MARY BRICK, SUCCESSOR TO JOHN BRICK, PETITIONER V. ALAN MCSURELY AND MARGARET MCSURELY No. 85-420 In the Supreme Court of the United States October Term, 1985 The Solicitor General, on behalf of Mary Brick, successor to John Brick, cross-petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. This cross-petition is conditioned on the granting of the petition for a writ of certiorari filed by cross-respondents Alan McSurely and Margaret McSurely in No. 85-241, which seeks review of the same judgment. The Solicitor General will be filing a brief in opposition to that petition on behalf of the respondents. In the event that the petition in No. 85-241 is denied, this cross-petition should be denied (see Rule 20.5 of the Rules of this Court). Cross-petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit PARTIES TO THE PROCEEDING In addition to the parties named in the caption, John K. McClellan, administrator of the estate of John L. McClellan, and Murray Knabe, administrator of the estate of Evelyn Adlerman, successor to Jerome Adlerman, were defendants in the district court and appellants in the court of appeals. TABLE OF CONTENTS Question Presented Parties to the Proceedings Opinions below Jurisdiction Constitutional provision involved Statement Reasons for granting the cross-petition Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-57a) /1/ is reported at 753 F.2d 88. Earlier opinions of the court of appeals are reported at 697 F.2d 309, 553 F.2d 1277, 521 F.2d 1024, and 426 F.2d 664. JURISDICTION The judgment of the court of appeals (Pet. App. 58a-59a) was entered on January 18, 1985, and a petition for rehearing was denied on March 19, 1985 (Pet. App. 60a). On June 11, 1985, the Chief Justice granted cross-respondents an extension of time to and including August 16, 1985, within which to file a petition for a writ of certiorari, and their petition (No. 85-241) was filed and served on August 12, 1985. This cross-petition is filed under Rules 19.5 and 20.5 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISION INVOLVED Article 1, Section 6, Clause 1 of the Constitution provides in pertinent part: (F)or any Speech or Debate in either House, (Senators and Representatives) shall not be questioned in any other Place. QUESTION PRESENTED Whether the court of appeals correctly held a Senate aide liable in damages for his conduct in returning copies of documents that had been used in a congressional investigation. STATEMENT The facts and procedural history of this case will be set forth more fully in the brief in opposition to the petition in No. 85-241. They are described here only insofar as is germane to this cross-petition. 1. On August 11, 1967, local law enforcement officials of Pike County, Kentucky arrested cross-respondents Alan and Margaret McSurely on charges of violating Kentucky's anti-sedition statute. In the course of executing a search warrant, the officials seized a large quantity of the McSurelys' personal papers and belongings. The next day, Pike County prosecutor Thomas Ratliff announced that he intended to make these materials available to congressional committees. Pet. App. 4a. In September 1967, a staff member of the Permanent Subcommittee on Investigations of the Senate Government Operations Committee, which was authorized to "'investigat(e) into the causes of civil and criminal disorder that were racking the nation during this period'" (Pet. App. 33a n.17 (citation omitted)), was advised that the materials in Ratliff's custody included "information regarding efforts to organize young people 'to engage in violence and demonstrations'" (id. at 6a (citation omitted)). Shortly thereafter, cross-petitioner's decedent, John Brick, a subcommittee investigator, traveled to Kentucky at the direction of Jerome Adlerman, general counsel to the subcommittee. Brick inspected the materials and returned to Washington with copies of 234 documents. Ibid. On November 8, 1968, following litigation over congressional subpoenas issued to the McSurelys, Brick traveled again to Kentucky to serve new subpoenas on them. At the same time, Brick returned to the McSurelys the 234 copies of documents that had been in the subcommittee's possission. The documents "revealed the details of a love affair" in which Margaret McSurely was involved before her marriage (Pet. App. 8a). Alan McSurely testified that Brick instructed him to read through each of the documents as they were returned (ibid.). 2. The McSurelys filed this action in the United States District Court for the District of Columbia on March 4, 1969. The complaint, as amended, sought compensatory and punitive damages against Brick and several other defendants, including Ratliff, Adlerman, and Senator John L. McClellan (the chairman of the subcommittee), for alleged violations of the plaintiffs' rights under the First, Fourth, Fifth, and Fourteenth Amendments. The allegations against Brick rested primarily on his role in inspecting the materials seized by Ratliff and transporting the 234 copies of documents to Washington. See 553 F.2d 1277, 1284 (1976). Brick and the other Senate defendants filed a motion for summary judgment on the ground that they were entitled to immunity under the Speech or Debate Clause. The district court denied this motion, and the Senate defendants filed an interlocutory appeal. Pet. App. 10a. Following a divided panel decision (521 F.2d 1024 (1975)), the court of appeals reheard the appeal en banc (553 F.2d 1277 (1976)). Although it held that the defendants were entitled to immunity with respect to certain of the McSurelys' claims, the en banc court of appeals, by an equally divided vote, affirmed the denial of their summary judgement motion with respect to the claims "concerning the action of subcommittee investigator Brick in inspecting the documents and transporting copies of some of them to Washington prior to issuance of a subcommittee subpoena" (id. at 1280). This Court granted the Senate defendants' petition for a writ of certiorari (434 U.S. 888 (1977)), but dismissed the writ as improvidently granted (438 U.S. 189 (1978)). 3. Following several years of discovery, the case went to trial in 1982. /2/ During the trial, the district court permitted the McSurelys to amend their complaint to add a claim that the defendants violated their common law right of privacy, "based solely on the factual allegations already contained in the Complaint" (1 C.A. App. 337). /3/ In special verdicts, the jury assessed damages totalling $105,000 against Brick, $42,000 for violating the Fourth Amendment, $42,000 for violating the First Amendment, and $21,000 for violating the McSurelys' common law right of privacy (Pet. App. 19a-20a n.7, 26a n.12, 36a n.19). The jury also assessed damages of $1.5 million against the other defendants, most of it against Ratliff (id. at 13a). The court of appeals reversed the judgments against the Senate defendants except with respect to the $21,000 privacy award against Brick (Pet. App. 1a-57a). /4/ The court reversed the Fourth Amendment awards on the ground that they were barred by qualified immunity because the defendants violated no clearly established constitutional rights (id. at 19a-26a). Next, the court reversed the First Amendment awards for two independent reasons: first, on the ground that the defendants did not violate the First Amendment and second, on the ground that the defendants were immune from suit under the Speech or Debate Clause (id. at 26a-35a). Finally, the court upheld the common law award against Brick alone on the ground that his conduct in requiring Alan McSurely to read his wife's correspondence in the copies of the documents that Brick returned to the plaintiffs violated their right of privacy (id. at 36a-53a). The court held that Brick was not entitled to immunity with respect to this claim on the ground that his conduct was "not even arguably within the outer perimeter of (his) line of duty" (id. at 53a). REASONS FOR GRANTING THE CROSS-PETITION For the reasons to be stated in the brief in opposition in No. 85-241, the petition for a writ of certiorari filed by cross-respondents should be denied. As the court of appeals concluded (Pet. App. 54a), "(t)he curtain ought to be drawn" on this litigation, now more than 16 years old. If the McSurelys' petition is granted, however, simple fairness requires that this cross-petition also should be granted in order that the Court may review the entire judgment of the court of appeals. Should the Court reach the Speech or Debate Clause question presented by cross-respondents, it would then be in a position to apply the law to the one part of the case in which the court of appeals held that no immunity was available. The court of appeals erroneously concluded (Pet. App. 51a-53a) that Brick was not immune under the Speech or Debate Clause for his conduct in returning the copies of documents that he had taken to Washington for use by the Senate subcommittee. /5/ The court of appeals rested its denial of immunity on its view that Brick used "manifestly excessive means" (id. at 53a) to return the documents because he required Alan McSurely to read through his wife's love letters. "(T)he absolute nature of the speech or debate protection" (Eastland v. United States Servicemen's Fund, 421 U.S. 491, 509 (1975) (footnote omitted)), however, requires that "Congressmen and their aides (be) immune from liability for their actions within the 'legislative sphere,' * * * even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes." Doe v. McMillan, 412 U.S. 306, 312-313 (1973) (quoting Gravel v. United States, 408 U.S. 606, 624-625 (1972)). Brick plainly was acting within the protected legislative sphere. When he returned the copies of documents that had been in the subcommittee's possession, Brick was performing, pursuant to arrangements made by his superiors in the subcommittee, a necessary step in an ongoing congressional investigation. It would be anomalous to characterize Brick's role in returning the documents as outside the scope of his legislative duties as a subcommittee investigator when his role in obtaining the documents in the first place was part of those duties. See, e.g., Doe v. McMillan, 412 U.S. at 312-313 (Speech or Debate Clause immunizes introduction of materials at congressional hearings); see also Tenney v. Brandhove, 341 U.S. 367 (1951) (state legislators not liable for conduct of investigation). Even if Brick's conduct was, as the court of appeals thought (Pet. App. 50a), "highly offensive," it fell far short of exceeding "the outer perimeter of (his) line of duty" (id. at 53a). Brick did not "disseminate (the McSurelys' papers) to the public at large" (Doe v. McMillan, 412 U.S. at 316) or "scatter() (them) for and wide" (Hutchinson v. Proxmire, 443 U.S. 111, 132 (1979)). By requiring Brick to respond in damages for showing insufficient sensitivity to the nuances of the McSurelys' relationship with one another, the court of appeals has improperly stripped him of his immunity merely for a "mistake() in judgment." Butz v. Economou, 438 U.S. 478, 507 (1978). This ill-considered attempt by the court of appeals to provide a measure of relief (beyond the settlement with Ratliff) to litigants whom it viewed sympathetically (see Pet. App. 54a) should not go unreviewed if, contrary to our submission, the Court grants the McSurelys' petition. CONCLUSION If this Court grants the petition for a writ of certiorari in No. 85-241, it should also grant this cross-petition. If the petition in No. 85-241 is denied, this cross-petition should also be denied. Respectully submitted. CHARLES FRIED Acting Solicitor General SEPTEMBER 1985 /1/ "Pet. App." refers to the appendix to the petition in No. 85-241. /2/ While the interlocutory appeal was pending, defendants Brick and Adlerman died. After the petition for a writ of certiorari was filed, defendant McClellan also died. This Court granted a motion to substitute the estate of McClellan (434 U.S. 1043 (1978)). On remand, the district court granted a motion filed by the McSurelys to substitute the widows of Brick and Adlerman over the objections that the motions were untimely and that the widows were not proper parties because they were not legal representatives of their husbands' estates. When Adlerman's widow subsequently died, the district court substituted her estate, again over objection. The court of appeals upheld these substitutions (Pet. App. 15a-19a). Although we believe that this ruling is erroneous, we are not presenting the question in this cross-petition. /3/ The amendment was based on Judge Leventhal's suggestion that the McSurelys might have a cause of action against Brick "for acting outside of judicial channels in inspecting the materials * * * and transporting copies back to Washington" (553 F.2d at 1294). Plaintiffs explained that no new factual allegations would be required to support their claim because "brick's seizure of the * * * personal correspondence * * * was an unwarranted intrusion upon (their) right of privacy" (1 C.A. App. 244 (emphasis added)). /4/ Ratliff's appeal was dismissed following the conclusion of a settlement agreement (Pet.App. 3a). /5/ The court of appeals also erred in affirming the common law privacy violation on a theory that had not been presented to the jury and in holding that Brick had committed an actionable invasion of privacy. While the complaint contains a brief allegation with respect to Brick's return of the documents, the case was tried on the theory that only the seizure of the documents was tortious (see note 3, supra). As the district court instructed the jury (5 C.A. App. 1704): "(P)laintiffs claim that the defendants * * * conspired to transfer to the Senate Committee documents which had been unlawfully seized * * * (in violation of) the right of privacy." The return of the documents therefore, cannot, as the court of appeals concluded (Pet. App. 37a), "provide() the evidence on which the jury verdict for the McSurelys properly rests." In any event, the court of appeals cited, and we are aware of, no case holding that giving copies of a wife's letters to her husband constitutes a publication of private facts in violation of the common law right of privacy. See Restatement (Second) of Torts Section 652D comment a (1977) (publicity requirement "means that the matter is made public, by communicating it to the public at large(;) * * * it is not an invasion of the right of privacy * * * to communicate a fact concerning the plaintiff's private life to a single person").