Doyle v. Fleming

Decision Date08 July 1963
Docket NumberCiv. No. 5456.
Citation219 F. Supp. 277
PartiesGerald A. DOYLE, Jr., Plaintiff, v. Robert J. FLEMING, Jr., Governor of the Canal Zone Government and Cyrus R. Vance, Secretary of the Army in his supervisory capacity for the administration of the Canal Zone Government, Defendants.
CourtU.S. District Court — Panama Canal Zone

Engelbert J. Berger, Cristobal, Canal Zone and William S. Tyson, Washington, D. C., for plaintiff.

John W. Douglas, Asst. Atty. Gen. and Harlan F. Leathers, John J. Cowan, Carl Eardley and Donald B. MacGuineas, Attys., Dept. of Justice, Washington, D. C., and Rowland K. Hazard, U. S. Atty., Balboa, Canal Zone, of counsel, for defendants.

CROWE, District Judge.

The plaintiff, Gerald A. Doyle, Jr., began this action by filing a complaint against the defendant, Robert J. Fleming, Jr., Governor of the Canal Zone Government. The complaint was filed on October 26, 1962 and prayed for a temporary restraining order and a perpetual injunction to restrain Fleming from displaying on or about any public building in the Canal Zone, on a daily or permanent basis, any national flag or banner except the national flag of the United States.

Doyle alleged that Fleming's proposed act of displaying the Panamanian flag on or about the Administration Building of the Canal Zone and numerous other places at an equal height with the flag of the United States is contrary to the laws of the United States, would place the sovereignty of the United States in the Canal Zone in jeopardy and that the plaintiff and other taxpayers of the United States would suffer irreparable damage thereby and he has no adequate remedy at law.

Plaintiff filed with his complaint a list of Points and Authorities in compliance with the Canal Zone Code and among other things stated that he relies on 36 U.S.C. § 175(c).

The temporary restraining order was denied by this court on the ground that irreparable injury would not accrue to the plaintiff, and leave to amend was granted.

On November 23, 1962 the plaintiff amended his complaint and included therein Cyrus R. Vance, Secretary of the Army in his supervisory capacity for the administration of the Canal Zone Government.

The amended complaint asserts that "The Governor" since October 12, 1962 has caused the United States flag and the Panamanian flag to be flown at equal heights on the Thatcher Ferry Bridge in the Canal Zone, that since October 29, 1962 the flags have been caused to be flown equally by "The Governor" at the Canal Zone Administration Building and other places and that he intends to display the two flags simultaneously at equal heights in numerous public places daily in the Canal Zone.

Plaintiff states that "The Governor" intends to abolish the use of Canal Zone postage stamps approved and issued by the United States Post Office Department for the Canal Zone postal system and to substitute therefore stamps supplied by the Republic of Panama and that he intends to recognize in the Canal Zone the exequaturs issued by the Republic of Panama to foreign consuls to the same extent that such exequaturs are recognized in the Republic of Panama.

Plaintiff prays for a final injunction to restrain the defendants for he says that Fleming's acts and contemplated acts are done or to be done with the consent or at the direction of Vance and that such acts are contrary to the laws of the United States and that the sovereignty of the United States in the Canal Zone will be placed in jeopardy or tend to be relinquished without due process of law to the irreparable damage of plaintiff and other citizens and taxpayers of the United States and residents of the Canal Zone.

An attempt was made to serve summons upon defendant, Vance, as Secretary of the Army, by leaving a copy of the summons and complaint and amended complaint with the Governor of the Canal Zone. A motion to quash the service and return of service was made by the District Attorney as counsel for the defendants on the ground that the Governor of the Canal Zone is "neither an agent nor a representative of the said defendant authorized by appointment or by law to receive service of process" and the motion was sustained.

A further amended complaint was filed by the plaintiff which reiterates the facts alleged in the first amended complaint and sets out additional matter descriptive of the United States' interests in the Canal Zone. This pleading delineates the acts complained of more fully but asks for the same relief previously prayed and further requests that defendants, their employees, agents or successors in office be restrained from committing or omitting any act reasonably tending to relinquish or derogate the sovereignty of the United States in the Canal Zone.

Process was thereafter served on Secretary Cyrus Vance as defendant by Gerald A. Doyle whose affidavit states that he sent to Vance at his Washington address a copy of the alias summons and amended complaint by "registered mail."

The defendants through their attorneys of the Department of Justice moved to quash the purported service upon Secretary Vance and moved to dismiss the complaint on the grounds that plaintiff lacks standing to sue and that the court lacks jurisdiction of the subject matter.

I Motion to Quash

An attempt to have service upon the defendant, Vance, was made by the plaintiff by sending him a copy of the summons and amended complaint by "registered mail" in an attempted compliance with 28 U.S.C. § 1391(e) (Supp. 1962), which is as follows:

"(e) A civil action in which each defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, may, except as otherwise provided by law, be brought in any judicial district in which: (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action.
"The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought."

As stated in defendants' brief, "* * the statute, by its terms, is limited to actions brought `in any judicial district'". Judicial districts are defined, as used in Title 28, to mean "the districts enumerated in Chapter 5 of this title." 28 U.S.C. § 451. The Canal Zone is not included and it would follow therefore that § 1391(e) above is not applicable.

The House and Senate reports contain identical statements of the purpose of this act.

"The purpose of this bill is to make it possible to bring actions against Government officials and agencies in U. S. district courts outside the District of Columbia, which, because of certain existing limitations on jurisdiction and venue, may now be brought only in the U. S. District Court for the District of Columbia." (House Report 536, 87th Cong., 1st Sess.; see Senate Report 1992, 87th Cong., 2d Sess.)

The "United States District Court for the District of the Canal Zone" is not a United States district court within the meaning of Title 28, U.S.C., Chapter 5. Congress has defined "district courts" to be those courts enumerated in 28 U.S.C. §§ 81-144 and the Canal Zone court is not included.

In establishing the jurisdiction and venue of the District Court of the Canal Zone further evidence is found on the part of Congress to differentiate for in Title 3, Section 142 of the Canal Zone Code it uses the following language in conferring admiralty jurisdiction:

"The jurisdiction in admiralty conferred upon the district court and the district judge is the same as is exercised by the United States district courts and the United States district judges." (Italics supplied.)

Proper service has not been made upon the defendant, Vance, and the motion to quash is sustained.

II The Flag

1. The first question raised is the most inflammatory and has to do with the flying of the "flag of the Republic of Panama and the flag of the United States" in the Canal Zone at equal heights on separate flag poles in various places described in detail in the complaint. Panama has agitated the question for some time demanding that the flag of that Republic be flown throughout the Canal Zone wherever the United States standard is flown. Riots occurred in 1959 over the question when the Canal Zone authorities rejected a "flag march" emanating from Panama.

Plaintiff's position is that this act on the part of defendants is in violation of Title 36, Section 175(c) of the United States Code originally adopted December 22, 1942 and which is as follows:

"No other flag or pennant should be placed above or, if on the same level, to the right of the flag of the United States of America, except during church services conducted by naval chaplains at sea, when the church pennant may be flown above the flag during church services for the personnel of the Navy. No person shall display the flag of the United Nations or any other national or international flag equal, above, or in a position of superior prominence or honor to, or in place of, the flag of the United States at any place within the United States or any Territory or possession thereof: Provided, That nothing in this section shall make unlawful the continuance of the practice heretofore followed of displaying the flag of the United Nations in a position of superior prominence or honor, and other national flags in positions of equal prominence or honor, with that of the flag of the United States at the headquarters of the United Nations."

He assumes the position that the portion of the Section 175(c) that was adopted as an amendment to the existing act on July 9, 1953 and forms the second sentence of the paragraph...

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5 cases
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 25 Julio 1967 not apply to civil actions brought in the United States District Court for the District of the Canal Zone. See Doyle v. Fleming, D.C. Canal Zone 1963, 219 F.Supp. 277. We must, therefore, decide the thorny question of whether a superior official is an indispensable 4 See also 2 C.Z.C. § ......
    • United States
    • U.S. District Court — Panama Canal Zone
    • 10 Noviembre 1965
    ...90. Matters committed by law to agency discretion are generally not judicially reviewable as has been held by this court. Doyle v. Fleming, D.C., 219 F.Supp. 277. In the case at bar no discretion is conferred. As set out in plaintiffs' brief: "Where a federal official attempts to perform an......
  • Holmes v. Wallace, Civ. A. No. 75-390-N.
    • United States
    • U.S. District Court — Middle District of Alabama
    • 12 Febrero 1976 clear that § 175 was intended merely as an expression of proper usage, not to mandate behavior." At page 310. In Doyle v. Fleming, 219 F.Supp. 277 (D.Canal Zone, 1963), the Court considered a challenge to the practice of the Governor of the Canal Zone in flying the flag of the Republic o......
  • Drummond v. Bunker
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 5 Octubre 1977
    ...& Metal Trades Council, AFL-CIO, 383 F.2d 110 (1967), cert. denied, 389 U.S. 1046, 88 S.Ct. 769, 19 L.Ed.2d 838 (1968); Doyle v. Fleming, 219 F.Supp. 277 (D.C.C.Z.1963). Plaintiff argues that the court's extraterritorial service in this case was authorized by Title 3, § 279 of the Canal Zon......
  • Request a trial to view additional results

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