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FISCHLER v. MCCARTHY

January 6, 1954

FISCHLER et al.
v.
McCARTHY



The opinion of the court was delivered by: KAUFMAN

On December 8, 1953, plaintiffs filed a complaint in an action seeking to enjoin Joseph R. McCarthy, individually *fn1" and as Chairman of the Permanent Subcommittee of Investigations of the Senate Committee on Government Operations, from forcing plaintiffs to produce documents in their possession with respect to loyalty board proceedings at Fort Monmouth, New Jersey. This complaint sought also a declaratory judgment declaring 'the rights, powers and duties of the plaintiffs herein, and with respect to the defendant herein, and with respect to plaintiffs' obligations to the Department of the Army' and further sought to quash or modify the demand and subpoena previously served upon plaintiffs.

Plaintiffs now move for an injunction pendente lite and are met with a cross-motion to dismiss the action on the grounds: (1) of improper venue in that (a) the jurisdiction of this Court is invoked on the ground that the action arises under the Constitution and laws of the United States, and (b) the defendant, as an individual, is a resident of the State of Wisconsin and as Chairman of the Permanent Subcommittee on Investigations of the Senate Committee on Government Operations, has his official residence at Washington, District of Columbia; (2) that the Court lacks jurisdiction of the subject matter in that the amount actually in controversy is less than $ 3,000 exclusive of interest and costs; (3) that the complaint fails to state a claim upon which relief can be granted, in that the issuance by defendant of the subpoenas involved in this action constitutes the exercise of a valid legislative power with which a court may not interfere.

 From the affidavits of the plaintiffs, it appears that Albert Fischler was until 1952 an employee of the Department of the Army and that William Saltzman is presently employed by the Department of the Army. Both plaintiffs were subpoenaed to appear before the Subcommittee as witnesses at an inquiry into conditions in the Signal Corps of the United States Army at Fort Monmouth, New Jersey. Plaintiffs testified at the hearings and were advised to consider themselves under continuing subpoenas. Both witnesses testified that they had been the subject of Loyalty Board hearings and had been suspended from their employment as security risks. After hearings before Loyalty-Security-Hearing Boards, they had been reinstated.

 At the Subcommittee hearings, the plaintiffs were ordered to produce such documents as they might have in their possession relating to the Loyalty-Security Board Hearings. They refused to do so and were thereupon directed to comply by December 7, 1953. Plaintiffs, through counsel, objected to producing the documents requested and also advised the Department of the Army of the situation. On December 7, 1953, counsel for plaintiffs received the response from John G. Adams, Department Counselor, Department of the Army, set forth below. *fn2" No further action has been taken by the Subcommittee since the filing of the complaint by Fischler and Saltzman on December 8, 1953.

 I. Venue

 In paragraph '1' of the complaint, plaintiffs allege that 'The court has jurisdiction under 28 U.S.C. § 1331' and no other basis of jurisdiction is urged. Accordingly the general venue provisions contained in 28 U.S.C. § 1391 (b) apply and it follows that the action must be brought in the district where the defendant resides. Since this action is now one solely against a federal official, acting in his official capacity on a national level, the proper venue lies in the district of official residence of the Senator, i.e. the District of Columbia.

 Plaintiffs, however, urge that all the actions complained of have taken place within the Southern District of New York. The defendant was served in the Southern District of New York. It is plaintiffs' contention that the defendant by issuing the subpoena within this district, returnable here, by conducting the hearings here, and by physically being present and acting officially here, has, in effect, extended his official residence into this district. For such a proposition, plaintiffs rely upon Robertson v. Railroad Labor Board, 1925, 268 U.S. 619, 45 S. Ct. 621, 622, 69 L. Ed. 1119, but in that case, the Court was dealing with a specific statute which read in part: " In case of failure to comply with any subpoena (to testify) or in case of the contumacy of any witness appearing before the Labor Board, the Board may invoke the aid of any United States District Court". Transportation Act, 1920, February 28, 1920 C. 91, § 310, par. b, 41 Stat. 456, 472. There a witness, a citizen and an inhabitant of Ohio was served in that State with a subpoena to appear before the Board in Illinois. The witness declined to appear and suit was begun by the Board in Illinois pursuant to the above statute to compel his appearance. Summons to appear for this suit was likewise served on the defendant in Ohio. The defendant appeared specially and moved to quash the service on the ground that, being an inhabitant of Ohio and served there, he was not subject to the jurisdiction of the federal court for Illinois. The Court, observing that the question presented was solely one of statutory interpretation, 268 U.S. at page 622, 45 S. Ct. at page 622, held that by the phrase "any United States District Court" Congress made venue proper in any such court of competent jurisdiction, but that there was no Congressional intent to depart from the general rule that the jurisdiction of a district court in personam is limited to the district of which the defendant is an inhabitant or in which he can be found. It therefore reversed the Court below which had overruled the motion to dismiss for lack of jurisdiction. It is difficult to see how this precedent is of aid to the plaintiffs in the instant case. In effect all that Robertson v. Railroad Labor Board, supra, holds is that under the special provisions of the statute there construed, venue is proper in any District Court of competent jurisdiction but the territorial limitations on the jurisdiction of a District Court were not altered by the statute.

 The defendant has acted or purported to act in an official capacity within this district and the matter in dispute springs from such acts. But the plaintiffs, proceeding against the defendant solely in his official capacity, must nevertheless bring their suit in the district of official residence, the District of Columbia. See Butterworth v. Hill, 1885, 114 U.S. 128, 5 S. Ct. 796, 29 L. Ed. 119; Juell v. Commissioner of Immigration, etc., D.C.E.D.N.Y., 1941, 37 F.Supp. 533; Smart v. Woods, 6 Cir., 184 F.2d 714, certiorari denied 1951, 340 U.S. 936, 71 S. Ct. 496, 95 L. Ed. 675; Cf. Blackmar v. Guerre, 1951, 342 U.S. 512, 72 S. Ct. 410, 96 L. Ed. 534. Whatever inconveniences such a result may entail are outweighed by the advantages of orderliness springing from fixing one official residence for all federal officials acting on a national level. It is to be noted that a Congressional Committee might act through many members, each being present in an official capacity in a different district. The view urged by the plaintiffs would expose the Committee to suit in each of the several districts. Thus the work of the government might be seriously impaired. The one purpose of having a capitol is to have a site for the centralized disposition of such matters of national concern.

 The situation is of course different where the Government is proceeding against an individual. Then the individual is the defendant, his place of residence or presence, or in some instances the district where an offense is alleged to have been committed, will determine the proper venue of the action. But if one chooses to proceed against a federal official, it is not too much to ask that he do so at the place of official residence, in this case the District of Columbia.

 II. Jurisdictional Amount

 As noted above, plaintiffs allege that jurisdiction of the court exists under 28 U.S.C. § 1331. They also allege that the 'amount in controversy exceeds exclusive of interest and costs, the sum of $ 3,000.' But only this bare allegation is offered. We are not here confronted with a matter in which jurisdiction is predicated on 28 U.S.C. § 1343(3), which enables one deprived of civil rights by a State to proceed in a federal forum without regard to the monetary requirement. Cf. Hague v. C.I.O., 1939, 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423. Nor does the Declaratory Judgment Act alter the jurisdictional amount required; the concern of that Act is solely with the stage the controversy must reach before it may be subject to a court adjudication. Jock v. 250 Northern Ave. Corp., 2 Cir., 1944, 142 F.2d 435; Putnam v. Ickes, 1935, 64 App.D.C. 339, 78 F.2d 223. With respect to the plaintiff Saltzman, still an employee of the Department of the Army, there is no allegation as to his present compensation. *fn3" As to the plaintiff Fischler, now in private employment, it is even more difficult to discern a basis for the allegation that the amount in controversy exceeds $ 3,000. See Reeber v. Rossell, D.C.S.D.N.Y.1950, 91 F.Supp. 108.

 III. The Nature of the Relief Sought

 Apart from the defects of venue and jurisdiction, above noted, which of course in themselves compel dismissal of the complaint, it is clear that the 'type of question' presented and the nature of the relief sought is in its present state beyond the purview of the Judicial Branch of our Government.

 This was the view of the Court of Appeals of the District of Columbia, Mins v. McCarthy, 209 F.2d 307, which, when faced with an almost identical ...


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