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amount to common law torts? The Supreme Court appears
to have answered that question in the negative in the
recent case of Paul v. Davis [424 U.S. 693 (1976)]. [553 F.2d
at 1326.]

Turning to the question of whether the documents selected and transported by Brick, "were needed by him for the performance of his duties," the minority attacked the majority's conclusion that the documents were irrelevant. While the minority agreed that Brick had conceded that some of the documents might have been irrelevant to the committee's inquiry, it stated: "This [the majority] decision still amounts to 'second guessing' the legislative process since it overrides an independent estimate of relevance that could be 'plausibly interposed,' and it appears to override a judgment of relevance inferable from the subpoenas [which were subsequently issued by the Committee]." [553 F.2d at 1328.] The minority further noted that the documents which were purported to be irrelevant may in fact have been relevant to the committee's investigation. The Senate investigator was required to take such documents to the committee for its determination of relevance since "[t]he Senators or others on the staff may easily have seen something of significance in any one of these letters, definitely relevant to the inquiry of the committee, which might have escaped the knowledge or attention of Brick." [553 F.2d at 1328.]

The minority continued:

Without deigning to give any reasons therefore, the majority blandly treats the Senate investigator Brick's testimony that he did not "need that letter signed [sic] Dearest Cucumber" as a final irrevocable concession binding on the Senate Committee and this court that this particular letter (and all other letters similarily characterized by the McSurelys) were totally irrelevant to the Senate inquiry. This is a rather astonishing assumption.

In the first place, Brick's testimony was only an expression of his own need for the letter, not that of the Committee's. Brick had read the letter and presumably remembered any important features of its contents. Neither Chairman McClellan nor Brick's staff superiors had seen the letter and had had the opportunity to evaluate its contents.

Second, we are at a total loss to understand by what principle of law it can be held that a subordinate Senate Committee staff member can bind the Senate Committee, or indeed this court, on the question of relevance. Surely the determination of the relevance of any of the documents which Brick had inspected was for the Senate Committee, or under its usual operating procedures, for the Committee Chairman. The agreed facts are that "on October 16, 1967, at the personal direction of Senator John L. McClellan, he prepared the subpoenas involved herein." Brick took the subpoenas to McClellan, "with whom he had conferred on the subject matter thereof since October 6, 1967," and McClellan signed the four subpoenas, two of which were directed to the McSurelys. This action of the Senate Committee Chairman, after a review of the copies

of the documents brought back by Brick, evidenced the Committee Chairman's determination of what he thought was relevant for the Senate's inquiry, i.e., the 234 documents. What Brick said he himself "needed for the performance of [his] duties" is of little importance in determining what the Senate Subcommittee might reasonably find relevant for its inquiries.

We would hold that, relevant or irrelevant, the Senate investigator's actions in regard to the allegedly personal letters of the McSurelys are in no way a ground for a claim of constitutional significance, as the Supreme Court held in Paul v. Davis, supra, and since the McSurelys have alleged no other type claim on this basis, their action on this point should be dismissed. [553 F.2d at 1330-1331 (footnotes omitted).]

In its conclusion, the minority objected strenuously to the majority's decision to remand the case to the District Court for further consideration of some of the actions taken by the congressional defendants. The court noted:

The purpose of an absolute immunity is to cut off claims against protected parties at the outset. To be true to this purpose, a court should make every effort to determine if a claim is inside or outside the protection of the Speech or Debate clause. A remand for further factual proceedings on the issue of absolute immunity itself should be required only in the case of clear need. Otherwise the "mini-trial" that the defendant is forced to undergo constitutes an erosion of the principle of absolute immunity. The majority is engaging in such an erosion of the Speech or Debate clause here.

The uncontroverted facts of this case, the logic of the Fourth Amendment, and the available case law support our conclusion here that the inspections and copying by Brick did not amount to an unreasonable search and seizure. Not only does the majority err in its contrary conclusions, but it abrogates its duty in deciding absolute immunity by calling for a remand. [553 F.2d at 1332-1333.]

In a separate dissent, Judge Danaher, writing for himself and three other judges, concurred in Judge Wilkey's opinion, but also expressed a general dissent from those portions of the majority's opinion which did not provide for complete dismissal of the complaint. He stated that:

A Subcommittee of the U.S. Senate was engaged in the truthfinding process which it had been commanded to execute. So it is that the Chairman of that Subcommittee and the members of its staff, under the circumstances here, should be entitled to absolute immunity.

It is respectfully submitted that this case should be remanded to the District Court with directions to dismiss the complaint. [553 F.2d at 1339.]

On May 19, 1977, the defendants filed a petition for a writ of certiorari with the U.S. Supreme Court.

On October 11, 1977, the petition for a writ of certiorari was granted.

Herbert H. McAdams, executor of the estate of the deceased Senator McClellan, was substituted for him as party petitioner on January 23, 1978.

The petition was argued before the Supreme Court on March 1, 1978.

In a one-sentence per curiam opinion, the writ of certiorari was dismissed as improvidently granted on June 26, 1978.

On August 31, 1978, Herbert H. McAdams II, executor of Senator McClellan's will, was substituted, by order of the District Court, as defendant in lieu of John L. McClellan, without prejudice to his right to claim that plaintiff's cause of action did not survive the death of Senator McClellan.

On September 15, 1978, the McSurelys filed, in the District Court, a motion for an order to show cause and for a stay, in order to restrain Mr. McAdams from proceeding further in the Probate Court of Pulaski County, Arkansas, where he had filed a petition seeking a declaration that the McSurelys claim against Senator McClellan's estate be rejected for failure to comply with a filing provision of Arkansas probate law, or alternatively, that the maximum liability and reserve for the contingency of the claim be fixed and that any distribution be made without personal liability of the executor. The stay was denied on the same day by District Judge Gasch.

On September 18, 1978, the McSurelys filed a notice of appeal from the order denying the stay and also filed, in the U.S. Court of Appeals for the District of Columbia Circuit, motions for emergency relief by way of a stay pending appeal and for expedited consideration of the motion for emergency relief. (78-1916, D.C. Cir.). The motion for emergency relief was denied on November 13, 1978. On November 22, 1978, a stipulation and agreement for voluntary dismissal of the appeal was filed and the appeal was dismissed. On January 17, 1979, U.S. District Judge Bryant issued a memorandum and order granting the McSurelys' motion to substitute Mrs. Mary Brick as a party defendant in lieu of her husband, John Brick, and to substitute Mrs. Evelyn Adlerman as a party defendant in lieu of her husband, Jerome S. Adlerman, and denying the defendants' motion to dismiss the action as to the deceased defendants, Senator McClellan, Mr. Adlerman and Mr. Brick.

Judge Bryant resolved the issue of substitution by determining that the time requirement of Federal Rule of Civil Procedure 25(a)(1) had been met, since plaintiffs had moved for substitution within 90 days after the deaths were suggested on the record. Defendants' argument that substitution was improper at that point because the identity of the deceased defendants' legal representatives had not been settled was rejected. Judge Bryant noted that this would merely mean that the 90 day period of Rule 25(a)(1) would still not have begun and that a successor of an estate as well as a legal representative is proper for purposes of substitution. He also stated that no circumstances were apparent which would make such a substitution at that stage unfair.

Defendants had argued that the requirement of Rule 25(a)(1) that the party's death not extinguish the claim had not been met and

therefore, the cause should be dismissed. Defendants had contended that constitutional rights are personal rights, the violation of which constitute personal injuries and that the District of Columbia survival statute, D.C. Code § 12-101 permits recovery only for pecuniary losses for personal injuries. Because pecuniary losses had not been alleged for the actions which remained at issue, defendants argued that the action abated by operation of the survival statute.

Judge Bryant rejected this argument and stated:

This argument is not persuasive given the nature of the actions underlying the alleged constitutional deprivations; hence, plaintiffs' remaining claims survive the defendants' deaths whether the court applies federal policy governing survival of a Bivens-type cause of action, see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), or the District of Columbia survival statute, D.C. Code § 12-101. Given the gradual acceptance by federal courts of the position that federally created torts do survive the death of a tortfeasor, see, e.g., Cox v. Roth, 348 U.S. 207, 210 (1955), Kirk v. Commissioner of Internal Revenue, 179 F.2d 619, 621 (1st Cir. 1950), this Court will not single out claims for injuries to constitutionally-protected rights as abating on the death of the wrongdoer. This is particularly so in light of the Supreme Court's emphasis on the increasing importance of the damage remedy in view of restrictions on the operation of the exclusionary rule. See United States v. Calandra, 414 U.S. 338, 354 n.10 (1974). To the extent that the right of recovery depends upon federal considerations, it should not be governed by archaic concepts of survivability of the common law, see Almond v. Kent, 459 F.2d at 204 but rather by the objectives of the statutes in question. With respect to the District of Columbia survival statute, the alleged injury here cannot be categorized as strictly a personal injury, see Colpoys v. Foreman, 163 F.2d at 910, nor is it the case that pecuniary damages for the remaining claims have not been alleged. Defendants argue that the injuries were solely personal in nature, but the claimed violations of papers and property transcend that which is normally considered a personal injury. Moreover, those cases which permit recovery for pecuniary damages only from personal injuries, see Coleman v. Moore, 108 F. Supp. 425, at 427; Soroka v. Beloff, 93 F. Supp. 642, at 644, involve physical harm to the victim. In such situations, while no recovery is permitted for pain and suffering, some measure of recovery is allowed for the physical injury. Coleman v. Moore, 108 F. Supp. 425, at 427; Phillips v. Lust, 82 F. Supp. 63, 63 (D.D.C. 1949). Here, in contrast, to deny recovery for objectively nonquantifiable injury would be to deny the claim in its entirety. Such a position is inconsistent with the purposes of the survival statute. See generally Soroka v. Beloff, 93 F. Supp. at 644. The District of Columbia survival statute is thus no bar to the maintenance of plaintiffs' claims. [Slip Opinion at 3-4]

It was also noted in the memorandum and order that it did not appear to a legal certainty that plaintiffs' claims were for less than the necessary jurisdictional amount and therefore dismissal on that basis would be improper.

Status.-The case is pending in the U.S. District Court for the District of Columbia.

The full text of the decision of the Court of Appeals in the criminal action for contempt of Congress was printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, December 1972.

The full text of the decision of October 28, 1975, of the Court of Appeals was printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, December 31, 1975.

The full text of the decision of December 21, 1976, of the Court of Appeals en banc was printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, December 1976.

The District Court's memorandum and order of January 17, 1979, is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 31, 1979.

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