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OSTRER v. ARONWALD

June 21, 1977.

Louis C. OSTRER, Rita Ostrer, Jack Ostrer, and Dina Gelman, Plaintiffs,
v.
William I. ARONWALD, Robert B. Fiske, Jr., Alan Naftalis, Marvin Sontag, James Killeen, Edward H. 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 H. Levi, and the 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.

 Plaintiffs Louis C. Ostrer, his wife Rita Ostrer, his father Jack Ostrer, and his sister Dina Gelman bring this action seeking injunctive and other relief against certain government officials and the United States of America. They claim that the government is using unlawful and unethical means in an effort to coerce Louis C. Ostrer into testifying before a federal grand jury about his business associates, some of whom may have "connections with organized crime."

 The complaint identifies the defendants as follows: Aronwald is employed by the United States Department of Justice and was Chief of the Organized Crime Strike Force for the Southern District of New York ("the Strike Force"). Naftalis also belonged to the Strike Force and is in charge of the investigation of which plaintiffs complain. Fiske is the United States Attorney for the Southern District of New York. Levi was the Attorney General of the United States. Both Sontag and Killeen were members of the Strike Force and are investigators with the Internal Revenue Service.

 Plaintiffs seek to enjoin defendants from presenting any further evidence regarding plaintiffs to the grand jury, from obtaining indictments against plaintiffs prior to a hearing and decision on the merits, from seeking retaliation against plaintiffs or their immediate families, and from releasing to the news media and others incriminating stories about the plaintiffs.

 In addition, plaintiffs ask the Court to order suppressed any evidence obtained by unlawful or unconstitutional means and the fruits thereof and to order the defendants to cease harassing and interfering with plaintiffs and their lawful activities and associations. Plaintiffs ask the Court to discharge the grand jury and to declare plaintiffs immunized with respect to the "alleged crimes, evidence being presented to, and indictments being sought from, the Grand Jury." Finally, the complaint demands an award of actual damages of twenty million dollars and punitive damages of thirty million dollars, plus litigation costs against the defendants jointly and severally.

 The jurisdictional allegations of the complaint are lengthy. Listed are 18 U.S.C. § 2515 et seq.; the first, fourth, fifth, and sixth amendments to the Constitution; Rules 6, 41 and 42, Fed.R.Crim.P.; 28 U.S.C. §§ 2201, 2202, 1331, 1346, 1361 and 2241; 18 U.S.C. § 6001 et seq. and Murphy v. Waterfront Commission, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964); as well as, "this Court's inherent supervisory powers over the Federal Courts, Federal judicial and quasi-judicial proceedings, grand juries, and officers of the Court." At the outset, the Court must determine whether jurisdiction exists.

 The Declaratory Judgment Act, 28 U.S.C.§§ 2201, 2202, does not confer subject matter jurisdiction. It provides a remedy where jurisdiction exists. Arthur v. Nyquist, 415 F. Supp. 904, 909 n. 3 (W.D.N.Y.1976).

 28 U.S.C. § 1346 is also pleaded as a jurisdictional base.The relevant portions of § 1346 read as follows:

 United States as defendant

 (a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:

 . . .

 (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States.

 (b) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

 Insofar as this is a suit for non-monetary relief, 28 U.S.C. § 1346 does not provide a jurisdictional basis for plaintiffs. § 1346(b) relates solely to the recovery of "money damages." § 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) (per curiam). Richardson v. Morris, 409 U.S. 464, 93 S. Ct. 629, 34 L. Ed. 2d 647 (1973).

 § 1346(a)(2) does not in itself establish a waiver of sovereign immunity. United States v. Testan, 424 U.S. 392, 398, 96 S. Ct. 948, 47 L. Ed. 2d 114 (1976); Duarte v. United States, 532 F.2d 850 (2d Cir. 1976). Further,

 Tucker Act jurisdiction (28 U.S.C. § 1346(a)(2) is properly invoked where the claim does not exceed $10,000 or where the claimant waives any amount sought in excess of the Act's jurisdictional limit. See Perry v. United States, 308 F. Supp. 245 (D.Colo.1970), aff'd, 442 F.2d 353 (10th Cir. 1971).

 Commonwealth of Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 25 (3d Cir. 1975). As noted above, plaintiffs claim damages in the millions.

 Regarding plaintiffs' allegation of jurisdiction under § 1346(b), defendants assert that plaintiffs have not filed an administrative claim, a prerequisite to suit. Altman v. Connally, 456 F.2d 1114, 1116 (2d Cir. 1972); Heaton v. United States, 383 F. Supp. 589, 590 (S.D.N.Y.1974). Plaintiffs apparently do not contest this assertion.

 Moreover, it appears that plaintiffs' claims would fall within the discretionary acts exception to the Federal Tort Claims Act, 28 U.S.C.§ 2680(a). See Myers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252, 1256-57 (2d Cir. 1975); Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841, 88 S. Ct. 76, 19 L. Ed. 2d 106 (1967).

 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).

 This Circuit recently stated:

 The prerequisites to the issuance of a writ of mandamus have been stated as (1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the defendant's part to do the act in question; and (3) lack of another available, adequate remedy.

 Billiteri v. United States Board of Parole, 541 F.2d 938, 946 (2d Cir. 1976). This Court finds these prerequisites lacking.

 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, plaintiffs similarly assert that defendants have a duty not to violate their civil rights and not to engage in activities which constitute crimes under state law.

 In Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 379 (2d Cir. 1973), the Second Circuit refused mandamus to compel the United States attorney to investigate and prosecute certain state officers, indicating that to do so would be an unwise interference with prosecutorial discretion. This Court believes that mandamus is similarly unavailable to compel a United States attorney not to prosecute.

 Plaintiffs claim 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 not detailed. 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. d 292 (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, plaintiffs' 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.

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

 18 U.S.C. § 6001 et seq. "Immunity of Witnesses" does not appear to serve as a jurisdictional grant in an action of this sort. That portion of Title 18 provides for a grant of immunity at the government's request. United States v. Morrison, 535 F.2d 223, 228-29 (3d Cir. 1976), cert. denied, Boscia v. United States, 429 U.S. 824, 97 S. Ct. 78, 50 L. Ed. 2d 87 (1976).

 At the time plaintiffs commenced this action, 28 U.S.C. § 1331 provided in pertinent part:

 Federal question; amount in controversy;

 (a) 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 interest and costs, and arises under the Constitution, laws, or treaties of the United States.

 Plaintiffs claim injury to certain of their constitutional rights as well as financial harm in that "their businesses [have been] nearly ruined." They allege $10,000 in damages, exclusive of interests and costs, and request a very substantial monetary award.

 In Moore v. Betit, 511 F.2d 1004, 1006 (2d Cir. 1975), the Second Circuit observed:

 [The] proposition that indirect damages and damages which are too speculative do not support jurisdiction... has traditionally been applied to damages which are intangible or to damages incapable of reduction to monetary terms such as free speech, child custody and loss of personal liberty. See e.g. Kiernan v. Lindsay, 334 F. Supp. 588, 594-5 (S.D.N.Y.1971).

 . . .

 Federal courts have consistently held that absolute certainty in valuation of the right involved is not required to meet the amount in controversy requirement but rather the requirement is that there be a reasonable probability of an amount in controversy exceeding jurisdictional amount if an amount can be ascertained pursuant to some realistic formula. See e.g., Lawrence v. Oakes, 361 F. Supp. 432 (D.Vt.1973); Scherr v. Volpe, 336 F. Supp. 882, 885 (W.D.Wis.1971) aff'd, 466 F.2d 1027 (7th Cir. 1972). Conversely, courts should dismiss only when it is clear to a legal certainty that jurisdictional amounts cannot be met. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-9, 58 S. Ct. 586, 82 L. Ed. 845 (1938), Opelika Nursing Home, Inc. v. Richardson, 448 F.2d 658 (5th Cir. 1971) on remand 356 F. Supp. 1338, 1341 (M.D.Ala.1973).

 The jurisdictional amount requirement is ordinarily satisfied by a plaintiff's good faith allegation. The burden of demonstrating that the amount is as he claims falls upon plaintiff when defendant challenges the allegation. Moore v. Betit, supra at 1007. Defendants do not appear to contest plaintiffs' reliance on § 1331 against the individual defendants.

 The Court believes that the harm which plaintiffs claim to have sustained can be viewed in monetary terms and is sufficient to meet the jurisdictional amount requirement. The Court notes that after this lawsuit was filed 28 U.S.C. § 1331 was amended to eliminate the $10,000 requirement when an action is brought, "against the United States, any agency thereof, or any officer or employee thereof in his official capacity."

 This Court also notes the determination of Judge Coffrin in Green v. Philbrook, 427 F. Supp. 834, 836 (D.Vt.1977): [Effective] October 21, 1976, Congress amended federal question jurisdiction, 28 U.S.C. § 1331(a), by deleting the $10,000 amount in controversy requirement where the action is brought against the United States, its agencies, or any officer or employee thereof acting in his official capacity. Pub.L.No. 94-574, § 2 (Oct. 21, 1976). The amendment is remedial in nature, see H.R.Rep. No. 1656, 94th Cong., 2d Sess. (1976), U.S.Code Cong. & Admin.News 1976, p. 6121, and it is intended to fill what has been termed "an unfortunate gap in the statutory jurisdiction of the federal courts," Wolff v. Selective Service Local Board No. 16, 372 F.2d 817, 826 (2d Cir. 1967). Thus, we think it proper to apply the amendment retroactively to grant jurisdiction over the defendant Secretary of Health, Education and Welfare even if there was no jurisdiction initially. Larkin v. Saffarans, 15 F. 147 ...


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