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UNITED STATES v. EILBERG

October 19, 1981

UNITED STATES of America, Plaintiff,
v.
Joshua EILBERG, Defendant



The opinion of the court was delivered by: FLANNERY

 FLANNERY, District Judge.

 This matter comes before the court on a motion to quash a deposition subpoena served upon the Honorable Edmund L. Henshaw, Jr., Clerk of the United States House of Representatives. The defendant in this case, Representative Joshua Eilberg, has intervened in the motion to quash of the Clerk. For the reasons expressed below, the motion is denied.

 Background

 The current dispute stems directly from a civil case pending in the Eastern District of Pennsylvania, in which the United States has sued Representative Eilberg for funds allegedly owed the government. United States v. Eilberg, 507 F. Supp. 267 (E.D. Pa.). The third count of the complaint, grounded in the False Claims Act, 31 U.S.C. § 231 et seq., alleges that Representative Eilberg falsely certified that numerous telephone calls charged to his congressional office were "official," when actually those calls dealt with matters entirely unrelated to Representative Eilberg's congressional responsibilities.

 On August 10, 1979, the United States Attorney for the Eastern District of Pennsylvania filed a motion for a determination of materiality and relevancy of documents. Such a determination is required by House Resolution No. 10, as a prerequisite to the issuance of a subpoena to the Clerk of the House of Representatives. H.Res. 10, 96th Cong., 1st Sess., 125 Cong.Rec.H. 17 (daily ed. Jan. 15, 1979). *fn1" The subject matter of the United States Attorney's motion and the subpoena now under scrutiny, include:

 
Any and all billings and other records maintained by the Clerk . . . relating to telephone calls from or charged to the office of former Representative Joshua Eilberg . . . for the period from and including January of 1978; and all controlling House regulations pertaining to such billings and records.

 Pursuant to local rule, the United States notified the Clerk of the House that the motion for a determination of relevancy and materiality had been filed and the Clerk was given an opportunity to file an opposition. The Clerk filed a lengthy memorandum in response, arguing that the government's underlying claim and, therefore, the desired subpoena raise a non-justiciable, political question. The essence of the Clerk's argument was that the question of whether particular phone calls are "official" is a matter reserved solely for the House under the Constitution's Rulemaking Clause, Article I § 5, Cl. 2. Concomitantly, the Clerk urged, a court could not discern adequate standards for assessing the executive's contention that particular phone calls were not within the realm of official congressional activity.

 The United States Attorney responded that it is not unconstitutional for the executive to bring civil actions against congressional members when a statute, such as the False Claims Act, delegates to the executive the authority to police against violations of House rules and regulations. In supporting his argument, the United States Attorney referred Judge Pollack to a statute which he claimed expressly delegates to the executive and judicial branches the responsibility for ascertaining the legality of congresspersons' telephone calls. That statute, 2 U.S.C. § 46g provides, in pertinent part, that "there shall be paid out of the contingent fund . . . such amount as may be necessary to pay (1) toll charges on strictly official long distance telephone calls." The United States contended that by enacting this legislation the Congress clearly intended that individual members be subjected to judicial enforcement actions for phone calls determined by the executive and the courts not to be "strictly official."

 There followed a series of written exchanges between the Clerk and the United States concerning the present legal validity and effect of 2 U.S.C. § 46g. This debate focused on the Committee on House Administration's apparent abandonment of the stipulations in the provision and the impact of 2 U.S.C. § 57 on section 46g's current validity. On its face, section 57 completely apportions responsibility for assessing the legitimacy of members' phone calls between the full House and the Administration Committee, leaving no role for the Department of Justice.

 On October 22, 1980, Judge Pollack issued an extensive opinion on the case, the vast majority of which focused on the motion for a determination of relevancy and materiality. The court ruled on the motion in favor of the United States, concluding that section 46g was still valid law and therefore, the executive had been delegated the power to sue members of Congress for phone calls not "strictly official." Further, Judge Pollack found that this delegation does not contravene the constitutional scheme of separation of powers. Emphasizing heavily the decision in United States v. Brewster, 408 U.S. 501, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972), Judge Pollack determined that a clear provision of authority to the executive to "police" members' extralegislative activities (as he found section 46g to be) is not barred by the Constitution.

 Relying on Judge Pollack's favorable ruling on the motion for a determination of materiality and relevancy, on April 6, 1981, the United States Attorney served the Clerk of the House of Representatives with a deposition subpoena issuing from this court, which ordered the production of the documents described earlier. See pp. 1-2, supra. On May 11, 1981, the Clerk filed the motion to quash which is the present focus of this controversy. On June 23, 1981, Representative Eilberg intervened in the motion to quash.

 Discussion

 It is clear that the Clerk's motion to quash the deposition subpoena seeks to have this court reconsider arguments exhaustively made to and considered by Judge Pollack. Ordinarily, under the doctrine of "law of the case," a court should refrain from deciding issues that have already been definitively resolved by itself or another court. While the doctrine does not jurisdictionally bar a court from reconsidering issues previously concluded, as does the related doctrine of res judicata, the principle of law of the case directs a court not to alter a previous judicial determination unless unusual circumstances are present. See Southern Railway Co. v. Clift, 260 U.S. 316, 43 S. Ct. 126, 67 L. Ed. 283 (1922); Messenger v. Anderson, 225 U.S. 436, 32 S. Ct. 739, 56 L. Ed. 1152 (1912). The carefully circumscribed ...


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