with a statutory requirement that proposed regulations be sent to Congress for 90 days probably has no standing to contest the agency's action. (2) Statutory requirements that proposed agency regulations be sent to Congress for 90 days before becoming effective may be constitutionally permissible. Arieff v. Department of the Navy, 712 F.2d 1462 (D.C. Cir. 1983)

(1) Records concerning the distribution of prescription drugs by the Department of the Navy to the Office of the Attending Physician to the U.S. Congress cannot be withheld from disclosure under Exemption 6 of the Freedom of Information Act (5 U.S.C. § 552(b)(6)) as constituting a clearly unwarranted invasion of personal privacy where it is a "mere possibility" that the knowledge that someone among the 600 possible recipients is probably using a particular drug will lead to a conclusion that the person has a specific disease. (2) Under the FOIA, an item of exempt information does not insulate from disclosure the entire document or file in which it is contained. [This case is pending in the U.S. Court of Appeals for the District of Columbia Circuit.]

Benford v. American Broadcasting Companies, Inc., 565 F. Supp. 139 (D. Md. 1983)

The Clerk of the House of Representatives can and will be held in civil contempt of court for failure to comply with a subpoena duces tecum requiring production of certain Congressional investigative documents, even if the House passes a resolution directing the Clerk not to comply with the subpoena, particularly where the

court provides the Clerk with an opportunity to raise Speech or Debate Clause claims and the Clerk does not act. [Enforcement of the contempt fine has been stayed by the U.S. Court of Appeals for the 4th Circuit where this matter is currently pending on appeal.] Benford v. American Broadcasting Companies, Inc., 98 F.R.D. 42 (D. Md. 1983)

(1) In the absence of a detailed index reflecting the documents and portions of documents purportedly coming within the protection of the Speech or Debate Clause of the U.S. Constitution, a court will not allow a Congressional committee to intervene in a case and grant a protective order against a subpoena served on the Clerk of the House seeking committee documents. (2) A committee's request for intervention is inappropriate where the application of the Speech or Debate Clause to the case has already been reviewed extensively and where defendant Congressional aides can themselves assert the privilege and adequately represent the committee's interests. [This case is pending in U.S. District Court.] Benford v. American Broadcasting Companies, Inc., 554 F.Supp. 145 (D.Md. 1982), appeal dismissed, 707 F.2d 504 [table] (4th Cir. 1983)

(1) Congressional committee staff investigators are not entitled to qualified immunity under the holding of Harlow v. Fitzgerald, 102 S. Ct. 2727, for the surreptitious taping, and subsequent broadcast on national television, of a meeting between themselves and an individual under investigation since their actions violated clearly established statutory rights under the Maryland wiretapping statute and the Federal eavesdropping statute of which a reasonable person would have known. (2) Although the Harlow case is inapplicable to common law tort claims, Congressional staff investigators are also not entitled to qualified immunity from such claims unless they can demonstrate that their challenged conduct was legitimately authorized by Congress or was part of the deliberative or legislative process. [The U.S. Supreme Court has been asked to review the 4th Circuit's dismissal of the appeal of these holdings as interlocutory.]

Benford v. American Broadcasting Companies, Inc. [Not Reported] (4th Cir. 1981), cert. denied, 454 U.S. 1060 (1981)

(1) The surreptitious taping of a meeting between Congressional commitee staff investigators and an individual under investigation, and the subsequent broadcast of portions of the taped meeting on national network news are not absolutely protected by the Speech or Debate Clause of the U.S. Constitution since they are not an integral part of the deliberative and communicative processes of the committee. (2) The "informing function" of Congress cannot be used as a justification for protecting the publication of materials injurious to private individuals. [This case is pending in U.S. District Court, although these holdings are final.]

Bodenmiller v. Stanchfield, 557 F. Supp. 857 (E.D.N.Y. 1983)

(1) Complaints to a Member of Congress about the conduct of his subordinates with whom the complainer has had official dealings

constitute speech protected by the First Amendment. (2) Because a Member of the House is empowered under 2 U.S.C. § 92 to appoint, supervise, and terminate employees with or without cause, neither the threat of suspension or discharge nor the actual suspension or discharge of an employee by that Member can be described as unlawful conduct. [This case is pending in the U.S. Court of Appeals for the 2d Circuit.]

Bodenmiller v. Stanchfield (S.C. Suffolk County, N.Y.)

Issue raised.-Are a Member of Congress and his staff aide absolutely immune from liability for common law torts such as slander as long as they are acting within the scope of their official duties? [This case is pending in the State Supreme Court in Suffolk County, N.Y.]

Brown v. American Broadcasting Co., Inc., 704 F.2d 1296 (4th Cir. 1983)

(1) Counts of a complaint charging Congressional committee staff members and others with violations of the Federal eavesdropping statute, business interference, and defamation (arising out of their actions during a committee investigation) will be dismissed if not brought within the applicable statute of limitations. (2) Although defendant committee staff members and ABC employees consented to having a meeting with the plaintiff recorded (without her knowledge), they were not protected by the consent exception to liability under the Federal eavesdropping statute if they acted willfully with a criminal, tortious, or injurious purpose-a question of fact for the jury. [After remand to U.S. District Court, the judge granted a directed verdict in favor of the Congressional defendants and the jury found in favor of the ABC employees.]

Common Cause v. Bolger (formerly Bailar, formerly Klassen) [Not REPORTED] (D.D.C. 1982), affirmed, 461 U.S. — (1983)

The Congressional franking statute is not unconstitutional under the First Amendment to the U.S. Constitution or under the General Welfare Clause of Article I, Section 8 despite the fact that it authorizes the distribution of partisan political literature by incumbent Members of Congress at public expense.

Common Cause v. Bolger (formerly Bailar, formerly Klassen) 512 F. Supp. 26 (D.D.C. 1980)

(1) "Prudential considerations" will not bar an action challenging the administration of the Congressional franking statute on constitutional and statutory grounds where the case does not involve major, discretionary policy decisions but rather involves decisions by the Postmaster General and Secretary of the Treasury to implement specific statutory language. (2) In such a suit, the Speech or Debate Clause does not preclude discovery of Congressional documents and testimony relating to the use of the franking privilege for political purposes.

Consumer Energy Council of America v. Federal Energy Regulatory Commission, 673 F.2d 425 (D.C. Cir. 1982), affirmed, sub nom. Process Gas Consumers Group v. Consumer Energy Council of America, 103 S. Ct. 3556 (1983)

The legislative veto provision of section 202 of the Natural Gas Policy Act of 1978, which allows incremental pricing rules of the Federal Energy Regulatory Commission to take effect only if neither house of Congress adopts a resolution disapproving such rules, violates Article I, Section 7 of the Constitution by preventing the President from exercising his veto power and by permitting legislative action by only one house of Congress. Section 202 also violates the separation of powers doctrine by usurping essential functions of the Executive and Judicial branches. [This case remains pending in the U.S. Supreme Court on petition for rehearing.]

Consumers Union v. Federal Trade Commission, 691 F.2d 575 (D.C. Cir. 1982), affirmed, sub nom. U.S. House of Representatives v. Federal Trade Commission and U.S. Senate v. Federal Trade Commission, 103 S. Ct. 3556 (1983)

The legislative veto provision of section 21(a) of the Federal Trade Commission Improvements Act of 1980 (15 U.S.C. § 57a-1(a)) which allows Congress, by means of a concurrent resolution, to nullify proposed rules issued by the Federal Trade Commission violates the separation of powers doctrine and the procedures established by Article I for the exercise of legislative powers.

Crockett v. Reagan, 588 F. Supp. 893 (D.D.C. 1982)

(1) A cause of action under the War Powers Resolution (50 U.S.C. 88 1541, et seq.) challenging the provision of U.S. military aid to El Salvador is non-justiciable because of the nature of the fact finding which would be required for a court to determine whether U.S. forces have been introduced into hostilities or imminent hostilities in that country; Congressional, rather than judicial, fact finding is required in such a case. (2) Such an action does not, however, present a political question involving potential judicial interference with Executive branch discretion in the foreign affairs field as long as the Members of Congress filing the suit are seeking to enforce existing law concerning the procedures for decision making. (3) The legislative scheme does not contemplate court-ordered withdrawal of U.S. forces when no report has been filed by the President under the War Powers Resolution, but rather leaves open the possibility for a court to order that a report be filed, or, alternatively, withdrawal 60 days after a report was filed or required to be filed by a court or Congress. (4) A suit by Members of Congress under section 502B of the Foreign Assistance Act of 1961 (22 U.S.C. § 2034) challenging the provision of U.S. military aid to El Salvador is barred by the court's equitable discretion doctrine because the Members' dispute is primarily with their fellow legislators who have authorized aid to that country. [This case is pending in the U.S. Court of Appeals for the District of Columbia Circuit.]