lan, 553 F.2d 1277, 1287 (D.C. Cir. 1976) (en banc), cert. dis- Congressional Defendants contend that their involvement as alleged by plaintiff and as demonstrated by the official public records of the Select Committee as well as the sworn statements of various Select committee personnel at depositions taken by the Plaintiff, represents the actions of committee aides actively engaged in the protected activity of acquiring information for the Select Committee. As such, their actions are privileged by operation of the Speech or Debate Clause as it has been applied by the judicial branch. [Congressional Defendants' Memorandum of Points and Authorities in support of Their Motion for Summary Judgment, December 1, 1981, at 5-7] The Congressional defendants also took pains to distinguish the instant case from Benford insofar as a motion for summary judgment based on the Speech or Debate Clause was concerned: In a recent decision in a separate civil action which has been filed in the aftermath of the Select Committee's inquiry and ABC's television coverage the Fourth Circuit has reaffirmed that "Liability may not be predicated on 'legislative acts' performed by the Congressional Defendants." Benford v. American Broadcasting Company, No. 81-1200, June 17, 1981 (unpublished opinion at 3) (Exhibit F). In Benford the question was whether dismissal was warranted prior to any discovery. The Fourth Circuit Court of Appeals held that prior to any discovery, the record did not establish with sufficient strength to justify summary disposition that the Congressional Defendants involvement was a legislative act, but withheld that determination for determination on a motion for summary judgment factually or at trial after Congressional Defendants demonstrate that their's was legislative. In the instant case, Congressional Defendants have been open to discovery and plaintiff has in fact taken several depositions. This discovery demonstrates that Congressional Defendants involvement was in furtherance of the Select Committee's objectives, and was undertaken pursuant to good faith reliance on proper authorization. [Id. at 6] With respect to the doctrine of official immunity, the Congressional defendants claimed that their actions were privileged in line with the Supreme Court's holding in Barr v. Matteo, 360 U.S. 564, 574 (1959) that Federal officials were protected from common law tort suits based on actions performed by them within the "outer perimeter' of [their] line of duty." While admitting that "not all conduct in any way related to the legislative process is within the legitimate legislative sphere for purposes of the Speech or Debate Clause," the Congressional defendants submitted that at a minimum the activities alleged in the complaint were within this "outer perimeter" of their line of duty and hence privileged. [Id. at 8] If the court found that their actions were not within the Speech or Debate Clause or the doctrine of official immunity, the Congressional defendants argued, they were still entitled to qualified immunity from suit under Butz v. Economou, 438 U.S. 478 (1978). They reasoned: It has been held that "inapplicability of speech or debate An official is entitled to qualified immunity if he acted establish that it was The affidavits and exhibits On December 7, 1981, the plaintiff filed a memorandum in opposition to the motions of the defendants for summary judgment. Initially responding to the statute of limitations argument, the plaintiff insisted that her personal injury due to embarrassment, humiliation, and mental anguish was not sustained until September 1980, and it was only then that her cause of action accrued. As to the damage to her business and estate, the plaintiff asserted that that injury was covered by the five year injury to property limitation period (which did not expire until November 1983). . Focusing next on the Speech or Debate Clause defense, the plaintiff asserted that it should be rejected because there was "a material issue of fact as to whether the Congressional defendants participation in the incident at bar was essential to the legislative process." [Memorandum of Points and Authorities. . . In Opposition to Defendants' Motion for Summary Judgment, December 7, 1981, at 7] Furthermore, the plaintiff maintained, "violation of criminal statutes, conspiracy and the commission of common law torts, including invasion of privacy are not protected by the Speech or Debate Clause." [Id. at 8] The plaintiff also dismissed the immunity defense as inapplicable to her cause of action, and, in any event, without foundation in a case where the acts of the Congressional defendants exceeded the purview of legitimate legislative activity. The plaintiff rejected ABC's arguments as well, arguing that a conspiracy did exist (between ABC and the Select Committee staff members); that an action for invasion of privacy was cognizable under Virginia law; that 18 U.S.C. §§ 2510 et seq. was applicable in cases where the purpose of intercepting and using an oral communication was to commit "a criminal, tortious or injurious act" [Id. at 11] and the plaintiff had an expectation of privacy; and that there was no absolute privilege for the media from invasions of privacy, tortious interference with business interests or defamation, particularly where the motives of the defendants were at issue. On December 10, 1981, the Congressional defendants filed a reply memorandum disputing the plaintiff's assertion that there was a material issue of fact as to whether they had been properly acting within the scope of their employment for the Select Committee. The defendants insisted that the plaintiff had not produced a "single scintilla" of evidence to rebut the extensive record of the legislative nature of their actions. On December 11, 1981, after a hearing, Judge Bryan issued an order: (1) granting the defendants' motion to dismiss Counts II (eavesdropping under 18 U.S.C. §§ 2510 et seq.), IV (invasion of privacy), and V (defamation) as barred by the applicable statute of limitations; (2) denying the defendants' motion to dismiss Counts I (conspiracy) and III (business interference), although dismissing Count I to the extent that it asserted a conspiracy to injure the plaintiff's reputation; (3) denying the defendants' motions for summary judgment on Counts I and III; and (4) denying defendant Osmer-McQuade's motion to dismiss for lack of personal jurisdiction. Judge Bryan also approved a stipulation and order of dismissal, with prejudice, of the case against defendant Denenberg. On February 8 and 9, 1982, a jury trial was held on the remaining counts of the complaint, and on February 9 the jury returned a verdict in favor of the defendants on all counts. On February 25, 1982, the plaintiff filed a notice of appeal to the U.S. Court of Appeals for the Fourth Circuit [No. 82-1192] of both the trial court verdict and Judge Bryan's interlocutory order of December 11 dismissing Counts II, IV, and V on the grounds that they were barred by the applicable statute of limitations. Status-The case is pending in the U.S. Court of Appeals for the Fourth Circuit. American Family Life Assurance of Columbus v. American Broadcasting Companies, Inc. Civil Action No. 20674 (Sup. Ct. New York County, N.Y.) On November 7, 1979, the American Family Life Assurance Company of Columbus, a Georgia corporation in the supplemental insurance business selling "Cancer Care," filed suit in the Supreme Court of the State of New York, County of New York [Index No. 20674], against the American Broadcasting Companies, Inc. ("ABC"); Frederick S. Pierce, Roone Arledge, George Jenkins, Av Westin, Frank Reynolds, Margaret Osmer, Max Robinson, and Jeff Gralnick, ABC executives and employees; Erma Hufford; and Kath leen T. Gardner, Betty Hamburger, Lillian Teitlebaum, David Holton and Margaret Dixon, all present or former employees of the Select Committee on Aging of the U.S. House of Representatives. (The complaint did not identify the Congressional employees as such, but instead termed each of them "an agent, servant and/or employee" of ABC.) The four count complaint charged the defendants with defamation, libel, slander and a "prima facie tort," and sought a total of $275,000,000 in compensatory and punitive damages. Like Benford v. American Broadcasting Companies, Inc. and Brown v. American Broadcasting Companies, Inc. (see pages 204 and 220 respectively of this report for a discussion of those cases), this action arose from the Select Committee's investigation into abuses in the sale of health insurance to the elderly, and in fact set forth many of the same allegations, against several of the same defendants, as were involved in those cases. More specifically, the complaint centered on two actions: a November 15, 1978 series of interviews (which were videotaped) by defendant ABC employee Osmer with the plaintiff's Chief Executive, John B. Amos, and various other employees; and the allegedly fraudulent securing of employment with the plaintiff by defendant Gardner who was actually an undercover investigator. The gravamen of the complaint was that through these two actions, and subsequent editing of the videotapes and statements of the plaintiff's employees, the plaintiff was "set up" and a totally distorted and defamatory broadcast of the company's operations was presented. (The broadcasts were aired on ABC's national "World News Tonight" program on November 27, 28, and 29, 1978.) The underlying theory of the suit was that a conspiracy existed to injure the plaintiff and that the conspiracy was effectuated "under the guise" of and "in conjunction with" the Select Committee "in an attempt to ward off any responsibility for televising inaccurate claims, illegal recordings and video tapes, false and libelous statements [Verified Complaint, November 7, 1979, [31] On July 7, 1980, a stipulation of voluntary discontinuance was filed dismissing the action against ABC defendants Pierce, Jenkins, Robinson, and Gralnick. There has been no docketed activity in the case since July 1980. Status-The case is pending in the Supreme Court of the State of New York. It has been the position of the Congressional defendants that they have not been properly served; therefore, they have filed no answer to the complaint nor any other responsive pleading. United States v. Myers (criminal) [See page 35.] United States v. Kelly [See page 56.] United States v. Jenrette [See page 19.] United States v. Murphy (criminal) [See page 64.] United States v. Thompson (criminal) [See page 64.] United States v. Williams [See page 92.] VI. Challenges to the Internal Rules of Congress and the Statutes Under Which Congress Operates Murray v. Morton No. 81-1301 (D.C. Cir.) On June 13, 1980, Jon Garth Murray, Director of the American Atheist Center of the Society of Separationists, Madalyn Murray O'Hair, and the Society of Separationists filed suit in the U.S. District Court for the District of Columbia against Azie Taylor Morton, Treasurer of the United States; G. William Miller, Secretary of the Treasury; Thomas P. O'Neill, Speaker of the House; Warren G. Magnuson, President Pro Tempore of the Senate; Walter Mondale, President of the Senate; and the Chaplains of the House (James David Ford) and the Senate (Edward L. Elson). [Civil Action No. 80-1475 (D.D.C.)] In their complaint, the plaintiffs alleged that the use of Federal funds, and the laws authorizing the use of these funds, to pay chaplains "to perform essentially religious functions" violated "the First Amendment's prohibition on passing laws which respect an establishment of religion", and_violated plaintiffs' "right to freedom from religion". [Complaint, June 13, 1980, at 5] Suing as Federal taxpayers and atheists, the plaintiffs sought injunctive relief to restrain the defendants from expending or receiving Federal funds for the salaries of the chaplains or for their staff or expenses, as well as declaratory relief that the statutes authorizing expenditures for the chaplains were unconstitutional. On September 12, 1980, the U.S. Attorney for the District of Columbia filed a motion to dismiss the complaint on behalf of the United States, the Congress, the Senate, and the Senate and Executive department defendants. The motion was based on the following grounds: (1) the court lacked subject matter jurisdiction because adjudication would violate the doctrine of separation of powers; (2) the plaintiffs lacked standing; (3) the action was barred by the doctrine of res judicata; and (4) the complaint failed to state a claim upon which relief could be granted. On the same day, the General Counsel to the Clerk of the House filed a similar motion on behalf of the House defendants. In a memorandum filed in support of the motion to dismiss, the U.S. Attorney asserted that the case was nonjusticiable because the authority to appoint and compensate officers such as the chaplains of either house of Congress was "textually committed" to the legislative branch by Article I of the Constitution. Additionally, the memorandum argued that since the plaintiffs were not members of |