clause and the doctrine of separation of powers render this case uniquely appropriate for adjudication in the federal courts under a federal cause of action. Much of the Bivens opinion concerns the difficulties and inadequacies of state court or state law adjudications of federal immunities in the context of constitutional claims; that reasoning is, if anything, even more powerful with respect to the issues presented here. [Slip Opinion at 3528; (footnote omitted).] Mrs. Davis filed a petition for writ of certiorari with the United States Supreme Court on July 17, 1978. The petition characterized the issues upon which the writ was sought as whether a cause of action for money damages may be implied directly from the Fifth Amendment where there is no alternative remedy available and, if so, whether the Speech or Debate Clause bars the suit. The petition for writ of certiorari was granted on October 30, 1978. On December 14, 1978, the American Civil Liberties Union filed a brief as amicus curiae urging reversal. Twenty-nine Members of the House of Representatives and three employees of the House of Representatives also filed a brief as amicus curiae urging reversal on December 14, 1978. The Representatives were Morris Udall, Patricia Schroeder, Charles Rose, Les AuCoin, Berkley Bedell, David Bonior, William M. Brodhead, George E. Brown, Jr., John H. Buchanan, Jr., Yvonne Brathwaite Burke, Robert Carr, John Conyers, Ronald V. Dellums, Thomas Downey, Robert F. Drinan, Don Edwards, Dante B. Fascell, Dale E. Kildee, William Lehman, Edward J. Markey, George Miller, Anthony Moffett, Richard Nolan, Leon Panetta, D. J. Pease, Fred Richmond, Bruce F. Vento, Harold L. Volkmer, and Ted Weiss. Mrs. Davis filed her brief on December 18, 1978. Former Congressman Passman filed his brief on January 18, 1979 to which Mrs. Davis filed a reply brief on February 13, 1979. The case was argued before the Supreme Court on February 27, 1979. On June 5, 1979 The Supreme Court issued its decision. By a vote of 5 to 4 the holding of the Fifth Circuit Court of Appeals, en banc, was reversed. The opinion, delivered by Justice Brennan, stated first, that the Equal Protection component of the Due Process Clause of the Fifth Amendment confers on plaintiff a federal constitutional right to be free of sex discrimination; second, that plaintiff is a member of the class of litigants who may use the courts to enforce that right i.e. plaintiff has a cause of action; and third, that relief in damages constitutes an appropriate form of remedy. It was on these last two points that the Supreme Court differed with the Fifth Circuit. As to the question of whether plaintiff has a cause of action, the opinion noted that in determining that no clause of action exists, the Fifth Circuit had erroneously relied on the criteria set out in Cort v. Ash, supra. Those criteria, said the Court, apply to statutorily created rights, not constitutional rights: Statutory rights and obligations are established by Congress, and it is entirely appropriate for Congress, in creating these rights and obligations, to determine in addition who may enforce them and in what manner. * * * In 61-795 0- 81 3 each case The Constitution, on the other hand, does not "partake As to the issue of whether a damages remedy is an appropriate form of relief, the Court stated that historically damages have been available to litigants protesting an invasion of personal liberty interests. The majority also claimed that the instant case would not pose difficult questions of valuation or causation. Moreover, equitable relief in the form of reinstatement is unavailable since the defendant is no longer a Congressman. Nor is it clear that a state court would have the authority to allow damages against a U.S. Congressman for illegal actions taken in the course of his official duties. In any event, said the Court, a state forum would be inappropriate: Deference to state court adjudication in case such as this would in any event not serve the purposes of federalism, since it involves the application of the Fifth Amendment to a federal officer in the course of his federal duties. It is therefore particularly appropriate that a federal court be the forum in which a damages remedy be awarded. [60 L Ed 2d at 863, note 23.] The Court rejected the Circuit Court's finding that Title VII of the 1964 Civil Rights Act, and the 1972 amendments thereto, is sufficiently instructive as to congressional intent: [T]here is in this case "no explicit congressional declaration that persons" in petitioner's position injured by unconstitutional federal employment discrimination 'may not recover money damages from' those responsible for the injury. Bivens, supra, at 397. (Emphasis supplied.) The Court of Appeals apparently interpreted § 717 of Title VII of the Civil Rights Act of 1964, 86 Stat. 111, 42 U. S. C. § 2000e-16, as an explicit congressional prohibition against judicial remedies for those in petitioner's position. When § 717 was added to Title VII to protect federal employees from discrimination, it failed to extend this protection to congressional employees such as petitioner who are not in the competitive service.* See 42 U. S. C. § 2000e-16(a). There is no evidence, however, that Congress meant § 717 to foreclose alternative remedies available to those not covered by the statute. Such silence is far from "the clearly discernible will of Congress" perceived by the Court of Appeals. 571 F. 2d, at 800. [60 L Ed 2d at 863-864.] (Footnote omitted.) The Court left unresolved the question of whether the Speech or Debate Clause, which prohibits the questioning of any legislative act performed by a Member of Congress, precludes inquiry into a Member's employment practices. In this regard the opinion stated: The en banc Court of Appeals did not decide whether the conduct of respondent was shielded by the Speech or Debate Clause. In the absence of such a decision, we also intimate no view on this question. [60 L Ed 2d at 856-857, note 11.] Three dissenting opinions were written. In the first, Chief Justice Burger, joined by Justices Powell and Rehnquist, expressed concern that the majority's decision violated long accepted concepts of separation of powers. In the second dissenting opinion, Justice White, joined by Justice Rehnquist, argued that the Speech or Debate Clause issue should be decided first, for one of the basic purposes of the Clause is to relieve Members of the burden of defending themselves. Since the question of legislative immunity was briefed and argued before the en banc Court of Appeals, these dissenters would remand the case to the Court of Appeals with directions to decide the Speech or Debate Clause issue. The third and final dissent was written by Justice Powell, with whom the Chief Justice and Justice Rehnquist joined. This dissent reiterated the separation of powers argument espoused in the first dissent and also argued that Congress, by exempting itself from the coverage of Title VII, unmistakably made clear its intent that suits of the present type should not be allowed. Status.-The case has been remanded to the U.S. Court of Appeals for the Fifth Circuit. The complete text of the Supreme Court's opinion is printed in the "Recent Decisions" section of this report at page 209. Boland v. Blakey Civil Action No. 78-1921 (D.D.C.) In October 1978, Colleen T. Boland filed a one count complaint in the U.S. District Court for the District of Columbia. Named as defendants were the House Select Committee on Assassinations (hereinafter "the Committee"), each member of the Committee, and Robert Blakey, the Chief Counsel and Staff Director. In her complaint plaintiff alleged that in December 1976 she became employed as a Researcher for the Committee. This employment ended on August 18, 1977 when she was called to a meeting with Mr. Blakey and dismissed. The complaint stated that despite plaintiff's requests to be told the reason for her firing, the defendants refused to discuss the matter with her or offer any statement as to why her employment was terminated. By refusing to explain the basis for their action, and by failing to provide Ms. Boland with an opportunity to rebut whatever evidence may have been used against her, the defendants allegedly violated the plaintiff's Fifth amendment right to due process of law. Specifically, the plaintiff said that the failure to provide a hearing prior to dismissal constituted a denial of procedural due process rights. She also claimed that her dismissal was not effectuated in accordance with the Committee's own Rule 11.6(b) which read, "The Committee may terminate the services of any professional or clerical staff member by a majority vote, a majority of the Committee being present.' Ms. Boland claimed that neither a meeting nor a vote were held. By way of relief, the plaintiff asked to be immediately reinstated to her former position. She also sought as damages the amount of money she would have received in wages, to the present, had she not been dismissed. In December 1978, the defendants filed a motion to dismiss in which they argued that accepted principles of legislative immunity do not permit judicial inquiry into the staffing practices of a congressional committee. This immunity, said the defendants, is derived from two sources: the separation of powers doctrine and the Speech or Debate Clause of the Constitution. According to the defendants, committee staffing practices are an integral part of the legislative process and therefore may not be questioned. Finally, as to the alleged violation of Rule 11.6(b), the defendants maintained that only Congress may question or investigate possible violations of its internal rules. On April 12, 1979 the court stayed further action in the case pending a ruling by the U.S. Supreme Court in Davis v. Passman (See P. 20 of this report for a discussion of that case.) Status.-The case is pending in the U.S. District Court for the District of Columbia. United States v. Helstoski No. 78-349 (U.S. Supreme Court) and, Helstoski v. Meanor No. 78-546 (U.S. Supreme Court) On June 2, 1976, then-Representative Henry Helstoski was indicted by a grand jury on three counts of soliciting and accepting bribes from Chilean and Argentinean aliens in exchange for introducing private immigration bills in Congress, with the intent of delaying the aliens' deportation. The indictment also included three counts of conspiracy and obstruction of justice and four counts of lying to a Federal grand jury. Indicted with Mr. Helstoski were two members of his congressional district staff and the treasurer of his reelection committee. Before trial was scheduled to begin on 8 counts of a 12-count indictment, Mr. Helstoski moved to dismiss the first 4 counts. His dismissal motion was predicated upon the Speech or Debate Clause, Article I, Section 6 of the U.S. Constitution. As enunciated by the court, in its opinion filed on February 18, 1977, "The defendant's position is that since the Speech or Debate Clause precludes inquiry by a grand jury into the performance of his legislative acts, and since the grand jury obviously made such an inquiry, the implicated counts of the indictment are vitiated." [United States v. Helstoski, Criminal Action No. 76-201 (D.N.J.); Slip Opinion at 2.] The Government opposed the dismissal motion asserting that an indictment, valid on its face, may not be attacked on the ground that incompetent or privileged evidence was presented to the indicting grand jury. Alternatively, the Government argued that the voluntary testimony about legislative activity given by the defendant to the grand jury and during a prior trial of another individual, alleged in the contested indictment to be a co-conspirator of the defendant, constituted a waiver of Speech or Debate Clause rights. Such waiver, the Government further argued, precluded Mr. Helstoski from attacking the validity of the indictment and "renders evidence of his legislative acts admissible at trial for the purpose of establishing his guilt." [Slip Opinion at 2-3.] As to Mr. Helstoski's motion to dismiss four counts of the indictment, the court concluded that such dismissal was not required. The court noted: Defendant Helstoski's contention that Counts I through IV of the indictment must be dismissed because the indicting grand jury heard evidence regarding his legislative acts is untenable. United States v. Johnson, 419 F.2d 56 (4th Cir. 1969). This is not because there is any question that a Member of Congress may not be called to answer for his legislative acts before a grand jury, Gravel v. United States, 408 U.S. 606 (1972), but because courts simply will not go behind the face of an indictment, once it is returned, in order to test the competency of the evidence adduced before the grand jury. United States v. Calandra, 414 U.S. 338 (1974); Lawn v. United States, 355 U.S. 339 (1958); Costello v. United States, 350 U.S. 359 (1956); Holt v. United States, 218 U.S. 245 (1910); United States v. Blue, 384 U.S. 251, 255 n.3 (1966) (dictum). This rule governs whether the evidence before the grand jury is attacked on the ground it is hearsay, United States v. Costello, supra, or on the ground the evidence was obtained and set before the grand jury in violation of the Constitution, United States v. Calandra, supra; Holt v. United States, supra; United States v. Blue, supra. [Slip Opinion at 3.] As to Mr. Helstoski's assertion that the four counts of the indictment should be thrown out because of their "express reference" to his legislative actions, the court, relying on Supreme Court decisions in United States v. Johnson, 383 U.S. 169 (1966), and United States v. Brewster, 408 U.S. 501 (1972) declared that the counts involved did not violate the Speech or Debate Clause "merely because they make reference to alleged legislative acts of defendant Helstoski." [Slip Opinion at 8.] While the court concluded that presentation of such material to the grand jury was not a proper basis for dismissing the indictment, it nonetheless rejected the Government's contention that Mr. Helstoski's pretrial testimony waived the Speech or Debate Clause protection to which he was entitled at trial. On this point the court stated: [T]he purpose of the Speech or Debate Clause is to insulate the independent activities of the legislature from executive and judicial interference. This purpose can be achieved only if the executive is barred from utilizing evidence of legislative acts, and if the judiciary refuses to receive evidence of such acts, in a criminal prosecution of a legislator. I therefore believe that what the Speech or Debate Clause does is to erect an absolute constitutional immunity in favor of a member of Congress from having evidence of his legislative acts used in litigation against |