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SHARROW v. PEYSER

December 29, 1977

VICTOR SHARROW, Plaintiff,
v.
MINNA PEYSER and Hamilton Fish, Jr., Defendants



The opinion of the court was delivered by: BRODERICK

MEMORANDUM ORDER

 VINCENT L. BRODERICK, U.S.D.J.

 Plaintiff Victor Sharrow, proceeding pro se, commenced this action on October 26, 1976 with the filing of a complaint against Minna Peyser and Hamilton Fish, Jr., then candidates for the United States House of Representatives from the 25th Congressional District of New York. The relief sought by the complaint was a temporary restraining order enjoining defendants from running for Congress during the election then scheduled for November 2, 1976. In fact, the election was held as scheduled and Congressman Fish was reelected.

 The jurisdictional basis alleged in the complaint is Article III, Section 2 of the Constitution. *fn1" Plaintiff apparently invokes the jurisdiction of this court under the provisions of 28 U.S.C. § 1331: presence of a federal question with more than $10,000 in controversy, and asks that a three judge court be convened pursuant to 28 U.S.C. § 2284 for the purpose of resolving the following question:

 
Does Section 2 of the 14th Amendment control completely and constitutionally command the computation for the apportionment of representatives running for Congress? *fn2"

 Plaintiff asserts that the Reapportionment Act of June 18, 1929, c. 28, 46 Stat. 21, set forth as amended in 2 U.S.C. § 2a, is unconstitutional as enforced. Plaintiff specifically questions the constitutionality of the apportionment of the 25th Congressional District of the State of New York, wherein he resides.

 The underlying theory of the complaint is that all congressional districts are unconstitutionally apportioned because the Government has failed to enforce Section 2 of the Fourteenth Amendment (hereinafter "14/2") which requires that the basis of representation of each state be reduced by the proportion of 21 year-old males whose right to vote has been abridged. *fn3" Plaintiff contends that because the congressional district in which defendants were then candidates for Congress is unconstitutionally apportioned, the election should have been enjoined.

 Defendant Fish has moved for (1) an order pursuant to Fed.R.Civ.P. 4(c) substituting Robert B. Fiske, Jr., United States Attorney, Southern District of New York, as attorney of record for Fish, in place of Russell E. Aldrich; and (2) an order pursuant to Fed.R.Civ.P. 12(b) dismissing the complaint. Plaintiff has filed a cross-motion for an order (1) granting leave to file an amended complaint; and (2) convening a three judge court pursuant to 28 U.S.C. § 2284, such court to hear and determine the outstanding motions.

 At the outset I address the question of whether the United States Attorney is authorized to participate in this action on behalf of Fish. Plaintiff opposes such participation, pointing out that Fish is sued in his individual capacity as a private citizen. The United States Attorney's Office has not responded to this point except to claim that substitution is sought sufficiently early in the proceedings as to preclude a finding of prejudice to the plaintiff, and that it will occasion no delay. My interpretation of 28 U.S.C. § 547, wherein the duties of the United States Attorney are prescribed, suggests to me that Fish may not be entitled to be represented by the United States Attorney. However, in light of my ultimate decision on the motion to dismiss, it is unnecessary finally to determine this issue.

 The pending motion to dismiss the complaint is predicated upon allegations of plaintiff's lack of standing, the mootness of the issue raised and the failure of the complaint to state a claim upon which any relief can be granted. Plaintiff has responded to this motion by attempting to amend his complaint so as to seek declaratory relief with respect to future Congressional elections and by contending that the recent amendments of the three judge court statute, 28 U.S.C. § 2284, mandate that the action be referred automatically to a three judge court. Defendant has not objected to the cross-motion to amend the complaint and I grant that motion.

 Regardless of the nature of the relief sought, a single judge has the authority to review a complaint seeking the convening of a three judge court in order to determine whether it states a substantial claim and one over which the Court would have jurisdiction. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 8 L. Ed. 2d 794, 82 S. Ct. 1294 (1962); Green v. Board of Elections of City of New York, 380 F.2d 445 (2d Cir. 1967); cert. denied, 389 U.S. 1048, 19 L. Ed. 2d 840, 88 S. Ct. 768 (1968). This review by a single judge includes the determination of whether the complaint presents a justiciable controversy and whether a plaintiff has standing. Lion Mfg. Corp. v. Kennedy, 117 U.S. App. D.C. 367, 330 F.2d 833 (1964); Hart v. Kennedy, 314 F. Supp. 823, 824 (W.D. Okl. 1969); American Commuters Assoc. v. Levitt, 279 F. Supp. 40, 46 (S.D.N.Y. 1967), aff'd, 405 F.2d 1148 (2d Cir. 1969).

 Neither the proposed amendment of the complaint so as to seek declaratory relief, nor the recent amendment of the three judge court statute alters this Court's authority. On the contrary, a three judge court need not be convened to determine whether a declaratory judgment should issue. *fn4" Similarly, the amendments to 28 U.S.C. § 2284 now expressly provide that the single judge to whom the case is initially assigned must first determine whether three judges are required:

 
(1) Upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge. The judges so designated, and the judge to whom the request was presented, shall ...

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