Hi Pak, a South Korean citizen. Named as defendants in the suit were U.S. Representative Donald M. Fraser from Minnesota, Chairman of the Subcommittee on International Organizations of the House Committee on International Relations ("Subcommittee") and two staff members of that Subcommittee, Edwin H. Gragert and Martin J. Lewin.

The complaint contained two counts. The first count alleged a conspiracy by the defendants to deprive the plaintiffs and the members of the Unification Church of their constitutional rights. Specificially, it was claimed that the defendants and other unnamed individuals conspired to deprive the plaintiffs and “all persons associated with the Unification Church and Bo Hi Pak" of their rights of freedom of speech, freedom of association, freedom of expression and freedom of religion. The plaintiffs alleged that Rep. Fraser distributed defamatory materials regarding the plaintiffs; attempted to "deceive and trick" Bo Hi Pak during Pak's testimony before the Subcommittee; caused the payment of fees to witnesses who testified before the Subcommittee; and leaked or permitted leaking of testimony given by Bo Hi Pak in executive session. The plaintiffs claimed that these activities, in addition to violating their rights of freedom of religious exercise and association, damaged their reputations and resulted in financial damage to them due to curtailment of their activities and a reduction in financial contributions to the Unification Church. As relief under the first count, the plaintiffs sought an injunction barring the defendants from violating or conspiring to violate the plaintiffs' rights under the First, Fourth, or Fifth Amendments, $5 million in compensatory damages, and $10 million in punitive damages.

The second count asserted that the defendants deprived the plaintiffs of their constitutional rights. It was also specifically alleged, in addition to the acts alleged in count one, that defendants Gragert and Lewin, representing themselves as architects, fraudulently gained entry to a Washington, D.C. Unification Church building. The plaintiffs claimed that as a result of this action by Mr. Gragert and Mr. Lewin, their rights to the free expression and exercise of their religion were abridged, their right of free association was impaired, they were subjected to a warrantless search, and they were deprived of the due process of the law. The plaintiffs contended that the activities complained of in Count II also resulted in damage to their reputations and financial harm. Their demands under Count II included an injunction, $5 million in compensatory damages and $10 million in punitive damages, the same relief demanded under Count I.

1

On October 10, 1978, the defendants moved to dismiss the complaint or, in the alternative, for summary judgment on the ground that the Speech or Debate Clause of the Constitution provided them with immunity from suit and liability because the actions complained of were within the sphere of legitimate legislative activity. Additionally, the defendants asserted that the complaint failed to state a claim for which relief could be granted.

1 The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1]

On December 11, 1978, the plaintiffs filed an opposition to the motion to dismiss contending that the Congressional defendants - were not absolutely immune from suit because no legislative function of any of the acts complained of had been shown. Further, because the plaintiffs termed the defendants' conduct "unconstitutional and unlawful," they argued it could not be protected by legislation or other privilege.

2

On January 25, 1979, the Unification Church filed an amended complaint, which, while restructuring the allegations of the original complaint, contained each of the allegations set out in the original. Additionally, Count I of the amended complaint contained an allegation which had not been made in the original complaint: that Rep. Fraser maliciously and without any valid legislative purpose publicly distributed outside Congress various materials regarding the plaintiffs, or persons associated with the plaintiffs, which were defamatory and libelous per se. The alleged statements were to the effect that the Unification Church was organized by a director of the Korean Central Intelligence Agency who used it as a political tool; that Colonel Pak "was in trouble because he had attempted to initiate into his church (i.e., to have sexual relations with) the wife of a visiting ROK official"; that the Unification Church interpreted the Bible in sexual terms and maintained that religious experience is interrelated with sex; and that Sun Myung Moon, the leader of the church, was once arrested because of the sexual practices of the church. The plaintiffs claimed in the amended complaint that they advised the defendants that the statements were false and defamatory. The plaintiffs also alleged that the committee, prior to publication of the subcommittee's final report, at the direction of Rep. Fraser, falsely and fraudulently represented to the plaintiffs that subcommittee procedures prevented advance notice and comment on materials to be published.

On April 13, 1979, the Unification Church filed what it styled a "second" amended complaint. While the amended complaint charged only Rep. Fraser with maliciously and without any valid legislative purpose publicly distributing outside Congress various materials regarding the plaintiffs or persons associated with plaintiffs, which were defamatory and libelous per se, the "second" amended complaint charged all the defendants with this allegation. Also, added to the alleged statements made by the defendants were statements made by Rep. Fraser during his election campaign for the Senate to the effect that the plaintiffs "may have been responsible for setting fire to Congressman Fraser's Washington home shortly after the Minnesota primary;" that the plaintiffs campaigned against Rep. Fraser in his reelection campaign; and that there were "links between the Korean CIA and Rev. Sun Myung Moon."

Added to the charges previously mentioned in the amended conplaint was the assertion that some of the alleged statements were contained in a government document which was printed and distributed, with the approval of defendant Fraser, in a quantity in excess of that reasonably required for the legislative function.

On May 14, 1979, Rep. Fraser, Mr. Gragert, and Mr. Lewin filed a motion to dismiss the first amended complaint, or in the alternative, for summary judgment. (The defendants noted that the so

called "second" amended complaint was not properly before the court since the plaintiffs had not been granted leave of the court to amend their original complaint for a second time as required by Rule 15 of the Federal Rules of Civil Procedure. As a consequence, the defendants addressed the first amended complaint as supplemented by the more specific statements attributed to Rep. Fraser.) In a memorandum accompanying the motion, the defendants argued first that injury to reputation did not constitute a violation of a constitutionally protected right and therefore could not be the basis for a suit for money damages in Federal court. Next, the defendants stated that Rep. Fraser's involvement in the Government publication in question consisted solely of voting in favor of its being published. Citing Doe v. McMillian, U.S. 306 (1973), they argued that under the Speech or Debate Clause, one may not challenge a Member's decision to vote to print a publication, even when the number of such publications printed is excessive or goes beyond the reasonable requirements of the legislative function. As to the defamatory statements allegedly made by Rep. Fraser during his election campaign, the defendants contended that the statements did not possess the characteristics of official action necessary to form the basis for any claim of constitutional violations. Finally, the defendants took the position that the plaintiffs were asserting the First Amendment rights of Unification Church members whose claims were not before the court. Thus, said the defendants, the plaintiffs lacked standing.

On June 18, 1979, the plaintiffs filed a memorandum in support of their opposition to the motion to dismiss. They characterized their complaint as being based upon violations of specific First Amendment rights, not upon the common law of defamation, and argued that the action was therefore cognizable by the Federal courts. Subsequently, on July 10, 1979, the plaintiffs filed a supplemental memorandum citing, as additional authority in support of their position, the Supreme Court decision in Hutchinson v. Proxmire, 443 U.S. 111 (1979). (See page 122 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case.)

On September 21, 1979, the defendants filed a reply memorandum to the plaintiff's opposition to the defendants' motion to dismiss the first amended complaint. The defendants charged that the suit was vindictive and frivolous and that the plaintiffs' opposition to their motion to dismiss was without merit and was an attempt to cloud the issues with matters that had nothing to do with the plaintiffs' complaint. The plaintiffs, the defendants alleged, for the fourth time attempted to raise issues not previously raised in the lawsuit. The defendants cited Supreme Court decisions in support of their argument that the Speech or Debate Clause was a complete bar to the action.

On October 19, 1979, the plaintiffs filed a memorandum in response to the September 21st memorandum. The plaintiffs maintained that all matters raised by the defendants had previously been addressed. In addition, the plaintiffs argued that the Speech or Debate Clause did not bar the litigation because the conduct of Rep. Fraser and his staff exceeded the proper functioning of the legislative process. They also reasserted that the unauthorized

search of the plaintiffs' church was a violation of their Fourth Amendment rights and that distributing and printing denigrating statements about the plaintiffs violated their First Amendment rights.

Although there has been no docketed activity in this case since October 1979, it has not been closed and the defendants' motion to dismiss the first amended complaint remains pending before the district court. The plaintiffs have made no further efforts to pursue the complaint.

Status-The case is pending in the U.S. District Court for the District of Columbia.

Food Service Dynamics v. Holtzman

Civil Action No. 79C-2074 (E.D.N.Y.)

During the summers of 1976 and 1977, Food Service Dynamics, Inc. (“FSD”), a New York corporation, participated in the Summer Food Service Program for Children, a Federally-funded feeding program administered by the U.S. Department of Agriculture ("USDA"). The services provided by FSD consisted of providing meals to, and managing the food service for, sponsors who provided food services under the program. USDA did not allow FSD to participate in the 1978 summer program.

On July 10, 1979, FSD filed a civil action in the Supreme Court of the State of New York, Kings County, against U.S. Representative Elizabeth Holtzman of New York and three officials of USDA responsible for the administration of the program for the summer of 1978. The complaint charged that: (1) the USDA defendants unlawfully revoked FSD's registration as a vendor authorized to participate in the program for the summer of 1978; (2) Rep. Holtzman and the USDA defendants conspired to deprive FSD of its right to so participate; and (3) Rep. Holtzman defamed FSD at a June 26, 1978 press conference. With respect to this last claim, FSD charged that Rep. Holtzman stated that: (1) officials of USDA had approved vendors who previously engaged in questionable bidding practices, including FSD; (2) bidder FSD supplied food for some affiliates of B'nai Torah Institute, several officers of which were convicted of fraud in the summer feeding program; and (3) USDA had failed to take action to remove any of the eight caterers accused previously of rigging bids or serving poor food. The complaint sought $6,500,000 in actual damages and $6,000,000 in punitive damages from defendant Holtzman.

On August 8, 1979, Rep. Holtzman and the USDA defendants filed a joint petition and bond for removal to the U.S. District Court for the Eastern District of New York. The petition was subsequently granted.

On September 4, 1979, Rep. Holtzman answered the complaint, denying the material allegations and setting forth certain affirmative defenses. On that same day, Rep. Holtzman served a document request and a notice of deposition on FSD.

In her answer, Rep. Holtzman asserted first that FSD had failed to state any claim upon which relief could be granted. Second, she maintained that the acts alleged in the complaint were committed within the scope of her Congressional office and in furtherance of

her duties to investigate and speak out on matters of public interest and to examine and report upon the implementation of legislation. Third, defendant Holtzman claimed her actions were privileged under the Constitution of the United States and Federal common law. Fourth, she argued that the statements made related to matters of public concern, including public health and safety, the administration of a Federally-sponsored program, and the expenditure of Federal funds. Fifth, Rep. Holtzman contended that statements to USDA mentioned in the complaint were statements regarding matters within the jurisdiction of that agency, which was charged with the responsibility of acting in the public interest in its administration of the program. Sixth, Rep. Holtzman asserted that her statements were true in all material respects as of the date of the press conference.

Meanwhile, during the pendency of this civil action, a grand jury on November 27, 1979 handed down an indictment charging several FSD officials with numerous crimes resulting from their prior participation in the summer feeding program, including filing false and fraudulent federal income tax returns. On May 1, 1980, two officers of FSD entered into a plea agreement with the U.S. Attorney for the Eastern District of New York; in the agreement the two of ficers each pled guilty to a single count of the indictment.

Throughout 1980 and 1981 the parties have been involved in frequent disputes regarding discovery, primarily related to requests for production of documents. On October 2, 1980, Rep. Holtzman filed a motion for an order pursuant to Rule 37 of the Federal Rules of Civil Procedure1 dismissing the action or, in the alternative, compelling FSD to produce certain documents initially requested by the Congresswoman on September 4, 1979. The documents at issue were the Federal, state, and local income tax returns of indicted FSD principals Robert Duchanov, Barry Goldstein, and Bernard Drang, which, according to Rep. Holtzman, had

1 Rule 37 of the Federal Rules of Civil Procedure, entitled "Failure To Make Discovery: Sanctions", provides, in pertinent part:

(a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:

(2) Motion. If . a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for. an order compelling inspection in accordance with the request.

(b) Failure to Comply with Order.

(2) Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party. . . fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, the court in which that action is pending may make such orders in regard to the failure as are just, and among others the following:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; (C) An order striking out pleading or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;