Liberation News Service v. Eastland, 426 F.2d 1379 (C.A.N.Y. 1970)

United States Court of Appeals, Second Circuit.

LIBERATION NEWS SERVICE, Sheila Ryan, Allen Young, Students for a Democratic

Society, Anita Simpson and Richard Marantz, Plaintiffs-Appellants,

v.

James O. EASTLAND, John J. McClellan, Sam Ervin, Birch Bayh, Thomas J. Dodd,

Robert C. Byrd, Strom Thurmond, Marlow W. Cook, Robert P. Griffin, Hugh

Scott, J. G. Sourwine, as Chairman, members and staff counsel of the Subcommittee on

Internal Security of the Committee of the Judiciary of the United StatesSenate,

Defendants-Appellees, and Chemical Bank New York Trust Company, Defendant.

No. 776, Docket 34688.

Argued April 10, 1970.

Decided May 7, 1970.

Proceeding upon motion for preliminary injunction to restrain members and

general counsel of Senate subcommittee from seeking to enforce subpoenas

directing a New York bank to disclose records of plaintiffs' bank

accounts, and upon motion for dismissal of complaint against defendants

other than the bank for want of jurisdiction over their persons. The

United States District Court for the Southern District of New York, Edward

C. McLean, J., denied the motion for preliminary injunction and granted

the motion to dismiss. An appeal was taken by the plaintiffs. The Court of

Appeals, Friendly, Circuit Judge, held that in enacting statute giving

district courts original jurisdiction of any action in the nature of

mandamus to compel an officer or employee of the United States or any

agency thereof to perform his duty and statute relating to the venue of

federal district courts in civil actions against federal officers or

employees acting in their official capacity, Congress was thinking solely

in terms of the executive branch, to which alone such venue statute has

been judicially applied.

Order of dismissal affirmed.

*1381

Edward Carl Broege, Jr., New York City (Lefcourt, Garfinkle, Crain, Cohn,

Sandler & Lefcourt and Nancy Stearns, New York City, of counsel), for

plaintiff-appellants Liberation News Service, Sheila Ryan and Allen Young,

and (Lubell, Lubell, Fine & Schaap, New York City, and Frederick H. Cohn

and William H. Schaap, New York City of counsel), for plaintiffs-appellants

Students for a Democratic Society, Anita Simpson and Richard Marantz.

Peter Alan Herbert, Asst. U.S. Atty. (Whitney North Seymour, Jr., U.S.

Atty. for Southern District of New York, and Michael Hess, Asst. U.S.

Atty., of counsel), for defendants-appellees other than Defendant Chemical

Bank New York Trust Co.

Before WATERMAN, FRIENDLY and ANDERSON, Circuit Judges.

FRIENDLY, Circuit Judge:

The plaintiffs in this action in the District Court for the Southern

District of New York are Liberation News Service (LNS), an association

which describes itself as 'a wire service to the radical and underground

press,' the New York Regional Office of Students for a Democratic Society

(SDS), 'an association of young people of the left,' and four officers of

the two associations, all residents of New York. Defendants are ten United

States Senators, who are Chairman and members of the Subcommittee on

Internal Security of the Senate Committee on the Judiciary, none citizens

of New York, J. G. Sourwine, a citizen of the District of Columbia, who is

the Subcommittee's Chief Counsel, and Chemical Bank New York Trust Company

(Chemical), a New York banking association. The complaint alleged that the

Subcommittee had served subpoenas, signed by Senator Eastland, requiring

Chemical to produce at the Subcommittee's room in Washington 'any and all

records' of the accounts of LNS and SDS, such records to 'comprehend

papers, correspondence, statements, checks, deposit slips and supporting

documentation, or microfilm thereof within your control or custody or

within your means to produce.' The subpoenas rested on the authority of

Senate Resolution 366 approved in 1950 by the 81st Congress, 2d Session,

as extended by Senate Resolution 46 of the present Congress, adopted

February 17, 1969. Plaintiffs allege that the Resolutions violate numerous

provisions of the Constitution, notably the First Amendment, the due

process clause of the Fifth Amendment and the prohibition of Bills of

Attainder, Art. I, § 9, Clause 3, and that the subpoenas violate the

First, Fourth, Fifth, Ninth and Tenth Amendments. They allege further that

about half of LNS' financial support and all of SDS' comes from private

contributions, much of which will be withdrawn if Chemical complies with

the subpoenas.

Proceeding by order to show cause, [n. 1] plaintiffs obtained a temporary

restraining order and moved for a preliminary injunction. Appearing for

the Senators and Mr. Sourwine, the United States Attorney cross-moved to

dismiss the complaint as to them for lack of jurisdiction over their

persons. Judge McLean in an opinion denied plaintiffs' motion and granted

the United States Attorney's [n. 2] but continued the temporary restraining

order until the entry of an order so that plaintiffs might bring an action

for similar relief in the District of Columbia if so advised. We have

maintained the *1382 temporary restraining order during the pendency of this

expedited appeal.

n. 1. The moving affidavit of plaintiffs' attorney added nothing to the

complaint except to amplify plaintiffs' fear 'that these subpoenas are

meant to gather preliminary information as to the identities of

contributors and subcontractors in order that they in turn be subpoenaed

before the Committee to be intimidated and reviled in the traditional

manner.'

n. 2. Although expressing doubt whether plaintiffs had satisfied the

requirement of jurisdictional amount, 28 U.S.C. § 1331(a), and noting that

they had failed to comply with the provisions of § 1391(e) with respect to

service of the summons and complaint, the judge considered these defects

might be curable, and rested dismissal on the ground that 28

U.S.C. § 1391(e) was inapplicable.

We noted at the argument that since there was some dispute whether the

action remained pending against Chemical [n. 3] and the district judge had

not made an order pursuant to F.R.Civ.P. 54(b), we might not be able to

entertain the appeal as one from a final decision under 28 U.S.C. § 1291

and, if not, appellate jurisdiction would have to rest on the denial of

plaintiffs' request for an injunction, 28 U.S.C. § 1292(a)(1). While we

have no doubt concerning the correctness of Professor Moore's view that an

order denying an injunction is appealable despite the presence of other

unadjudicated claims, 6 Federal Practice P54.30(2) (1966), and cases

cited, we were not entirely sure that this principle extended to a case

where the denial of an injunction was a consequence of dismissal for want

of jurisdiction over the person of the defendants. At our suggestion

appellants eliminated the problem by obtaining a certification under Rule

54(b) and filing a new notice of appeal solely from the judgment against

the governmental defendants.

n. 3. Plaintiffs never had the bank served with process, and it did not

appear voluntarily.

The basis asserted for maintaining the action in the Southern

District of New York is 28 U.S.C. § 1391(e), added by Pub.L.No.

87-748, 76 Stat. 744 (1962):

A civil action in which each defendant is an officer, or employee of the

United States or any agency thereof acting in his official capacity or

under color of legal authority, or an agency of the United States, may,

except as otherwise provided by law, be brought in any judicial district

in which: (1) a defendant in the action resides, or (2) the cause of

action arose, or (3) any real property involved in the action is situated,

or (4) the plaintiff resides if no real property is involved in the

action.

The summons and complaint in such an action shall be served as provided by

the Federal Rules of Civil Procedure except that the delivery of the

summons and complaint to the officer or agency as required by the rules

may be made by certified mail beyond the territorial limits of the

district in which the action is brought.

If the section were applicable, it would indeed supply both venue, since

plaintiffs reside within the district, [n. 4] and jurisdiction over the

persons of the Senators and their counsel. [n. 5] However, we agree with

the district court that it is not.

n. 4. Arguably venue may have been proper, quite apart from § 1391(e),

under the 1966 amendment of § 1391(b) permitting a general

federal question action to be brought in the district 'in which the claim

arose.' This would require decision whether the claim 'arose' in the

District of Columbia where the subpoenas were prepared and mailed and the

records were to be produced or in the Southern District of New York where

the subpoenas were received and the records were kept-- or perhaps in

both.

n. 5. We are in accord with decisions such as Powelton Civic Home Owners

Ass'n v. Department of Housing and Urban Development, 284 F.Supp. 809

(E.D.Pa.1968), and Brotherhood of Locomotive Engineers v. Denver &

R.G.W.R.R., 290 F.Supp. 612 (D.Colo.1968), aff'd on other grounds, 411

F.2d 1115 (10 Cir. 1969), which have held that the statutory requirement

that 'each defendant' be a Government official refers only to those

defendants as to whom plaintiffs seek to justify venue and personal

jurisdiction under § 1391(e).

A number of provisions of the Constitution could be cited as

indicating that members of Congress are not 'officers.' See Art. I, § 6;

Art. II, § 2; Art. II, § 4. It is clear that, for the purposes of Title 5

of the U.S. Code, a member of Congress is not an 'officer,' 5 U.S.C. §

2104, although their staffs are 'employees of the United States,' 5 U.S.C.

§ 2105. On the other hand, a *1383 member of Congress has been held to

be an officer of the United States within the statute, 18 U.S.C. § 912, making

it a crime to impersonate such an officer, Lamar v. United States, 241 U.S.

103, 36 S.Ct. 535, 60 L.Ed. 912 (1916).

We do not find that any of this gives substantial aid on whether § 1391(e)

applies to Congressmen and employees of Congress. The words of a statute,

in Mr. Justice Frankfurter's phrase, 'acquire scope and function from the history

of events which they summarize,' Phelps Dodge Corp. v. NLRB, 313 U.S. 177,

186, 61 S.Ct. 845, 85 L.Ed. 1271 (1941). And 'the starting point for determining

legislative purpose is plainly an appreciation of the 'mischief' that Congress was

seeking to alleviate.' Interstate Commerce Comm. v. J-T Transport Co., 368

U.S. 81, 107, 82 S.Ct. 216, 223, 7 L.Ed.2d 147 (1961) (dissenting opinion).

The 'mischief' that gave rise to § 1391(e) [n. 6] was a venerable

Supreme Court decision that the lower federal courts generally lacked

jurisdiction to mandamus federal officers, M'Intire v. Wood, 11 U.S. (7

Cranch) 504, 3 L.Ed. 420 (1813). Later the Court went some way to filling

the gap by holding that the circuit court of the District of Columbia, as

inheritor of the common law powers of the courts of Maryland, did have

such jurisdiction, Kendall v. United States ex rel. Stokes, 37 U.S. (12

Pet.) 524, 9 L.Ed. 1181 (1838). Attempts to circumvent the former ruling

by labelling the suit as one for an injunction often foundered, sometimes

upon the transparency of the label, at other times upon the principle

requiring joinder of a superior officer, usually residing in Washington,

over whom the local district court lacked both venue and process. The

problem was particularly acute with respect to land disputes in Western

states where the Government is a large landowner.

n. 6. The history of the 1962 legislation is recounted in Byse and Fiocca,

Section 1361 of the Mandamus and Venue Act of 1962 and Nonstatutory

Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308

(1967).

To meet these difficulties Representative Budge of Idaho introduced a

bill, H.R. 10892, 85th Cong. 2d Sess. (1958), providing that civil actions

against an officer of the United States 'in his official capacity' could

be brought in the district where the plaintiff resided and that process

could be served on the local United States attorney or his designee. When

the bill was reintroduced, H.R. 10089, 86th Cong. 2d Sess. (1960), the

Department of Justice opposed it upon the ground, among others, that the

bill 'would (not) serve any useful purpose,' since the only type of action

that could be brought against an officer 'in his official capacity' would

be the equivalent of a writ of mandamus which could be obtained only in

the District of Columbia. [n. 7] Since this objection went to the jugular,

a new version of the bill, H.R. 12622, 86th Cong. 2d Sess. (1960), met it

with a provision giving the district courts 'original jurisdiction of any

action in the nature of mandamus to compel an officer or employee of the

United States or any agency thereof to perform a duty, owed to the

plaintiff,' the source of what was ultimately to be 28 U.S.C. § 1361. This

jurisdictional change, rather than the venue and process provision, then

became the main subject of Congressional and executive concern.

n. 7. Letter of Deputy Attorney General Walsh in H.R.Rep.No.1936, 86th

Cong. 2d Sess. 5-6 (1960).

Without going into further detail, it suffices to note the Report of the

Senate Committee on the Judiciary recommending passage of the House

bill as amended. This states that the intention was 'to facilitate review by

the Federal courts of administrative actions.' [n. 8] Facilitation was to

be accomplished in two ways-- abrogating the hundred-and-fifty *1384

year old denial of mandamus power to district courts other than that for

the District of Columbia, and broadening the provisions on venue and

service of process so that when a superior officer residing in Washington

was a necessary party the action could still be brought in the field, with

personal jurisdiction over the superior obtainable by service of process

by mail, accompanied by service on the local United States Attorney or his

designee and sending a copy to the Attorney General.

n. 8. Sen.Rep.No.1992, 87th Cong. 2d Sess., reprinted in 2 U.S.Code

Cong. & Adm. News, pp. 2784, 2785 (1962).

This history demonstrates to us that, in enacting §§ 1361 and

1391(e), Congress was thinking solely in terms of the executive branch, to

which alone § 1391(e) has thus far been judicially applied. The officers

and employees of the United States who were made reachable by § 1391(e)

were the same types of officers or employees who could be compelled to

perform a duty owed to the plaintiff under § 1361. Congress could well

have had in mind the definition in the Administrative Procedure Act, 5

U.S.C. § 701, where Congress is specifically excluded. To be sure, a

number of the considerations urged in favor of the amendments, such as the

inconvenience of suit in the District of Columbia to citizens of remote

states, [n. 9] the desirability of spreading the burden of such litigation

among the district courts, and the availability of the local United States

Attorney as counsel for the defendants, are also applicable to suits

against legislators or their employees. But other considerations differ.

In sharp contrast to land disputes, the paradigm of the 1962 legislation,

where the determination is generally made in the field, and to many other

administrative and executive actions, Congressional committees operate

predominantly in the capital, as is the case with the investigation here.

[n. 10] The disruption to the work of Congress by the pendency of actions

elsewhere than in Washington could be far more serious than in the case of

the executive departments and agencies with their large staffs. In any

event, whatever policy may ultimately commend itself, if there is a word

in the five year gestation period of § 1391(e) to suggest that Congress

thought it was changing the law not merely with respect to the executive

branch but also concerning itself, its officers and its employees,

plaintiffs have not called our attention to it and our own research has

not found it.

n. 9. Plaintiffs say there is more than inconvenience here since the

District of Columbia court would have no personal jurisdiction over

Chemical. However, there is no reason to suppose that Chemical would

deliver plaintiffs' records if the District of Columbia court were to

grant injunctive relief with respect to the subpoenas.

n. 10. Our decision does not touch the case where a Congressional committee

or subcommittee is holding hearings locally and process is served upon a

member or an employee seeking to enforce a subpoena. The venue

objection that led to dismissal in Fischler v. McCarthy, 117 F.Supp. 643

(S.D.N.Y.), aff'd, 218 F.2d 164 (2 Cir. 1954), has probably been removed

by the 1963 amendment to § 1391(b), see fn. 4 supra. If the member is

immune from suit because of the Speech and Debate Clause, an action might

be brought against an employee who was taking steps to enforce the

subpoena. See the discussion at the end of this opinion.

We see no reason to reach a different result on the basis that

plaintiffs might elect to drop the Senators as defendants and proceed

solely against Mr. Sourwine as an 'employee of the United States.' In

contrast to Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881),

Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967),

and Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491

(1969), the complaint and the moving affidavit are barren of allegations

of acts on the part of this Congressional employee. Senate Resolution 366

places power to issue subpoenas in the chairman of the Committee on the

Judiciary or of the Subcommittee, and the subpoenas here were signed by

Senator Eastland as chairman of both. While it may *1385 be surmised that

the Senator did not himself prepare them, there is nothing to suggest that Mr.

Sourwine did, and there is equally nothing to indicate that he has any role to

play in their enforcement. However, we prefer to rest our decision on the

broader ground that although Mr. Sourwine is undoubtedly an employee of

the United States for some purposes, see 5 U.S.C. § 2105, Congressional

employees are no more within the intendment of 28 U.S.C. § 1391(e) than

the members themselves. The order dismissing the complaint against the

Senators and Mr. Sourwine is affirmed. In order to permit plaintiffs to bring

suit in the District of Columbia, we will continue the temporary restraining

order until the issuance of the mandate.