UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WILLIAM THOMAS, et al.,
          Plaintiffs,
     v.
NETWORK SOLUTIONS, INC.
and.                          CIVIL ACTION NO
                              1:97CV02412 (TFH)
NATIONAL SCIENCE FOUNDATION
          Defendants.

DEFENDANT NETWORK SOLUTIONS, INC.'S MEMORANDUM
(1)1N SUPPORT OF DEFENDANT NATIONAL SCIENCE FOUNDATION'S MOTION TO VACATE PRELIMINARY INJUNCTION AND MOTION TO DISMISS UNDER FED. R CIV. P. 12(h) AS MOOT, AND
(2) IN OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

The issue posed by the motions now before the Court is whether the Court should give effect to Congress' recent ratification legislation 1/ in accordance with the plain terms and obvious intent of the legislation. Defendant Network Solutions, Inc. ("NSI") concurs and joins in the memorandum submitted by defendant National Science Foundation ("NSF") in support of NSF's motion to vacate the preliminary injunction and to dismiss this action as moot in light of the ratification legislation, and in opposition to plaintiffs' motion for summary judgment. To the

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1/ 1988 Supplemental Appropriations and Rescissions Act, Pub. L No. 105-174, 8003, 112 Stat. 58, 93-94 (hereinafter referred to as Section 8003")

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extent that NSI has any difference of view with NSF, it is that NSF has unduly dignified plaintiffs' arguments by its overwhelming refutation of them. NSI believes that plaintiffs' arguments are frivolous and can be disposed of more briefly.

1. Plaintiffs argue that Section 8003 did not explicitly ratify the collection of the 30% Intellectual Infrastructure payment. Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion To Vacate Preliminary Injunction and Motion To Dismiss Under Fed. R. Civ. P. 12(h) as Moot (June 1, 1998) (hereinafter cited as "Pl. Opp."), passim. There is nothing to this argument. Where a statute is clear and unambiguous on its face, the statute must be interpreted in accordance with its plain meaning. See. E.G., Robinson v. Shell Oil Co., 117 S. Ct. 843, 846(1997); Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 295 (1995). The meaning of Section 8003 could not be plainer:

The 30 percent portion of the fee charged by Network Solutions, Inc. between September 14, 1995 and March 31, 1998 for registration or renewal of an Internet second-level domain name, which portion was to be expended for the preservation and enhancement of the intellectual infrastructure of the Internet under a cooperative agreement with the National Science Foundation, and which portion was held to have been collected without authority in William Thomas et al. v. Network Solutions, Inc. and National Science Foundation, Civ. No. 97-2412, is hereby legalized and ratified and confirmed as fully to all intents and purposes as if the same had, by prior Act of Congress, been specifically authorized and directed. (Emphasis added.)

Nothing more is needed to effect a valid ratification. Certainly the Court should not sweep aside the crystal-clear command of Congress on the ground, urged by plaintiffs, that Section 8003 does not contain the word "tax." Where, as here, a statute is clear and unambiguous, the courts should not quibble with Congress' choice of words.

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2. Plaintiffs argue that appropriations bills cannot be used as vehicles for "ratification by implication." Pl. Opp. at 10. Section 8003 is not "ratification by implication," however, it is as express as any ratification could possibly be. Moreover, there is nothing improper about using appropriations bills as vehicles for ratification legislation like Section 8003. Indeed, the bill containing the ratification provision that the Supreme Court approved in United States v. Heinszen, 206 U.S. 370 (1907), was an appropriations bill. See An Act Making Appropriations to Supply Deficiencies in the Appropriations for the Fiscal Year Ending June Thirtieth, Nineteen Hundred and Six, and for Prior Years, and for Other Purposes, Pub. L. No. 381, 34 Stat. 634, 636 (1906). 2/

3. Plaintiffs argue that the Court should declare Section 8003 ineffective because of the procedures that Congress followed in enacting Section 8003. The argument has no merit.

a. To begin with the obvious, Section 8003 satisfied the Constitutional requirements for enactment of a valid law. The 1998 supplemental appropriations bill of which Section 8003 was a part passed both houses of Congress, was presented to the President, and was signed by the President. It thereby "bec[a]me a law." U.S. Const., art. I, 7 (second paragraph).

b. Plaintiffs argue that Section 8003 should nevertheless be treated as invalid because of the procedures by which Congress considered and passed it. Plaintiffs want the Court to consider, for example, whether certain legislators were dissatisfied with the procedures, whether the time at which the legislation was introduced and the amount of debate permitted were

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2/ Moreover, the ratification language in Section 8003 was taken from the ratification provision that the Supreme Court approved in Heinszen, as plaintiffs themselves acknowledge. Pl. Opp. at 16.

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appropriate, whether the rules governing consideration of the legislation were proper, and so on. These matters are, however, irrelevant to the validity of the statute and beyond the scope of proper judicial inquiry. In Metzenbaum v. FERC, 675 F.2d 1282 (D.C. Cir. 1982), several Congressmen contended that a statute was invalid on the ground that it was passed in violation of the rules of the House of Representatives. The D.C. Circuit rejected their claim as nonjusticiable under the political question doctrine: "There is no question here of whether Constitutional procedural requirements of a lawful enactment were observed, but only of whether the House observed the rules it had established for its own deliberations. We conclude that this issue, like most 'questions involving the processes by which statutes . . . are adopted,' is '(p)olitical in nature,' and is therefore nonjusticiable." Id. at 1287 (citations omitted) (emphasis added). 3/

c. Inquiry into the process by which Section 8003 was enacted is improper for an additional, related reason. Plaintiffs claim that the internal legislative process by which Section 8003 became law was defective in a variety of respects. To prove their claim, plaintiffs would have to obtain and introduce evidence. For example, to support their contentions that Congress "was not aware specifically of what it was purporting to ratify" and was "deceived into purportedly voting for one thing under the misimpression that it was actually voting for

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3/ Judicial reluctance to inquire into internal Congressional procedures is rooted in the respect for co-equal Branches of the Federal Government, embodied in the separation of powers and political question doctrines. See Baker v. Carr, 369 U.S. 186, 217 (1962) ("[p]rominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department . . . or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government"); Vander Jagt v. O'Neill, 699 F.2d 1166, 1176 (D.C. Cir. 1982) (stating that it would be a "startlingly unattractive idea, given our respect for a coequal branch of government, for us to tell the Speaker of the . . . House of Representatives how many Democrats, and perhaps even which Democrats, he is to appoint to the standing committees, and perhaps to each such committee" (quotations omitted)).

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something else," Pl. Opp. at 19, 21, plaintiffs would have to take discovery from Members of Congress to determine what they actually knew and thought. Plaintiffs would similarly have to take such discovery to support their contention that some Members of Congress and their staffers "deliberately misled" other Members. Pl. Opp. at 21. Such discovery is impermissible under the Speech or Debate Clause of Article I, Section 6 of the Constitution, which shields these matters from judicial examination. United States v. Swindall, 971 F.2d 1531, 1544 (11th Cir. 1992) (Clause protects members of Congress from being "'question[ed] elsewhere than in [Congress]"' about legislative acts) (quoting Gravel v. United States, 408 U.S. 606, 615 (1972)); see also United States v. Helstoski, 442 U.S. 477, 488 (1979) (Clause prohibits inquiry "into those things

generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts" (quotation omitted)).

4. Plaintiffs argue that Section 8003 is invalid because Congress, by that Section, was "ratify[ing] [some]thing that it was not empowered to perform itself." Pl. Opp. at 32. This argument is nonsense. Congress had ample power to impose the 30% Intellectual Infrastructure Fund payment in the first place. Having that power, Congress was empowered to ratify the imposition of the payment after the fact. Plaintiffs argue the issue as though it involves questions of delegation -- i e., as though Section 8003 purported not to ratify the 30% payment, but rather to retroactively empower NSF to take whatever actions it wishes without any legislatively- imposed guidelines. That is not at all what Section 8003 does. Section 8003 is a narrow ratification of a specific payment, and it delegates nothing to NSF. 4/

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4/ For this reason, plaintiffs' heavy reliance on the 63-year old Missouri case of Larabee Flour Mills v. Nee 12 F. Supp. 395 (W.D. Mo. 1935), is misplaced. That case,

(continued. . .)

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5. Finally, plaintiffs contend that Section 8003 is invalid on the ground that it violates the Origination Clause of Article I, Section 7 of the U. S. Constitution, relying principally on United States v. Hagen, 711 F. Supp. 879 (S.D. Tex. 1989). There is no merit to this argument either. In Hagen the district court held that a "special assessment" to the Crime Victims Fund established by the Victims of Crime Act of 1984, 18 U.S.C. 3013, was passed in violation of the Origination Clause. A year later, however, the United States Supreme Court held to the contrary, thereby overruling Hagen. See United States v. Munoz-Flores, 495 U.S. 385 (1990).5/ The Supreme Court held that, even though the special assessment provision originated in the Senate, the assessment did not violate the Origination Clause because Section 3013 was not a "Bil[l] for raising Revenue" within the meaning of the Clause. Id. at 401. The reason was twofold: First, the Supreme Court held that a statute that raises revenue to support "a particular governmental program . . ., as opposed to a statute that raises revenue to support Government generally, is not a 'Bil[l] for raising Revenue' within the meaning of the Origination Clause." Id. at 398. Under this criterion, Section 8003 is not such a Bill either, because the 30% payment does not go "to support Government generally" but rather is devoted to a specific and narrow purpose. Second, the Supreme Court noted that although sums in the Victims Fund in excess of a

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4/ (...continued) moreover, is a relic of another era of administrative and non-delegation law, long rendered obsolete by the judicial decisions of intervening decades. See, e.g., Loving v. United States, 517 U. S. 748, 771 (1996) ("Though in 1935 we struck down two delegations for lack of an intelligible principle, we have since upheld, without exception, delegations under standards phrased in sweeping terms."); Florida Power & Light Co. v. United States, 846 F.2d 765, 776 (D.C. Cir. 198X).

5/ Plaintiffs' treatment of this issue is most disingenuous. Although plaintiffs discuss Hagen at great length, Pl. Opp. at 43-45, and also discuss Munoz-Flores id. at 42-43, plaintiffs never bother to inform this Court that both cases involved the same statutory provision.

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specified cap were to go into the General Treasury, "there is no evidence that Congress contemplated the possibility of a substantial excess, nor did such an excess in fact materialize." Id. at 399. Here, not even the possibility exists. Under Section 8003(b), all of the money in the Intellectual Infrastructure Fund is credited to NSF's Research and Related Activities appropriation and goes to "support . . . networking activities, including the Next Generation Internet." None of it remains in the General Treasury.

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For the foregoing reasons, and for the reasons stated in the memorandum filed this date by NSF, this Court should grant NSF's motion to dismiss this action as moot and deny Plaintiffs' motion for summary judgment.

Respectfully submitted,
(signed Michael Burack)
Lloyd N. Cutler (082321)
Michael L. Burack (053736)
Carrie Y. Flaxman (458681)
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000

COUNSEL FOR DEFENDANT
NETWORK SOLUTIONS, INC.

Of Counsel
Philip L. Sbarbaro (369922)
HANSON AND MOLLOY
1250 Eye Street, N.W., Suite 701
Washington, D.C. 20005
(202) 842-1116

DATED: June 26, 1998


CERTIFICATE OF SERVICE

I certify that on June 26, 1998, the foregoing Defendant Network Solutions Inc.'s Memorandum (1) In Support of Defendant National Science Foundation's Motion to Vacate Preliminary Injunction and Motion to Dismiss Under Fed. R. Civ. P. 1 2(h) as Moot, and (2) In Opposition to Plaintiffs' Motion for Summary Judgment was served on the following counsel of record:

By hand delivery and facsimile:

William H. Bode
Daniel E. Cohen
BODE & BECKMAN, L.L.P.
1150 Connecticut Avenue, N.W., Ninth Floor
Washington, D. C. 20036

By facsimile and first-class mail:

Lisa S. Goldfluss
Assistant United States Attorney
District of Columbia
Judiciary Center
555 Fourth Street, N.W.
Washington, D.C. 20001

(signed Carrie Flaxman)
Carrie Y. Flaxman