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").