The opinion of the court was delivered by: MOTLEY
This action, which began as an ordinary suit by the United States for the forfeiture of allegedly obscene magazines, raises several interesting and complex issues regarding the right to sue the United States and its agents for redress of constitutional violations, by virtue of the counterclaim and proposed third-party action brought by several of the addressees of the seized magazines. These addressees, the Claimants, seek declaratory, injunctive and monetary relief against the United States, the Secretary of the Treasury and several customs officials for alleged violations of their due process rights under the First and Fifth Amendments resulting from the Government's failure to translate the foreign language text of the magazines into English before seizing them. The plaintiff, United States of America, has moved to dismiss the claimants' counterclaim for failure to state a claim upon which relief may be granted and for lack of subject matter jurisdiction, pursuant to Rule 12 of the Federal Rules of Civil Procedure. The claimants have moved for an order pursuant to Rule 15 of the Federal Rules of Civil Procedure permitting them to amend their claim, answer and counterclaim and for an order pursuant to Rule 14 permitting them to serve a third-party complaint on the proposed third-party defendants. For the reasons discussed below, plaintiff's motion is granted and claimants' action is granted in part and denied in part.
This action was commenced by the United States (the Government) on June 18, 1980, to obtain the forfeiture and destruction of nineteen allegedly obscene items, including four copies of the June, 1980 issue of Revolt (Revolt # 6), a Swedish magazine. On July 23, 1980, five of the addressees of the seized copies of Revolt # 6, Gay Scene, National Gay Task Force, Bruce Voeller, John M. Cox and Robert A. Roth (the claimants), filed a claim, answer and counterclaim which denies that the copies are obscene, on the ground that they contain serious literary, artistic, political and scientific value, and seeks relief against the Government.
The claimants argue that the overwhelmingly dominant theme of Revolt magazine and its reason for being is its coverage of the news and politics of the Gay Rights Movement. Each magazine, they claim, contains the most definitive list available anywhere of the names and addresses of organizations that defend the rights of homosexuals in its major area of distribution, as well as timely news articles from all over the world about events which are of great political interest to homosexuals, particularly those involved in the Gay Rights Movement. Claimants note that they are themselves organizations, publications and individuals who are involved in politics and in serious, non-pornographic journalism on the subject of the civil rights of homosexuals.
The counterclaim refers to a trial held in this district before Judge Sand on June 27, 1980, in United States of America v. Various Articles of Obscene Merchandise, Schedule No. 1953. 80 Civ. 827 (LBS), involving a previous issue of Revolt magazine, in which the present individual claimants, Bruce Voeller and Robert A. Roth, were also claimants. Judge Sand ruled that that issue of Revolt was not obscene since the Government failed to sustain its burden of providing that the magazine as a whole appealed to the prurient interests or that as a whole it did not have serious literary, artistic, political or scientific value, pursuant to the holding in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973).
The counterclaim alleges that the copies of Revolt # 6 were seized, and their alleged obscenity determined, without any regard to the serious literary, artistic, political or scientific content of their text. It further alleges that it is impossible for customs officials to consider these factors without the aid of an English translation of the Swedish text of the magazines, or an examination by a person competent in reading Swedish, and that seizure of the magazines without such translation or examination constitutes the denial of due process of law to the claimants, in violation of their First and Fifth Amendment rights. Claimants contest not only the constitutionality of the seizure of the particular issues of Revolt involved in the present action but also the constitutionality of the Government's power to seize future issues of Revolt without regard to their political content, thereby forcing claimants to continually litigate this issue in the courts.
Claimants request in their counterclaim injunctive relief 1) releasing the four copies of Revolt # 6 to them, and 2) enjoining the Government and its agents from making any further seizures of magazines or other works addressed to claimants which contain text in a foreign language, unless and until the Government prepares a complete English language translation of the foreign language text contained in each work so seized.
On July 28, 1980, this court conducted a trial at which none of the claimants appeared because none had been properly notified. By letter dated August 5, 1980, the Government informed claimants' attorney that it was prepared to discontinue the action as to Revolt # 6. The Government further advised claimants that it consented to the reopening of the action as to the claimants' counterclaim but would shortly move to dismiss the counterclaim for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted.
On September 5, 1980, claimants tendered a copy of an amended answer, claim and counterclaim to the Government which alleges additional jurisdictional statutes and adds requests for relief in the nature of mandamus, for a declaratory judgment declaring that the procedures used by the Government violate claimants' constitutional rights and for an injunction prohibiting the Government from seizing any further issues of Revolt without making a determination that the particular issue of the magazine is substantially more obscene than any issue of Revolt that has been determined not to be obscene. A subsequent proposed amendment also names as third-party defendants, G. William Miller, as Secretary of the Treasury; Vernon D. Acree, as Commissioner of Customs; Dennis T. Snyder, as Regional Commissioner of Customs, New York Region; Eleanor M. Suske, Chief of the Imports Compliance Branch of the United States Customs Service, New York; Joseph DeNardo, Assistant Chief of the Imports Compliance Branch; and Vincent Ruisi, a Clerk in the Imports Compliance Branch, New York. The Government refused to consent to the service and filing of the proposed amended counterclaim and third-party complaint because it contends that the amendments should be dismissed on the same grounds as the original counterclaim.
Since claimants' tender of the proposed amended claim, answer and counterclaim and third-party complaint, there have been additional changes in the parties and subject matter involved in this action. The case originally before this court, United States of America v. Various Articles of Obscene Merchandise, Schedule No. 1995, 80 Civ. 3433 (CBM), was consolidated with a similar case pending before Judge Goettel, United States of America v. Various Articles of Obscene Merchandise, Schedule No. 2009, 80 Civ. 4476 (GLG). The major effects of the consolidation were to add an additional claimant, Baker Memorial Library, to the action and to place in question an additional issue of Revolt magazine, the May, 1980 issue (Revolt # 5). The Government has not consented to discontinue its forfeiture action against Revolt # 5. Claimants filed a claim, answer and counterclaim in the action before Judge Goettel which is identical to that filed in the action before this court.
In addition, by stipulation dated November 3, 1980, the National Gay Task Force withdrew as a claimant and proposed third-party plaintiff. The final change is claimants' request in their Reply Memorandum of Law filed on January 21, 1981, that the court allow them to assert a claim for money damages in their amended claim, answer and counterclaim and third-party complaint, jointly and severally, against three of the proposed third-party defendants, Eleanor M. Suske, Joseph DeNardo and Vincent Ruisi, in the amount of $ 10,000 for each claimant, for violations of claimants' First and Fifth Amendment rights.