358 F.2d 821 (D.C. Cir. 1966), 18435, Dombrowski v. Burbank

Docket Nº:18435, 18544.
Citation:358 F.2d 821
Party Name:James A. DOMBROWSKI et al., Appellants, v. Colonel Thomas D. BURBANK et al., Appellees.
Case Date:February 04, 1966
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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358 F.2d 821 (D.C. Cir. 1966)

James A. DOMBROWSKI et al., Appellants,


Colonel Thomas D. BURBANK et al., Appellees.

Nos. 18435, 18544.

United States Court of Appeals, District of Columbia Circuit.

February 4, 1966

Argued Dec. 15, 1964.

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Mr. William M. Kunstler, New York City, and Mr. Milton E. Brener, New Orleans, La., of the bar of the Supreme Court of Louisiana, pro hac vice, by special leave of court, with whom Mr. Walter E. Dillon, Jr., Washington, D.C., was on the brief, for appellants.

Mr. Roger Robb, Washington, D.C., and Mr. Hoseph M. Hannon, Asst. U.S. Atty., with whom Mr. David C. Acheson, U.S. Atty. at the time the brief was filed, Messrs. Frank Q. Nebeker and Alan Kay, Asst. U.S. Attys., were on the

Before WASHINGTON, Senior Circuit Judge, and BURGER and MCGOWAN, Circuit Judges.


The appellants in this case are a Louisiana civil rights organization and its executive director. Their complaint in the District Court sought injunctive relief and damages under 42 U.S.C. 1983 and 1985. The first of these appeals, No. 18, 435, is from an order dismissing the claim for injunctive relief. The second, No. 18, 544, is from the grant of appellees' 1 motion for summary judgment on the claim for damages.

The complaint alleged in substance that various Louisiana officials, in league with appellees, illegally searched the offices of appellants and seized documents and records. 2 These papers, while in the possession of the Louisiana officials, were subjected to a subpoena issued in the name of the United States Senate Internal Security Subcommittee. Compliance with this subpoena resulted in the transfer of the seized papers to the custody of the Senate Subcommittee which, in plenary session, made provision for their handling by the resolution set forth in the margin. 3 Appellants, asserting

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that the subpoena was deficient in authority from the Subcommittee, seek damages, as well as an injunction requiring appellees to return their records and to refrain from using them.

No. 18, 435

Appellants' complaint alleged that the seized materials were in the possession of appellees. However, the affidavits submitted in opposition to appellants' motion for a preliminary injunction revealed that the Senate Subcommittee had incorporated the documents in its hearing record and made express provision for their examination and disposition by the collective act of the Subcommittee. See note 3 supra.

Since the seized materials must thus be regarded as in the possession of the Senate Subcommittee, 4 a judicial command addressed solely to appellees-- one member of the Subcommittee and one of its staff--cannot be assured of effect. The test, set forth by the Supreme Court in Williams v. Fanning, 332 U.S. 490, 494, 68 S.Ct. 188, 189, 92 L.Ed. 95 (1947), of the indispensability of a superior to a suit for injunctive relief against a subordinate is whether 'the decree which is entered will effectively grant the relief desired by expending itself on the subordinate official who is before the court.' Cf. Hynes v. Grimes Packing Co., 337 U.S. 86, 69 S.Ct. 968, 93 L.Ed. 1231 (1949). Of course, there is only partly present in this case a relationship between a superior and a subordinate official as there was in Williams; nevertheless, the problem of requiring a subordinate official to undertake acts capable of accomplishment only by his superior, which seems central to the purpose of the Williams test, also characterizes the difficulties implicit in requiring either of the appellees to return documents held by the full Senate Subcommittee. 5

The dismissal of appellants' request for injunctive relief to prevent appellees from using the seized records also flows from the undisputed fact that the materials are in the custody of the Subcommittee. Since the documents are now held by the Subcommittee, they are accessible to the appellees only by virtue of

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their official positions with that body. We cannot prohibit, nor are we asked to prohibit, appellees' use of the documents in the course of their official business for the Subcommittee; and neither do appellants seek any restraint upon the Subcommittee itself. See Hearst v. Black, 66 U.S.App.D.C. 313, 87 F.2d 68 (1936), where this court refused to enjoin a congressional committee from using information it had obtained by illegal means. There, considerations resting upon a proper allocation of powers and responsibilities among the co-ordinate branches of the federal system impelled this court not to exercise its equity powers. 6 In any event, however, the relief requested here is directed solely at appellees. Disclosure of the documents in the course of the Subcommittee's official action would not be prevented by the decree prayed for against appellees; and all other members of the Subcommittee would still have unfettered use of the documents. 'A court of equity may refuse to give any relief when it is apparent that that which it can give will not be effective or of benefit to the plaintiff.' Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 550, 57 S.Ct. 592, 601, 81 L.Ed. 789 (1937).

No. 18, 544

Appellees contend that the grant of their motion for summary judgment was proper because (1) appellants failed to put forward a serious claim that appellees were parties to a knowing concert of action with the state officials, and (2) in any event, the doctrine of legislative immunity insulates appellees from suit. Were only the former involved, we might have considerable difficulty in concluding that there were no disputed issues of fact requiring exploration and resolution by means of a trial. But we need not pursue that inquiry since we think the record before the District Court contained unchallenged facts of a nature and scope sufficient to give appellees an immunity against answerability in damages for actions taken in the course of their legislative activities. 7

The issue, in the large, is whether the actions taken with respect to appellants' records were within the scope of appellees' duties for the Senate Subcommittee. Citing our decision in Shelton v. United States, 117 U.S.App.D.C. 155, 327 F.2d 601 (1963), appellants argue that the subpoenas were invalid because they were issued and executed without the prior authorization of the Subcommittee, as distinct from its Chairman. Shelton, however, held only that a person compelled to testify before a Senate Subcommittee by an invalid subpoena could not be convicted of contempt for failing to respond to the Subcommittee's questions. No necessity existed there for considering the dangers of inhibiting the legislative process by the threat of personal liability to those engaged in it. These are at the core of the public policies reflected in the immunity doctrine. 8

The Internal Security Subcommittee is required by Senate Resolution to investigate 'the extent, nature and effect of subversive activities in the United States * * *.' S.RES. 62, 88th CONG. There is no question that the Senate may legitimately conduct such investigations. As

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has been said, 'The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad.' Watkins v. United States, 354 U.S. 178, 187, 77 S.Ct. 1173, 1179, 1 L.Ed.2d 1273 (1957); see also Tenney v. Brandhove, 341 U.S. 367, 377-378, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). Appellants' own affidavits establish that, for more than a decade, the Subcommittee has evinced an active interest in appellants. As the Subcommittee's Chairman and Chief Counsel, respectively, appellees have immediate responsibilities in the Subcommittee's operations. It is true that the records held by the Louisiana Committee were subpoenaed without prior authorization from the Subcommittee, although the Chairman expressly approved in advance the action proposed to be taken. But this action was shortly brought by appellants to the attention of the Subcommittee as a whole, which discussed the matter of the subpoenaed papers. After such consideration the Subcommittee, by formal resolution, incorporated the papers in its hearing record,...

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