Sanders v. McClellan

Decision Date19 April 1972
Docket Number24728.,No. 24507,24507
PartiesThomas W. SANDERS, Appellant, v. John L. McCLELLAN et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Gerald M. Stern, Washington, D. C., with whom Messrs. Melvin L. Wulf, New York City, and Lawrence Speiser, Washington, D. C., were on the pleadings, for appellant.

Mr. Robert L. Keuch, Atty., Dept. of Justice, with whom Messrs. J. Walter Yeagley, Asst. Atty. Gen., and Benjamin C. Flannagan, Atty. Dept. of Justice, were on the pleadings, for appellees.

Mr. Stanley L. Temko, Washington, D. C., with whom Mr. John E. Vanderstar, Washington, D. C., was on the memorandum, for Authors League of America, amicus curiae.

Before FAHY, Senior Circuit Judge, and McGOWAN and ROBINSON, Circuit Judges.

FAHY, Senior Circuit Judge:

Appellant Sanders, plaintiff in the District Court, publishes in Berkeley, California, a journal called "Black Politics," in which have appeared articles under the pseudonym "George Prosser." It is undisputed that in some of the articles, as found by the District Court, Mr. Prosser "details how to accomplish sabotage and terrorism, suggests various targets, and explains how to manufacture explosives."

Appellees, defendants in the District Court, include the Chairman and Members of the Senate Permanent Subcommittee on Investigations, a Subcommittee of the Senate Committee on Government Operations, and the General Counsel of the Subcommittee.1

By Senate Resolution 308, of February 16, 1970, the Senate Committee on Government Operations, or any duly authorized Subcommittee thereof, which includes appellee Subcommittee, was authorized and directed to make,

a full and complete study and investigation of riots, violent disturbances of the peace, vandalism, civil and criminal disorder, insurrection, the commission of crimes in connection therewith, the immediate and longstanding causes, the extent and effects of such occurrences and crimes, and measures necessary for their immediate and long-range prevention and for the preservation of law and order and to insure domestic tranquility within the United States.

Under subpoena authority granted by this Resolution, the Subcommittee issued, and on July 1, 1970, served upon appellant, a subpoena duces tecum to appear to testify before the Subcommittee at a time which was eventually set as August 5, 1970. He was directed to produce documents and records as now set forth:

1. Copies of all back issues of Black Politics, which contain articles written by one George Prosser; since 1 January, 1967.
2. Copies of all back issues of the publication Black Politics which contain advertisements of Panther Publications, Boulder, Colorado, and/or Normount Armament Company. The Combat Bookshelf, Forest Grove, Oregon; since 1 January, 1967.
3. All records and documents, in your possession, custody or control, including but not limited to, correspondence, cancelled checks, interoffice memoranda, and payroll records concerning payments and/or commissions from Black Politics to George Prosser or his agents, and also concerning his identity and last known address either business or personal or both, since 1 January, 1967.
I

On August 3, 1970, plaintiff filed suit in the District Court against the Subcommittee, alleging, inter alia, that the articles referred to in the subpoena had been submitted to "Black Politics" on the condition that the identity of the author remain in confidence, that the purpose of "Black Politics" is to provide a forum for vanguard theories and ideas, that freedom of the press requires the press to be able to guarantee to members of the public that their names will not be exposed in articles contributed by them, otherwise it is probable many important views would not be expressed through news media, that identities of contributors are protected by the First Amendment against compulsory exposure, and finally, "the compelled appearance of paintiff before the Subcommittee will have a drastic, chilling and repressive effect upon First Amendment freedoms."

The complaint prayed for a permanent injunction restraining the Subcommittee from seeking to enforce the subpoena and from requiring appellant to reveal the identities of authors of articles and confidential associations or sources of information received in gathering material for publication. The complaint also prayed for a declaratory judgment that the subpoena and Resolution 308 are void under the Constitution.

On August 3, 1970, the District Court denied plaintiff's motion for a temporary restraining order as presenting a nonjusticiable issue, citing Pauling v. Eastland, 109 U.S.App.D.C. 342, 288 F.2d 126 (1960), as controlling authority. On plaintiff's motion of the same date for summary reversal or injunction pending appeal,2 this court ordered that enforcement of and compliance with the subpoena be stayed to enable this court to consider the motion more fully. We also provided that our order should not prevent the District Court from proceeding expeditiously to hear applications for preliminary and permanent injunctions.

Pending resolution by this court of the appeal from the denial of the temporary restraining order, plaintiff moved in the District Court for a preliminary injunction. The District Court, with a careful accompanying opinion, granted the defendant Subcommittee's motion to dismiss. Again, relying principally upon Pauling v. Eastland, supra, the District Court held the complaint did not present a justiciable issue.

On October 23, 1970, plaintiff-appellant filed in this court a motion for summary reversal of the dismissal of the complaint.3 Appellees have filed motions for summary affirmance of both District Court orders denying injunctive relief, and for vacation of the stay entered by this court. By order of this court of December 21, 1971, both appeals were consolidated for all purposes. Since the questions involved have been fully briefed and argued, the parties have agreed to submit the cases for final disposition as though reached on the regular calendar.

II

We affirm the order of the District Court dismissing the complaint, though for a different reason from that assigned by the District Court. We think a justiciable issue was presented, but we find a case is not made for the exercise by the District Court of its equity powers to grant injunctive or declaratory relief.

We are now advised by his counsel's brief that appellant "has never refused to appear to produce non-confidential information required by the subpoena duces tecum," and that as "the District Court Judge pointed out in his opinion below, `plaintiff has no objection to producing the issues of Black Politics called for by paragraphs 1 and 2 of the subpoena.'" Moreover, because of the posture of the case, the claim of unconstitutionality of Resolution 308 is not pressed, and, as shall appear, in Part IV of our opinion, we have no doubt as to its validity. The question pressed for decision is fairly stated to be whether the plaintiff is entitled to an injunction or a declaratory judgment that would enable him to refuse to appear before the Subcommittee, free of the possibility of a contempt citation, in response to the request for all records and documents that pertain to the identity of George Prosser. We assume appellant also seeks like relief which would excuse him from being questioned with respect to confidential sources of information in connection with his publication.

III

We consider first the question of justiciability. The Subcommittee contends that the District Court correctly ruled under Pauling v. Eastland, supra, that, on the ground of separation of powers, the District Court is without jurisdiction to interfere with the congressional investigation. Mr. Pauling had been directed to supply a subcommittee of the Senate with letters which had been transmitted to him from signatories of a petition to the United Nations for cessation of the testing of nuclear weapons. He sued on First Amendment grounds to be protected by the court from furnishing the letters. In an opinion affirming the order of the District Court dismissing the complaint as premature, the court held that the issue sought to be presented was non-justiciable due to the absence of definitive action against Mr. Pauling.4 The opinion relied upon the "basic general principle that a court cannot interfere with or impede the processes of the Congress by proscribing anticipatorily its inquiries," a position thought to be required by the constitutional doctrine of separation of powers and by "simple procedural efficiency." The opinion states: "The courts have no power of interference, unless and until some event, such as arrest, indictment or conviction, brings an actual controversy into the sphere of judicial authority." Thus, the court could as well have affirmed on the independent ground of premature resort to the court. Moreover, as the court pointed out, "Pauling concedes that he could not obtain from a court an injunction against the contemplated action of the defendant Subcommittee, or of the Senate," but did claim the right to a declaratory judgment. In response to this claim the court reasoned, we think correctly, that in the situation presented such relief would amount in substance to an injunction.

The view of non-justiciability reflected in Pauling is not altogether consistent with subsequent decisions of the Supreme Court and of this court:

In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), in deciding that the question of state legislative reapportionment is not political and is justiciable, the Court gathered into six categories cases involving questions historically deemed political and non-justiciable.5 Our case falls into none of these categories; and no more stringent criteria apply when the issue, as here, is expressed in terms of separation of powers.

In Dombrowski v....

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  • United States Servicemen's Fund v. Eastland
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 30 Agosto 1973
    ...643, 85 L.Ed. 971 (1941); Davis v. Ichord, 143 U.S.App.D.C. 183, 442 F.2d 1207 (1970). More recently in Sanders v. McClellan, 150 U.S.App.D.C. 58, 463 F.2d 894 (1972) at page 902 this Court "the judiciary has the duty `of not lightly interfering with Congress\' exercise of its legitimate po......
  • Tompkins v. R.J. Reynolds Tobacco Co.
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    • U.S. District Court — Northern District of New York
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    ...mere objections to Congress' refusal to extend a privilege are insufficient to contest a congressional subpoena. See Sanders v. McClellan, 463 F.2d 894, 899 (D.C.Cir. 1972). Instead, a party may need to risk standing in contempt by refusing to comply with the subpoena, thereby causing the l......
  • MATTER OF NATURALIZATION OF 68 FILIPINO WAR VETS.
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    • U.S. District Court — Northern District of California
    • 1 Diciembre 1975
    ...to be a political question, have invoked the criteria set forth in Baker and have followed Justice Brennan's procedure. Sanders v. McClellan, 150 U.S.App.D.C. 58, 463 F.2d 894, 897-899 (1972); Atlee v. Laird, supra, 347 F.Supp. at 689, 704-707. The Supreme Court itself reaffirmed the validi......
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    • 1 Mayo 2022
    ...concerns implicated when the judiciary is asked to decide the validity of a legislative-investigative act. See Sanders v. McClellan , 463 F.2d 894, 902 (D.C. Cir. 1972). The Court's role is circumscribed in several ways. First, the Court's review is "deferential" when assessing whether an i......
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1 books & journal articles
  • Congressional investigations: politics and process.
    • United States
    • American Criminal Law Review Vol. 44 No. 3, June 2007
    • 22 Junio 2007
    ...Eastland, 442 F.2d 751,754 (D.C. Cir. 1971); Wilson v. United States, 369 F.2d 198, 201-02 (D.C. Cir. 1966); accord Sanders v. McClellan, 463 F.2d 894, 899 (D.C. Cir. 1972); see also Chapman, 166 U.S. at 667 ("When the facts are reported to the particular House... the presiding officer [may......

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