Amicus Brief — Joseph v. Cannon

No. 80-2036

7

Office “Supreme Court, US.

FILED

ee a od

' Inthe Supreme Court of the United

Octoser Term, 1981.

Joet D. Josern, PETITIONER

Vv.

Howarp W. CANNON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

« THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE UNITED STATES

AS AMICUS CURIAE

\

" Rex E, Lee

Solicitor General

J. Paut McGrath,

Assistant Attorney General

.. ANTHONY J. STEINMEYER

~ Rospert L. ASHBAUGH

‘HOWARD S. SCHER

‘Attorneys

Department of Justice

| Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Cases: ;

Baker v. Carr, 369 U.S. 186 .........0008-

Shakman v. Democratic Organization of

Cook County, 435 F. 2d 267 ........0065

United States v. Bornstein, 423 U.S. 303 ....

United States v. Bramblett, 348 U.S. 503 ...

United States v. Brewster, 408 U.S.

JUL cecewrccccnroedereceovcsescocceees

BGT wvcccbcwervedvrrcccescccccvsveceses

United States ex rel. Brensilber v. Bausch

& Lomb Optical Co., 131 F. 2d 545, aff'd,

SPOULS. TI cc cvcccnccvescccccsceccees

United States ex rel. Hollander v. Clay,

GOOF. Supe. SSF. vccvicccccccicvcccens

Statutes and rule:

False Claims Act, ch. 67, 12 Stat. 696, Rev.

Stat. 3490-3494 (1893-1874), as amended,

SE U.S.C, 230 CF BQ. dive cicccedcccncases

Rev. Stat. 3491, 31 U.S.C. 232 .........

Rev. Stat. 3491, 31 U.S.C. 232(C) ......

Legislative Branch Appropriation Act, 1975,

Pub. L. No. 93-371, 88 Stat. 424 .........

Legislative Branch Appropriation Act, 1976,

Pub. L. No. 94-59, 89 Stat. 269 ..........

31 U.S.C. 628

Pred: BR. Cis P. iik cdtincvccccccacccaene

Page

Miscellaneous:

50 Comp. Gen. 534 (1971) ...... cece cece eeeeee 6

52 Comp. Gen. 504 (1973) ...... cee eeceeeeeees 6

114 Cong. Rec. (1968):

Rp sc pdscvcccccsscovecessocccveses 3

Laer haanestecvestessenenseocesse 3,4

Henkin, /s There.a “Political Question”

Doctrine?, 85 Yale L.J. 597 (1976) ..........4.- 7

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

SUPMIUEDTOE hc cccncccccccvds.evecscescess 3

S. Rep. No. 95-500, 95th Cong., Ist Sess.

Eco. ecdGdin ee 600an sent béescdcses 4, 6

In the Supreme Court of the United States

OCTOBER TERM, 1981

No. 80-2036

JoEL D. JOSEPH, PETITIONER

Vv.

HOWARD W. CANNON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE UNITED STATES

AS AMICUS CURIAE

This memorandum is filed in response to the Court’s

invitation to the Solicitor General to express the views of

the United States.

1. Petitioner brought this action against respondents

Howard W. Cannon, a United States Senator, and Chester

B. Sobsey, his administrative assistant, under the qui tam

provision of the False Claims Act, ch. 67, 12 Stat. 696, Rev.

Stat. 3490-3494 (1873-1874), as amended.' Petitioner's

'The civil provisions of the False Claims Act have been codified at 31

U.S.C. 231 ef seq., but because Title 31 has not been enacted into

positive law and the codified version differs from the Revised Statutes,

we cite to the latter. See United States v. Bornstein, 423 U.S. 303, 30§

n.1 (1976). The qui tam provision, Rev. Stat. 3491 (see 31 U.S.C. 232).

provides that a private party may maintain a suit if he first discloses to

the Attorney General the information on which his claim is based; the

United States then has 60 days in which to take over the suit if it wishes.

Petitioner complied with this requirement and the United States

declined to enter the suit (Pet. App. 29a).

I

>

2

principal allegation is that Senator Cannon authorized the

payment of Sobsey’s federal salary during a time when

Sobsey was working “extensively and exclusively” on the

Senator’s 1976 reelection campaign (Pet. App. 2a).?

The United States District Court for the District of

Columbia dismissed petitioner’s complaint, holding that

because the information on which it was based was already

in the possession of the government, a qui tam action was

barred by Rev. Stat. 3491 (see 31 U.S.C. 232(C)). The court

of appeals rejected this basis for dismissing the complaint,

but it affirmed on the ground that, because there was “a

complete absence ‘of judicially discoverable and manage-

able standards for resolving’ the question whether Senators

may use paid staff members in their campaign activities”

(Pet. App. 12a, quoting Baker v. Carr, 369 U.S. 186, 217

(196°)), upholding petitioner’s claim would require the

court “to venture far beyond the limits of acceptable judicial

action” (Pet. App. 10a). The court accordingly concluded

that it was required to “decline to read the Act as proscrib-

ing the particular conduct alleged in [petitioner's] com-

plaint” (ibid.).

The court of appeals first noted that at the time of Sena-

tor Cannon’s 1976 campaign, no Senate rule *estricted

Senate aides’ participation in political campaigns; indeed,

the Senate had deliberately chosen not to impose such

2Petitioner also alleged that “the Senator's staff performed personal

services for him and his family while collecting their governmental

salaries” (Pet. App. 2a). The district court dismissed this claim on the

ground that petitioner had “failed to state with particularity the circum-

stances of the fraud alleged” (Pet. App. 30a), as required by Fed. R. Civ.

P. 9(b). The court of appeals affirmed, noting that although petitioner

had ample opportunity “to remedy the deficiencies of the original

pleading[,] [hJe made no effort to do so” and that on appeal petitioner

gave no indication of how he might make his claim more specific (Pet.

App. 27a). Petitioner appears not to challenge this aspect of the court of

appeals’ ruling.

4

Senator Cooper, a member of the committee that drafted

Rule XLIII, similarly stated that the “question on how

many employees are used in a campaign is one we cannot

deal with now. It seems to address itself to the judgment and

the sense of propriety of each Senat[or]" (Pet. App. 15a-16a

n.60, quoting 114 Cong. Rec. 6839 (1968)).

Moreover, the court of appeals said that it could find no

statute or administrative ruling that defined the extent to

which a member of a Senator's staff could perform political

duties (Pet. App. 12a-13a). The court also discussed at

length the Senate's efforts since 1977 to deal with the ques-

tion of employees who engaged in political activities while

on the Senate payroll (id. at 16a-21a), and noted that the

committee studying the matter reported that “ ‘Lo]ther than

the actual handling of campaign 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’ ”

(id. at 21a, quoting S. Rep. No. 95-500, 95th Cong., Ist Sess.

2 (1977)). In 1977 the Senate again declined to adopt a

proposal to limit staff members’ participation in political

campaigns (Pet. App. 16a-18a).

For these reasons, the court of appeals determined that it

could find “no ‘manageable standards’ for a court to apply

when viewing staff participation in a Senate reelection

campaign” (Pet. App. 22a, quoting Baker v. Carr, supra,

369 U.S. at 217). The court concluded (Pet. App. 22a, 24a):

[T)he interpretation of the False Claims Act suggested

by [petitioner] 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.” * * * [W]e are loathe to give the False

Claims Act an interpretation that would require the

judiciary to develop rules of behavior for the Legisla-

tive Branch, We are unwilling to conclude that Congress

5

gave the courts a free hand to deal with so sensitive and

controversial a problem, or invited them to assume the

role of political overseer of the other branches of

Government.

Therefore, the court held, petitioner had stated “no cause of

action * * * under the [False Claims] Act” (id. at 24a).

2. The False Claims Act provides that it shall be unlaw-

ful to make a “false, fictitious, or fraudulent” claim against

the United States.’ See United States ex rel. Brensilber v.

Bausch & Lomb Optical Co., 131 F. 2d 545 (2d Cir. 1942),

aff'd by an equally divided Court, 320 U.S. 711 (1943). If

Sobsey’s position were defined—by statute or perhaps by

Senate rule or common understanding—in a way that

excluded full-time participation in a political campaign,

then respondents’ claims for Sobsey's salary might be said

to have implicitly represented that Sobsey was not working

primarily on Senator Cannon's campaign, and petitioner's

allegation might then state a gui tam cause of action under

the False Claims Act. But petitioner has not established that

Sobsey’s position was defined in a way that precluded

extensive campaign work. Consequently, even if petition-

er’s factual allegations are true, the claim for Sobsey's salary

was not false or fraudulent.

As the court of appeals showed, the Senate, in drafting

the rules that were in force in 1976, deliberately chose not to

define the position in a way that excluded extensive cam-

paign activities. The court of appeals also noted that the

appropriations statutes under which Sobsey was paid pro-

vided simply for the “ ‘compensation of officers, employees,

‘The False Claims Act applies to false claims presented to Congress

(see United States v. Bramblett, 348 U.S, 503, 509 (1955)), and actions

have been successfully brought against members of Congress under the

Act. See ihid.; United States v. Eilberg, 507 F. Supp. 267 (B.D. Pa,

1980); United States ex rel. Hollander vy. Clay, 420 F. Supp. 853

(D.D.C, 1976),

6

[and] clerks to Senators’ (Pet. App. 13a, quoting Legisla-

tive Branch Appropriation Act, 1976, Pub. L. No. 94-59, 89

Stat, 269, and Legislative Branch Appropriation Act, 1975,

Pub. L. No, 93-371, 88 Stat. 424). Presumably aides whose

salaries are paid from this appropriation are to be compen-

sated only for services performed in connection with a

Senator's official functions, and not for purely personal

services to the Senator. See generally 31 U.S.C. 628! 52

Comp. Gen. 504 (1973); 50 Comp. Gen, 534, 536 (1971), But

it is difficult to distinguish between participating in a Sena-

tor’s campaign and helping him to perform such legitimate

official functions as serving constituents, ascertaining their

views, and gathering information from them or explaining

the Senator's positions to them, See United States v.

Brewster, 408 U.S. 501, 512(1972); S. Rep. No, 95-500, 95th

Cong., Ist Sess. 4(1977) (“[A] staff member's Senate duties

* * * necessarily encompass political and representational

responsibilities, as well as legislative, administrative, or

clerical ones, and are often performed during irregular and

unconventional work hours.”).

If some independent standards existed for making the

distinction between official activities and campaign activi-

ties, it might be possible to define the duties of a Senator's

aide in a way that barred him from collecting a salary for

engaging in campaign activities. But in the absence of any

such standards, we doubt that Congress intended the courts

to construct such a definition in the course of interpreting

the False Claims Act or the statutes governing aides’ salar-

ies. Indeed, the history of the Senate's treatment of this

problem suggests that the Senate did not want an aide’s role

to be subject to such limitations, except to the extent they

were imposed by the individual Senator.‘

‘Petitioner asserts (Pet, 11-12) that the decision below conflicts with

Shakman v. Democratic Organization of Cook County, 435 F, 2d 267

(7th Cir, 1970), In that case the plaintiffs claimed that certain county

7

For these reasons, we believe that petitioner’s complaint

was properly dismissed, and we agree with much of the

court of appeals’ reasoning.’ Especially in view of the

and city officials violated the Constitution by “requir{ing] city and

county employees, as a condition of holding their jobs * * * to furnish

votes, campaign work, and money to elect candidates chosen by the

regular [D]Jemocratic organization” (id. at 268). The Seventh Circuit

rejected the argument that this claim presented a nonjusticiable political

question (id. at 270-271).

Shak man is distinguishable from this case in at least two ways. First,

it involved city and county officials, not the political activities of a

coordinate branch of the federal government. See Baker v. Carr, supra,

369 U.S. at 217 (political question doctrine is “essentially a function of

the separation of powers”). More important, although the decision of

the court below was informed by principles concerning the proper role

of federal courts, including principles underlying the political question

doctrine, we believe that decision is properly understood not as a

holding that petitioner's claim was nonjusticiable but ac a determina-

tion that petitioner failed to state a claim under the False Claims Act.

See generally Henkin, /s There a “Political Question” Doctrine?, 85

Yale L.J. 597 (1976). So understood, the decision below of course does

not conflict with a holding that a somewhat related constitutional claim

was justiciable.

5See page 7, note 4, supra. The court of appeals’ conclusion was that

“under the facts alleged in * * * [petitioner's] complaint no cause of

action has been made out under the Act” (Pet. App. 24a). To the extent

that the court of appeals’ opinion suggests that a prohibition against

Senate aides’ engaging in campaign activities could never be enforced

by a court, we believe the court went beyond what was necessary to

decide this case. We see no reason to conclude at this point that it is in

principle impossible to distinguish between activities related to a politi-

cal campaign and other, official legislative activities; it isenough that no

such distinction was reflected in the definition of respondent Sobsey’s

position. The Court has drawn a somewhat comparable distinction in

interpreting the Speech or Debate Clause. See United States v. Brews-

ter, supra, 408 U.S. at 512:

It is well known, of course, that Members of the Congress

engage in many activities other than the purely legislative activi-

ties protected by the Speech or Debate Clause. These include a

wide range of legitimate “errands” performed for constituents, the

making of appointments with Government agencies, zssistance in

8

Senate's ongoing efforts to deal with the issue (see Pet. App.

21a), we see no reason for the Court to review the decision

below.

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

Rex E. L&E

Solicitor General

J. PAUL MCGRATH

Assistant Attorney General

ANTHONY J. STEINMEYER

RoBerT L. ASHBAUGH

HOWARD S. SCHER

Attorneys

FEBRUARY 1982

securing Government contracts, preparing so-called “news let-

ters” to constituents, news releases, and speeches delivered outside

the Congress. * * *[T]hese * * * activities * * * are performed in

part because they have come to be expected by constituents, and

because they are a means of developing continuing support for

future elections. Although these are entirely legitimate activities,

they are political in nature rather than legislative, in the sense that

term has been used by the Court in prior cases. But it has never

been seriously contended that these political matters, however

appropriate, have the protection afforded by the Speech or

Debate Clause.

DOJ-1982-02