Petitioners Opening Brief — Wheeldin v. Wheeler

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Office-Supreme Court, US. °

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bite NY JAN 4 1963

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: Un Ei, JOHN F. DAVIS, CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1962

No. 493

Donatp WHEELDIN and ApmiraL Dawson,

Petitioners,

—vU.—

WituiaM WHEELER. «

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS 2

FOR THE NINTH CIRCUIT

PETITIONERS’ OPENING BRIEF

A. L. Wren

Frep OKRAND

257 South Spring Street

Los Angeles 12, California

Nanette Demsitz

55 East End Avenue

New York 28, New York

Attorneys for Petitioners

yas

INDEX

SUBJECT INDEX

Petitioners’ Opening Brief

_ Opinions Below iaenisauiampunsbbciasiaiag ee aee

° ° ° «>

Jurisdiction

Constitutional Provision and Statute Involved aibohin

Questions Presented for Review .............-...-scessesscceseeoee

Statement of the Case RE, Sa Male

Allegations of the Complaint sitiettavipaiaabgealen tana aae

Proceedings Widsedasabaeradae ices

! 4 °

Court of Appeals’ Decision on the Merits ............

Argument ......

owonrinaow fF wp Ww

Summary of Argument

I. The District Court Had J urisdiction ...... 10

II. Congress Did Not Authorize the Com-

mittee’s Investigator to Issuee Subpoenas

Nor the Committee the Right to Delegate

That Power to Him; Hence the Subpoenas

Were Void ....... Sa apuaisuireaaiadiaanousctantaiaaets 13

III. Respondent Is Not Immune From Suit .... 19 “~~,

‘A. Barr v. Matteo is not applicable, and

should not be extended, to all public

CN scicettnthrchcsettaredncnpannatinnncasdactins 9

B. Immunity does not apply when the em- (

ployee acts outside his lawful powers

C. An action for damages for wrongful

issuance of a subpoena or a wrongful

manner of service falls within a tradi-

tional form of remedy .................00......... 25

NN sae OLE eRe Cl RS OR OTL 26

ii : . INDEX

Taste or AvTuHorities (ITep

Page

CASES :

Anderson v. ‘Som STII ccrihiticnntntceticiciodcpens 25

Barenblatt v. United States, 360 US 109 .s3.. 18

Barr v. Matteo, 360 US 564. SA Soaked 8,15, 19, 20;.21,

; . 22, 23, 26

Belknap v. Schild, 161 US 10. Fi RPE eae teen eo at.

Bell vi Hood, 327 US 678 ............-.. aiicguaiion ....10, 11, 12

Bock v. Perkins, 139°US 623 ........ Ce EEN a

Bradley v, Fisher, 13 Wall. (80 US) 335 ............ 22

Christoffel v. United States, 338 US 864 ................ 19

Cohens v. Virginia; 6 Wheat. (US) 264 ................ 10

Cooper v. O'Connor, 99 F. 2d 135 -.......-.-----20e-0e-0--0 20, 21

‘ Cudahy Packing Co. v. Holland, 315 US 357 ........ 13, 16, |

: re 18, 19

Dalehite v. United States, 346 US 15 ................---- 21

Fleming v. Mohawk, 331 US 111 .............-..--.. 13, 15, 16, 17

Gelston v. Hoyt, 3 Wheat. 246 ..............-...---.-s20+0+4 12

Glass v. Ickes, 117 F. 2d 278 ...... 20

Gully v. First National Bank, 299 US 109 ............ 11

Gustavsson Contracting Co. v. Floete, 299 F. 2d

655 ..........- “0 te

Hatahley v. United States, 351 US Sees 25

Howard v. Lyons, 360 US 598 ......--..-------0------ 19, 20, 22

Howard v. United States, 184 US 676 ...................- Seagrass

Jones v. Kennedy, 121 F. 2d 40 ......0.0..22222...--- 24

Kendall v. Stokes, 3 How. (44 US), 87 ................ 21

Kilbourn v. Thompson, 103 US 168, 190 ............ 25

Larson v. Domestic and Foreign Commerce Cor-

poration, sare ccsceniteeaeacdensacans 23

Lewis v. National Labor Relations Board, 397

de, BRIT Et wn aleenetttce leek ae to Wee Oey Nee OO 17

Little v. Barreme, 2 Cranch 1760 .................---.------- 12

McGrain v. Daugherty, 273 US 135 ............---.-----.-- ‘18,19

Malone v. Bowdoin, 369-US 648 .............-2.----+-+- 12, 23, 24

‘Monroe v. Pape, 365 US 167 .............---..-.-0-0j-ceeeeeneee 22, 25

Oklahoma Press ne Co. Vv. Walling, 327

NE I a eect aennceta “13, 26

Poss ¥ v. liskeruan. 999 ie Se BD sin ecnestinetihiconienes 20°

INDEX iii

Smith v. Kansas City Title Co., 255 US 180 ........ 10

Sweezy v. New Hampshire, 354 US 234 0... 15

Taylor vy. Glotfelty, 201 F. 2d 51 00.0.0... 21

Teale v. Fenton, 53 US OI aelidlaiantstnidcscabishvucsosiones 1

Tenney v. Brandhove,-341, US 367 2

Tie Charming Betsy, 2 Cranch 64 ......- 12

U.S. ex rel. Rogers v. Conkins, 1 Wall. (68 US)

| ene sete moaned SS ERETE He Oe METER ETaEe 12

United States v. Jos¢phson, 165 F. 2d 82 ............ 25

Tracy v. Swartout, 10 WE seclacasen iene. so 12, 24

Tunstall v.Brotherhood of Locomotive Firemen

and Enginéers, 328 US 210 wou... ecole ecescesecceecseeees 12

- Watkins v. United States, 354 US 178......... 13, 15, 18, 19

Wilkinson v. United) States, 365 US 399 oo... 13

Williams v. Kozak,/280 Fed. 373 0... ..cccccccccccccee--, 25

Wise v. Withers,’3 Cranch 331 ............................... 12

W olf v. Colorado, 388 US 25 .uu.necccccsseccsscssseceeneees. ~

¢ \

CONSTITUTION, STATUTES, RULES:

Constitution, Article ITI, Section 2... ‘3

; Constitution, Fourth Amendment ..................... 2

Rules of the House of Representatives, Part mo

P.L. 601, 79th Cong. ......... EES LAT RTE 2

28 USC 1254(1) ........... lap tntrdnrccissesneniansisodbeoriie 2

28 USC 1331 (a), 62 Stat. 930, am. by 72 Stat. 415 4

TEXTS, MISCELLANEOUS: ;

Davis, Administrative Law, Vo}. III, $§26.02- ‘

UNI dinieiaceie shes ST TIE OR ot REN OND 21

Handler & Klein, Executive Privilege, 74 Harv.

RRR ON Ser CR eo ROC I 22

44 Minnesota Law Review 547, Recent Cases .... 21

Prosser, Torts, 2d Ed. 1955, $95, p. 612 ............ 21: °

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1962

‘i No. 493

Dowatp Wueewpin and Apia Dawson,

= Petitioners,

° om am

Waissane WHEELER.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT ‘

PETITIONERS’ OPENING BRIEF

eee "

Opinions Below

The first opinion of the District Court for the Southern

District of California, rendered on August 28, 1958, dis-

missing the action for lack of jurisdiction over the subjeét

matter and on other grounds (R. 16), was not reported.

The first opinion of the Court of Appeals for the Ninth

Circuit, rendered on June 28, 1960 (R. 22), is reported at

280 F. 2d 293. On remand, no opinion was rendered by the

District Court'in support of its judgment of November 8,

1960, dismissing the complaint for failure to state a claim

]

upon which relief could be granted (R. 24). The opinion

of the Court of Appeals for the Ninth Circuit ‘rendered on

January 30, 1962 (R. 26), is reported at 302 F. 2d 36.

Jurisdiction

The judgment of the Court of Appeals for the Ninth

Circuit -was entered on January 30, 1962 (R. 30). The

Petition for Writ of Certiorari was-filed on April 30, 1962

(R. Cover). Certiorari was granted on October 8, 1962

(R. 31). The jurisdiction of this Court is invoked under

28 U.S.C. §1254(1). | '

Constitutional Provision and

Statute Involved

The Fourth Amendment to the United States Constitu-

_ tion provides : .

“The right of ‘the people to be sécure in their per-

sons, housés; papers, and effects, against_unreasonable

- searches and seizures, shall not be violat d no

Warrants shall issue, but upon probable ake sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.” | |

Part 2, entitled Rules of the House of Representatives, of

Public Law 601, 79th Congress (1946), 60 Stat. 812, pro-

vides in part (at 828) :

“Rule XI. Powers and Duties of Committees.

“(q) (1) Committee on Un-American Activities.

“(4) Un-American activities.

“(2) The Committee on Un-Amerftan Activities, as

a whole or*by subcommittee, is authorizéd to make

from time to time investigations of (i) the extent, char-

-acterand objects of Un-American propaganda activi-

ties in the United States, (ii) the diffusion within the

| United States of subversive and un-American propa-

ganda that is instigated from foreign countries or of

a domestic origin and attacks the principle of the form

of government as guaranteed by our Constitution, and

(iii) dll other questions in relation thereto that wotld 3

aid Congress in any necessary remedial legislation. .

/ ’ “The Committee on Un-American Activities ~shall

\ report to the House (or to the Clerk of the House -if

“the House is not in session) the results of any such

vestigation, together with such recommendations as

it deems advisable.

“For the purpose of any such investigation, the

Committee on Un-American Activities, or any sub-

committee thereof, is authorized to sit and act at such

times and places within the United States; whether or

- not the House is sitting, has recessed, or has adjourned,

to hold such hearings, to require the attendance of such

e witnesses and the production of such books, papers,

and documents, and to take such testimony,’as.it deems

necessary. Subpoenas may be issued under the signa-

ture of the chairman of the committee or any subcom-

mittee, or by any member designated by any such

chairman, and may be served by any person designated

by any such chairman or member.”

This Rule, in precisely the same language, wus incorpo-

rated in H. Res. No. 5; 85th Cong., Ist Sess. (1957), which

was in force at the time the subpoenas against petitioners

were issued, and in resolutions adopted at the/commence-

ment of each succeeding Congress, including t present.

Article ITI, Section 2 of the wea provides in

pertinent part:

“The judicial Power shall extend to all cases, in

Law and Equity, arising under this Constitution, the

laws of the United States, . . .”

28 USC 1331(a), [62 Stat. 930, as amended by 72 Stat.

415] provides:

* “The district courts shall have original jurisdiction

of all civil actions wherein the matter in controversy

exceeds the sum or value of $10,000, exclusive of in-

terest and costs, and arises under the Constitution,

laws, or treaties of the United States.”

\ Questions Presented for Review

1. Whether the United States District Court has juris-

diction of an action for damages for violation of the right

to freedom from unreasonable search and seizure against

an investigator for a Congressional Committee who, in

excess of his authority, causes a void subpoena to be issued

-and served.

‘This question was not presented in the petition for writ

of certiorari, it having been decided favorably to petitioners

by the court below in its first opinion (R. 23) and not chal-

lenged by respondent following that opinion nor in oppo-

sion to the petition for writ of certiorari. The question is

presented and discussed here by direction of this Court in

its order granting certiorari (R. 31).

2. Whether the power to issue subpoenas, conferred by

‘Congress on the chairman of the Committee on Un-Amer-

ican Activities of the House of Representatives and on the

chairmen of each of its subcommittees and on any Commit-

tee member designated by any such chairman, can be dele-

gated by the chairman of the Committee to an investigator

for the Committee.

3. If the power to issue subpoénas is oltéide the av-

thority that,can lawfully be delegated to an investigator

for the Committee, whether the investigator is liable in

damages for injury caused by his illegal and malicious issu-

ance of subpoenas. ws

4.. Whether a government employee of the rank of in-

vestigator for a legislative committee is immune from

liability in damages for malicious use of his authority ;

whether he is liable for malicious issuance of subpoenas

even if issuance is within his authority.

5. Whether an investigator for a legislative committee

is immune from liability for damages when he directs the

service of a subpoena in a manner he deliberately and

maliciously contyves and intends to cause injury, and which

in fact causes such injury.

Statement of the Case

The facts are not in dispute, the case being here after

affirmance by the court below (R. 30) of a judgment of the

District Court dismissing the action for failure to state a

claim under which relief can be granted (R. 24).

Allegations of the Complaint

Respondent Wheeler, a resident of Southern California,

has for many years been a special investigator for the

Committee on Un-American Activities of the House of

Representatives (hereinafter called the Committee), per-

forming investigative services for the Committee in South-

ern California (R. 1-2). Wheeler obtained from the Com-

mittee a number of subpoenas which bore the signature of

Francis E. Walter, chairman of the Committee, but which

were not otherwise filled in (R. 4, 9). Wheeler thereupon

6 .

determined to summot petitioners Wheeldin and Dawson to

appear and testify at a hearing of the Committee in Los

Angeles, California; filled: in the subpoenas to command

their respective. appearances; and directed that the sub-

poenas be served upon the respective petitioners, (ibid.).

The effect of such*subpoenas was, as Wheeler knew and

intended, to command petitioners, on pain of fine and im-

prisonment for contempt, to appear and answer at a hear-

ing devoted to questioning them on their, beliefs, ste

sions, and associations; where information derogatory t

them, from the Committee’s files, would be publicly recited

and disclosed ; where petitioner Wheeldin’s. past member-

ship in the Communist Party and petitiener Dawson’s past

or present membership would be exposed, and beliefs,

expressions Or associatigns of petitioners that are unpopu-

lar and hateful to the Cito, would be publicly revealed

(R. 4-6, 9). Each petitioner would suffer injury to his

reputation and in his employment and employment expec-

tations from such appearance before the Committee, and,

prior to the hearing, from: newspaper publicity about his

_ scheduled appearance; his| wife and children would like-

wise be injured (R. 6, 9-10). In addition, with the purpose

and the result of causing petitioner Dawson’s discharge

_. from employment, Wheeler directed that the subpoen sbe

served upon him at his place of employment (R. 10).

Respondent Wheeler, maliciously and. without lawful rea-

son, for the deliberate purpose of injuring petitioners,

issued the subpoenas against petitioners and ar peti- |

{ioner Dawson’s in the described manner, at

| place of

employment (R. 5. 6, 10). :

The complaint prayed for a declaratory judgment that

the subpoenas were void, an order staying or continuing

their return date, and for damages against respondent and

the federal and state officers who served or. caused to be

served the subpoenas (R. 10-11).

a -

/ '

atin

na.

_ Proceedings

In the first proceedings before the District Court wherein

that court dismissed the action, the claim for declaratory

relief was dismissed as an exercise of the court’s discretion

to deny this form of relief '(R. 20), while the claim for

money damages against respondent and the other defen-

dants was dismissed for “lack of jurisdiction over the

subject matter” (R. 21). -—

Upon appeal, the Court of Appeals for the Ninth Circuit

held that the claim for injunctive relief had become moot,

' and that the dismissal of the claim for declaratory judg-

_ Ment was within the District Court’s discretion (R. 23).

in While the claim for money damages was held properly dis-

missed agains? the other defendants, thé court held: “As to

House Investigator Wheeler ... there was jurisdiction to

entertain the claimYor money damages” (R. 23). Respon-

dent filed neither a petition for rehearing in the court

below nor did he file a petition for writ of certiorari here.

On remand, the District Court ruled,-without opinion,

that the action was dismissed for failure to state a claim

upon which relief cquld be granted (R. 24). Petitioners

appealed again. |

= ee

Court of Appeals’ Decision on the Merits :

—<

The Court of Appeals affirmed the District Court’s judg-

ment of dismissal’ (R. 30). .

In its opinion, the court below recognéZed that “the grava-

men of their (petitioners’) complaint id that the subpoenas’

were invalidly, maliciously and mischieVeusly issued and

served forthe sole purpose of exposing them to public scorn

with consequent loss of employment and of esteem” (R°

26-27), However, it concluded that “the conduct complained

of falls within the scope of appellee’s authority as a com-

f/f

mittee a . . As to inj resulting from

such conduct appellee is, under the rule of Barr v. Matteo,

immune from liability” (R. 29).

The court supported this conclusion on the basis of the

practical need for delegation of the subpoena power (R.

27). It quoted a concurring opinion in this Court that the

individual authorized by law to issue subpoenas may, be-

cause of his workload, face the practical alternatives of

either signing subpoenas in blank, or signing batches of

~ subpoenas already filled out by subordinates without exam-

ining the reason for their issuance (R. 27). The court

indicated (R. 27-28) the latter method of issuance would

be valid: that it would be lawful and proper for the Com-

mittee to accepi its investigdtor’s conclusion as to the need

_ for issuing a subpoena against a particular individual. To

, impose liability because the official authorized by statute

to subpoena—here the chairman of the Committee—signed

subpoenas in blank instead of signing them on the basis of

the investigator’s conclusion, would emphasize a merely

formal distinction in method of issuance and would “run

counter to the principle of*immunity recognized in Barr v.

Matteo,...” (R. 28). A

ARGUMENT

Summary of Argument

There is federal jurisdiction in the case because the case

arises under the Constitution and a law of the United

States. If petitioners are right that the Committee’s en-

abling resolution granted no power to delegate the subpoena

issuing authority to one who is not a member of the com-

- mittee, then respondent acted in excess of his authority

and is liable in damages. This becomes the more clear be-

cause in so issuing and effectuating service of compulsory

process, petitioners’ rights to freedom from unreasonable

search and seizure were abridged. ‘This is precisely the

kind of a wrong over which the federal courts have juris-

diction. ‘ \ ”

On its face the Committee’s enabling resolution does not

purport to authorize the Committee to delegate its sub-

poena issuing power to one who is not a member. On the

contrary, on its face, it purports to do just the opposite

and to restrict that right to the Committee or a sub-

committee chairman or a member of the .. dele-

gated by such a chairman. Particularly “because of the

nature of the Committee involved, the nature of its investi-

gations and the harmful effect which ensues to a citizen

who is subpoenaed before the Committee, it should be held-

that there was no power to delegate.

If, as petitioners claim, respondent acted in excess of

his authority because he had no power to determine who

should be subpoenaed as a witness before the Committee,

respondent is not immune from suit. The immunity doe-

trine has never been extended to immunize a federal em-

ployee from suit for damages visited when he acts beyond

his authority. And, in any event, the immunity doctrine

does not extend to ministerial, non-policy making em-

ployees. The action for damages is the traditional remedy

in that instance.

The District Court Had Jurisdiction.

The Court of Appeals upheld the District Court’s juris-

diction over the claim for damages against respondent, on

the basis of Bell v. Hood, 327 US 678 (R. 23). It also cited

three of its prior opinions Which had in turn relied on

Bell v. Hood's statement that:

“The right of petitioners to recover under their com-

plaint will be sustained if the Constitution and laws of

the United States are given one construction and will

be defeated if they are given another. For this reason

the District Court has jurisdiction” (327 US at p. 685).

The principle, in the often-quoted words of Mr. Chief

Justice Marshall in Cohens v. Virginia, 6 Wheat. (US) 264,

379, is that a case “ ‘may truly be said to arise under the

Constitution or a law of the United States whenever its

correct decision depends on the construction of either’ ”.

Smith v. Kausas City Title Co., 255 US 180, 199.

In the case‘at bar petitioners assert (R. 3, 9) that their

right to freedom from unreasonable search and seizure as

guaranteed by the Fourth Amendment to the United States

' Constitution was abridged by the service upon them of

compulsory process issued pursuant to Congressional reso-

lution purporting to authorize the Committee so to do.

They likewise assert (R. 2, 8) that in causing the issnance

of the sybpoenas.and effectuating their service upon them,

eH % acted in excess of his authority. Accordingly,

just as in Bell v. Hood, the correct decision of the case

depends upon the coustruction to be given by the federal

courts to the Fourth Amendment and to the statute, here

the Resolution, under which respondent purported to aet.

The complaint, to put the case somewhat differently,

discloses federal jurisdiction because its allegations come

within the test of federal jurisdiction as outlined by Mr.

Justice Cardozo in Gully v. First National Bank, 299 US

109, 112: “Ilow and when a case arises ‘under the Consti-

tution or laws of the United States’ has been much con-

sidered in the books. Some tests are well established. To

bring a case within the scatute, a right or immunity created

by the Constitution or laws of the United States must be

an element, and an essential one, of the plaintiffs’ cause of

action... The right or immunity must be such that it

will be supported if the Constitution or laws of the United

States are given one construction or effect, “and defeated

if they receive another’. . .” (emphasis added)

If the scope of the Fourth Amendment aed the Com.

mittee’s enabling resolution are given « ecometreeties or

effect by the federal courts favorable te petitioners thet

rights will be supported and they will be entetied t peeeall.

if,.on the other hand, the federal courts eye @- Awd.

ment and the Resolution a different comtreetes of effect.

adverse to petitioners and favorable to respeedeat, peti

tioners’ claims will be defeated.

Hence the complaint raises a substantial contrewerey as

to the scope, meaning or effeet of a provision of the Con-

stitution and requires the federal courts to pass upon,

construe and interpret a particular Congressional Law.

When the construction by the federal courts of a federal

statute and, particularly, the Constitution itself (here peti-

tioners claim that their rights to the freedom from “unrea-

sonable” search and seizure under the Fourth Amendment

have been abridged) ig reyuired, it would seem manifest

that the cause “arises” under the Constitution or laws of

the United States within the purview of 28 USC 1331. This

would seem to be the meaning of this Court’s decision ir

Tunstall v. Brotherhood of Locomotive Firemen and En-

gineers, 323 US 210.° Indeed, here the case is stronger for

fecleral jurisdiction, for there the suit was against private

parties; here it is against a federal officer purporting to act

- as such, albeit, as petitioners say, in excess of his authority.

A long line of cases’ establishes that the federal courts

do have jurisdiction in suits for damages against fedéral

officers who have acted in excess of their authority. This

Court's decision last year in Malone v. Bowdoin, 369 US

643, though concerned with the question as to whether

specific relief against an officer was in reality a suit against

the United States; did not question the jurisdiction of the

federal courts to entertain the suit.

Moreover, cases like Bock v. Perkins, 139 US 628, Howard

Conkins, 1 Wall. (68 US) 714, whieh sustained federal court

actions for damages against federal officers for conduct

with regard to service of process or liability under a bond,

are directly in point here and sustain federal jurisdiction

in the case at bar. |

The Court below was eminently correct in that portion of

its ruling which sustained federal jurisdiction. It was right

in its ruling that Bell v. Hood applies.

' E.g., Little v. Barreme, 2 Cranch 170; Tracy v. Swartout, 10

Pet, 80; The Charming Betsy, 2 Cranch 64; Wise v. Withers, 3

Cranch 331; Gelston v. Hoyt, 3 Wheat. 246; Teale v. Fenton, 53

US 284; Belknap v. Schild, 161 US 10; Bell v. Hoed, 327 US 678.

II 43

Congress Did Not Authorize the Committee’s Investigator

to Issue Subpoenas Nor the Committee the Right to Dele-

gate That Power to Him: Hence the Subpoenas Were Void.

. As this Court has recognized, a delegation of the sub-

poena power presents an important issue as to the use of

governmental coercion. See Cudahy Packitg Co, v. Hol-.

lund, 315 US 357; Fleming vv Mohawk Co., 331 US 111.

And the subpoena power here in issue has far graver con-

sequences than the interference with privacy effected by

the subpoenas involved in those cases or in the usual situa-

tion. A subpoena from this Committee is more than mere

“officious intermedsdling.” (See Oklahoma Press Publishing

Co. v. Walling, 327 US 186, 213.) ©.

The witness subpoenaed to testify by this Committee

must, on pain of fine and imprisonment for contempt,

answer questions about any past or present beliefs, expres-

‘sions, and associations bearing on subversion, for that is

this Committee’s authorized area of inquiry. See Wilkin-

son v. United States, 365 US 399; Barenblatt v. United

States, 360 US 109. Since the “foxced revelations concern

_ matters that are unorthodox, unpopular, or even hateful

to the genera! public, the reaction in the life of the witness ~~

may be disastrous.” Watkins v. United States, 354 US 178,

197. Indeed, the mere knowledge that an individual has

been subpoenaed by this Committee creates suspicion and

public hostility to him:

The ‘individual exercising this Committee's subpoena

power not only wields a power with fearsome consequences ;

moreover, he has wide discretion as to who will suffer these

consequences. The subpoerfas here in issue (R. 12, 18) did

not specify anysubject of investigation, and this Court may

judicially notice from its past cases concerning Congres-

sional investigating committees that this is the usual form.

Thus the individual with the power to fill in the name of

the witness has authority to summon anyone who might |

have information relevant to any aspect of the very broad

area of investigation under this Committee's jurisdiction.

» By the same token, the issuer of the subpoenas may choose

not to develop a particular subject or to summon a par-

ticular potential witness. That is, not all persons who

might have information within the Committee’s wide com-

pass are subpoenaed and forced to choose between contempt

and answering the Committee’s questions. Indeed, in this

very case, petitioner Dawson, though apparently thought to

have relevant information, was not forced to testify be-

cause the hearing was adjourned for fortuitous reasons

before the time sekeduled for his appearance. (Opposition

to Petition for Writ of Certiorari, pg. 2, fn. 1.) The light-

ning does not strike uniformly; the issuer of the subpoenas

decides where and when it will hit.

Because of the high potency of the instant subpoena

power, its delegation poses an especially important issue.

’ Further, this delegation, by a legislative committee rather

than an administrative agency as in the prior cases in this

Court, presents the issue of Congressional respensibility

with which this Court has been greatly concerned.

An investigating committee’s power to subpoena wit-

nesses is justified by the need of Congress for information.——

Here Congress confers the power on the chairmen of a

committee and its subcommittees and authorizes them to

confer it on committee members. Certainly, re-delegation

of this power to a non-member marks a serious div. ce

vom the Congress of its responsibility to determine its

needs for information, and to determine whether to require

information from a particular witness at the cost of the

——

, infringements consequent on nse of the subpoena power.

Thus, this case presents a novel ahd important question

as to “separation vf power from responsibility.” See Wat-

kins, 354 US at p. 215; Sweezy v. New Hampshire, 354 US

The Court below (R. 27-28) grounded its decision on the

reasoning of Mr. Justice Jackson in Fleming v. Mohawk /

Wrecking and Lumber Co., 331 US 111, 123, that the

individual authorized by statute to issue subpoenas stile .

has such a workload that he must either sign a large batch SPS

of subpoenas in blank, to bé filled in by his subordinate, or

must sign a batch already filled out by the subordinate

“‘without examining the causes for their issuatice.’” The |

Court below then assumes that the latter practice would be

permissible (R. 27): “The congressional committee in the

ease before us investigates through its investigators and.

one may assume that it would accept their conclusions as

to the relevance of any witness’ testimony.” On the premise-

of the validity of this practice, and explaining that the

difference between such pro forma issuance by the chair-

man and the practice followed here of the chairman signing

in blank is “somewhat -formal”, the Court reasons that

(R. 28) “the principle of immunity (which we discuss

below) recognized in Barr v..\ Matteo . . . should not be

“frustrated by a turn of formalities. . ».” The Court's

conclusion that petitioners’ injuries resulted from conduct

related to matters within respondent's authority and that

Way he “was therefore immune from liability under the Barr

Fale rest+-sn_these crucial considerations : it was not in-

cumbent upon the chairman to exercise His-own-diseretion

in the issuance of subpoenas; the subpoenas could and

would necessarily have been issued by the chairman if

respondent so recommended; respondent's direction, on

his own, of subpoenas to petitioners, therefore was not a

significant departure from ‘his authority.

The fundamental error of the Court below—basic to its

second conclusion that respondent is immune from liability

—is its view that there is no obligation on the chairman to

exercise his own discretion with respect to the issuance of

subpoenas and that he can delegate this matter of judgment

to an investigator. We believe the chairman can neither

sign blank subpoenas as here, nor sign them pro forma

after they are filled in, as the Court below hypothesizes.

He cannot delegate to anyone but a member of the Com-- -

mittee the power to decide whom to subpoena, whatever

the mechanics of issuance.

This Court’s decision in Fleming is not at all apposite.

The question there was whether the general rule-making

power conferred by statute on the head of the Emergency

Price Control Administration included authority to dele-

gate his subpoena power to the directors of his regional

offices. Emergency price control, the Court pointed out, :

“inaugurated probably the most comprehensive legal con-

trols over the economy ever attempted” (331 US at p. 122)..

In this vast administrative operation, organized on a re-

gional basis, the number of investigations varied from over >

,, 600,000 in 1943 to 106,240 in the first nine months of 1946.

* From this situation arises this Court's view that “adminis-

trative flexibility” required delegation by the Price Control

Administrator of the subpoena power to his regional direc-

tors, and also Mr. Justice Jackson’s view, quoted in the

opinion of the. Court below, as to the exigencies of the

Administrator’s workload.*7 . . .

: \

* The Court below ‘ies quotes (R. 27) the dissenting opinjon of

315 US 357, 368, that it would be impossible for the Administrator

of the Wage-Hour Administration to exercise judgment as to each

subpoena issued by that agency. There again, the Administrator,

as .Mr. Justice Douglas pointed out, directed a large administra-

tive erguntantion which included 13 regional offices and directors,

ri R

In the only other situation where this Court has coun-

tenanced delegation of the subpoena power, there not only

was a vast administrative operation, but there was no dis-

cretionas to the issuance of-subpoenas. Lewis v. National |

Labor Relations Board, 357 US 10. There the statuie di-

rected that a subpoena issue on the application of any

party. Delegation of the subpoena power by the head of

the agency to his regional directors was held permissible

since the issuance of subpoenas was ministerial and there

was “no delegation of any act entailing the exercise of

discretion...” (357 US at p. 15).

The situation of the Committee at bar is wholly dis-

similar from that of the agencies involved in Fleming and

Lewis. A: liberal maximum estimate of the number of sub-

poenas issued annually, judging from the Committee’s an-

nual reports for 1958—the year the subpoenas were issued

against petitioners—and for 1960 and 1961, the most recent

‘reports available, is 200. And issuance of a subpoena is

in no way ministerial, as in Lewis; rather, a complicated

value judgment and weighty discretion is involved in deter-

mining who should be subpoenaed to testify before -the

Committee. Finally, here it is not true, as in Fleming, that

the -statute-only explicitly authorizes one individual, the

head of the agency, to issue subpoenas.

The statutesat bar explicitly authorizes issuance of sub-—

poenas not only by the chairman of the Committee, but by

the chairman of any subcommittee and by any member

designated by any such chairman. It is manifest from this

specification that Congress considered the precise problem

———

————

——$——

and issued 6,000 subpoenas in one year. -Further,’ the Adminis-

trator could delegate the power to hold hearings (315 US at p.

368). Even there, however, the majority refused to infer that

Congress intended to confer unrestricted authority to delegate the

<7 power, when it was in terms granted only to the head

of the agency.

of who, other than the chairman. should exercise the sub-

poena power; the intent is clear that the power is not to be

otherwise and “indiscriminately” (see Cudahy, 315 US at

p. 363) delegated. ©

The other provisions of the statute and resolution at bar,

confirm the intent that the Committee’s powers are to be

exercised only by its members. Thus, only the Committee

or a subcommittee “is authorized to sit and act... . To

hold . : . hearings, to require the attendance of . . . wit-

nesses” or the production of documents, and to take testi-

mony. |

The status and functions of Congressional investigating

committees also dictate the conclusion that the issuance of

subpoenas cannot be delegated to a Committee investigator.

An investigating committee is exercising for Congress its

own investigative function; it does not, like an administra-

tive agency, function independently of Congress in a field

where Congress merely exercises regulatory power. “The

theory of a committee inquiry is that the committee mem-

bers are serving as the representatives of the parent assem-

bly in collecting information for a legislative purpose.” The

committee carries out “the responsibility of the Congress

. . . to insure that compulsory process is used only in

furtherance of a legislative purpose” and only when the

‘need for information outweighs the individual’s interest

in privacy. (Watkins, 354 US at pp, 200, 201.) The Com-

_ Inittee’s subpoena is issued on behalf of the full legislative

-——~body, and is to be treated as if issued by it. McGrain v.

Daugherty, 273 US 135, 158. _

It could not be intended, we submit, that the high and .°

discretionary ‘function of issuing subpoenas on behalf of

Congress should be exercised by anyone the chairman of

the Committee chooses to name. And it could not be in-

tended that the House authorizing the investigation should

be insulated from the use of compulsory process in its

behalf-through decision-making by a mere investigator for .

‘the Committee. Compare Watkins, 354 US at p. 205.

This Court has said that the subpoena power is “a power

capable of oppressive use, especially when it may be in-

discriminately delegated and the subpoena is not, return-

able before a judicial officer. ...” (Cudahy, 315 US at p.

363). Here as we have already pointed out, the issuance of

p subpoena has much more draé&tic consequences than in

Cudahy or the ordinary situation. This factor underscores

the error of the conclusion of the Court below that the

chairman of the Committee could delegate to a Committeé

irivestigator the power to decide whom to subpoena.

° .

eae - TI.

re a Is Not Immune From Suit.

e «

A. Barr y. Matteo Is Nor AppiigaBLe, aND.SHovuLp Not Be

ExtTenbep, To ALL PusLic EMPLOYEES.

In Barr v. Matteo, 360 US 564; and Howard v. Lyons,

360 US 593, this Court accorded immunity from liability to

certain government officials, for maliciqns injury inflicted

in the course of their duties. But the plurality opinion in

Barr as well as the opinions of the other justices recognized _————_ —

that these rulings en immunity involved a balance of “two

considerations of high importance,” and that the interest -

in “the protection of the individual citizen” from damage

was sacrificed only because it was there outweighed by the

_ Whenever the questioh has been presented, this Court has’

sional investigating committee.’ See Christoffel v. United States,

338 US 84, 87-88. - \

Even the mere power to serve process on behalf of -Congress

and a Congressional committee can onky be exercised by individuals

to whom the power is granted in accordance with explicit Con-

gressional direction. See McGrain v. Daugherty, 273 US 135,

155-156. ‘

* public interest in shielding the officials from the hazards

of diability. . :

The Court below assumed that the immunity of govern--

ment employees from liability applied without limitation,

and that it was unnecessary to repeat the balancing process

used in Barr and Howard, despite the gross difference in

circumstances there arid here. There the government offi-

cers held the respective posts of Acting Director of a gov-

ernment agency and Commander of the Boston Naval Ship-

yard—high policy-making positions. Respondent, in ‘con-

trast, is-employed in the legislative department, with the

rank of investigator for a Congressional committee; his

position and, as we shall show, his validly authorized duties,

were of a fninisterial nature. Furthermore, the injurious

acts—the issuance and service of subpoenas—are a type for

‘which actions for damages traditionally lie (infra, p. 23).

The precedents on which Barr relies and some of the °

language of the Barr ‘opinions, indicate that the rule of

immunity knows some limit in terms of the position and

duties of the employee. The Court of Appeals for the

Second Circuit recently expressed doubt that the Barr rule

of immunity applied to the “lower echelons” of employees.

Poss v. Lieberman, 299 F. 2d 358, 360 (1962), cert. den. 370

US ——, 8 L.'ed. 2d 810. And Judge Waterman, concurring

in another Second Cireuit opinion said: “A rational doc-

trine originally evolved to protect high-ranking policy-mak-

be extended to cloak with immunity all government em-

ployees.” Gustavsson Contracting Co. v. Floete, 299 F. 2d

655, 660 (1962). . a

As explained in one of the cases cited in Barr. the courts

are “reluctant to recognize and extend the exception” to

liability.‘

*Codper v. O’Connor, 99 F. 2d 135, 140 (CA DC 1938). And

see Glass v. Ickes, 117 F. 2d 273, 282 (CA DC 1940): while

rd ye

’

Even if the issuancé of Subpoenas were related to matters

within. respondent’s authority in the sense intended by Barr

(which we discuss below), we urge that the Barr rule of

immunity is inapplicable to respondent because he was not

in a policy-making position. *s

A review of the cases on which Barr relies shows that

immunity has been extended in two types of situations:

where theofficial was in a high-level or policy-making posi-

tion, or where, though he was*in a somewhat lower pesition,

the case involved the special issue of privilege for reports

within an agency.” Kendall v: Stokes, 3 How. (44 US) 87

at p. 98, emphasized that immunity from liability does not

apply to an, officer performing merely “ministerial” f n¢-

tions: this formulation of the principle lias been repeated

throughout thecases and has been generally accepte ‘by

commentators as well.®

Judge Croneroncurred in holding the Secretary of the Intprior

immune from liability for acts within the scope of his dutiep, he

expressed opposition to any extension of immunity with the state-

ment “No man in this country is so high that he is above the law.”

5 Cooper v. O'Connor, 99 F. 2d 135, cited in Barr at note 7\in

“which immunity was extended to an F.B.I. agent, is an exception

to the principle stated in the text. It seems to be the only“instance

of immunity for an employee on that ievel. However, the fact

that the agent was there coupled as a defendant with high-ranking

officials may have been a factor in the decisions.

Taylor v. Glotfelty, 201 F. 2d 51, is the ether exceptional case

cited in Barr (at note 9). There the suit was against a psychia-

trist at the Medical Center for Federal Prisoners for a mistaken

diagnosis; the Court held the psychiatrist was “not liable ; . .

because of a mistake of fact: made by him in the exercise of his

judgment or discretion” (201 F. 2d at p. 51).

96.04: Prosser, Torts, 2d ed. 1955, -sec. 95, p. 612; Recent Cases

(commenting on Barr v. Matteo), 44 (1960) Minnesota Law Rev.

547, 550.

Under the Federal Tort Claims Act as well, a distinction is

drawn between administrative duties and “decisions . . . respon-

sibly made at a planning rather than operational level.

(Dalehite v. United States, 346 US 15, 42.)

We submit that the Barr ruling should not be construed

as erasing the well-established limitation on immunity from

liability. The discussion in the Barr plurality opinion of the

reasons for immunity indicates, we believe, that it should

be accorded only to officials exercising policy-making func-

tions. Significantly, the opinion takes as a starting point

Bradley v. Fisher, 13 Wall. (80 US) 335, where immunity

for a judge of a court of superior or general jurisdiction

. rested largely on the ground that he must be “free to act

upon his own convictions” (13 Wall. at p. 347).?. The

public interest in fearless expression, emphasized in this

and other cases, obviously is most telling in the cAse of

policy-making officials.

Unless there are compelling policy considerations, like

those the Court found in Barr and Howard, no exception

should be made to the’customary rule of “liability that

makes a man responsible for the natural consequences of

his acts.” (See Monroe v. Pape, 365 US 167, 187.) fRe-

spondent was not in a position or exercising duties which

call for an extension to him of immunity from liability for

wrongful and malicious acts.

Moreover, both Barr and Howard were concerned with

the scopé of privilege as a defense in a defamation ease.

This itself raises free speech considerations not present

here. The reach of those decisiqns should not be extended

beyond ‘their holdings.

B. Immunity Dots Not AppLy WHEN THE EMPLOYEE ACTS

Ovutswsr His Lawrvt Powers.

Since the authority to determine whom to subpoena was

not delegable to respondent investigator, this determination

*Commentators on the immunity ruling in Barr viewed it as

justified by the “important social interest in complete freedom of

communication and unfettered judgment.” Handler and Klein,

Executive Privilege, 74 (1960) Harvard Law Rev. 44, 56.

e 23

was outside the scope of his duties and he is not immune to

liability for injuries res sulting from his acts.

It is established in Barr v. Matteo, and a premise in all

the cases on which Burr relies, that a government employee

has immunity frem liability for wrongdoing only when the

acts complained of are committed in the performance of

his duties. 360 US at pp. 573, 575. Indeed, the court below

accepted this principle. Its erroneous conelasion was based

on its view that the issuance of subpoenas was within the

authority that could be delegated to respondent, or at least

was closely related to the investigator’s authorized duties.

Starting with the investigator’s power to “present them

(the petitioners) to the committee as proposed witnesses,”

the court below concludes that the “injurious action (issu-

ance of subpoenas) .. . resulted from the manner in which

he has done the very thing he was employed to do” (R. 28).

We urge that final discretion and judgment as to whom

to subpoena is a different type and level of authority from

that possessed by respondent investigator, Exercise of this

discretion cannot be considered related to matters com-

mitted to respondent's authority, in the sense of the rela-

tion intended by Barr.

The principle, albeit ir different context, that immunity

does not attach when the employee acts outside his lawful

authority, was most recently recognized by this C ourt last

term in its decision in Malone v. Bowdoin, 369 US 643.

Quoting from its decision in Larson v. Demestic and For-

eign Commerce Corporation, 33¢ US 682, 702, this Court

reiterated (369 US at 647) that immunity does not apply

“if the officer’s action is ‘not within the officer’s statutory

/ powers or, if within those powers, . . . their exercise in the

particular case are constitutionally void.’ -

In the case at bar, as we’ have seen, respondent had no

power given him by Congress or lawfully delegated to him

by the Committee to make the decisioned judgment as to

whom shall be subpoenaed by the Committee. Petitioners

here do and have'asserted (R. 2, 8) “that the (respondent)

was exceeding his delegated powers” (Malone, 369 US at

648). Respondent, therefore, is not immune. ,

The practical objection might be made that it is unfair

to impose liability on an eaployee when, as apparently was

the case here, his superior authorized him to act. Such a

practical objection is met by the practical answer that the

government indemnifies the employee against any personal

loss. As long ago as Tracy v. Swartowt, 10 Pet. (35 US)

80, this Court held that the Collector of Customs was per-

sonally liable for an unlawful act though he was acting in

good faith in accordance with instructions from the Secre-

tary of the Treasury; the Secretary’s instructions did not

exempt the Collector from liability because they were “not

given in accordance with law” (10 Pet. at p. 94). The

Court recognized the “personal inconvenience (to) an offi-

cer who shall be held responsible in damages for illegal

acts done under instruction of a superior,” but pointed out

that the Government was bound to indemnify him (10 Pet.

at p. 98-99). The mere inconvenience is offset by the fact

that immunity from liability would mean the greater hard-

ship of denial of redress for an unlawful act and denial

of a means of challenging illegal power. In the instant

ease it is clear that respondent will be indemnified and that

he has already been and will be spared all legal expenses

in this proceeding. See House Report No. 1085, 87th Cong.,

Ist Sess. (pp. 3, 5), as to representation of respondent by

United States Attorney and payment of fees by Govern-

ment to private attorneys acting as co-counsel for respond-

ent. And see Jones v. Kennedy, 121 F. 2d 40, 45 (CA DC

1941) approving representation by Securities and Ex-

change Commission attorneys of Commission members, in

suit brought against the members in their individual capaci-

ties. See also, United States v. Josephson, 165 F. 2d 82, 938,

fn. 2, repayment by Congress of the judgment obtained

against the Sergeant-at-Arms of tlie House of Representa-

tives in Kilbourn v. Thompson, 103 US 168.

a ; * ‘

C. Ax Action ror Damaces For WRONGFUL ISSUANCE OF A

SUBPOENA oR A WRONGFUL MANNER OF SERVICE Fas

WITHIN A TRADITIONAL Form oF REMEDY.

There has never been immunity from liability for im-

juries caused by an invalid warrant-or an illegal search

or an illegal seizure. Indeed, the damage suit against an

officer who conducts an unlawful search or who procures

a warrant maliciously and without probable. cause, or

against a magistrate who issues a “warrant without juris-

diction, has been regarded as a desirable means of deter-

ring such illegality. See Wolf v. Coloradd, 338 US 25, 30

at note 1, 42. See Williams v. Kozak, 250 Fed. 373 (CA 4,

1922), cited in Wolf, where damages were allowed against

a justice of peace for issuing a search warrant that was

invalid because it was not based on a complaint under

oath: damages were also allowed against the officer who

served the warrant. ‘

Thus. in Kilbourn v. Thompson, 103 US 190, suit for

damages was brought against the sergeant-at-érms of the

House of Representatives by an individual he had im-

prisoned for resisting a subpoena; damages were allowed

because the subpoena was invalid. While the House com-

mittee members responsible for the subpoena were pro-

tected from suit by their legislative immunity, this im-

munity did not extend to Congressional employees. See also

Anderson v. Dunn, 6 Wheat. 204, another suit: against the

sergeant-at-arms of the House; damages were denied be-

Monroe v. Pape, 365 US 167 with Tenney Vv. Brandhove, 341 US

367. ° :

eps 26

cause the arrest was held lawful, but there was no sug-

gestion that he was immune from liability.

The instant action, based on unlawful and. malicious issu-

ance, and service of subpoenas, involves the same kind =

fenstion as the foregoing cases. Analytically, just as

subpoena duces tecum is a “constructive” or “figurative”

search and seizure (Oklahoma Press Publ. Co. v. Walling,

327 US 186, 213), the instant subpoenas to appear and

one case, there is a coercion to produce documents; in this

ease, there is a coercion with respect to bodily freedom.

Thus, to extend immunity to respondent would be con-

tradictory to a line of authority establishing the right to

sue for damages for the type of conduct here in issue. This

line of authority and Barr are fully consistent, for the

search, seizure and arrest cases did not involve policy-tmak-

ing functions.

CONCLUSION

The judgment should be reversed.

Respectfully submitted,

A. L. Wan

Frep Oxranp

257 South Spring Street

“a Los Angeles 12, California

Nanette Demsitz

55 East End Avenue

_ New York 28, New York

Attorneys for Petitioners

December, 1962

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