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OSTRER v. ARONWALD

June 21, 1977.

Benjamin OSTRER, Plaintiff,
v.
William I. ARONWALD, Robert B. Fiske, Jr., Alan Naftalis, Marvin Sontag, James Killeen, Edward Levi, and the United States of America, Defendants.



The opinion of the court was delivered by: WARD

ROBERT J. WARD, District Judge.

Defendants William I. Aronwald, Robert B. Fiske, Jr., Alan Naftalis, Marvin Sontag, James Killeen, Edward Levi, and United States of America move for an order pursuant to Rule 12(b), Fed.R.Civ.P., dismissing the complaint in this action. For the reasons hereinafter stated, the motion is granted.

 Plaintiff Benjamin Ostrer seeks injunctive relief against certain government officials and the United States of America. He claims that defendants are using the grand jury process to obtain an indictment against him in order to pressure his father, Louis Ostrer, into testifying about the latter's business associates. Benjamin Ostrer, the complaint indicates, is in a uniquely vulnerable position since he is a recent law school graduate attempting to secure admission to the New York State Bar. Plaintiff asserts that he is a hostage for his father's "cooperation."

 The complaint alleges that this action arises out of plaintiff's first amendment right of association, his penumbral right to private familial relationships, and his fifth amendment right to due process, as well as Rules 6 and 42, Fed.R.Crim.P., and Rule 65, Fed.R.Civ.P. The acts charged are also purported to breach state laws forbidding coercion and extortion, the ethical duties of the defendants, and the public interest in a fair criminal justice system.

 The Court's jurisdiction is predicated upon 28 U.S.C. §§ 1331, 1346, 1361, and 2241 in addition to the judiciary's inherent supervisory powers over federal courts, federal judicial and quasi-judicial proceedings, grand juries, and officers of the Court. The complaint seeks to enjoin the defendants from presenting any further evidence to the grand jury regarding plaintiff and from obtaining any (indictments) against him; attempting to retaliate against plaintiff for filing this action; or releasing to the Character Committee of the New York State Bar or to any one else any information adverse to plaintiff. The complaint also asks that the Court discharge the grand jury which has heard evidence against plaintiff, that plaintiff be declared fully immunized concerning alleged crimes, evidence being presented to, and indictments sought from said grand jury, and that defendants be ordered to cease all unlawful harassment of plaintiff in his lawful activities and associations.

 A determination of jurisdiction must first be made. The plaintiff's jurisdictional allegations must, therefore, be examined.

 28 U.S.C. § 1361 reads as follows:

 Action to compel an officer of the United States to perform his duty

 The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

 Traditionally, jurisdiction under this section arises only if the defendant has "a clear duty to perform a non-discretionary act." Davis v. United States Dep't of HEW, 416 F. Supp. 448, 451 (S.D.N.Y.1976). Conversely, mandamus is appropriate if the activity sought to be prevented is "so plainly prohibited as to be free from doubt." Naporano Metal & Iron Co. v. Sec'y of Labor, 529 F.2d 537, 542 (3d Cir. 1976).

 In Fifth Avenue Peace Parade Committee v. Hoover, 327 F. Supp. 238, 243 (S.D.N.Y.1971), aff'd, 480 F.2d 326 (2d Cir. 1973), cert. denied, 415 U.S. 948, 94 S. Ct. 1469, 39 L. Ed. 2d 563 (1974), it was stated:

 a court must have the benefit of some specific statutes or regulations against which to measure the duties said to have been specifically ignored by the defendant or defendants. Plaintiffs have not made such a showing here. They rest upon the flat assertion that defendants have a duty not to violate the constitutional rights of plaintiffs. Although the proposition cannot be denied, I think that to allow it as a basis for federal jurisdiction under § 1361 would be to stretch mandamus far beyond its proper limits.

 Here, plaintiff similarly asserts that defendants have a duty not to violate his civil rights and not to engage in activities which constitute crimes under state law. This Court believes that such assertions do not provide a basis for mandamus jurisdiction.

 Plaintiff claims to be "in custody" for purposes of this Court's power to grant a writ of habeas corpus. 28 U.S.C. § 2241. The incidents of this restraint are alleged to include the threat of indictment and the potential harm to plaintiff's career plans. In Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S. Ct. 1571, 1574, 36 L. Ed. 2d 294 (1973), the Supreme Court stated:

 The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty. Since habeas corpus is an extraordinary remedy whose operation is to a large extent uninhibited by traditional rules of finality and federalism, its use has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate.

 See United States ex rel. Scranton v. State of New York, 532 F.2d 292, 293-94 (2d Cir. 1976).

 Two useful indicia of custody were suggested by the Court in Whorley v. Brilhart, 359 F. Supp. 539, 542 (E.D.Va.1973)

 First, there must be present some sort of supervisory control over the person of the petitioner. His conduct, in other words, must be subject in one degree or another to the direction of judicial officers. Second, the existence of an imminent possibility of incarceration without a formal trial and criminal conviction may create such a restraint on liberty as to constitute custody.At the least, such a possibility taken together with even minimum supervisory control would result in a finding of custody. Hensley v. Municipal Court, [supra].

 There is certainly no imminent possibility of incarceration present here. Furthermore, plaintiff's conduct is really not subject to the direction of judicial officers nor to their supervisory control as is the behavior of a parolee or one on probation.

 In Furey v. Hyland, 395 F. Supp. 1356 (D.N.J.1975), aff'd without opinion, 532 F.2d 746 (3d Cir. 1976), it was decided that a doctor, convicted, fined and given a suspended sentence, was not "in custody" as a result of disabilities which might result from his conviction. These disabilities were alleged to include the loss of his professional license and damage to his status and reputation. Although the Court acknowledged that, "the stakes may become high for Dr. Furey" 395 F. Supp. at 1361 n. 9, it felt that to create a novel definition of "in custody" for doctors and other licensees would violate equal protection. See Edmunds v. Chang, 509 F.2d 39 (9th Cir. 1975), cert. denied, 423 U.S. 825, 96 S. Ct. 39, 46 L. Ed. 2d 41. Similar reasoning would apply to the nascent lawyer plaintiff in this suit.

 Although the definition of "in custody" has clearly broadened over time, it remains a concept with limits. Plaintiff would have this Court go beyond those limits. He is simply not subject to severe or immediate restraint.

 28 U.S.C. § 1346 does not provide a jurisdictional basis for plaintiff. § 1346(b) by its terms relates solely to the recovery of "money damages." This is a suit for injunctive relief. Similarly, § 1346(a)(2) permits an award of damages, not injunctive or declaratory relief.Lee v. Thornton, 420 U.S. 139, 95 S. Ct. 853, 43 L. Ed. 2d 85 (1975) ...


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