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MCINTYRE v. O'NEILL

March 1, 1985

RICHARD D. McINTYRE, et al., Plaintiffs
v.
THOMAS P. O'NEILL, JR., et al., Defendants



The opinion of the court was delivered by: GREEN

 This matter is before the Court on defendants' motion to dismiss, plaintiffs' opposition thereto, defendants' reply to plaintiffs' opposition, oral argument on the motion, and the entire record herein. For the reasons set forth below, the Court grants defendants' motion and dismisses this action.

 Plaintiffs Richard D. McIntyre and Everett Robertson, Jr., on February 11, 1985, brought suit against two hundred and forty-seven Democratic Party members of the United States House of Representatives, *fn1" and three officers of the House of Representatives. Plaintiffs seek to have the Court issue a permanent injunction restraining all defendants from taking any action which would deny plaintiff McIntyre the right to be seated as the Representative of the Eighth Congressional District to the 99th Congress. Complaint at para. 276(3)(A). Plaintiffs also seek to have the Court enjoin defendant Thomas P. O'Neill, Jr., Speaker of the House of Representatives, from refusing to administer the oath of office to plaintiff McIntyre as a Member of the 99th Congress; enjoin defendant Benjamin J. Gutherie, Clerk of the House of Representatives, from excluding plaintiff McIntyre from an office in a House office building and from denying him any of the rights and privileges to which he claims he is entitled as a Member of the 99th Congress; enjoin defendant Jack Russ, Sergeant-at-Arms of the House of Representatives, from refusing to perform for plaintiff McIntyre such duties and services he is allegedly required to perform for plaintiff; and enjoin defendant James T. Malloy, Doorkeeper of the House of Representatives, from refusing to admit plaintiff McIntyre to the floor of the House of Representatives for the purposes of voting and addressing the Members of the House. Complaint at paras. 276(3)(B), (C), (D), (E).

 Defendants, in response to plaintiffs' complaint, filed on February 13, 1985, a motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, respectively. *fn2"

 I.

 The following allegations have been asserted in plaintiffs' complaint. *fn3"

 On December 13, 1984, the Indiana Secretary of State certified plaintiff McIntyre as the winner of the election. Also on December 13, the Indiana Governor signed plaintiff McIntyre's certificate of election and forwarded it to defendant Gutherie.

 On January 3, 1985, before plaintiff McIntyre could be sworn in as a Member of the House of Representatives, the House passed House of Representatives Resolution Number 1 ("House Resolution 1"), which states:

 
Resolved. That the question of the right of Frank McCloskey or Richard McIntyre to a seat in the Ninety-ninth Congress from the Eighth Congressional District of Indiana shall be referred to the Committee on House Administration, when elected, and neither Frank McCloskey nor Richard McIntyre shall be sworn until the Committee on House Administration reports upon and the House decides such question. For each day during the period beginning on the date on which this resolution is agreed to and ending on the day before the date on which the House decides such question, Frank McCloskey and Richard McIntyre shall each be paid an amount equal to the daily equivalent of the annual rate of basic pay payable to a Member of the House. For the period beginning on the date on which this resolution is agreed to and ending on the date on which the House decides such question, the Clerk of the House shall provide for clerical assistants in the manner provided by law for the case of death or resignation of a Member and shall otherwise perform full administrative functions with respect to the Eighth Congressional District of Indiana. There shall be paid from the contingent fund of the House such sums as may be necessary to carry out this resolution.

 Complaint at para. 264; Cong. Rec. H4-5 (daily ed. Jan. 3, 1985).

 The vote on House Resolution 1 was Yeas 238 to Nays 177. The vote was strictly along party lines.

 Since the passage of House Resolution 1, plaintiff McIntyre has attempted to fulfill the duties of a Member of the House of Representatives but has been prohibited from doing so.

 On February 7, 1985, Minority Leader Robert H. Michel introduced House of Representatives Resolution Number 52 ("House Resolution 52") which provides:

 
Whereas, Richard D. McIntyre won the November 6, 1984, election in the Eighth Congressional District of Indiana by 34 votes according to the certificates of election filed by the ...

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