Petition — Joseph v. Cannon

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80-2036

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Supreme Court of the United States

OCTOBER TERM, 1980

No.

UNITED STATES OF AMERICA, ex rel. JOEL D. JOSEPH,

AND

JOEL D. JOSEPH,

Petitioners,

v.

Howarp W. CANNON, ef al.

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

JoEL D. JosEPH

1712 Eye Street, N.W.

Suite 1010

Washington, D.C. 20006

(202) 338-5560

Counsel for Petitioners.

(4)

TABLE OF CONTENTS Page

OPINIONS BELOW .cccccccccccvcccvccvescece 2

JURISDICTION .ccccccccccccccvccccseseces 2

QUESTIONS PRESENTED ..cescseccccssceses 2

STATUTORY PROVISIONS INVOLVED ......++- 2

STATEMENT OF THE CASE..cccccceccseveces O

REASONS FOR GRANTING THE WRIT......++++ 6

I. THE DECISION OF THE COURT OF

APPEALS IS IN CONFLICT WITH THE

SUPREME COURT'S DECISION IN

BAKER v. CARR, 369 U.S. 186

(1962) eeoeeereseresreseseseeeeeeee 7

II. THERE IS A DIVISION BETWEEN THE

CIRCUITS CONCERNING THE JUSTICI-

ABILITY OF CLAIMS AGAINST

GOVERNMENT OFFICIALS INVOLVING

THE USE OF STAFF FOR CAMPAIGN

PURPOSES ...ccccscccccccccvcceceese Al

III. THE CASE AT BAR REPRESENTS IM-

PORTANT FEDERAL QUESTIONS WHICH

SHOULD BE REVIEWED BY THE SUPREME

COURT. cccccccccvccccccccencccvese 12

CONCLUSION e@eeeeeeeeoeeeeeeeeeeeeeeeeee 13

APPENDIX A- Opinion of the United States

Court of Appeals...cccccccccccccccscce La

(ii)

APPENDIX B- Order of the United States

District Court eeeeeeeeeeeeeeeneeeeeeene

TABLE OF AUTHORITIES

Cases:

Baker v. Carr, 369 U. S. 186 (1962 ....

Buckley v. Valeo, 424 U. S. 1 (1976)

Shakman v. Democratic Organization of

Cook County, 435 F. 2d (7th Cir 1970)..

United Public Workers v. Mitchell,

330 U. S. 75 (1947) ccrccccccccccccccce

Statutes:

False Claims Act, 31 U.S.C.§§231, et

seq. @eeeneaeeoeeaeveaeee ee eeeeaeeeeeneeneeeeaeeeee

Title 28, U.S.C. eeereeeeeneeeeeseeesee

GIZS4A(L) occccccvcccdsessoseccccsesevee

GIBB) wowccciccncdsccvccccsesecseases

§1345 eeeeoeoeoeeeeeeeeeeeeaeeeeeeeeeeeee

Title 31, U. B.C. $626. csccccccccccccesces

29a

Aan oO

©

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No.

UNITED STATES OF AMERICA, er rel. JOEL D. JOSEPH,

AND

JOEL D. JOSEPH, ;

Petitioners,

vv.

Howarp W. CANNON, ef al.

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners respectfully request that a writ

of certiorari issue to review the decision of the

United States Court of Appeals for the District

of Columbia Circuit entered in this proceeding

on January 30, 1981.

OPINION BELOW

The opinion of the Court of Appeals has not

been reproduced and is reproduced as Appendix A.

The Court of Appeals denied petitioners’ motion

for a rehearing and suggestion for rehearing en

banc on March 2, 1981. The order of the United

States District Court for the District of

Columbia has not been reported and is reproduced

as Appendix B, App. 29 a.

JURISDICTION

The motion for rehearing was denied on

March 2, 1981, and this petition for a writ

of certiorari was filed within 90 days of the

denial of the motion for a rehearing. Juris-

diction of this court is invoked under 28 U.S.C.

§1254(1).

QUESTIONS PRESENTED

1. Is a case justiciable when the claim

alleges that a Member of Congress used a

member of his federally funded legislative

staff exclusively on re-election activities?

2. Is a Congressman immune from suit

under the False Claims Act, 31 U.S.C.§231,

et seq., which alleges that the Congressman

directed a member of his legislative staff

to work exclusively on his re-election

campaign?

STATUTORY PROVISIONS INVOLVED

THE FALSE CLAIMS ACT

31 USC §231. Liability of persons making

false claims.

3

Any person not in the military or naval forces

of the United States, or in the militia called

into or actually employed in the service of

the United States, who shall do or commit any

of the acts prohibited by any of the provisions

of section fifty-four hundred and thirty-eight,

Title "CRIMES," shall forfeit and pay to the

United States the sum of two thousand dollars,

and, in addition, double the amount of damages

which the United States may have sustained by

reason of the doing or committing such act,

together with the costs of suit; and such

forfeiture and damages shall be sued for in

the same suit.

"Section fifty-four hundred and thirty-eight

referred to in this section is R. S. §5438,

which read:

Every person who makes or causes to be

made, or causes to be presented, for

payment or approval, to or by any person or

officer in the civil, military, or naval

service of the United States, or any

department or officer thereof, knowing such

claim to be false, fictitious, or fraud-

lent, or who, for the purpose of obtaining

or aiding to obtain the payment o~

approval of such claim, makes, uses, or

causes to be made or used, any false bill,

receipt, voucher, roll, account, claim

certificate, affidavit, or deposition,

knowing the same to contain any fraud-

ulent or fictitious statement or entry,

or who enters into any agreement, comb i-~

nation, or conspiracy to defraud the

Government of the United States, or any

department or officer thereof, by obtain-

ing or aiding to obtain the payment or

allowance of any false or fraudulent

claim, or who, having charge, possession

custody, or control of any money or other

public property used or to be used in

the military or naval service, who, with

intent to defraud the United States or

willfully to conceal such money or other

property, delivers or causes to be de-

livered, to any other person having

authority to receive the same, any amount

of such money or other property less than

that for which he received a certificate

or took a receipt, and every person

authorized to make or deliver any certi-

ficate, voucher, receipt, or other paper

certifying the receipt of arms, ammunition,

provisions, clothing, or other property

fo used or to be used, who makes or

delivers the same to any other person

without a full knowledge of the truth

of the facts stated therein, and with

intent to defraud the United States, and

every person who knowingly purchases or

receives in pledge for any obligation

or indebtedness from any soldier, officer,

sailor, or other person called into or

employed in the military or naval service

any arms, equipments, ammunition, clothes,

military stores, or other public property,

such soldier, sailor, officer, or other

person so offending in any of the matters

set forth in this section shall be im-

prisoned at hard labor for not less

than one nor more than five years, or

fined not less than one thousand nor more

than five thousand dollars."

§232. Suits; procedure for private claims

(A) Jurisdiction. The several district

courts of the United States, (the United

States District Court for the District of

Columbia,) the several district courts of the

territories of the United States,

whose jurisdictional limits the person doing or

committing such act shall be found, shall

wheresoever such act may have been done or

committed, have full power and jurisdiction to

hear, try and determine such suit.

(B) Persons capable of bringing suit. Except

as hereinafter provided, such suit may be brought

and carried on by any person, as well for him-

self as for the United States, the same shall

be at the sole cost and charge of such person,

and shall be in the name of the United States,

but shall not be withdrawn or discontinued

without the consent, in writing, of the judge

of the court and the district attorney (United

States attorney), first filed in the case,

setting forth their reasons for such consent.

§628. Application of money appropriated.

All sums appropriated for the various branches

of expenditure in the public service shall

be applied solely to the objects for which

they are respectively made, and for no others.

STATEMENT OF THE CASE

Respondent Howard W. Cannon is a United

States Senator from the State of Nevada. At all

times relevant to this case, co-respondent

Chester B. Sobsey was a Senate employee serving

as Senator Cannon's administrative assistant.

Petitioner alleged that from March, 1975, through

November, 1976, Mr. Sobsey worked "extensively

and exclusively" for the Senator's re-election,

App. 3a. Throughout this period, the complaint

averred "Sobsey accepted his regular pay for

services ostensibly performed as Senator Cannon's

administrative assistant even though such

services were not performed or (were) performed

in a perfunctory or nominal manner," App 3a.

6

Petitioner filed suit under the False Claims

Act alleging, inter alia, that Senator Cannon

authorized payment of Mr. Sobey's federal salary

during the period that he worked extensively and

exclusively on the Senator's re-election campaign,

and that the Senator was aware of the nature of

his assistant's activities. App. 2a.

Invoking the False Claims Act, petitioner

brought suit against Senator Cannon and Mr,

Sobsey in the District for recovery, on behalf

of the United States, of double damages alleged-

ly sustained by the Federal Treasury, plus

$2000 for each false claim made.

The District Court held that the Government

already possessed the information in the complaint,

and that for this reason the action was barred

by §232 of the Act. App. 29a, 30a. The Court

of Appeals stated that the District Court's

interpretation was incorrect, but affirmed on

other grounds. App. 5a. The Court of Appeals

ruled that the case was not justiciable

because it found that there is a "complete

absence ‘of judicially discoverable and manage-

able standards for resolving’ the question of

whether Senators may use paid staff members in

their campaign activities." App. 12a.

Petitioners invoked the jurisdiction of

the District Court under 28 U.S.C. §§1331 and

1345, and 31 U.S.C. §232.

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals

significantly undermines the purpose of the False

Claims Act to protect the Federal Treasury from

raids by those who want to use Federal funds

for their own purposes. The Court of Appeals

is in effect carving a special exemption in the

Act for Congressmen, allowing them to abuse the

Federal Treasury for their re-election campaigns.

7

The Court of Appeals was aware of the

shortcomings of its decision. It stated: "we

do not, of course, say that Members of

Congress or their aides may defraud the

Government without subjecting themselves to

statutory liabilities." App.24a. But the Court

in actuality ruled that Congressmen can de-

fraud the Government with impunity and

immunity.

In a nation of laws and not of men, the

concept that lawmakers are above the law is

repugnant. The Court of Appeals held that

Congressmen are above the law and they are

free to use Government resources to insure

their re-election.

I. THE DECISION OF THE COURT OF APPEALS

IS IN CONFLICT WITH THE SUPREME

COURT'S DECISION IN Baker v. Carr,

369 U.S. 186 (1962).

Concerning the issue of justiciability

and political question the Court of Appeals’

decision is in conflict with the Supreme Court's

decision in Baker v. Carr, 369 U. S. 186 (1962).

The Court in Baker stated:

Of course the mere fact that the suit

seeks protection of a political

right does not mean that it presents

a political question.

369 U.S. at 209

Similarly, just because the defendant or respon-

‘dents is a United States Senator, does not mean

that the case presents a political question and

is not justiciable.

Baker v. Carr, supra, established criteria

for determining whether a case presented a non-

justiciable political question:

1. Does the constitution commit the

issue to be decided to another branch

of government?

2. Are there judicially manageable

and discoverable standards for resolving

the issues to be decided?

3. Is it impossible to decide the issues

presented without an initial policy

determination of a kind clearly for

non-judicial discretion?

4. Is it impossible for the court to

resolve the issue presented without

expressing lack of respect due a

coordinate branch of government?

The Supreme Court stated: "(u)nless one of these

formulations is inextricable from the case at

bar, there should be no dismissal for non-

justiciability on the ground of a political

question's presence." 369 U.S. at 217.

The Court of Appeals recognized the above-

described criteria. App. 12a. The Court found

that consideration of the first and the fourth

criteria did not demonstrate that the case

presented a political question. However, the

Court held that the Senate have to make an

initial policy decision before judicial action is

appropriate, and that because the Senate had

not made this decision there are no judicially

manageable and discoverable standards for re-

solving the issues presented. App. 22a.

Petitioners respectfully contend that the Court

of Appeals identified the correct criteria,

but applied the criteria incorrectly.

The Court of Appeals recognized:

. It is true that "sums appropriated

for the various branches of expendi-

ture in the public service" are

statutorily confined "to objects

9

for which they are respectively made,"

and consequently are available "for no

wQthers."/48

48 31 U.S.C. §628 (1976)

App. 12a, 13a.

(31 U.S.C. §628 is reproduced supra,

at page 5).

The Court of Appeals noted that it disagreed with

the conclusion of the American Law Division of

the Library of Congress that 31 U.S.C. §628

bars public compensation of Congressional staff

members for the performance of campaign activities.

App. 13a.

While the Senate has been "struggling"

with the issue concerning use of staff in

political campaigns, App. 14a, it may never

issue a "decision." It is not unreasonable to

assume that the senate does not intend to

regulate itself and its members. The Senate

has no incentive to restrict the campaign

activities of staff members. If the Senate

does not restrict campaign activities of staff,

then Senators will maintain their built-in

advantage over challengers.

Congress passed into law 31 U. S. C.

§628, providing that appropriated funds only can

be used for their intended purpose. It is ‘the

business of courts to interpret statutes. ‘he

federal courts reasonably could determine, as

the American Law Division of the Library of

Congress has determined, that the use of

Congressional staff for campaign purposes is

illegal. Drawing the line between

campaign activities and legislative activities

may not be easy to do, but courts have drawn

similar lines. See e.g. United Public Workers

v. Mitchell, 330 U.S. 75 (1947).

ll

II. THERE IS A DIVISION BETWEEN THE

CIRCUITS CONCERNING THE JUSTICLABILITY

OF CLAIMS AGAINST GOVERNMENT OFFICIALS

INVOLVING THE USE OF STAFF FOR CAMPAIGN

PURPOSES,

The Seventh Circuit Court of Appeals held

that taxpayers-voters presented a justiciable

controversy when they challenged the use of

patronage employees in political campaigns.

Shakman v. Democratic Organization of Cook County,

435 F.2d 267 (1970). The Court in Shakman stated:

Plaintiffs in Shakman were challenging the

same practices complained of in the instant case:

incumbents were using staff paid out of the

public treasury for campaign activities. The

complaint in Shakman alleged constitutional vio-

lations while that in the case at bar presents

statutory claims, In both cases, application

of the criteria from Baker v. Carr, supra, re-

sults in an identical analysis.

The Shakman case relied on Baker v. Carr:

We acknowledge that the decisions just

referred to (Baker, ballot~access and

reapportionment cases) involved mechani-

cal aspects of the election process:

e.g., the right to vast a vote, a

candidate's place on the ballot, and

equal size in districts entitled to

a representative, The interest in

an equal chance and an equal voice

is allegedly impaired in the case be-

fore us by the misuse of c’ficial power

over public employees so as to create

a substantial, perhaps massice, politi-

cal effort in favor of the ins and

against the outs,

12

* k *

We see no ground upon which to decide

that the controversy suggested by plaintiffs’

claims is non-justiciable.

435 F. 2d at 270.

A clear conflict between the Seventh Circuit

and the District of Columbia Circuit exists

concerning the justiciability of claims involv-

ing use of tax-supported staff for campaign pur-

poses. The petition for a writ of certiorari

should be granted to review this division in the

Circuits.

III. THE CASE AT BAR PRESENTS IMPORTANT

FEDERAL QUESTIONS WHICH SHOULD BE

REVIEWED BY THE SUPREME COURT.

The federal question presented are important

because the fundamental fairness of our electoral

system is at stake. The Supreme Court has noted

that incumbents should not be given an "unfair"

advantage over challengers. Buckley v. Valeo,

424 U.S. 1, 98, n. 133 (1976). If Congress is

allowed to use staff for its re-election cam-

paigns, then we have created a self-perpetuating

royalty which subverts the will of the people.

13

CONCLUSION

For all of these reasons, petitioners re-

quest that a writ of certiorari issue to review

the decision of the District of Columbia Circuit.

Respectfully submitted,

JOEL D. JOSEPH

1712 Eye Street, N.W.

Suite 1010

Washington, D. C. 20006

338-5560

Counsel for Petitioners

APPENDIX

la

APPENDIX A

United Strtes Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 78-1618

UNITED STATES OF AMERICA, ew rel. JOEL D. JOSEPH,

AND

JOEL D. JOSEPH, APPELLANTS.

Vv.

HOWARD W. CANNON, ef a/.

Appeal from the United States District Court

for the District of Columbia

(D.C. Civil No. 77-00452)

Argued June 18, 1979

Decided January 30, 198)

Rehearing Denied March 2, 1981

Joel D. Joseph, with whom Paul D. Kamenar was on

the brief, pro se.

Kevin T. Maroney, with whom Edward P. Morgan was

on the brief, for appellees.

2a

Before ROBINSON and MACKINNON, Circuit Judges, and

HAROLD H. GREENE, District Judge.*

Opinion for the Court filed by Circuit Judge Robinson.

ROBINSON, Circuit Judge: This appeal challenges the

District Court’s disposition of a somewhat novel suit

brought by Joel D. Joseph, the appellant, against Senator

Howard W. Cannon and his administrative assistant,

Chester B. Sobsey, the appellees. Initiated pursuant to

Section 231 of the False Claims Act,’ the litigation fea-

tures two counts respectively charging that Senator Can-

non authorized payment of Sobsey’s federal salary during

a period when Sobsey was working “extensively and ex-

clusively” on the Senator’s 1976 reelection campaign,” and

that other members of the Senator’s staff performed per-

sonal services for him and his family while collecting their

governmental salaries.* The District Court dismissed the

first count for lack of jurisdiction,‘ and the second for fail-

ure to state with sufficient specificity a claim upon which

relief could be granted.®

*Of the United States District Court for the District of

Columbia, sitting by designation pursuant to 28 U.S.C. § 292(a)

(1976).

131 U.S.C. § 231 (1976), quoted in relevant part infra note

22.

2 Appellant’s Complaint (Complaint) 14 8, 9, Appendix to

Brief for Appellant (App.) 8.

3 Complaint 4 10, App. 8.

4 United States ex rel. Joseph v. Cannon, Civ. No. 77-0452

(D.D.C. May 25, 1978) (memorandum and order), at 1-2, App.

4-5. In the court’s view, the jurisdictional barrier was 31

U.S.C. § 232 (1976), quoted in relevant part in text infra at

note 29.

5 United States ex rel. Joseph v. Cannon, supra note 4, at 2,

App. 5.

3a

While we depart from aspects of the District Court’s

analysis, we agree that the False Claims Act does not em-

power the federal courts to address appellant’s first

claim,® and that the vagueness of appellant’s complaint is

fatal to the second.? We accordingly affirm the District

Court’s judgment in both respects.

I. BACKGROUND

Howard W. Cannon is a United States Senator from the

State of Nevada. At all times relevant to this case,

Chester B. Sobsey was a Senate employee serving as his

administrative assistant. In 1969, Senator Cannon, com-

pliably with then Senate Rule 43,° filed a written designa-

tion with the Secretary of the Senate authorizing Sobsey

to solicit, receive, distribute, and act as custodian of the

Senator’s campaign funds.

According to appellant, however, Sobsey did far more

for the 1976 Cannon campaign than administer contribu-

tions. From March, 1975, through November, 1976, Sob-

sey allegedly worked “extensively and exclusively” for the

Senator’s reelection.® Throughout this period, the com-

plaint avers, “Sobsey accepted his regular pay for services

ostensibly performed as Senator Cannon’s administrative

assistant even though such services were not performed or

[were] performed in a perfunctory or nominal manner.”?°

® Discussed in Part III infra.

7 Discused in Part IT infra,

* For the text of Rule 43, see note 32 /w/ra. During the period

here in question, this rule remained as adopted in 1968, See S.

Jour. 247, 90th Cong., 2d Sess., Mar. 22, 1968. A minor amend-

ment was effected by the Senate in 1977, and the provision was

renumbered Rule 49. See note 32 infr

* Complaint © &, App. &.

fd, ©, App. &. Because the first paragraph states that

Sobsev worked “exclusively” on Senator Cannon's reelection

4a

Appellant maintains that Senator Cannon was aware of

the nature of his assistant’s activities, yet authorized

these salary payments.'! Appellant further asserts that at

unspecified times other unnamed members of the Sena-

tor’s staff rendered personal services to the Senator and

his family.*?

Invoking the False Claims Act, appellant brought suit

against Senator Cannon and Sobsey in the District Court

for recovery, on behalf of the United States, of double the

damages allegedly sustained by the federal treasury plus

$2,000 for each claim made,'* and punitive damages of

$50,000 from each.'* For himself, as relator or qui tam

plaintiff, he asked “fair and reasonable compensation,”1®

and reimbursement for the expenses of the litigation.*®

The United States declined to participate in the suit, and

appellees moved to dismiss the complaint. The District

Court granted the motion,!7 and this appeal followed.

campaign, whereas the second paragraph suggests that Sobsey

actually continued to perform his administrative tasks during

the period in question, albeit in a “perfunctory or nominal man-

ner,” the two allegations appear to be inconsistent. For pur-

poses of determining the propriety of the District Court’s dis-

missal, however, we must. vfew the complaint in the light most

favorable to appellant. Jenkins v. McKeithen, 395 U.S. 411,

421-422, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404, 416-417 (1969); 5

C. Wright & A. Miller, Federal Practice § 1357 (1969). We ac-

cordingly disregard any inconsistency.

11 Complaint 4 9, App. 8.

12 Jd. 4 10, App. 8.

13 Complaint, Prayers for Damages { 1, App. 8. See 31 U.S.C.

§ 231 (1976).

14 Complaint, Prayers for Damages, { 1, App. 8-9.

15 Jd, 4 2, App. 9.

16 Jd. See 31 U.S.C. § 282(E)(2) (1976); note 25 infra.

17 United States ex rel. Joseph v.~Cannon, supra note 4, at

1-2, App. 4-5.

5a

II. THE COUNT ONE CLAIM

Appellant theorizes that Senator Cannon’s authorization

of salary payments to Sobsey while the aide was not per-

forming “official legislative and representational duties”

made out an actionable false claim.'® The District Court

held that the Government already possessed the informa-

tion set forth in appellant’s complaint, and that the action

was barred by Section 232(c) of the Act’® for that rea-

son.?° Although an examination of the language and pur-

poses of that provision convinces us that the court’s in-

terpretation was incorrect, we are persuaded that dismis-

sal of appellant’s first count was nonetheless proper. ?*

A. The Requirements of Section 232(c)

The False Claims Act?? was adopted during the Civil

War, a time when massive frauds were being committed

18 Complaint 4 8, App. 8.

19 Quoted in relevant part in text infra at note 29.

20 United States ex rel. Joseph v. Cannon, supra note 4, at

1-2, App. 4-5.

21 Although the issue has not been raised before us by the

parties, this action arguably is barred by the Speech or Debate

Clause, U.S. Const., art. 1 § 6. See Davis v. Passman, 442 U.S.

228, 247, 99 S.Ct. 2264, 2277, 60 L.Ed.2d 846, 863 (1979) (dis-

cussing but not deciding Speech or Debate issue); Consumers

Union v. Periodical Correspondents’ Ass’n, 169 U.S.App.D.C.

370, 379-380, 515 F.2d 1341, 1350-1351 (1975), cert. denied, 428

U.S. 1051, 96 S.Ct. 780, 46 L.Ed.2d 640 (1976); United States ex

rel. Hollander v. Clay, 420 F.Supp. 853 (D.D.C. 1976). In light

of our construction of the False Claims Act vis-a-vis the claims

in suit, we do not reach that question.

22 The liability provision of the False Claims Act presently

reads:

Any person . . . who shall make or cause to be made, or

present or cause to be presented, for payment or approval,

6a

against the Government.?* To encourage action against

defrauders,?* Congress authorized private citizens to

bring civil actions against wrongdoers on the Govern-

ment’s behalf, and to retain half of any recovery.?5 The

Act’s original language permitted a plaintiff to launch a

suit and collect his share of the damages even when he

to or by any person or officer in the civil, military, or naval

service of the United States, any claim upon or against the

Government of the United States, or any department or |

officer thereof, knowing such claim to be false, fictitious,

or fraudulent, ... shall forfeit and pay to the United

States the sum of two thousand dollars, and, in addition,

double the amount of damages which the United States

may have sustained by reason of the doing or committing

such act, together with the costs of suit; and such forfei-

ture and damages shall be sued for in the same suit.

31 U.S.C. § 231 (1976).

23 See Report of the Special Committee on Government Con-

tracts, H.R. Rep. 2, 37th Cong., 2d Sess. 1-2 (1861).

24 On the broad range of situations covered by the Act, see,

e.g., Rainwater v. United States, 356 U.S. 590, 592, 78 S.Ct.

946, 948, 2 L.Ed.2d 996, 999 (1958); Peterson v. Weinberger,

508 F.2d 45, 52 (5th Cir.), cert. denied, 423 U.S. 830, 96 S.Ct.

50, 46 L.Ed.2d 47 (1975); Alperstein v. United States, 291 F.2d

455, 456 (5th Cir. 1961); United States ex rel. Hollander v.

Clay, supra note 21, 420 F.Supp. at 858; United States v.

Fowler, 282 F.Supp. 1, 2 (E.D.N.Y. 1968).

25 If the plaintiff—whether the United States or a private

citizen— wins a False Claims Act suit, the defendant must remit

double the amount of money falsely paid plus $2,000 for each

claim made. 31 U.S.C. § 231 (1976). Originally, a private plain-

tiff was entitled to one-half of any recovery. Act of Mar. 2, 1863,

ch. 67, § 6, 12 Stat. 698. As the statute now stands, successful

private plaintiffs may collect “an amount, not in excess of one-

fourth of the proceeds of such suit or any settlement thereof,

which in the judgment of the court is fair and reasonable com-

pensation... ,” plus reasonable and necessary expenses. 31

U.S.C. § 232(E)(2) (1976).

7a

contributed absolutely nothing to exposure of the crime,**

however, and this provision was much abused in later

years by piranha-like plaintiffs who sued solely on the

basis of information already contained in governmental

files and indictments.*” The Act was therefore amended in

194328 to permit only those persons unveiling new infor-

mation to sue:

The court shall have no jurisdiction to proceed with

any such suit brought under clause (B) of this section

or pending suit brought under this section whenever

it shall be made to appear that such suit was based

upon eviderice or information in the possession of the,

United States, or any agency, officer, or employee

thereof, at the time such suit was brought... .°

The District Court concluded that appellant had not

surmounted this statutory barrier because the Secretary

of the Senate had in his files Senator Cannon's written

designation of Sobsey to administer campaign contribu-

tions.2° We cannot, however, subscribe to this holding.

Merely because the Government holds some information

related to an allegedly false claim does not mean that suit

under the Act is barred by Section 232(c). As the Ninth

Circuit has trenchantly observed:

To require that the evidence and information pos-

sessed by the United States be a mirror image of that

26 See United States ex rel. Marcus v. Hess, 317 U.S, 587,

545, 63 S.Ct. 879, 385-386, 87 L.Ed, 443, 450-451 (1943),

27 H.R. Rep. No. 268, 78th Cong., Ist Sess. 2 (1943) (letter

from Attorney General Biddle). See also, 89 Cong. Rec. 2800-

2801, 78th Cong., lst Sess. (1943).

28 Act of Dec. 23, 1948, ch, 377, $1, 57 Stat. 608. See H.R.

Rep. No. 263, 78th Cong., lst Sess. (1943),

29 31 U.S.C, § 282(C) (1976).

30 United States ex rel. Joseph v. Cannon, supra note 4, at

1-2, App. 4-5.

in the hands of the qui tam plaintiff would virtually

eliminate the bar. On the other hand, to permit the

bar to be invoked when the United States possesses

re rumors while the qui tam plaintiff has evidence

and information would be to permit the bar to repeal

effectively much of the False Claims Act. Between

these extremes lies the answer.

More precisely, the answer rests in that area where

it is possible to say that the evidence and information

in the possession of the United States at the time the

False Claims Act suit was brought was sufficient to

enable it adequately to investigate the case and to

make a decision whether to prosecute.”

The question, properly, then, is whether the information

conveyed by the designation transmittal to the Secretary

of the Senate could have formed the basis for a govern-

mental decision on prosecution, or could at least have

alerted law-enforcement authorities to the likelihood of

wrongdoing; quite obviously it could have had no such ef-

fect. The designation, filed in accordance with then Senate

Rule 43(1),9* revealed only that Sobsey was authorized to

| Pettis ex vel. United States v. Morvison-Knudsen Co,, 877

F.2d 668, 674 (9th Cir, 1978).

No officer or employee whose salary is paid by the Sen-

ate may receive, solicit, be the custodian of, or distribute

any funds in connection with any campaign for the nomina-

tion for election, or the election of any individual to be a

Member of the Senate or to any other Federal office. This

prohibition does not apply to any assistant to a Senator

who has been designated by that Senator to perform any of

the functions described in the first sentence of this para-

graph and who is compensated at a rate in excess of

$10,000 per annum if such designation has been made in

writing and filed with the Secretary of the Senate. The

Secretary of the Senate shall make the designation avail-

able for public inspection.

Standing Rules for Conducting Business in the Senate of the

United States, Senate Manual, S. Doc. No. 94-1, 94th Cong.,

9a

solicit and handle campaign contributions. And because

Sobsey could have discharged this function without

neglecting his official duties in any way, the Rule 43 filing

by itself cannot be deemed to have adequately informed

the Government of possible wrongdoing by either Senator

Cannon or his aide. Only when combined with appellant's

allegation that Sobsey completely disregarded his duties

as the Senator's administrative assistant does any possi-

bility of a cause of action emerge. This case thus differs

radically from those where the Government possessed

comprehensive and crucial evidence prior to initiation of a

Section 231 suit.®* Since the information the Government

derived from the Senator’s designation was innocuous by

itself, we conclude that Section 232(c) does not apply and

that the District Court improperly predicated its dismissal

of count one upon that provision.

B. Liability Under the Act

Although we thus disagree with the District Court's

jurisdictional analysis, we are nevertheless constrained to

hold that dismissal of appellant's first count was appropri-

ate. We recognize, of course, that a motion to dismiss for

failure to state a claim should not be granted “unless it

appears beyond doubt that the plaintiff can prove no set of

Ist Sess, 69 (1975), amended and renumbered as S. Rule 49; S.

Res, 188, 95th Cong., 1st Sess. (1977). The 1977 amendment

limited to two the number of staff members a Senator may au-

thorize to administer campaign funds; otherwise the substance

remained intact. See note 64 infra and accompanying text.

% See, ¢.9., United States ex rel. Thompson v. Hays, 432

F.Supp. 258, 255-256 (D.D.C. 1976); United States ex rel.

McCans v,. Armour & Co., 146 F.Supp. 546, 549 (D.D.C. 1956),

aff'd, 102 U.S.App.D.C. 391, 254 F.2d 90, cert. denied, 358

U.S. 884, 79 S.Ct. 57, 8 L.Ed.2d 71 (1958); United States v.

Aster, 176 F.Supp. 208, 210 (E.D. Pa. 1959), aff'd, 275 F.2d 281

(8d Cir.), cert. denied, 364 U.S. 894, 81 S.Ct. 223, 5 L.Ed.2d

188 (1960),

lla

tations on the capabilities of judicial tribunals as well as to

the separation-of-powers concerns central in our system of

government.*®

So it is that so-called political questions are denied judi-

cial scrutiny, not only because they invite courts to in-

trude into the province of coordinate branches of govern-

ment,*° but also because courts are fundamentally under-

equipped to formulate national policies or develop stand-

ards of conduct for matters not legal in nature.*! A chal-

lenge to the interworkings of a Senator and his staff

member raises at the outset the specter that such a ques-

tion lurks, *? and it is to an investigation of that possibility

that we first turn.

2. Lack of Judicially Discernible Rules or Standards

Although the precise boundaries of the political-question

doctrine are obscure, “[iJn determining whether a ques-

tion falls within [that] category, the appropriateness under

our system of government of attributing finality to the ac-

tion of the political departments and also the lack of satis-

factory criteria for a judicial determination are dominant

considerations.’”’** Prominent characteristics of political

questions are

5° See id.

“ See Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7

L.Ed.2d 668, 686 (1962); Sanders v. McClellan, 150

U.S.App.D.C. 58, 66-67, 463 F.2d 894, 902-903 (1972).

“1 See Baker v. Carr, supra note 40, 369 U.S. at 198, 217, 82

S.Ct. at 691, 710, 7 L.Ed.2d at 674, 686.

42 See also note 21 supra.

“3 Baker v. Carr, supra note 40, 369 U.S. at 210, 82 S.Ct. at

706, 7 L.Ed.2d at, 682, quoting Coleman v. Miller, 307 U.8.

433, 454-455, 59 S.Ct. 972, 982, 83 L.Ed. 1385, 1396-1397

(1939).

12a

a textually demonstrable constitutional commitment

of the issue to a coordinate political department; or a

lack of judicially discoverable and manageable stand-

ards for resolving it; or the impossibility of deciding

without an initial policy determination of a kind

clearly for nonjudicial discretion; or the impossibility

of a court’s undertaking independent resolution with-

out expressing lack of the respect due coordinate

branches of government... .*4

We perceive no “textually demonstrable commitment” of

the issue before us to any other branch of the Federal

Government.*® Nor do we believe that judicial review of

congressional employment decisions necessarily involves a

“lack of the respect due coordinate branches of govern-

ment.”*® We do find, however, a complete absence “of

judicially discoverable and manageable standards for re-

solving” the question whether Senators may use paid staff

members in their campaign activities.

a. Lack of Statutory, Administrative and Case Law

Appellant cites no judicial decision or administrative

ruling, nor has our own research revealed any, establish-

ing a standard to guide a court in determination of the

issue generated by the first count of the complaint. Nor

have we encountered any statute affording that kind of as-

sistance.’ It is true that “sums appropriated for the vari-

“4 Baker v. Carr, supra note 40, 369 U.S. at 217, 82 S.Ct. at

710, 7 L.Ed.2d at 686. Accord, Powell v. McCormick, 395 U.S.

486, 518, 89 S.Ct. 1944, 1962, 23 L.Ed.2d 491, 515 (1969).

45 See United States ex rel. Hollander v. Clay, supra note

21, 420 F.Supp. at 857. Compare Davis v. Passman, supra note

21, 442 U.S. at 235 n.11, 246-247, 99 S.Ct. at 2271 n.11, 2275, 60

L.Ed.2d at 856 n.11, 863-864.

See Davis vy. Passman, supra note 21, 442 U.S. at 235

n.11, 99 S.Ct. at 2271 n.11, 60 L.Ed.2d at 856 n.11.

‘7We discern nothing in the False Claims Act itself to aid a

confident answer to the inquiry whether the conduct alleged in

13a

ous branches of expenditure in the public service” are

statutorily confined “to the objects for which they are re-

spectively made,” and consequently are available “for no

others.” 4* But we are unable to agree with the American

Law Division of the Library of Congress *® in its conclusion

that this statutory directive perforce bars public compen-

sation of congressional staff members for the performance

of campaign activities.5° The unambiguous meaning of this

relatively straightforward provision is simply that appro-

priated funds are to be applied solely to statutorily-

enumerated purposes,®! and the appropriations bills

covering the era of Senator Cannon’s reelection campaign

tell us no more than that their purpose was “compensation

of officers, employees, clerks to Senators.”5? Even as-

suming, as fairly we may, that the funds appropriated

were intended solely to compensate staffers for perform-

ance of their “official” duties, we are left with the

perplexing question whether campaign work is official ac-

tivity.5* Not even the Senate itself has been able to reach

a consensus on the propriety of using staff members in

count one of appellant’s complaint established a claim within its

purview.

4631 U.S.C. § 628 (1976).

“*See note 80 infra and accompanying text.

59See S. Rep. No. 95-500, 95th Cong., Ist Sess., 24 (1977).

51 We have not been able to find any judicial or executive in-

terpretation helpful in this connection. The reason may well be

that the plain language leaves no room for doubt.

52 Legislative Branch Appropriations Act, 1976, Pub. L. No.

94-59, 89 Stat. 269 (1975); Legislative Branch Appropriations

Act, 1975, Pub. L. No. 93-371, 88 Stat. 424 (1974). .

53 We note that the Federal Elections Commission has also not

addressed this problem directly.

l4a

reelection campaigns;** rather, the history of its attempts

to develop a suitable rule reveals the lack of a firm stand-

ard during the period relevant to this case, and vividly

portrays the keen difficulties with which courts would be

faced were they to attempt to design guidelines on their

own,

b. Senatorial Treatment

When, in 1976, Senator Cannon launched his reelection

drive, the Senate restricted campaign activity by staff

membe-'s only in the area of fund-handling. Senate Resolu-

tion 266, adopted in 1966, had established standards of

conduct for Members, officers and employees,5* and the

sole provision dealing with staffers’ participation in cam-

paigns was Rule 43,5* which allowed only designated em-

ployees to receive, solicit, hold, or distribute campaign

funds, 57

Quite significantly the Senate Select Committee on

Standards, in recommending Rule 43, noted the high de-

gree of personal allegiance owed a Member of Congress by

his immediate staff, and the undesirability of interference

with a Member’s discretion in assigning duties to staff

personnel.5® Resultantly, the Committee disavowed any

54E ven had the Senate done so, it is unclear whether a federal

court would be the appropriate forum for seeking enforcement

of its rule on that subject. See Ray v. Prormire, 189

U.S.App.D.C. 220, 223, 581 F.2d 998, 1001, cert. denied, 439

U.S. 933, 99 S.Ct. 326, 58 L.Ed.2d 329 (1978) (interpretation

and application of Senate rules is usually a matter not for the

courts but for the Senate).

58See 114 Cong. Rec. 7388-7408 (1968).

56 Quoted in note 32 xupra.

57See 114 Cong. Rec. 7407 (196%),

The Committee explained:

The committee is very reluctant to recommend the cur-

tailment of the discretion of a Senator to assign duties to

l5a

intention to deter campaign activity by Senate employees

beyond involvement with campaign monies.5® The floor

debate on Resolution 266 similarly was a reaffirmation

that a Senator’s staff was generally free to assist in his

reelection efforts. Both Senator Stennis, the chairman of

the Select Committee, and Senator Cooper, a member of

the Committee, emphasized that, except for fundraising,

the Committee had imposed no limits on staffers’ campaign

activities. ®°

his assistants, but the relationship of a Senator and his

staff requires some regulation to prevent abuse. Recent

experience has shown that the handling of political cam-

paign funds by an officer or employee of the Senate is just

such a case of abuse.

S. Rep. No. 1015, 90th Cong., 2d Sess. 17 (1968).

59/d. at 19.

6°Senator Stennis explained:

A proposal was made not to let the staff members have

anything to do with a Senator’s reelection. However, we

unanimously opposed that on the simple ground that the

staff is a necessary part of the operation and must work up

the facts on which the Senator acts .... So we totally

ruled out the idea of prohibiting staff members from taking

part in the campaigns for the nomination or renomination

of Senators.

114 Cong. Rec. 6836 (1968) (remarks of Senator Stennis). Later,

in response to questions from his colleagues, Senator Stennis

reaffirmed the narrow scope of Rule 43:

There is no prohibition on any staff member any time dur-

ing a campaign. Their pay is not to be stopped or any

benefits denied in any way unless they go out and violate

the rule about money, receiving or soliciting funds for an

election; otherwise, they are free to help out with the rec-

- _ the campaign, and to help get up speeches, and so

orth.

114 Cong. Rec. 6838-6839 (1968). And Senator Cooper stated:

I would say that this question on how many employees

are used in a campaign is one we cannot deal with now. It

l6a

It was not until after Senator Cannon’s 1976 reelection

that the Senate began to reconsider the role of staff in

senatorial campaigns. In early 1977, a Special Committee

on Official Conduct was instructed to formulate standards

of behavior for Members, officers and employees.*! On

March 10 of that year, the Committee reported favorably

on Senate Resolution 110, which recommended major

changes in the standing rules of the Senate.®? One

suggested revision was a new Rule 49, designed to refine

the provisions of the older Rule 43 respecting the handling

of campaign funds by forbiding staff members from

soliciting such funds.®* Paragraph 3 of Rule 49 also “at-

tempted ... to deal with some of the complicated and

delicate issues relating to the political activity of officers

and employees whose salaries are paid by the Senate.” ®

The Committee readily acknowledged difficulties in distin-

guishing between a staffer’s official duties and his cam-

paign assistance,®> but nevertheless proposed removal

from the Senate payroll of officers and employees “engag-

[ing] substantially in campaign activities.” ®* The Commit-

tee said:

seems to address itself to the judgment and the sense of

propriety of each Senate [sic].

114 Cong. Rec. 6839 (1968) (remarks of Senator Cooper).

61123 Cong. Rec. 1361-1363 (1977).

62S. Rep. No. 49, 95th Cong., 1st Sess. (1977).

631d. at 85.

64/d. at 14.

65/d. The Supreme Court alsu has noted the acute problems in

differentiating between official and campaign activities. See

United States v. Brewster, 408 U.S. 501, 512, 92 S.Ct. 2531,

2537, 33 L.Ed.2d 507, 518 (1972).

66 Paragraph 3 of proposed new Rule 49 read:

No officer or employee of the Senate who is engaged

substantially in campaign activities shall remain on the

17a

While the prohibition applies equally to activities on

behalf of any candidate for Federal office, the par-

ticular concern of the Committee was that Senate

staff not stay on the payroll if they are engaging in

substantial campaign activities on behalf of the re-

election effort of the Senator for whom they work.

The Committee considered writing this rule in

terms of the number of hours spent on campaigning

for the percentage of time spent on campaign ac-

tivities, but concluded that this approach would be

futile. However, the Committee believes that the in-

tention of the rule is clear enough: If a Senate em-

ployee is substantially engaged in campaign activities

on behalf of a candidate, that the employee should not

be receiving his salary from the Government. The

Committee understands that this is the approach cur-

rently taken by most Members of the Senate.®7

Because of the complexity of the issue, howeve: , the rule’s

injunction was to be qualified by exceptions for an indi-

vidual’s “political activity directly related tc his official

duties,” ®* for “campaign activity of a de minimus na-

ture,” ® and for “voluntary campaign activity on the offi-

cer’s or employee’s own time.” 7°

payroll of the Senate. Nothing in this paragraph shall be

construed as prohibiting an officer or employee from en-

gaging in (1) political activity directly related to his official

duties; (2) campaign activity of a de minimus nature during

office hours; and (3) voluntary campaign activity on the of-

ficer’s or employee’s own time.

S. Rep. No. 49, supra note 62, at 85-86.

877d. at 52.

68 See note 66 supra. See also S. Rep. No. 49, supra note 62,

at 52.

69See note 66 supra. See also S. Rep. No. 49, supra note 62,

at 52.

7See note 66 supra. See also S. Rep. No. 49, supra note 62,

at 52-53.

18a

Paragraph 3 of Rule 49 represents the most serious ef-

fort a Senate unit has yet made to regulate the use of

Members’ personal staffs in reelection campaigns. It met a

very early demise, however—a fate reflective of the still-

continuing inability of the Senate to prescribe binding

standards of behavior in that regard, as well as of the per-

ceived need for further study of the problem. Before

Resolution 110 was introduced on the floor of the Senate,

Paragraph 3 was withdrawn for reasons stated by Senator

Nelson, the floor manager of the resolution:

The committee found it extremely difficult to write

such a rule without making all political activity re-

lated to official duties look suspect. The committee

concluded that to the extent a problem exists in this

area, it could apply equally to the employees of a

House Member or a Governor seeking Federal office,

and that it was most appropriately a matter within

the jurisdiction of the Federal Election Commission.

For all these reasons, the committee has recom-

mended that the Rules Committee, which has juris-

diction over the FECA, to [sic] study the problem in

the context of its review of the FECA later this year

and report proposals dealing with this subject.”

Accordingly, Paragraph 3 was replaced with a provision

requiring the Committee on Rules and Administration to

report, within 180 days, “proposals to prohibit the misuse

of official staff by holders of public office in campaigns for

... election, to Federal office.” 72 Resolution 110, as thus

altered, was adopted by the Senate.”*

The report summoned by Resolution 110 did not issue

early. While it was awaited, there were developments in

the Senate, but these too mirrored the body’s usual am-

71123 Cong. Rec. 8041 (1977) (statement of Senator Nelson).

727d. at 8045.

737d. at 10060.

19a

bivalence on the problem. On May 11, 1977, the Senate

Select Committee on Ethics rendered an interpretive rul-

ing on the use of staff in campaigns pending availability of

the report of the Committee on Rules and Administra-

tion.74 The Committee advised:

In the iterim [sic], Members must use their best

judgment in taking staff off the Senate payroll to de-

vote substantial portions of their time or to partici-

pate for any extended period in such activities. The

Committeee [sic] on Ethics recognizes staff fre-

quently will be reinstated after campaign activities.75

Additionally, on June 13, 1977, the Senate agreed to

Resolution 188, which effectuated a recommendation by

the Committee on Rules and Administration that Rule 49

be amended to allow designated employees to solicit as

well as handle campaign funds.7® It is of no little moment

for this case that the Committee’s report called attention

to Rule 49’s proposed ban on fund-solicitation by staf-

fers,77 and declared that aside from fund-raising rules

[t]he committee is not aware of any laws which pro-

hibit individuals who are part of a Senator’s staff from

participating in a Senator’s reelection campaign as

74124 Cong. Rec. S17599-17600 (daily ed. Oct. 7, 1978).

75J]d. at S17599-17600. The Committee also addressed the

question “(t]o what extent may Senate employees volunteer

time after office hours or while on annual leave to assist in

political fund raising events for Members and candidates for

election to the Senate?” Jd. at S17599. The Committee re-

sponded:

In the interim Members should remove staff from the Sen-

ate payroll to participate for any extended period in such

activities.

Id.

76123 Cong. Rec. 18626 (1977).

77S. Rep. No. 241, 95th Cong., Ist Sess. 1, 2 (1977). See also

note 63 supra and accompanying text.

20a

long as they do not neglect their Senate duties, and

the committee does not feel there should be such

proscriptions. 7°

Meanwhile, the Committee on Rules and Administration

pressed forward in the mission directed by Senate Resolu-

tion 110.7® Early on, the Committee requested the Ameri-

can Law Division of the Library of Congress to examine

and report on existing law relating to utilization of federal

employees in election campaigns.®° As the deadline for the

Committee’s report drew near, however, its task remained

incomplete.*? The Senate therefore authorized the Com-

mittee to consider the referred issues in two stages—the

first a report on current law, and the second a study of the

problem based upon conclusions reached at the end of the

first stage. ®

The Committee issued its first report on October 17,

1977.® With respect to staff use in election campaigns, the

report recounted the salient events discussed earlier in

this opinion. *4 On the basis of this review, the Committee

78/d. at 1-2.

™See text supra at note 72.

80S. Rep. No. 95-500, 95th Cong., Ist Sess. 1, 4 (1977).

1See id. at 2.

82],

83See id.

847. at 2-5. The report of the American Law Division of the

Library of Congress was appended as Exhibit 1 to the Commit-

tee’s report. /d. at 15-34. The Library of Congress study

reached these overall conclusions:

There appear to be no Federal statutes which specifically

prohibit Federal officeholders from using their official staff

for campaign purposes. There exist, however, various

broad general guidelines which direct that official staff ful-

fill their official duties; and, in addition, certain executive

2la

concluded that “[o]ther than the actual handling of cam-

paign funds, the Senate has not imposed any restrictions

on the participation of a member of a Senator’s staff in

that Senator’s reelection campaign.” *®* The Committee

therefore supported the

general rule . . . that members of a Senator’s staff are

permitted to engage in the reelection campaign of a

Senator, as long as that staff member does not

neglect his or her Senate duties. The nature and

scope of a staff member’s Senate duties are deter-

mined by each Member of the Senate. Such duties

necessarily encompass political and representational

responsibilities, as well as legislative, administrative,

or clerical ones, and are often performed during ir-

regular and unconventional work hours. A similar

rule of practice has been followed in the House of

Representatives, and would be generally applicable to

other. Federal employees not covered by the Hatch

Act.

The Committee announced its intention to study, as the

second stage of its work, the role of staff members in

political campaigns *?—a project in which the Committee

presumably is still engaged. **

branch employees are prohibited from engaging in any par-

tisan political activity.

In the case of official staff working for Members of Con-

gress, the Member delineates the staffers’ official duties.

Once the staffer has fulfilled these official duties, he may

then volunteer his free time to work on campaign matters

for the Member.

Id. at 15 (footnote omitted).

85/d. at 2.

86/d. at 4,

877d. at 2, 5.

**Our research has not disclosed anything further from the

Committee. .

8. Manageability and Need for Initial Policy

Determinations

As this historical resume makes abundantly clear, there

were in 1976—and there are now—no “manageable stand-

ards” for a court to apply when viewing staff participation

in a Senate reelection campaign.®® Moreover, the inability

of the Senate—a body constitutionally authorized and in-

stitutionally equipped to formulate national policies and

internal rules of conduct—to solve the problem demon-

strates “the impossibility of deciding” the issue appellant

poses “without an initial policy determination of a kind

clearly for nonjudicial discretion.” ®° Indeed, the interpre-

tation of the False Claims Act suggested by appellant

would license the courts to monitor every action taken by

a Senator and his aide in an effort to determine whether it

is sufficiently “official” or too “political.”

The dilemma thus posed is just as unsurmountable here

as we found it to be in another recent case—one involving

a presidential reelection campaign.®' There we cited both

lack of standing and general prudential considerations in

declining to exercise jurisdiction to deal with claims of

misuse of federal power and funds by a candidate who al-

legedly had followed

a concerted course of conduct designed to use the

public treasury for salaries, travel expenses, costs of

meetings and other political outlays; to grant and

withhold public employment based upon political sup-

port by the employee; and to promise and award fed-

eral programs and funds to communities as political

See text supra at notes 43-46.

Baker v. Carr, supra note 40, 369 U.S. at 217, 59 S.Ct. at

* 710, 83 L.Ed. at 686.

*Winpisinger v. Watson, —.. U.S.App.D.C, ..., 628 F.2d

133 (1980).

23a

inducements and rewards, all in order to obtain sup-

port for President Carter’s renomination.

These accusations, we noted, “relate/d!, quite literally, to

virtually every discretionary decision made by the Ad-

ministration acting through ... high government offi-

cials;” “[cJonsequently,” we said, “any relief, to be effec-

tive, would have to be as broad as the authority of the

high offices held by the federal defendants.” So,

[w)hether shaped as declaratory relief, or injunctive

relief, or both, the court’s judgment would have to

interject itself into practically every facet of the

Executive Branch of the federal government, on a

continuing basis, for the purpose of appraising

whether considerations other than pure public service

motivated a particular defendant in the performance

of his or her official duties.®

But this, we concluded, was beyond the ability of the

judiciary, for the courts simply are “not suited to under-

take neutral consideration of every Executive action.”

27d. at __, 628 F.2d at 135.

*3/d. at _, 628 F.2d at 139,

7d.

*5We were also concerned that close supervision of the

Executive Branch might violate separation-of-powers prin-

ciples, for such “action would necessarily carry with it an im-

plied lack of respect for a coordinate branch of government.” /d.

at — n.30, F.2d at 140 n.30. While we do not believe that

judicial examination of congressional employment decisions

would necessarily connote disrespect, see text supra at note 45,

close oversight of daily legislative activities—coupled with a

lack of congressionally-endorsed standards—might well be seen

as invading the legislative prerogative. Thus, in Public Citizen,

Inc. v. Simon, 176 U.S.App.D.C. 209, 589 F.2d 211 (1976), we

observed in a related vein that granting taxpayers standing “to

attack any executive action that draws on an outstanding ap-

propriation on the ground that the purchases or services are not

25a

III. THE COUNT Two CLAIM

Appellant’s remaining contention, advanced in the sec-

ond count of his complaint, is that at unspecified times un-

named members of Senator Cannon’s staff rendered per-

sonal services for the Senator and his family while col-

lecting their governmental salaries.®? The District Court

held that this allegation did not state a claim upon which

relief could be granted because appellant had not

“point[ed] to one specific instance in which a member of

Cannon’s personal staff was paid out of public income for

personal tasks he or she performed.” ®* We agree though

we do not consider the issue to be as straightforward as

the District Court suggests.

Rule 9(b) of the Federal Rules of Civil Procedure man-

dates that “[i}]n all averments of fraud or mistake, the cir-

cumstances constituting fraud or mistake shall be stated

with particularity.”®® It cannot be doubted that “[nJor-

mally this means that the pleader must state the time,

place and content of the false misrepresentations, the fact

misrepresented and what was obtained or given up as a

consequence of the fraud.” '°° The rule serves to discour-

age the initiation of suits brought solely for their nuisance

value,'® and safeguards potential defendants from frivo-

lous accusations of moral turpitude.'°? The need for this

protection is especially acute where, as here, the principal

defendant is an elected official whose reputation and posi-

®7See text supra at note 12.

United States ex rel. Joseph v. Cannon, supra note 4, at 2,

App. 5.

Fed. R. Civ. P. 9(b).

1002A J. Moore, Federal Practice { 9.03, at 9-20 to 9-24 (2d

ed. 1980). See 5 C. Wright & A. Miller, supra note 10, at

§ 1297.

1015 C. Wright & A. Miller, supra note 10, at 1296.

102].

26a

tion are particularly vulnerable to accusations of wrong-

doing.'®* And because “fraud” encompasses a wide variety

of activities, the requirements of Rule 9(b) guarantee all

defendants sufficient information to allow for preparation

of a response. !%

In the present case, plaintiff's allegations could hardly

have been more generalized and vague. He did not specify

which members of the Senator’s staff were involved, and

he left unstated just what personal services they per-

formed and precisely when those activities occurred. He

even failed to allege any neglect of official duties.

Rule 9(b) is not, however, to be read in isolation from

other procedural canons. As Professor Moore notes, “(t]he

requirement of particularity does not abrogate Rule 8,15

and it should be harmonized with the general directives in

subdivisions (a) and (e) of Rule 8 that the pleadings should

contain a ‘short and plain statement of the claim or de-

fense’ and that each averment should be ‘simple, concise

and direct.’”°* Viewed in this light, Rule 9(b)’s require-

103 Felton v. Walston & Co., 508 F.2d 577, 581 (2d Cir. 1974)

(“one purpose of rule 9(b) is to protect reputations of . . . pro-

fessionals from scurrilous and baseless allegations of fraud”);

Rich v, Touche Ross & Co., 68 F.R.D. 248, 245 (S.D.N.Y. 1975)

(“(tJhe need for this protection [against vague allegations of

fraud) is most acute where the potential defendants are profes-

sionals whose reputations in their field of expertise are most

sensitive to slander”).

104F elton v. Walston & Co., supra note 103, 508 F.2d at 581;

Rich v. Touche Ross & Co., supra note 103, 68 F.R.D. at 245; 5

C. Wright & A. Miller, supra note 10, at § 1296.

Fed. R. Civ. P. 8.

162A J. Moore, supra note 100, at 4 9.03, at 9-28. See Felton

v. Walston & Co., supra note 103, 508 F.2d at 581; Schlick v.

Penn-Dirie Cement Corp., 507 F.2d 374, 379 (2d Cir. 1974),

cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L. Ed.2d 467 (1975).

27a

ment of particularity is less certain a standard for

measuring the sufficiency of a complaint, and we are con-

strained to probe deeper than the District Court did.

The rules of civil procedure are not to be strictly con-

strued,’°? and “a litigant ought not be denied his day in

court merely on the ground that his complaint is inartfully

drawn.” ?°* The usual method for dealing with a nebulous

complaint, then, is either to grant leave to amend!” or to

dismiss the complaint without prejudice.'!° Appellant now

asks permission to file “a more definite statement of the

claim, a bill of particulars or . . . to obtain the facts by

discovery.” !"! We think, however, that in the circum-

stances here the District Court’s dismissal should be sus-

tained. Appellant had more than eleven months—from

June 7, 1977, when appellees filed their motion to dismiss,

until May 25, 1978, when the District Court issued its dis-

missal order—to remedy the deficiencies of the original

pleading. He made no effort to do so, and “[aJbsent some

indication as to what appellant[{ ] might add to [his] com-

plaint in order to make it viable, we see no reason to grant

appellant[ } relief in this court which was not requested

below.” 112

1°7Conley v. Gibson, supra note 34, 355 U.S. at 48, 78 S.Ct.

at 103, 2 L.Ed. 2d at 86. See also Foman v. Davis, 371 U.S.

178, 181-182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222, 225-226 (1962); 2

J. Moore, supra note 100, at { 1.13[1); 4 C. Wright & A. Miller,

supra 10, at § 1029.

108 Mooney v. Vitolo, 435 F.2d 838, 839 (2d Cir. 1970).

109See Fed. R. Civ. P. 15(a); Foman v. Davis, supra note

107, 371 U.S. at 182, 83 S.Ct. at 230, 9 L.Ed.2d at 226.

110See Barry v. St. Paul Fire & Marine Ins. Co., 555 F.2d 8,

13 (1st Cir. 1977), aff'd, 438 U.S. 531, 98 S.Ct. 2928, 57 L.Ed.2d

932 (1978).

111 Brief for appellants at 11.

112National Union of Hospital and Health Care Employees v.

Carey, 557 F.2d 278, 282 (2d Cir. 1977) (citation omitted). See

The judgment appealed from is affirmed.

So ordered.

Phillips v. Bureau of Prisons, supra note 34, 192

U.S.App.D.C. at 368, 591 F.2d at 977 (“[bJecause appellants

have not sought to amend their complaint in either this court or

the court below, this litigation draws to an end”); Coates v.

Board of Educ., 559 F.2d 445, 451 (7th Cir. 1977) (not error to

dismiss complaint for insufficiency where leave to amend was

never sought); cf. Foman v. Davis, supra note 107, 371 U.S. at

182, 83 S.Ct. at 230, 9 L.Ed.2d at 226 (“futility of amendment”

is valid reason for not conferring right to amend following dis-

missal for failure to state a claim upon which relief can be

granted); Clark v. National Travelers Life Ins. Co., 518 F.2d

1167, 1169 (6th Cir. 1975) (“there is no ‘duty [on the part] of the

trial court or the appellate court to create a claim which appel-

lant has not spelled out in his pleading’”), quoting Case v. State

Farm Mut. Auto Ins. Co., 294 F.2d 676, 678 (5th Cir. 1961).

29a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA )

ex rel JOEL D. JOSEPH, )

)

Plaintiff,

Vv. ) Civil Action No. 77-0452

)

HOWARD W. CANNON and )

CHESTER B. SOBSEY, ) FILED

)

Defendants. ) MAY 2.51978

MEMORANDUM AND ORDER JAMES F. DAVEY, Clerk

The plaintiff brings this suit under the False Claims

Act, 31 U.S.C. § 231, to recover, on behalf of the United

States, public income paid by defendant, Senator Howard W.

Cannon of Nevada, as salaries to his Administrative Assist-

ant, defendant Chester B. Sobsey, and to others on his

personal staff. Plaintiff alleges that Sobsey while paid

as an Administrative Assistant worked on the Senator's

re-election campaign for the period March, 1975 to November,

1976. He further argues that Cannon's staff performed for

him and his family services paid for out of the public

coffer even though they were not legislative duties.

The United States has chosen not to participate in

this suit. The defendants have moved for dismissal of the

complaint on the basis this Court does not have jurisdiction

and that plaintiff has failed to state the particular in-

stances of the alleged fraud as required by Rule 9(b), F.R.

Civ. P.

The False Claims Act states clearly that no court has

jurisdiction over private false claims if the evidence or

information on which the suit is grounded is "in the

30a

“2-6.

possession of the United States, or any agency, officer

or office thereof. .. ." 31 U.S.C. § 232(c). Defendant

Cannon, on May 14, 1969, did file with the Secretary of

the Senate and publicly disclosea that defendant Sobsey

was an aide authorized to receive and distribute campaign

gontributions, The Court therefore finds it nas no juris-

aaction over plaintiff's first claim.

The Court also agrees with defendants that the

plaintiff? has failed to state with particularity the cir-

cumstances of the fraud alleged in connection with Cannon's

salary payments to his personal staff. The word "fraud"

in the False Claims Act is used in the normal meaning of

"deceit." . Br v

Lomb Optical Co., 131 F.2d 545 (2d Cir. 1942), aff'd, 320

U.S. 711. The plaintiff has failed to point to one specific

instance in which a member of Cannon's personal staff was

paid out of public income for versonal tasks he or she per-

formed. So this second charge must taii py the failure of

Plaintiff to state a claim on which relief may be

granted.

The motion of defendants to dismiss this action is

granted,

SO ORDERED.

ame Orestes

Date: baa 2%, s41P