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when he was convicted of violating $ 203 in the prior criminal proceeding. Further, if a civil cause of action did lie it would lie under the restitution statute 18 U.S.C. § 3651(16)(2), not $ 203. As to Count III, Mr. Eilberg asserted that his actions regarding personal phone calls did not constitute false claims within the meaning of the Act. He reasoned that the second clause of $ 231 prohibits using fraudulent vouchers to obtain the payment of “such claim” and that the term "such claim” refers to, and means, a false claim as mentioned in the first clause. Thus, since the phone company's bill to the Clerk of the House was clearly not a false claim, using a fraudulent voucher to obtain payment for the phone bill would not violate the statute. Secondly, the defendant cited 2 U.S.C. $ 95 which reads, in part, “Payments made upon vouchers approved by the Committee on House Administration of the House of Representatives, *** are declared to be conclusive upon all the departments and officers of the Government.” The word “conclusive”, he said, precludes the Government from questioning the propriety of documents submitted by a Member in connection with payments made to a third party out of the contingency fund. Moreover, such questioning is also barred by the Speech or Debate Clause of the Constitution.
In July, 1979 Lawrence Corson and Allan Getson filed a motion for leave to intervene in the case as plaintiffs. They argued that as the defendant's former law partners they, and not the Government, would be entitled to any legal fees improperly received by Mr. Eilberg. Both the Government and the defendant opposed the motion for leave to intervene.
Also in July, the United States filed its memorandum in opposition to the motion to dismiss. In defending Counts I and II the Government stated that it was not asserting an implied right of action arising out of the defendant's conviction under 18 U.S.C. $ 203. Rather, those counts were based on the common law which provides the Government with remedies for breach of a fiduciary duty by one of its agents. The Government also said that the purpose of Counts I and II was not to restore funds to the Government, but to enforce the loyalty of its agent. In response to Mr. Eilberg's challenge to Count III, the Government took the position that the term "such claim” refers to any claim, not just one which is false. Lastly, plaintiff asserted that the use of the telephone is not a protected legislative activity under the Constitution and that the legislative history of 2 U.S.C. § 95 reflects no Congressional intention to bar a cause of action under the False Claims Act.
In August, 1979 the Government filed a motion for a determination of materiality and relevancy of documents called for in a subpoena to be issued to the Clerk of the House. Through the subpoena the U.S. would seek to obtain the defendant's telephone records from May 1973 through January 1978.
This motion was opposed by the Clerk of the House on the grounds that the separation of powers and political question doctrines preclude the court from issuing a finding of materiality and relevance for the documents in question. The Clerk also challenged the request as being overbroad and infringing upon the confidentiality of legislative branch records.
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Mr. Eilberg also opposed the Government's motion and adopted the arguments put forth by the Clerk.
Status.—The case is pending before the U.S. District Court for the Eastern District of Pennsylvania. Holy Spirit Association for the Unification of World Christianity v.
This suit was filed in the U.S. District Court for the District of Columbia on June 22, 1978. Plaintiffs are the Holy Spirit Association for the Unification of World Christianity, (hereinafter “the Unification Church") and Bo Hi Pak, a South Korean citizen. Named as defendants in the suit are Donald M. Fraser, a former U.S. Representative from Minnesota and chairman of the Subcommittee on International Organizations of the House Committee on International Relations (hereinafter “Subcommittee”) and two staff members of that Subcommittee, Edwin H. Grogert and Martin J. Lewin.
The complaint contains two counts. The first count alleges a conspiracy by defendants to deprive the plaintiffs and the members of the Unification Church of their constitutional rights. Specifically, it is claimed that defendants and other unnamed individuals have conspired to deprive plaintiffs and “all persons associated with the Unification Church and Bo Hi Pak" of their rights of free speech, freedom of association, freedom of expression and freedom of religion. Plaintiffs allege that Congressman Fraser distributed defamatory materials regarding plaintiff, 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 claim 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, plaintiffs seek an injunction barring defendants from violating or conspiring to violate plaintiffs' rights under the First, Fourth, or Fifth Amendments and $5 million in compensatory damages and $10 million in punitive damages.
The second count asserts that defendants have deprived plaintiffs of their constitutional rights. It is also specifically alleged, in addition to the acts alleged in count one, that defendants Grogert and Lewin, representing themselves as architects, gained entry to a Washington, D.C., Unification Church building.
Plaintiffs claim that as a result of this action by Grogert and Lewin, their rights to the free expression and exercise of their religion were abridged, their right of free association was impaired, they were subject to a warrantless search, and they were deprived of the due process of the law. Plaintiffs contend that the activities complained of in count two also resulted in damage to their reputations and financial harm. Their demands include an injunction, $5 million in compensatory damages and $10 million in punitive damages under count two, the same relief demanded under count one.
On October 10, 1978, defendants moved to dismiss the complaint or, in the alternative, for summary judgment.
On January 25, 1979, the Unification Church filed an amended complaint. The amended complaint, while restructuring the allegations of the original complaint, contains each of the allegations set out in the original. Additionally, count one of the amended complaint also contains allegations which had not been made in the original complaint. The allegation is made in the amended complaint that Congressman Fraser intentionally and maliciously and without any valid legislative purpose publicly distributed outside the halls of Congress various materials regarding plaintiffs, or persons associated with plaintiffs, which were false, 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 has 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 interprets 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. Plaintiffs claim in the amended complaint that they advised defendants that the statements were false and defamatory. Plaintiffs also allege that the committee, prior to publication of the subcommittee's Final Report, at the direction of Congressman Fraser, falsely and fraudulently represented to plaintiffs that subcommittee procedures prevented advance notice and comment on materials to be published.
On March 14, 1979, the court having found that the plaintiffs’ amended complaint should be clarified before defendants are required to file a responsive pleading or motion, ordered that plaintiffs file a more definite statement setting out those facts on which they intend to rely.
On April 13, 1979, the Unification Church filed a second amended complaint. While the amended complaint charged only Congressman Fraser with intentionally and maliciously and without any valid legislative purpose publicly distributing outside Congress various materials regarding plaintiffs or persons associated with plaintiffs which were false, defamatory and libelous per se, the second amended complaint charged all the defendants with this allegation. Also, added to the alleged statements made by defendants were statements allegedly made by Congressman Fraser during his election campaign for the Senate to the effect that plaintiffs "may have been responsible for setting fire to Congressman Fraser's Washington home shortly after the Minnesota primary"; that the plaintiffs campaigned against Fraser in his reelection campaign; and that there were "links between the Korean CIA and Rev. Sun Myung Moon.'
Added to the charges previously alleged in the amended complaint was the assertion that some of the allegedly libelous statements were contained in a government printed document, which document 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 Congressman 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 does not constitute a violation of a constitutionally protected right and therefore cannot be the basis for a suit for money damages in federal court. Next, the defendants stated that Congressman Fraser's involvement in the government publication in question consisted solely of voting in favor of its being published. Citing Doe v. MacMillian, 412 U.S. 306 (1973), they argued that because of the Speech or Debate Clause, one may not challenge a Member's decision to vote that a publication be printed, 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 Congressman Fraser during his election campaign, the defendants contended that the alleged statements do not posses 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 are asserting the First Amendment rights of Unification Church members whose claims are not before the court. Thus, said the defendants, the plaintiffs lack 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.
Status.—The case is pending in the U.S. District Court for the District of Columbia. United States er rel. Joseph v. Cannon
No. 78-1618 (D.C. Cir.)
This suit was filed March 15, 1977, by a private citizen, Joel D. Joseph, pursuant to 31 U.S.C. $$ 231 and 232 (the False Claims Act), which allows a private citizen to file a claim on behalf of the United States against any person making a false claim for money upon the United States. Anyone convicted under Section 231 shall pay and forfeit $2,000, plus double the amount of damages the United States may have suffered as a result of the false claim, as well as the costs of the suit. Under Section 232, the relator is required to notify the Justice Department of the suit and the Justice Department is then allowed 60 days in which to take over the case. If an appearance is entered by the United States, the private citizen may be awarded fair and reasonable compensation, in amount not exceeding one-tenth of the amount recovered, for disclosure of information or evidence not in the possession of the United States when the suit was brought. If the case is not taken over by the United States, the relator may be awarded up to onefourth of the amount recovered as compensation for his services.
Defendant Howard W. Cannon is a U.S. Senator from Nevada. Chester B. Sobsey, Administrative Assistant to Senator Cannon, is also named as a defendant in the suit.
The complaint alleges that from March of 1975 to November 1976, defendant Sobsey worked extensively and exclusively on Sen
ator Cannon's re-election campaign or on related tasks not part of Senator Cannon's official duties, and that Senator Cannon knowingly authorized and Sobsey knowingly accepted regular pay for services ostensibly performed as Senator Cannon's Administrative Assistant during this period, although such services
were not performed or otherwise performed in a perfunctory or nominal manner.” [Complaint at 3.] It is further alleged by the complaint that during this period
and at other times
*" Senator Cannon:
had other members of his staff perform services to him
nevertheless paid with public funds. (Complaint at 3.) The relator's complaint contends that the alleged acts constitute violation of 31 U.S.C. § 231.
On May 27, 1977, the Justice Department declined to enter an appearance on behalf of the United States. On June 7, 1977, defendants filed a motion to dismiss.
On May 25, 1978, District Court Judge Bryant filed a memorandum and order granting the motion of defendants to dismiss the action. As to plaintiff's first claim, the court found that it had no jurisdiction under the terms of the False Claims Act, since that act denies jurisdiction over private false claims if the evidence or information on which the suit is based was already in the possession of the Government. In the instant case, the information in question was already in the possession of the Government, since Senator Cannon had filed with the Secretary of the Senate and publicly disclosed that Mr. Sobsey was an aide authorized to receive and distribute campaign contributions.
In regard to the claim of fraud, Judge Bryant held that plaintiff had failed to state a claim upon which relief may be granted since plaintiff failed to point to one specific instance in which a member of Senator Cannon's personal staff was paid out of public income for personal tasks.
Mr. Joseph filed a notice of appeal on May 26, 1978.
The case came before the Court of Appeals for oral argument on June 18, 1979.
Status.—The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit. Moreau v. Tonry
No. 76-3290 (E.D. La.)
On October 2, 1976, a runoff primary was held for the Democratic nomination for the U.S. House of Representatives for the First Congressional District of Louisiana. The apparent winner of the runoff, Richard Tonry, then defeated the Republican candidate in the general election on November 2, 1976, and was seated as a Member of the 95th Congress on January 4, 1977.
From the runoff primary election three civil actions have arisen.
In the first action, James Moreau, the other candidate in the runoff primary, brought suit in the State District Court pursuant to the Louisiana election statute (La. R.S. 18:364). [Moreau v. Tonry, No. 28-837 (25th Jud. Dist. Ct. of Parish of St. Bernard, La. Oct. 15,