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a part of the necessary buildup of manpower for carrying
out either such program, until-

(1) the Secretary of the Navy conducts a com-
prehensive least-cost approach study (A) comparing
the costs of carrying out such programs at public
shipyards with the costs of carrying out such pro-
grams at private shipyards, and (B) evaluating
such other factors as the Secretary of the Navy
considers should be taken into account in assign-
ing work in connection with the conversion, over-
haul, repair, or modernization of vessels to public
or private shipyards;

(2) a written report containing the results of such study is submitted, after the date of the enactment of this Act, to the Committees on Armed Services and on Appropriations of the Senate and the House of Representatives; and

(3) a period of sixty days of continuous session of Congress expires following the date on which such report is submitted to such committees. (Emphasis

supplied.) The complaint further alleged that on January 25, 1979 the Deputy Secretary of Defense submitted a least cost analysis study on the SLEP program to the House and Senate Armed Services and Appropriations Committees. This study did not discuss the DDG-2 program. Instead, the least cost study on the DDG-2 program was submitted on March 13, 1979.

The plaintiff's complaint also stated that the General Counsel of the Navy declared on January 16, 1979, that in his opinion the sixty day time period insofar as the SLEP program is concerned runs from the submission of the SLEP study and does not depend upon the submission of the cost analysis on the DDG-2 program.

Congressman Trible's complaint was predicated on his belief that the defendants would obligate funds to the SLEP program before Congress had an opportunity to review the DDG-2 least cost analysis. Plaintiff stated that such action would violate Section 811 in that Section 811 contemplates that the sixty day period begins to run only when Congress has received the requested studies on both the SLEP program and the DDG-2 program.

In conclusion, the plaintiff claimed that he would be deprived of his legislative prerogative to place limits on federal spending and would be prevented from performing fully his special role as a member of the House Armed Services Committee if the Departments of Defense and Navy were allowed to obligate and expend funds before Congress had an opportunity to review the DDG-2 portion of the study.

Also on March 23, 1979, Congressman Trible filed an application for temporary restraining order and a motion for preliminary injunction.

On April 3, 1979, the Government filed its motion to dismiss or in the alternative for summary judgment.

On April 5, 1979, Congressman Trible filed a cross motion for summary judgment and a declaratory judgment.

On April 6, 1979, the District court denied the motion for preliminary injunction, denied the request for a permanent injunction, granted the defendant's motion for summary judgment and dismissed the complaint.

On the same day, Congressman Trible filed a notice of appeal with the United States Court of Appeals for the Fourth Circuit.

On April 27, 1979 the Court of Appeals issued an order reversing the judgment of the District Court. In its orally delivered opinion the Court first addressed the issue of plaintiff's standing to sue:

With respect to the issue of the standing, we think this case is sui generis in that there has not been a case yet decided that considers whether a member of Congress has standing to litigate about legislation quite of this type, because this legislation not only establishes certain directives to the Secretary of Defense, but it contemplates other possible legislation depending upon what the Secretary reports. The unique feature of this statute is that it has as one of its purposes the furnishing of information to the Armed Service Committees of each of the two houses, coupled with a sixty-day moratorium on the right of the Executive to act in accordance with the manner in which he proposes to act, so as to give members of those Committees or other members of the Congress the opportunity to do any of the myriad things which might be done if they conclude that the Executive Branch of the government has made an incorrect decision on how to proceed. By reason of the nature of this statute it seems to us that, when there is the assertion that the statute is not being complied with, the plaintiff is hurt. And he is hurt in a very concrete way. First of all, we think that his vote on the amendment to § 811 is diluted in a sense that it is nullified, that it is rendered ineffective. And more importantly, if we assume that his construction of $ 811 is the correct one, his future vote on legislation which he might propose, or his right to take other Congressional action by way of resolution or otherwise, is diluted if not definitely nullified because he does not have all the necessary information to be afforded him or the other members of Congress to pro

vide a reasoned and wholly-informed basis on which to act. Next, the court addressed the question of whether the instant controversy presented a nonjusticiable political question. In this regard the court stated:

With respect to the issue of political question, the essential question in this case is a simple one of statute construction, and such a question is the usual grist for the federal judicial mill. We do not doubt that it has political consequences, but we do not think that either the possible political consequences which flow from the possible statutory construction or the fact that the parties are respectively a member of the House of Representatives and a member of the Cabinet, makes the question of statutory construction a political question.

Finally the court turned to the merits of the case. It found that the report required by Section 811 of the Department of Defense Appropriation Authorization Act of 1979 was intended to be a single document. As a result, when the document was transmitted to Congress in sections, the running of the period provided in Section 811 did not begin until transmitted of the last section. Accordingly, the District Court was directed to enter a declaratory judgment to that effect.

Status.—The case has been closed. United States v. Diggs

No. 78-2327 (D.C. Cir.) In March 1978 Representative Charles C. Diggs, Jr. of Michigan was indicted in the U.S. District Court for the District of Columbia. He was charged with 14 counts of violating 18 U.S.C. 1341 (Mail Fraud) and 21 counts of violating 18 U.S.C. $ 1001 (False Statement). Prior to trial the Government dismissed three counts under each statute. 18 U.S.C. § 1341 reads, in pertinent part:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representation, or promises * * for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter; any matter or thing whatever to be sent or delivered by the Post Office Department, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not

more then five years, or both. 18 U.S.C. $ 1001 provides the same penalties for anyone who

in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictituous or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any

false, fictitious or fraudulent statement or entity * * Briefly summarizing the counts of the indictment, counts 1 through 4 alleged that Congressman Diggs engaged in a scheme to defraud the United States by inflating the salary of Felix R. Matlock, a congressional employee, as a means of paying various personal, business, and House of Representative expenses; counts 5 through 7 and 8 through 11 charged that Congressman Diggs placed on the congressional payroll Jeralee Richmond and George Johnson as compensation for services rendered either to defendant Diggs personally or to the family business, the House of Diggs. Counts 12 through 29 alleged that the defendant filed materially false and misleading Payroll Authorization Forms with the House of Representative Office of Finance counts 12 through 20 charged

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that he concealed from the agency the fact that he inflated the salaries of Jean G. Stultz, Felix Matlock, and Ofield Dukes with the intention of using the increase in their salaries to meet his own personal and congressional obligations; and counts 21 through 23 and 24 through 29 charged that the defendant placed George G. Johnson and Jaralee Richmond on the payroll to compensate them for services that were unrelated to the defendant's congressional duties.

On September 26, 1978, the trial began. Congressman Diggs was found guilty on all 29 counts. He was sentenced on November 20, 1978 to serve three years on each count, to run concurrently. Four days later he filed a notice of appeal.

In his appellate brief of May 14, 1979 Congressman Diggs asserted that while it may not be proper to use a portion of an employee's salary to pay a congressman's personal expenses, using a portion of such salary to pay for official congressional expenses is proper because a Member has the discretion to determine both the salaries and responsibilities of employees. In this regard, the defendant noted that the Government, as well as the District Court, took the position that payment of either personal or congressional expenses out of an employee's salary is illegal. This failure to distinguish between salary used to pay official expenses and salary use to pay personal expenses, said the defendant, resulted in Judge Gasch's erroneously instructing the jury that: (a) diverting employee's salaries for payment of congressional expenses is unlawful, and (b) the defendant could not have acted in good faith if, at the time he approved the payroll authorizations of the employees in question, he intended that a portion or official obligations. Accordingly, the defendant sought a reversal of his convictions under counts 1-4 and 12-20. Congressman Diggs also attacked his convictions under in counts 5-11 and 21-29 on the grounds that a congressman's discretien tion to fix an employee's salary and duties cannot be questioned so long as the salary does not exceed the legal limit.

Status.— The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit. United States v. Diggs

Civil Action No. 79-2148 (D.D.C.)

As a follow up to its criminal prosecution (see page 149 of this Report) the United States, in August 1979, filed a three count complaint against Representative Charles Diggs, Jr. of Michigan in the U.S. District Court for the District of Columbia.

Count I alleged that beginning in 1973 the defendant, in his official capacity as a Member of Congress and as Chairman of the Committee on the District of Columbia, hired certain individuals to work for and be paid by the House of Representatives. Representa tive Diggs allegedly placed these individuals on the House payroll at inflated salaries, portions of which they returned to the defendant for his personal use. It was also claimed that the defendant placed two other persons on the House payroll who did little or no work for the federal government or for the defendant in his official capacity, their salaries instead being compensation for services rendered to the defendant personally, to his family, and/or to his personal business, the House of Diggs, Inc. The Government al

leged that Representative Diggs violated 31 U.S.C. § 231 et seq. (False Claims Act) by submitting payroll authorization forms for these employees to the House Finance Office knowing that the forms were false in that they reflected salaries which the employees in question were either not receiving or not legitimately earning.

Count II realleged the accusations contained in the first count and claimed that the defendant was unjustly enriched.

Count III also repeated the allegations of Count I and claimed that the acts complained of constituted breaches by Representative Diggs of his fiduciary duties to the United States.

Under the first count the Government requested that Representative Diggs be ordered to pay the United States double the damages it sustained. These double damages were said to total $240,456. Under the second and third causes of action the Government sought damages of $120,228.

Status.-The case is pending in the U.S. District Court for the
District of Columbia.
American Federation of Labor and Congress of Industrial

Organizations v. Kahn
No. 79-1564 (D. C. Cir.)

In November 1978 President Carter signed Executive Order 12092 directing the Council on Wage and Price Stability ("COWPS") to establish voluntary wage and price standards to combat inflation throughout the economy [43 Fed. Reg. 51375 (1978)]. For a business, the Order stated that noninflationary price increases would be no more than 0.5 percent less than that company's recent rate of average price increase; for workers, noninflationary price increases were defined as no more than a seven percent annual rise. The President ordered the Chairman of COWPS to monitor compliance with these standards and to publish the names of noncomplying companies. The Order also instructed the head of each Executive agency and Military Department to require that all contractors certify that they are in compliance with the wage and price standards. The Office of Federal Procurement Policy ("OFPP') was charged with implementation of the

procurement aspect of the program. The initial wage and price fľ standards announced by COWPS in December 1978 largely folDa lowed the outline of the President's Order [43 Fed. Reg. 60772 21 (1978)].

OFPP issued a policy letter on January 4, 1979, requiring that Government contracts worth more than $5 million and signed after of" February 15, 1979 include certification that the contractor is in

compliance with the wage and price standards [44 Fed. Reg. 12291230 (1979)]. The letter provided that should COWPS find that the standards have not been respected by any such contractor or firsttier subcontractor whose contract exceeds $5 million, the relevant agency head may terminate the contract and the company may be ruled ineligible for future Government business (id. at 1230). In certain limited situations, contract termination or a finding of ineligibility could be waived.

The President invoked Section 205(a) of the Federal Property and Administrative Services Act of 1949 (“FPASA"), as amended. [40

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