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October 1, 1976


The opinion of the court was delivered by: FLANNERY

 This matter is before the court on defendant's motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure. On March 26, 1976, Alan Roy Hollander, a private citizen, filed this action to recover double damages and forfeitures from the defendant, Congressman William L. Clay of the First Congressional District of Missouri, under the False Claims Act, 31 U.S.C. §§ 231-35. Under this statute, a private citizen may initiate a suit on behalf of the United States subject to an election by the Department of Justice to assume responsibility for the continuance of the litigation. 31 U.S.C. § 232. The original complaint charged defendant with submitting false travel vouchers to the clerk of the House of Representatives to obtain reimbursement for automobile trips between Washington, D.C. and St. Louis, Missouri; defendant allegedly either inflated the cost of the trips or did not take the trips at all.

 The Department of Justice elected to take over the case from Hollander on June 4, 1976, and it filed an amended complaint June 18, 1976. The amended complaint added two new theories of recovery in addition to the False Claims Act count: common-law unjust enrichment and monies paid under mistake of fact.

 According to the complaint, every member of Congress is entitled to reimbursement for travel between his home Congressional district and Washington, D.C. out of the contingent fund of the House of Representatives. This contingent fund consists of federal monies drawn on the United States Treasury pursuant to the appropriation act for the legislative branch. Plaintiff contends that defendant received payment for approximately 90 travel claims submitted between 1970 and 1975 in which defendant misrepresented the occurrence of travel, misrepresented the mode of transportation, and inflated the amount of money due him.

 Defendant now seeks to dismiss the action. He claims that this suit is barred on four grounds: (1) the Speech or Debate clause; (2) the article 1, section 5 provision of the Constitution relating to punishment and expulsion of members of Congress; (3) the political question doctrine; and (4) the provisions of the statute relating to payments out of the contingent fund, 2 U.S.C. § 95. Each of the claims will be examined in turn.


 Article 1, section 6 of the Constitution provides that "for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place." Defendant argues that reimbursement of travel expenses represents Congressional acknowledgement of a task, representation of and communication with a constituency, that is fundamental to a legislator's job and thus protected by the Speech or Debate clause. Indeed, the privilege or immunity to be afforded by the Speech or Debate clause should be read broadly to provide some practical security against interference or intimidation by the executive and accountability before a possibly hostile judicial branch. Gravel v. United States, 408 U.S. 606, 617, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972); United States v. Johnson, 383 U.S. 169, 181, 15 L. Ed. 2d 681, 86 S. Ct. 749 (1966). Generally, the conduct of a member of Congress is not subject to judicial review or made the basis of a civil or criminal judgment where that conduct is within the sphere of legitimate legislative activity. Gravel v. United States, supra at 624; Tenney v. Brandhove, 341 U.S. 367, 376, 95 L. Ed. 1019, 71 S. Ct. 783 (1951).

 The protection of the Speech or Debate clause, however, does not extend beyond those activities construed as legislative acts; not everything that members of Congress do, even in their official capacities, can be classified as protected legislative acts. Doe v. McMillan, 412 U.S. 306, 313, 36 L. Ed. 2d 912, 93 S. Ct. 2018 (1973); Gravel v. United States, supra at 624-25; United States v. Brewster, 408 U.S. 501, 528, 33 L. Ed. 2d 507, 92 S. Ct. 2531 (1972). The Supreme Court has defined a legislative act as one constituting

an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. . . . Courts have extended the privilege to matters beyond pure speech or debate in either House, but "only when necessary to prevent indirect impairment of such deliberations."
wide range of legitimate "errands" performed for constituents . . . preparing so-called "newsletters" to constituents . . . . Although these are entirely legitimate activities, they are political in nature rather than legislative . . . .

 408 U.S. at 512. This passage makes clear that contact with constituents is not the type of activity designed to fall under the Speech or Debate clause's protection.

 In the instant case, it is clear that the constituent communication aspect of the travel vouchers does not constitute the type of legislative activity defined by the cases to be within the clause. Moreover, this case does not directly involve defendant's communication with his constituents, but rather merely the allegedly false filing of travel vouchers. Defendant alternatively argues that the act of being paid, whether as salary or as reimbursement for travel expenses, represents a fundamental part of the job of a legislator and is thus protected. The court finds this contention similarly ...

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