Gravel v. United States; Doe v. McMillan; Eastland v. United Servicemen's Fund. Rusack v. Harsha No. 77-1137 (M.D.Pa.) On December 16, 1977, plaintiff, Samuel Rusack, a United States Navy civilian employee working as a Supervisory Contract Negotiator at the United States Navy Ships Parts Control Center (hereinafter "SPCC") filed a defamation action in the U.S. District Court for the Middle District of Pennsylvania. The action named as defendants Representative William H. Harsha, Stanley L. Bishop, P. J. Kanistros, and Poli-Com, Inc. All of the defendants filed motions to dismiss. Representative Harsha filed a motion to dismiss or alternatively for summary judgment. On December 14, 1978, in a memorandum and order issued by the District Court granted Congressman Harsha's motion to dismiss and rejected those of the other defendants. The facts are reported in the court's memorandum and order, which states in pertinent parts: * According to plaintiff's affidavit, he is a Supervisory Contract Negotiator * at the SPCC. His authority is derived from the Armed Forces Procurement Regulations, ***. He is one of eleven individuals who have buying and contracting officer authority at the SPCC. His duties include solicitations and requests for proposals. Furthermore, as a contracting officer at a purchasing office such as the SPCC * he is authorized to enter into contracts in the name of and on behalf of the United States Government * * * * * * ** Defendant Harsha is a Representative in the United It was this August 3d speech which Mr. Rusack alleged contained defamatory material, specifically that he was charged therein with dishonest and illegal conduct, fraudulent and unethical practices and collusion and conspiracy to defraud. Following the speech, Congressman Harsha wrote a letter to Admiral T. J. Allhouse, commanding officer at the SPCC seeking material concerning the award which was part of the basis for the August 3d speech. The Admiral sent a substantial volume of material to Congressman Harsha. This material was made available to Mr. Bishop by Congressman Harsha for his determination of whether it was responsive to the Congressman's request. Mr. Bishop determined that the material was not fully responsive and on August 31, 1977, Congressman Harsha sent a second letter to Admiral Allhouse. In this letter Congressman Harsha sought additional material and made several statements about Mr. Rusack which Mr. Rusack alleged were defamatory. Congressman Harsha claimed, and Mr. Rusack did not contest that neither he nor his staff distributed the letter to the general public. The SPCC, responding to Congressman Harsha's letter sent additional information to the Congressman. The material was again analyzed with Mr. Bishop's help. After Mr. Bishop had analyzed the material and presented his analysis to a member of Congressman Harsha's staff, that staff member edited it and submitted it to the Congressman. The Congressman made some final editorial changes and presented it to the Clerk of the House for publication in the Congressional Record. Mr. Rusack charged that the material inserted in the Record contained defamatory material. Mr. Rusack further alleged that after placing the two speeches in the Record, Congressman Harsha maliciously distributed and caused to be republished the text of the speeches. Congressman Harsha responded that he sent copies of his correspondence with the SPCC, and their responses along with copies of his speeches from the Record to the U.S. Attorney for the District of Columbia, the Attorney General, and the Office of the Secretary of Defense. Other than that transmittal and the ordinary circulation of the Congressional Record, Congressman Harsha denied any republication or distribution of the two speeches. The court, in its opinion of December 14, 1978, noted three categories into which the activities complained of by Mr. Rusack could be divided: (1) the insertion of the two speeches into the Congressional Record and the general distribution of those Congressional Records; (2) the August 31, 1977 letter to Admiral Allhouse; and (3) the forwarding by defendant Harsha of the copies of the two Congressional Records and copies of the correspondence between himself and the SPCC to the United States Attorney General, the United States Attorney and the District of Columbia, and the Office of the Secretary of Defense. The court further noted the grounds on which Congressman Harsha sought dismissal: Summary judgment was sought on the grounds: (1) that all the activity is absolutely privileged under the Speech or Debate clause; (2) that reports of alleged criminal behavior to appropriate executive officials is constitutionally privileged; and (3) that criticism of plaintiff Rusack is privileged under the First Amendment because the plaintiff is a public official and the record establishes that there is no "New York Times malice." [Rusack v. Harsha (771127), Slip Opinion at 16.] Turning first to the assertion that Congressman Harsha's actions were protected by Speech or Debate Clause immunity, the court noted that Mr. Rusack conceded that Congressman Harsha's speeches and their publication in the Congressional Record were activities which were absolutely privileged and protected by the Clause. The letter of August 31, 1977 to Admiral Allhouse, the court concluded, was also protected by the Speech or Debate Clause. The court declared: The August 31, 1977 letter to Admiral Allhouse is also behavior which is encompassed by the Clause. It has long been held that investigation by a Congressman regarding issues over which legislation may be had is legitimate legislative activity and, therefore, protected by the Speech or Debate Clause. See Eastland v. United States Servicemen's Fund, 421 U.S. 491, 504 (1975), Doe v. McMillan, 412 U.S. 306 (1973); Watkins v. United States, 354 U.S. 178 (1957); McGrain v. Daughterty, 273 U.S. 135 (1927), McSurely v. McClellan, 553 F.2d 1277, 1286-8 (D.C. Cir. En Banc 1976); writ of cert. dismissed as improvidently granted 46 U.S.L.W. 4878 (June 26, 1978). The power over appropriations and expenditures is at the heart of the business of Congress. Article 1, Section 8, Clause 13 of the United States Constitution specifically gives Congress power over the maintenance of the Navy. Knowing how the Navy spends the money allotted to it by Congress is essential if Congress is going to be able to exercise its power with any competency. Defendant Harsha's letter to Admiral Allhouse was an attempt to get needed information, and as such, it must be afforded the protection of the Clause. [Slip Opinion at 18-19. (Footnotes omitted.)] Further, finding that the forwarding of the copy of the letter to Admiral Allhouse and the two Congressional Records to the United States Attorney for the District of Columbia, the United States Attorney General, and the Office of the Secretary of Defense is protected under other constitutional provisions, the court decided not to reach the question of whether it is encompassed by the Speech or Debate Clause. The court declared that where the complaint alleged that plaintiff was defamed by defendant Harsha in regard to the performance of his (plaintiff's) official duty, specifically alleging that Mr. Harsha accused plaintiff of violating 18 U.S.C. §1001, the whole thrust of the complaint and the brief in opposition to the motion was that defendant Harsha had accused plaintiff of criminal acts. To this the court concluded: The right to inform federal officials of possible violations of federal law continues to be constitutionally protected. See United States v. Guest, 383 U.S. 745, 771, 779 (1966), Harlan, J., concurring in part and dissenting in part; Brennan, J. concurring in part and dissenting in part; Williams v. Allen, 439 F.2d 1398 (5th Cir. 1971). I believe that the letter to Admiral Allhouse and the forwarding of the materials to the United States Attorney for the District of Columbia, the United States Attorney General, and the Office of the Secretary of Defense are protected by this constitutional right to inform, afford defendant immunity, and, hence, cannot form the basis of a defamation action. [Slip Opinion at 21. (Footnotes omitted.)] Finally the court addressed the question of whether Congressman Harsha's statements and letters were protected by the First Amendment. The court first found that Mr. Rusack was a public official. The court declared: [i]t is *** evident that he is intimately involved in the expenditures of public funds, a matter of great importance so that there is an interest in his qualifications and performance beyond the interest which might be associated with any governmental employee. He is, therefore, a public official and since the allegedly defamatory remarks dealt with his performance as such an official the New York Times malice standard must be applied. [Slip Opinion at 23-24.] Reviewing the facts, the court concluded that, as a matter of law, there could be no finding of malice against the Congressman. In conclusion, the court declared: In sum, legislative immunity protects defendant Harsha from suit based on the two speeches, their insertion in the Congressional Record, and the letter to Admiral Allhouse. The right to inform creates a constitutional immunity from suit for the letter to Admiral Allhouse and the forwarding of the material to the United States Attorney General, the United States Attorney for the District of Columbia, and the Office of the Secretary of Defense, and the Constitutional privilege of the First Amendment encompasses all the behavior upon which this action is based because, as a matter of law, plaintiff is a public official and there can be no showing of New York Times malice based on the facts in the record. [Slip Opinion at 27.] On April 16, 1979 all parties filed a stipulation to dismiss the action with prejudice. Status.-The case is closed. The opinion of the District Court is printed in the "Decisions" section of the report Court Proceedings and Actions of Vital Interest to the Congress, current to December 31, 1978. Davis v. Passman No. 78-5072 (U.S. Supreme Court) Plaintiff, Shirley Davis, served as deputy administrative assistant on the staff of Representative Otto E. Passman from February 1, 1974 through July 31, 1974, on which date her employment was terminated. She filed this complaint, naming then-Representative Passman as defendant, in the U.S. District Court for the Western District of Louisiana on August 7, 1974, alleging that she had been discriminatorily dismissed from defendant's Congressional staff because of her sex, in violation of her constitutional rights under the Fifth Amendment. Plaintiff supplemented her complaint with a letter from the defendant, in which Mr. Passman indicated, in dismissing her, that he had concluded "it was essential that the understudy to my Administrative Assistant be a man." Representative Passman filed a motion to dismiss the complaint, stating: (1) The alleged conduct of the defendant is not violative of the Fifth Amendment; (2) the law affords no private right of action to plaintiff; and (3) the doctrines of official and sovereign immunity bar any action against the defendant. In a hearing on February 24, 1975, U.S. District Judge Tom Stagg, of the U.S. District Court for the Western District of Louişiana, dismissed plaintiff's complaint on the grounds that it failed to state a claim against Mr. Passman upon which relief could be granted. The court held that the alleged sex discrimination by Mr. Passman did not violate the Fifth Amendment to the Constitution and that the law affords no private right of action to plaintiff. The court further held, however, that Mr. Passman's defense of sovereign and official immunity was not well founded. Mrs. Davis filed an appeal with the U.S. Court of Appeals for the Fifth Circuit on March 20, 1975. Representative Passman filed his response with the Court of Appeals on June 9, 1976. While supporting the District Court's decision to grant his motion to dismiss, he reasserted his contention that the doctrines of "sovereign and official immunity" are a bar to Mrs. Davis' claim. The Court of Appeals in its decision of January 3, 1977, rejected Representative Passman's assertions of sovereign, official and Speech or Debate Clause immunity. After determining that the allegations asserted by Mrs. Davis would, if proven, constitute a violation of her constitutional rights, the majority took up the question of whether the claim was one upon which relief could be granted. The court noted that Mrs. Davis was seeking three types of relief: specific relief, damages, and a declaratory judgment. * * * "" Turning first to the question of specific relief the court noted that there were three remedies requested: reinstatement, promotion, and an injunction against unlawful discrimination. Of those three remedies only the claim for an injunction "might raise a sovereign immunity issue [Davis v. Passman, 544 F.2d at 865, 871 (5th Cir. 1977).] The court further noted that Representative Passman's defeat in his bid for re-election has caused Mrs. Davis' requests for reinstatement and a promotion to lose their significance. "That the term is not yet completely over saves the specific-relief claims from technical mootness * [544 F.2d at 872.] As for Mrs. Davis' claim for damages the court found that damages would be an appropriate remedy for the allegation of constitutional violation and that Representative Passman's assertions of immunity were not well taken. As to whether sovereign immunity would bar recovery, the court concluded that the damages sought were against Representative Passman individually, not against the United States. The court declared: "When, as here, an action seeks to impose liability upon a Government official in an individual capacity, sovereign immunity poses no bar. Although sovereign immunity sometimes shields the U.S. Treasury from a plaintiff's claims, it does not protect the personal checkbook of an individual Government official to any extent at all." [544 F.2d at 877.] Turning next to the question of whether Speech or Debate Clause immunity was an absolute shield against the action, the court stated that such immunity was available only for actions taken in the legislative process. The court concluded that "repre |