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claimed that personal jurisdiction over all defendants derived from 28 U.S.C. § 1391(e) which in pertinent part provides:

A civil action in which a defendant is an officer or employee of the United States on any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may *** be brought in any judicial district in which *

* * (4) the plaintiff resides if no real property is involved in the action * * * On June 4, 1979 the District Court issued its decision. Plaintiffs' request for a preliminary injunction was denied. The Court held that while the necessary subject matter jurisidiction did exist as to all defendants under 28 U.S.C. $ 1331(a), the court lacked personal jurisdiction over Judge Tamm, the Judicial Ethics Committee, and the various federal court clerks. After noting that a split of authority exists as to whether 28 U.S.C. § 3191(e) confers in personam jurisdiction the court stated:

Assuming arguendo that 28 U.S.C. § 1391(e) does confer jurisdiction and venue, the language of the statute is inapplicable to the Judicial Ethics Committee, its Chairman, Judge Tamm, and the clerks of court, who are acting in concert with the Committee. The Second Circuit Court of Appeals has analyzed the language of 28 U.S.C. $ 1391(e) and the statute's legislative history. Liberation News Service v. Eastland, 426 F.2d 1379 (2d Cir. 1970) That Court concluded: "This history demonstrates to us that, in enacting $$ 1361 and 1391(e), Congress was thinking solely in terms of the executive branch, to which alone $ 1391(e) has thus far been judicially applied." 426 F.2d at 1384.

Reading 28 U.S.C. § 1391(e) in pari materia with 5 U.S.C. § 701, further demonstates that § 1371(e) applies to the executive branch only. $ 1391(e) specifically refers to "an officer or employee of the United States or any agency thereof [and] an agency of the United States, or the United States.” The statute that waives sovereign immunity as to the United States, 5 U.S.C. $ 701, provides in pertinent part:

(a) This chapter applies, according to the provisions thereof, except to the extent that

(1) statutes preclude judicial review; or

(2) agency action is committed to
agency discretion by law.
(b) For the purpose of this chapter-

(1) "agency" means each authority of
the Government of the United States,
whether or not it is within or subject to
review by another agency, but does not
include-

(A) the Congress;

(b) the courts of the United
States;
[Emphasis added.)

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*

* *

Thus, the sovereign immunity statute implies that agen-
cies of the United States are those within the executive
branch only and not those within the legislative or judicial
branches of government. This interpretation is applicable
also to the words "an agency of the United States” used in
28 U.S.C. $ 1391(e).

Since 28 U.S.C. $ 1391(e) is applicable to agencies of the
United States within the executive branch, the statute
may confer in personam jurisdiction over the Judicial
Ethics Committee, its Chairman, Judge Tamm, and the
clerks of court, judicial employees acting in concert with
the Committee, only if the Court finds that these defend-
ants are within the executive branch for the purposes of
their duties as delineated under the Act. The Court in-
stead holds that these persons are members of the judicial
branch of government, and are not part of the executive

branch. [Slip Opinion at 5-6.] The court concluded that “the provisions of the [Ethics in Government] Act regulate the responsibilities of the United States, and more specifically, the Attorney General to a secondary status.(Id. at 8.] Thus without Chairman Tamm and the Judicial Ethics Committee before the court any decision by the court on the merits of the case would constitute premature and incomplete relief. The Court, however, ordered that enforcement of the Ethics in Government Act as it applied to plaintiffs be stayed "pending appeal of this decision or a final disposition on the merits before a court with proper in person jurisdiction as to all parties” [Court Order of June 4, 1979 at 1].

On June 6, 1979 the plaintiffs filed a Notice of Appeal to Fifth Circuit Court of Appeals.

Status.—The case is pending before the United States Court of Appeals for the Fifth Circuit. Niron v. Solomon

Civil Action No. 77-1395 (D.D.C.)

This action was originally filed by former President Richard Nixon against Joel W. Solomon, as Administrator of General Services in U.S. District Court for the District of Columbia on August 10, 1977. The complaint sought declaratory and injunctive relief from certain provisions of the Regulations (41 C.F.R. § 105-63) promulgated by defendant pursuant to the Presidential Recordings and Materials Preservation Act (hereinafter “Act”), 44 U.S.C. § 2107 (1976) and from their enforcement by defendant. Nixon amended his complaint on August 19, 1977, in response to amendment of the regulations made on August 12, 1977 to challenge specifically sections 105-63.203, 105–63.204 (d), (e), (f), and (g), 105– 63.302 and 105-73.303 of those regulations. The complaint was again amended on January 31, 1978.

In the second amended complaint, the first and second causes of action, out of a total of 19 causes of action, relate to the role of Congress in enacting Section 104(b) of the Act and in the promulgation of the regulations pursuant thereto. Mr. Nixon asserts, in the first cause of action, that Section 104(b) and all of the regulations promulgated pursuant thereto are unconstitutional, void, and violate his rights and privileges in that:

(a) Section 104(b) on its face violates the Separation of Powers doctrine embodied in Articles I, II and III of the United States Constitution by reserving to Congress the power to disapprove regulations promulgated to administer an act, which is an Executive function and not within Congress' power under Article 1;

(b) Section 104(b) on its face constitutes an unlawful delegation of legislative power to one House of Congress;

(c) Section 104(b) on its face illegally permits Congress to evade the presidential veto requirements of Article I, § 7, clauses 1, 2, and 3 of the Constitution by taking actions having the effect of laws but without following lawful legislative procedures;

(d) Section 104(b) on its face violates Article I of the Constitution and the Separation of Powers doctrine by reserving to each House of Congress the power to change at any time the rules set by the Act under which proposed regulations may be disapproved, thereby permitting either House of Congress to accomplish an amendment of the Act without the signature of the President or a congressional override of a presidential veto; and

(e) Section 104(b) on its face purports to endow a House of Congress with powers outside those specifically enumerated in Article I of the Constitution or necessary and proper to such specifically enumerated powers. (Nixon v. Solomon, C.A. No. 77-1395 (D.D.C.), Second Amended Com

plaint For Declaratory and Injunctive Relief at 5-6.] The second cause of action asserts that Section 104(b) of the Act is unconstitutional as applied in this case because Congress, under color of Section 104(b), improperly, unlawfully and unconstitutionally influenced the promulgation of regulations under the Act, in derogation of plaintiff's rights and privileges.

The Justice Department filed its answer on April 14, 1978. In regard to the first and second causes of action, the Justice Department "admitted" these paragraphs of the complaint "in that the fourth and now effective set of regulations are, in part or in whole, the product of the exercise of the Congressional one-House veto provided by Section 104(b) of the Act." (Answer at 2.]

The Reporters Committee for Freedom of the Press, American Historical Association, American Political Science Association, James MacGregor Burns, Nat Hentoff, Donald G. Herzberg, William Leuchtenberg, Arthur Link, J. Anthony Lukas, Austin Ranney and Clement E. Vose moved to intervene as defendants on April 24, 1978. The motion was granted on June 14, 1978.

All counsel in the case filed a status report on February 14, 1979, in which they stated that they had reached an agreement to settle all but two of Mr. Nixon's claims. Under the agreement, the Administrator of General Services would submit to the Congress various modifications of the regulations involved in the case. The

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agreement would not become final unless and until the modifications became effective. During the intervening period, all issues in the litigation would be held in abeyance, except the two issues about which no agreement had been reached; specifically, whether the tape recorded presidential conversations may be made generally available for public listening, and whether materials which are claimed to be diaries are to be treated as inherently private or personal and therefore returned without any further archival processing. No material would be publicly disclosed until the agreement became final. Mr. Nixon agreed to file a third amended complaint confined to those issues and, when the agreement became final, to dismiss each of the claims set forth in the second amended complaint. He also agreed, with regard to the tape access and diary issues to be set forth in the third amended complaint, not io contend that the regulations are unconstitutional or void because promulgated subject to the one-House veto provision of the act. In this regard, defendants agreed not to contend that congressional acceptance of the regulations supports their validity. In the event of termination of the agreement, however, the parties agreed that the pleadings may be amended to raise such claims.

On March 7, 1979, Mr. Nixon moved for leave to file a third amended complaint.

On March 13, 1979, Mr. Nixon was granted leave to file a third amended complaint, which he filed. On that same day.

Pursuant to the agreement of February 14, 1979, Mr. Nixon asserted his claims against the various proposed modifications of the regulations to be submitted to the Congress, which dealt with the two issues about which no agreement had been reached.

As to the issue, of whether materials which are claimed to constitute diaries are to be treated as inherently private or personal and therefore returned without any further archival processing, Mr. Nixon asked that the Court enter an order:

(i) permanently enjoining defendant, his agents or assigns, from aurally reviewing the contents of [Mr. Nixon's] personal diary in any form, other than by the limited identification of each dictabelt or portion of a recording as part of said diary by listening to the introductory phrase "Memorandum to file-not to be transcribed,” and further enjoining defendant, his agents or assigns, from retaining portions, or copies of portions, of said personal diary; and (ii) declaring that any aural review of defendant, his agents or assigns, of the contents of plaintiff's personal diary, other than by the limited identification of each dictabelt or portion of a recording as part of said diary by listening to the introductory phrase "Memorandum to file-not to be transcribed,” or any retention by defendant, his agents or assigns, of any portion or copy of any portion of said diary, is violative of Mr. Nixon's) constitutional, statutory and common law rights, or in the alternative that the Act, as applied to [Mr. Nixon's) personal diary, is violative of [Mr. Nixon's right of privacy under the First, Fourth and Fifth Amendments. [Nixon v. Solomon, C.A. No. 77-1395 (D.D.C.) Third Amended Complaint For Declaratory and Injunctive Relief at 6.].

As to the issue of whether the tape recorded presidential conversation may be made generally available for public listening, Mr. Nixon asserted that the proposed new Section 105-63.404(c) of the Act, “is unnecessary to the Act's purpose, violates the presidential privilege of confidentiality, is an unwarranted invasion of [his] right to privacy under the First, Fourth and Fifth Amendments, violated [his) statutory and common law rights and irreparably harms [his common law and statutory right to control the dissemination of his voice." [Id. at 5.]

On March 19, 1979, the intervenor-defendants filed their answer to Mr. Nixon's third amended complaint.

On March 29, 1979, Mr. Solomon filed his answer to Mr. Nixon's third amended complaint.

On May 4, 1979 Mr. Nixon filed a motion for partial summary judgment as to Counts III and IV of his third amended complaint. The motion embraced the two remaining issues, to wit: (1) the processing safeguards to be accorded Mr. Nixon's personal diaries, and (2) the time, place and manner in which the substance of the presidential tape recordings would be made available to the general public.

First, the plaintiff argued that diary-type recordings could be readily distinguished from recordings made in connection with his official presidential duties in that the former were prefaced by certain triggering phrases, e.g. "Memorandum to the private file. Suspected diary tapes could be listened to intermittently in order to make certain that they were indeed diary tapes. Thus, according to the plaintiff, the alleged "word by word” examinations presently being conducted by the archivists constitute an unnecessary and unlawful invasion into Mr. Nixon's private affairs. Second, Mr. Nixon attacked § 105.63.404(c) which provides for the placement of the ex-President's tape recorded presidential conversations in eleven regional listening centers throughout the country where they may be heard by the general public. He charged that the defendant was obligated to attempt to balance Mr. Nixon's privacy interests with the public's interest in having access to the tapes. This balancing act would require the defendant to select the method of disclosure least intrusive upon Mr. Nixon's privacy. In this regard, Mr. Nixon suggested three less intrusive alternatives to the system established by the defendant.

On June 1, 1979 defendant Solomon filed a cross-motion for partial summary judgment. On June 8, 1979 the intervenor defendants did likewise. These motions addressed Counts III and IV of the third amended complaint. In arguing that the plaintiff's privacy rights were not being invaded by the archival screening process, Mr. Solomon said,

[Contrary to Mr. Nixon's contentions, the affidavit of Richard A. Jacobs demonstrates that archivists at GSA have reviewed over 600 dictabelts in the defendant's possession and none of these dictabelts have conclusively contained the so called 'trigger' words or phrases referred to by the plaintiff in his affidavit. Indeed, none of the dictabelts reviewed by the archivists to date contains any information which can at this time be categorized legitimately as private or personal or part of a diary maintained by the

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