# Petitioners Opening Brief — Wheeldin v. Wheeler > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0199%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Opening Brief - **Published:** January 1, 1963 - **Citation:** 373 U.S. 647 ## Text Office-Supreme Court, US. ° Fits. bite NY JAN 4 1963 c Fye a : 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 o 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: ° a Vv 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 " 3 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 2 ] 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 3 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: 4 “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.” 2 \ 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. 5 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 a 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 - oe / ' 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 : — ,, 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 i7 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 24 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- 25 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- © See also Hatahley v. United States, 351 US 173, 181; compare 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 testify effect “constructive” or “figurative” arrests. In the ©" 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0199%3A2. Public record. Not legal advice.