Kennedy v. Rabinowitz, 17105.

• Decision Date: 04 April 1963
• Docket Number: No. 17105.,17105.
• Citation: 318 F.2d 181
• Parties: Robert F. KENNEDY, Attorney General of the United States, Appellant, v. Victor RABINOWITZ and Leonard B. Boudin, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

318 F.2d 181 (1963)

Robert F. KENNEDY, Attorney General of the United States, Appellant, v. Victor RABINOWITZ and Leonard B. Boudin, Appellees.

No. 17105.

United States Court of Appeals District of Columbia Circuit.

Argued January 23, 1963.

Decided April 4, 1963.

Petition for Rehearing Denied May 1, 1963.

Mr. George B. Searls, Attorney, Dept. of Justice, for appellant.

Mr. David Rein, Washington, D. C., for appellees.

Before WILBUR K. MILLER, FAHY and WRIGHT, Circuit Judges.

Petition for Rehearing En Banc Denied En Banc May 1, 1963.

WRIGHT, Circuit Judge.

The Foreign Agents Registration Act¹ provides criminal penalties² against anyone who represents a foreign government in this country and fails to register with the Attorney General. Certain exceptions are provided.³ Appellees are attorneys at law representing the Republic of Cuba who have been requested by the Attorney General to register pursuant to the Act. Instead of registering, appellees filed this declaratory judgment action, alleging that since their representation of Cuba is limited to "legal matters, including litigation, involving the mercantile and financial interests of the Republic of Cuba," they are exempt from registering under Section 3(d)⁴ of the Act. They pray for a judgment so declaring. In effect, therefore, this proceeding is an effort to restrain the Attorney General from prosecuting appellees under the Act. The District Court denied appellant's motion for judgment on the pleadings and certified this action for appeal.⁵

The threshold question is presented by the venerable, but creaking, doctrine of sovereign immunity. There is no suggestion that the United States has consented to this suit or that the Attorney General is being sued as an individual. Indeed, the named defendant is "The Attorney General of the United States," the name of the current office holder not being included.⁶ Consequently, the action, if maintainable at all, must fit the fiction created by Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). There it was held that where an officer acts unconstitutionally, "he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct." 209 U.S. at 160, 28 S.Ct. at 454, 52 L.Ed. 714. Since in such circumstances the officer is theoretically being sued as an individual, the doctrine of sovereign immunity provides no bar. Thus a fiction is indulged to circumvent sovereign immunity.

Ex parte Young, supra, has spawned a welter of cases, all seeking to get under its umbrella.⁷ The confusion which ensued has been to some extent relieved by the holding in Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628, (1949), reiterated in Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962), that an officer of the United States may indeed be sued in his individual capacity where the officer's action is "not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in the particular case, are constitutionally void." 337 U.S. at 702, 69 S.Ct. at 1467, 93 L.Ed. 1628 and 369 U.S. at 647, 82 S.Ct. at 983, 8 L.Ed. 2d 168.

It is not alleged in the complaint that prosecution of the appellees under the Act would be unconstitutional⁸ or outside the Attorney General's statutory powers.⁹ Appellees' primary argument on the unconsented suit point seems to be that "the doctrine that a suit against a government officer in his official capacity may be a suit against the United States applies only in the situation where the suit is either for government funds or for specific property in the possession of the government." We are not aware that the doctrine of sovereign immunity is so circumscribed. If "the `essential nature and effect of the proceeding' may be such as to make plain that the judgment sought would * * * interfere with the public administration," the suit is one against the sovereign. Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947), citing Ex Parte State of New York, No. 1, 256 U.S. 490, 500, 502, 41 S.Ct. 588, 65 L.Ed. 1057 (1921).¹⁰ Obviously, restraining the Attorney General from enforcing the criminal laws of the United States would "interfere with the public administration."

Appellees rely heavily on Professor Borchard in arguing that civil procedure should be substituted for criminal procedure in the area not involving moral turpitude, particularly "where there is grave uncertainty as to what practices the general terms of a law prohibit." Borchard, Declaratory Judgments (2d Ed. 1941), p. 1021. They also assert with Professor Borchard "that one of the main and most beneficial functions of declaratory judgment procedure is as a substitute for criminal prosecutions in the area of regulation of business practices." Philosophically, we may agree. But the Congress has decreed otherwise, at least so far as agents representing foreign governments are concerned. Consequently, since appellees have failed to challenge the constitutionality of the Act, on its face or as applied, or the authority of the Attorney General to enforce it, this case should be dismissed on the pleadings as an unconsented suit against the United States.

So ordered.

FAHY, Circuit Judge (dissenting).

The suit does not seem to me to be one to enjoin a criminal prosecution, which equity ordinarily will not entertain. The Foreign Agents Registration Act is not such a criminal statute as is involved in cases which illustrate the equitable doctrine. It is primarily a regulatory statute, with a penalty of not more than $10,000 fine, or imprisonment for not more than five years, or both, for willful violation of any of its provisions. Section 618(a). It is not a crime to be a foreign agent, but to act as one unless a specified registration statement is filed, or unless one "is exempt from registration under the provisions of this sub-chapter." Section 612(a). Appellees allege that they are within the statutory exemption of "any person engaging or agreeing to engage only in private and nonpolitical financial or mercantile activities in furtherance of the bona fide trade or commerce of such foreign principal * * *." Section 613(d). They allege that they are lawyers and that their representation of Cuba is limited to "legal matters, including litigation, involving the mercantile and financial interests of the Republic of Cuba," that their retainer does not cover advice or representation involving public relations, propaganda, lobbying, or political or other non-legal matters, and that they have not advised, represented, or acted on behalf of Cuba in any such matters. The answer of appellant alleges that he does not have sufficient information to form a belief as to the truth of these allegations respecting matters other than legal. Appellant denies, however, that appellees come within the exemption and has insisted that they file the registration statement. In this situation the District Court, I think properly, denied appellant's motion for judgment on the pleadings.

Since the Attorney General is responsible for administering and enforcing the statute, appellees were under the necessity either of filing the detailed information required by a registration statement and acquiescing in the status attributed to them by appellant, or of being criminally prosecuted and risking the statutory penalties, unless they could secure a declaratory judgment as to their status. There is more in this situation than the impact upon appellees of the mere existence of the statute, and more too than a mere difference of opinion. There is a demand and insistence by appellant that they file the registration statement. A case or controversy — a justifiable issue — thus arose. See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937).

The suit is not accurately described as one to enjoin a criminal prosecution. It is to determine the existence of an obligation on appellees' part affirmatively to register in circumstances which create a justiciable issue in that regard. No administrative remedy is provided and there is no remedy at law comparable in adequacy to that available through the Declaratory Judgment Act. See Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). The Act combines with equity to afford a remedy, for equity is served by not forcing registration in the face of well-founded doubt of the need to do so, until that doubt is resolved — a doubt which we must assume in the present posture of the case is held in good faith. See Terrace v. Thompson, 263 U.S. 197, 44 S. Ct. 15, 68 L.Ed. 255 (1923). The thrust of the suit is presently too far removed from an effort to enjoin a criminal prosecution to come within the principle adverted to under which equity sometimes denies itself jurisdiction. This principle long antedated the Declaratory Judgment Act and when now invoked should be considered in conjunction with that Act.¹

Nor, as it seems to me, is the suit one against the United States within the sovereign immunity doctrine which protects the Government, without its consent, from judicial interference in the disposition of its property or in its appropriate functioning. Reisman v. Caplin, 115 U. S.App.D.C. ____, 317 F.2d 123 (1963). The American approach to this doctrine has not precluded suits against officials acting in excess of constitutional or statutory authority. See, e. g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L. Ed. 817 (1951). Appellees do not claim, however, that the statute is unconstitutional, so the question narrows to whether the effort of the appellant to require appellees to register is within his statutory authority as that concept has been used in defining the sovereign's immunity. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct....