Brief for Respondent in Opposition — Rabinowitz v. Kennedy

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f 5 Questions presented eee eee g 2

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cI TES CARS NORA — ei ae

Conclugion._.;........-....... 5 „

ie CITATIONS’ paler

Cases: : ;

s 5 Ae v. Barn Ballroom Co., 157 F. og 97. Pa

> Alabama Federation v. McAdory, 325 U.S. 450 7

- Ashwander v. 3 Valley Authority, .297 a

‘> > U.S. 288. —— —— ̃— 7

g Codra v. Brownell, 207 F. 2d 610, certiorari. de-

EE Si 7

Douglas v. Jeannette, 319 U.S. 157 e 9

Dugan v. Rank, 372 U.S. 6099 5,7

Eccles v. Peoples Bank of Lakewood, Calif. 333 a

PPT 5 8.

Glidden Company v. Zdanok, 370 U.S. 530... 8

Harper v. Jones, 195 F. 2d 705. 1 ioe |

js I Ty Te, Te Fe Hittite tininnes 5

Larson v. Domestic & Foreign Corp., 337 U.S.

CCC 1 5, 6. 7. 8

Louisiana v. McAdoo, 234 U.S. 627 one See

alone v. Bowdoin, 369 U.S. 643..................--..---. 7

: Ove Gustavsson Contracting Co. v. Floete, 278 F.

2d 912, certiorari denied, 364 U.S. 894... 5 7

Public Serv. Comm’n v. Wycoff Co., 344 U.S. 237³ 33

Rogers v. Skinner, 201 F. 2d 52 a

foes Shields v. Utah Idaho R. Co., 305 U.S. 177 9,10.

74 5 ‘Skelly Oil Co. v. Phillips Petroleum. Co., 399 U.S.

. ——. ISS ES aie URNA RRL ESE taal Ae 2

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Judgment Act, 62 Stat. 964, as -

* amended, 28 U.S.C. 2201.

Foreign Agents Registration Act, d Stat 631, as

amended :

Section 2 (22 U.S.C. 612).

Section 8 (d) (22 U.S.C. 678 (d))

een $ (83 USC. aes 5 “a

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Page

I the 88 Caurt af the’ Antted States

oO OcToBeRr TERM. 1963

8 = No. 2 ĩð

. Yroror Niers AND tba B. BOUDIN,

PETITIONERS _ ik

1

ROBERT F. KENNEDY, ATTORNEY ‘GENERAL OF. THE

Uni STATES<

ON PETITION FOR A ‘WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF — CIRCUIT

*

BRIEF FOR THE RESPONDENT IN OoPPOSTrION

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OPINION~ ‘BELOW

The opinion of the court of 8 (Pet. 1490

„ is N at 318 F.2d 181. —

‘J URISDICTION

The judgment of the court of appeals was. 0

on 21 4, 1963 (Pet. 11 and a timely petition

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for rehearing was denied on May 1, 1963 (R. 47). |

The petition for a writ of certiorari was filed on July

19, 1963. The 5 of this Court is invoked 17

under 28 U.S.C, 1254 (1). ;

questi0RS PRESENTED ee of @

1. Whether an action against the Attorney Genin}

for a declaratory judgment that petitioners, a firm

of lawyers: representing the Cuban government, are.

not subject to the registration requirements of the /.

Foreign Agents Registration Act, was properly dis-

missed as an unconsented suit against the United

States. :

4 Whether the dismissal may be upheld on “the

alternative ground that it constitutes an impermis-

sible — to enjoin a criminal prosecution.

— IN VOLY ED

The. pertinent provisions of the Foreign Agents

Registration Act, 52 Stat. 631, as amended, 22

I.. C. 611 et seq., as amended, and the Declaratory

Judgment Act, 62 Stat. 964, as amended, 28 US. 174

2201, ‘sppear in the petition ‘at pages 2-4. 8

“wets rere: STATEMENT *

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Petitioners, a firm of lawyers, instituted this ac-

tion in the United States District Coyrt for the Dis-

triet of Columbia against the Attorney General for

a declaratory judgment that their “activities as legal 3

& ate

1“R.” refers to the joint appendix in the court of appeals, aay

which has been filed with this Court.

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representatives for the Republic of Cuba” do not re-

quire them to register under the Foregn Agents Reg-

‘istration Act (R. 7). Section 2 of that Act. (22

U.S.C. 612) prohibits any person from acting as.

agent of any foreign government or foreign political

party, unless he has registered with the Attorney

General; Section 3(d) (22 U.S. C. 613 (d)) provides i

an exception from the registration requirements for

any person engaged “only in private, nonpolitical,

financial, mercantile, or other activities in further-.. -

ance of the bona fide trade or commerce of such for-

eign principal *.* * ”; and Section 8 (22 U.S.C. 618)

provides criminal penalties for willful violations.

Petitioners’ complaint (R. 4-7) alleged that in

September 1960 the Cuban Government retained

them to represent it and its agencies in legal matters,

ineluding litigation, involving that Government's

mereantile and personal. interests, but not involving

publie relations, propaganda, lobbying, or political. or

other non-legal activities (R. 4-5); that their activi-

ties are covered by the “trade or commerce“ _excep-

tion in Section 3(d) (R. 6); that the Attorney Gen-

eral “demanded {and has continued to demand] that

_ the plaintiffs individually and as a law firm” register

under the Act (R. 5); that registration would require,

public disclosure by themselves, their employees, and.

associate counsel.they might retain in connection with

' litigation not only of their relations. with the Cuban

Government but also of numerous private, personal

and business affairs unconnected with such represen-

tation (R. 5-6); and that such disclosure could result

in a serious invasion of: their privacy and hamper

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sin in employing arte lawyers (R. 6). The com-

plaint stated (R. 6) that petitioners have no admin-

istrative remedy and no adequate remedy at law;

that they are faced with the dilemma’ of either reg-

istering, although not legally required to do so, or in- :

curring indictment, prosecution and possibly even

conviction, for refusing to register“; and‘ that „lin-

dietment and prosecution even without more, will se-

riously damage [petitioners’] reputation and inter-

fere with their practice of law and their ability to

employ and retain associate counsel.”

The Attorney General’s answer admitted that: he

had demanded that petitioners register, but denied

_ (1) that registration wodld require petitioners, their

employees or associate counsel publicly to disclose

personal and private affairs unconnected’ with their

representation of the Republic of Cuba, and (2) that

Section 3(d) excepts petitioners from registration

(R. 22-23). He stated that he did not have sufficient

information to form a belief as to the truth of

0,

other allegations in the complaint (R. 23) He

admitted that the Act does not provide an admin-

istrative remedy, but stated that there is an adequate

' remedy at law (ibid.7. 4 wa

The Attorney General then moved for judgment on

the pleadings (R. 24). The district court denied

the motion, but the court of appeals, in an appeal

under the Interlocutory Appeals Act, reversed. In

an opinion by Judge Wright (Judge Fahy dissent-

ing), the court held that the suit was [i jn effect * * *

an effort to restrain the Attorney General from prose-

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cuting [petitioners ] under the Act”; and that “since

' [petitioners] have failed to challenge the constitution-

ality of the Act, on its face or_as applied, or the au-

thority of the Attorney General to enforce it, this

case should be dismissed on cthe pleadings as an un-

‘consented suit — the United States“ eee 2a,

4a). 2

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~ ARGUMENT

1, An action brought against a government official

with respect to the performance of his official duties.

is an action against the sovereign—and thus not

‘ maintainable unless the government has consented to

such suit— if “the judgment sought would * * * inter-

~:fere with the public administration” (Land v. Dollar,

330 U.S. 731, 738) or if its effeet would be to restrain

the Government from acting *” (Larson v. Do-

mestic E Foreign Corp., 337 U.S. 682, 704). Dugan

v. Rank; 372 U.S. 609, 620. If the petitioners ulti- .

mately were to prevail in this action—i.e., if it were

held that they are not required to register under the

Foreign Agents Registration Act—such a ruling

would bar their future prosecution for non- registra-

tion. The present action for a declaratory judgment

‘therefore is, as the court of appeals stated (Pet. 2a),

: -. ° ° —

in effect * * an effort to restrain the Attorney

General from prosetuting [petitioners]. under the

Act.” As such, it was properly dismissed as an un-

consented suit against the United States.

Where a suit- against an officer seeks not eee

damages but ‘specific relief: i.e. aoe injunc-

tion?“ * restraining the * officer’s actions.

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* * * the question is directly posed as to whether, by

obtaining relief against the officer, relief will not, in

effect, be obtained against je sovereign. For thé

sovereign can act only agents and; when |

an agent’s aetions are restrained, the sovereign itself

may, through him, be restrained.“ Larson, supra, *

337 U.S. at 688. The Foreign Agepts Registration

Act is enforceable solely by criminal proceedings.

The plain purpose of the present’ suit is, and its ob- a

vious effect if successful would be, to prevent the

Attorney General from instituting criminal proceed-

ings under the Act against petitioners. Such an at-

-. tempt, to control the law-enforcement activities of the

Attorney Geheral is nothing more or less than an at-

tempt to restrain the sovereign from acting in one of

the most vital areas of governmental responsibility— —

the enforeement of its criminal laws. :

The rule that a suit against a government official

which seeks “relief against the ‘sovereign” ¶ Larson.

supra, pp. 687, 689) is a suit against the sovereign ’

is not limited, as petitioners suggest (Pet. 13), to

‘cases which involve property in the hands of a. gov-

ernment official. The contrélling consideration is not

the subject matter of the suit, but the effect which

granting the relief sought would have upon the sover-

- eign. Where, as here, the relief sought would oper-

ate against the sovereign, suits against government

~ officials have frequently been held to be suits against

the United States, even though property was not in-

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See, fo example, Louisiana v. McAdoo, 234 U.S. 627, 682

(setting tariff rates) ; RN v. Skinner, 201 F. 2d 521, 524

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Nor is the governing principle any different be- g

cause the present case is dn action for declaratory’ re-

ore lief rather than a direct attempt to enjoin the Attor-

- ney General from enforcing the Act against petition-

ers. The Federal Declaratory J udgment Act merely

provided a new remedy, but did not expand the juris-

diction of the district courts,’ and the doctrine of sov-

ereign immunity is fully applicable to suits under it.

Cf. Ove Gustavsson Contracting Co. v. Floete, 278 F.

2d 912, 914 (C. A. 2), certiorari denied, 364 U.S.

894.

The present case does not eome within either of

the two recognized exceptions to the doctrine of sov-

ereign immunity, i. e., a suit against an officer is not

one against the soveréign if the officer’s action is

1] not within the officer’s statutory powers, or * * *

[2] their txercise in the particular case, are constitu-

tionally void.” Larson, supra, 337 U. S. at 702; Malone

v. Bowdoin, 369 U.S. 643, 647; Dugan v. Rank, 372.

U.S. 609, 621-622. Petitioners make no claim‘that ei-

ther the Foreign Agents Registration Act or its appli-

cation to them is unconstitutional. They do contend.

(c. A. 5) (official action of Regional Director of Wage-Hour

Division) ; Codray v. Brownell, 207. F. 2d 610, 615 (C.A.

D.C.), certiorari denied, 347 U.S. 903 (suit to “unblock”

property “frozen” under the trading with the Enemy Act) ;

Ainsworth v. Barn Ballroom Co., 157 F. 34 97 (“off-limits’”

order of commander of military base) ; me, v. Jones, 195

F. 2d 705 (C. A. 10).

- * Skelly Oil Co. v. Phillips Petroleum Co. 339 U.S. 667. 671;

Alabama Federation’ v. McAdory, 325 U. S. 450, 461-462;

Ashwander v. Tennessee Valley Authority, 297 * 8. 288, 324,

325.

(Pet. 18) that Section 3 (d) of the Act excepts their

activities from the registration requirements, and

that the Attorney General’s “demand that they regis-

ter exceeded his statutory authority.“ While this ar-

gument is framed in terms of the Attorney General’s

authority, it is actually only a claim that he erred in .

© concluding, on the facts of this. particular case, that

the Act applies to petitioners. The Attorney Gen-

eral concededly has the authority to decide whetKer

the statute eòvers petitioners“ activities, and whether |

to institute a criminal proceeding if petitioners_ re-

fuse to register. His action 3 this case

was, therefore, within his authority even if, for pur-

Yy poses of decision here, we assume that his construe- if

tion [of the Act as applying to ‘petitioners] was

wrong (Larson, supra, 337 U.S. at 703).

2. The judgment of the court of appeals directing

dismissal of the complaint is sustainable on the alter- |

native ground, not reached by that court, that equity :

ordinarily will refuse to enjoin a criminal prosecu-

tion. A declaratory judgment is a form of equitable

relief, and the court of appeals correctly treated the

present suit as “an effort to restrain the Attorney

General from prosecuting [petitioners] undert Ket”

(Pet. 2a). See supra, pp. 5-6. “It is a familiar rule

that courts of equity do.not ordinarily restrain crimi-

nal prosécutions. No person is immune from prose-

eution in good faith for his alleged criminal acts. Its 7

Eccles. v. Peoples Bank of 6 Calif., 333 U.S. 426,

4131; Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 240;

see also, Glidden Company v. Zdanok, 370 U.S. 530, 572.

> 9 0

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imminence, even though alleged to be in violation of

constitutional guaranties, is not a ground for equity

relief since the lawfulness or constitutionality of the

| statute or ordinance on which the prosecution is

_ ° based may be determined as readily: in the criminal

ease as in a suit for an injunction. v. * v.

Jeannette, 319 U.S. 157, 163. 8

Shields v. Utah Idaho R. Co., 305 US. 177, upon

which petitioners rely heavily (Pet. 9-10), does not

support the jurisdiction of the district court to en-

ped tertain this action. Shields involved a question

under the Railway Labor Act, which applies to rail-

roads other than eleetrie interurban ones; the Act 8

directs the Interstate Commerce Commission, upon

‘the request of the Mediation Board, to determine 8

8 whether a particular line is within the exception.

The Commission, upon the request of the Mediation

Board, held after hearing that the Utah rai was

not an interurban electric railway. The/ Mediation

Board ordered the railroad to post certain notices

required by the Act; failure to do so subjected the

carrier to’..criminal’ penalties. The railroad then

brought an action against the United States Attorney

to restrain him from criminally prosecuting it for

violation of the Act, contending that it was in-fact an

interurban railroad. The government did not chals _

lenge the propriety of the railroad’s invoking A

jurisdiction to restrain the prosecution. 305 U.S. at

183. This Court, holding that the Commission’ s de-

termination was binding on both the carrier and the -

Mediation Board (305 U.S. at 182) and noting that P

it was not otherwise subject to judicial review (id. at

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183), ruled that the carrier “was entitled to resort

to equity in order to obtain a judicial review of the

questions of the validity and effect of the Commis-

sion's determination . to fix its status” (id.

at 184).

In the Shields case a suit to enjoin the criminal

prosecution was maintainable because it was the only

means by which the railroad could test the validity

df the Commission’s determination. The determina-

tion was not directly judicially reviewable, and it

would have been binding in any criminal action

brought against the carrier for non-eompliance with

the Railway Labor Act. In the present case, how-

ever, petitioners may fully litigate the question

; whether the Foreign Agents Registration Act applies

to their activities in any criminal proceeding which |

may be brought against them if they fail to register.

They are, therefore, in no different position than any

other person who believes that his conduet is not subC-

jeet to a particular eriminal statute but who runs the

risk tat, if a court holds * he may be pun

ished for we violation.

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nied.

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Aucusr 1963.

42

‘Respectfully submitted, .

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CONCLUSION _

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The petition for a writ of certiorari ‘should be de-

o

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ARCHIBALD, Cox. 5

Solicitor General.

* WALTER ‘YEAGLEY,

Assistant Attorney General. >

GEORGE R. SEARLS, .

Attorney.

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WA

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et GOVERNMENT PRINTING OFFICE: 1963 698231, 151