The opinion of the court was delivered by: GURFEIN
This is a purported class action for declaratory and injunctive relief against three officials of the Immigration and Naturalization Service ("INS") and the Attorney General of the United States. Jurisdiction is predicated upon U.S. Const. art. I, § 9, clause 3 and the First, Fourth, Fifth, Ninth and Fourteenth Amendments; 5 U.S.C. §§ 701-706 and 28 U.S.C. §§ 1331, 1337, 1361, 2201 and 2202. It is alleged that the matter in controversy exceeds the value of $10,000.
The plaintiff is a native born citizen of the United States, an attorney and writer. The action is brought as a class action "pursuant to rules 23(a), 23(b)(1)(A), 23(b)(2) and 23(b)(3)." The purported class represented by the plaintiff "consists of all American citizens whose names and certain information pertaining to them and their First Amendment activities are contained on a checklist maintained by the defendants . . . at all points of entry into the United States, and who are not the subjects of any current and outstanding federal arrest warrant, indictment, or information, nor of any court order in connection with bail, parole or probation."
The plaintiff seeks a judgment "declaring the invalidity of and enjoining the defendants from maintaining the listing of his name and additional information concerning him and his First Amendment activities in a checklist maintained by them at all points of entry into the United States."
In the prayer for relief, the declaration is requested on behalf of the class that the listing of the names of the members of the class "and information about their constitutionally protected activities on the immigration checklist compiled and maintained by the defendants . . ." violates their constitutional rights. Injunctive relief is also sought against the detaining at ports of entry of members of the class, based upon their constitutionally protected speech, beliefs and association and to direct the expunging of all references to the names, political views and associations of the members of the class.
The sole plaintiff, Becket, on two occasions entered the United States, travelling from Europe. On each entry he was allegedly detained by an immigration officer. The first entry was on June 20, 1971 at O'Hare International Airport, Chicago, Illinois. The immigration officer consulted the lookout book
and found Becket's name in it. Becket inquired why his name was on the list but allegedly received an unresponsive answer. There is no allegation that anything else happened. The second entry was on September 16, 1971 at Kennedy International Airport, New York City. The immigration officer found Becket's name in the lookout book, and Becket was able to read his name and see that "certain information concerning himself appeared after his name on the list." Becket was required "to fill out and sign an identification card" (Compl. para. 13). Refused an explanation of why he was listed, Becket was allegedly told by an immigration supervisor that each time he enters, Washington has to be notified, but that he would not be arrested as a direct result of his immigration "check" and notification to "Washington." There is again no allegation that anything else happened.
On October 5, 1971, Becket wrote to the Commissioner of Immigration recounting these experiences and requesting an explanation of "why my name is in your blackbook [sic] and how to get it out" (Compl. para. 14). By letter dated November 10, 1971 Becket was informed that the necessary steps have been taken "to assure you that you are not again inconvenienced when applying for admission to the United States" (a curious turn of phrase as applied to a citizen).
Perhaps in a desire to make a test case, the plaintiff's attorney, who is the distinguished legal director of the American Civil Liberties Union Foundation, wrote to the INS on December 20, 1971 that it construed the November 10 reply to mean "that although Mr. Becket's name is in the book and will remain there, he will somehow not learn about it in the future." An answer was requested "which explains in detail why Mr. Becket's name is included in the 'blackbook.'"
On January 14, 1972, INS replied with reference to the letter of December 20, 1971 "concerning Mr. James Becket of Lakeville, Connecticut" that "[the] files of this Service do not contain any accusation against that Mr. James Becket" (emphasis supplied). The clear implication was that of similarity of name with another and mistaken identification by the immigration officers at O'Hare and Kennedy.
Plaintiff's attorney must have had the same impression because on January 18, 1972 he inquired of INS, "do I take that to mean that there is a different James Becket in the files, and that that fact explains why Mr. Becket was stopped upon entering." The INS replied: "[in] our letter of January 14, 1972 we intended to convey to you the fact that the notice concerning James Becket has been cancelled and removed from the checklist and that Mr. Becket will not be inconvenienced in the future."
What INS was saying to Mr. Wulf was in effect that your client is removed from the checklist but it is none of your business whether there is another James Becket on the checklist, because if there is that is a secret. On August 11, 1972 this action was filed.
Because Becket, the plaintiff, is no longer in the lookout book, the defendants move to dismiss the complaint pursuant to Rule 12(b)(6), or in the alternative, for judgment on the pleadings pursuant to Rule 12(c) on the ground that the plaintiff has failed to state a claim upon which relief can be granted.
In support of the motion, the Government contends that since Becket has been "unequivocably advised" that his name has been removed from the checklist, the action as it concerns Becket is moot. The Government also contends that since Becket's name is not on the checklist he is not a member of the class he purports to represent.
The plaintiff argues that (1) the defendants have "consistently attempted to place their 'lookout book' and detention system beyond the reach of judicial review," and that, hence, their actions are capable of repetition, evading review; and (2) that the plaintiff's ...