Liberation News Service v. Eastland, No. 776

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtWATERMAN, FRIENDLY and ANDERSON, Circuit
Citation426 F.2d 1379
PartiesLIBERATION NEWS SERVICE, Sheila Ryan, Allen Young, Students for a Democratic Society, Anita Simpson and Richard Marantz, Plaintiffs-Appellants, v. James O. EASTLAND, John J. McClellan, Sam Ervin, Birch Bayh, Thomas J. Dodd, Robert C. Byrd, Strom Thurmond, Marlow W. Cook, Robert P. Griffin, Hugh Scott, J. G. Sourwine, as Chairman, members and staff counsel of the Subcommittee on Internal Security of the Committee of the Judiciary of the United States Senate, Defendants-Appellees, and Chemical Bank New York Trust Company, Defendant.
Docket NumberDocket 34688.,No. 776
Decision Date07 May 1970

426 F.2d 1379 (1970)

LIBERATION NEWS SERVICE, Sheila Ryan, Allen Young, Students for a Democratic Society, Anita Simpson and Richard Marantz, Plaintiffs-Appellants,
v.
James O. EASTLAND, John J. McClellan, Sam Ervin, Birch Bayh, Thomas J. Dodd, Robert C. Byrd, Strom Thurmond, Marlow W. Cook, Robert P. Griffin, Hugh Scott, J. G. Sourwine, as Chairman, members and staff counsel of the Subcommittee on Internal Security of the Committee of the Judiciary of the United States Senate, Defendants-Appellees, and
Chemical Bank New York Trust Company, Defendant.

No. 776, Docket 34688.

United States Court of Appeals, Second Circuit.

Argued April 10, 1970.

Decided May 7, 1970.


426 F.2d 1380
COPYRIGHT MATERIAL OMITTED
426 F.2d 1381
Edward Carl Broege, Jr., New York City (Lefcourt, Garfinkle, Crain, Cohn, Sandler & Lefcourt and Nancy Stearns, New York City, of counsel), for plaintiffs-appellants Liberation News Service, Sheila Ryan and Allen Young, and (Lubell, Lubell, Fine & Schaap, New York City, and Frederick H. Cohn and William H. Schaap, New York City of counsel), for plaintiffs-appellants Students for a Democratic Society, Anita Simpson and Richard Marantz

Peter Alan Herbert, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for Southern District of New York, and Michael Hess, Asst. U. S. Atty., of counsel), for defendants-appellees other than Defendant Chemical Bank New York Trust Co.

Before WATERMAN, FRIENDLY and ANDERSON, Circuit Judges.

FRIENDLY, Circuit Judge:

The plaintiffs in this action in the District Court for the Southern District of New York are Liberation News Service LNS, an association which describes itself as "a wire service to the radical and underground press," the New York Regional Office of Students for a Democratic Society SDS, "an association of young people of the left," and four officers of the two associations, all residents of New York. Defendants are ten United States Senators, who are Chairman and members of the Subcommittee on Internal Security of the Senate Committee on the Judiciary, none citizens of New York, J. G. Sourwine, a citizen of the District of Columbia, who is the Subcommittee's Chief Counsel, and Chemical Bank New York Trust Company Chemical, a New York banking association. The complaint alleged that the Subcommittee had served subpoenas, signed by Senator Eastland, requiring Chemical to produce at the Subcommittee's room in Washington "any and all records" of the accounts of LNS and SDS, such records to "comprehend papers, correspondence, statements, checks, deposit slips and supporting documentation, or microfilm thereof within your control or custody or within your means to produce." The subpoenas rested on the authority of Senate Resolution 366 approved in 1950 by the 81st Congress, 2d Session, as extended by Senate Resolution 46 of the present Congress, adopted February 17, 1969. Plaintiffs allege that the Resolutions violate numerous provisions of the Constitution, notably the First Amendment, the due process clause of the Fifth Amendment and the prohibition of Bills of Attainder, Art. I, § 9, Clause 3, and that the subpoenas violate the First, Fourth, Fifth, Ninth and Tenth Amendments. They allege further that about half of LNS' financial support and all of SDS' comes from private contributions, much of which will be withdrawn if Chemical complies with the subpoenas.

Proceeding by order to show cause,1 plaintiffs obtained a temporary restraining order and moved for a preliminary injunction. Appearing for the Senators and Mr. Sourwine, the United States Attorney cross-moved to dismiss the complaint as to them for lack of jurisdiction over their persons. Judge McLean in an opinion denied plaintiffs' motion and granted the United States Attorney's2 but continued the temporary restraining order until the entry of an order so that plaintiffs might bring an action for similar relief in the District of Columbia if so advised. We have maintained the

426 F.2d 1382
temporary restraining order during the pendency of this expedited appeal

We noted at the argument that since there was some dispute whether the action remained pending against Chemical3 and the district judge had not made an order pursuant to F.R.Civ.P. 54(b), we might not be able to entertain the appeal as one from a final decision under 28 U.S.C. § 1291 and, if not, appellate jurisdiction would have to rest on the denial of plaintiffs' request for an injunction, 28 U.S.C. § 1292(a) (1). While we have no doubt concerning the correctness of Professor Moore's view that an order denying an injunction is appealable despite the presence of other unadjudicated claims, 6 Federal Practice ¶ 54.302 (1966), and cases cited, we were not entirely sure that this principle extended to a case where the denial of an injunction was a consequence of dismissal for want of jurisdiction over the person of the defendants. At our suggestion appellants eliminated the problem by obtaining a certification under Rule 54(b) and filing a new notice of appeal solely from the judgment against the governmental defendants.

The basis asserted for maintaining the action in the Southern District of New York is 28 U.S.C. § 1391(e), added by Pub.L.No. 87-748, 76 Stat. 744 (1962):

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.

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67 practice notes
  • Kahane v. Carlson, No. 274
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 26, 1975
    ...Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308 (1967), and by this court in Liberation News Service v. Eastland, 426 F.2d 1379, 1383--84 (2 Cir. 1970). Suffice it here to say that the primary purpose of Congress was to make the traditional remedy of mandamus more readi......
  • Duplantier v. U.S., No. 79-2351
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 19, 1979
    ...the Committee, was held to apply only to the executive branch of government, citing Liberation News Service v. Eastland, 2 Cir., 1970, 426 F.2d 1379. The court pointed out that under 5 U.S.C. § 701(b)(1)(A), (B), the term "agency" means each authority of the United States but does not inclu......
  • Semper v. Curtis, No. 13–2582.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 24, 2014
    ...with respect to non-judicial administrative duties. However, as the Second Circuit explained in Liberation News Service v. Eastland, 426 F.2d 1379 (2d Cir.1970), it appears that Congress, in enacting § 1361 (and 28 U.S.C. § 1391(e), a related venue provision), “was thinking solely in terms ......
  • Semper v. Gomez, No. 13-2582
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 24, 2014
    ...with respect to non-judicial administrative duties. However, as the Second Circuit explained in Liberation News Service v. Eastland, 426 F.2d 1379 (2d Cir. 1970), it appears that Congress, in enacting § 1361 (and 28 U.S.C. § 1391(e), a related venue provision), "was thinking solely in terms......
  • Request a trial to view additional results
67 cases
  • Kahane v. Carlson, No. 274
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 26, 1975
    ...Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308 (1967), and by this court in Liberation News Service v. Eastland, 426 F.2d 1379, 1383--84 (2 Cir. 1970). Suffice it here to say that the primary purpose of Congress was to make the traditional remedy of mandamus more readi......
  • Duplantier v. U.S., No. 79-2351
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 19, 1979
    ...the Committee, was held to apply only to the executive branch of government, citing Liberation News Service v. Eastland, 2 Cir., 1970, 426 F.2d 1379. The court pointed out that under 5 U.S.C. § 701(b)(1)(A), (B), the term "agency" means each authority of the United States but does not inclu......
  • Semper v. Curtis, No. 13–2582.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 24, 2014
    ...with respect to non-judicial administrative duties. However, as the Second Circuit explained in Liberation News Service v. Eastland, 426 F.2d 1379 (2d Cir.1970), it appears that Congress, in enacting § 1361 (and 28 U.S.C. § 1391(e), a related venue provision), “was thinking solely in terms ......
  • Semper v. Gomez, No. 13-2582
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 24, 2014
    ...with respect to non-judicial administrative duties. However, as the Second Circuit explained in Liberation News Service v. Eastland, 426 F.2d 1379 (2d Cir. 1970), it appears that Congress, in enacting § 1361 (and 28 U.S.C. § 1391(e), a related venue provision), "was thinking solely in terms......
  • Request a trial to view additional results

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