Lowenstein v. Rooney, No. 74 C 593.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Citation401 F. Supp. 952
Docket NumberNo. 74 C 593.
PartiesAllard K. LOWENSTEIN, Plaintiff, v. John J. ROONEY et al., Defendants.
Decision Date31 July 1975

401 F. Supp. 952

Allard K. LOWENSTEIN, Plaintiff,
v.
John J. ROONEY et al., Defendants.

No. 74 C 593.

United States District Court, E. D. New York.

July 31, 1975.


401 F. Supp. 953
COPYRIGHT MATERIAL OMITTED
401 F. Supp. 954
Leon Friedman, Hempstead, N.Y., for plaintiff; Melvin L. Wulf, and John H. F. Shattuck, American Civil Liberties Union, New York City, of counsel

David G. Trager, U.S. Atty., E.D.N. Y., for defendants Kelley, Doe and Roe; Douglas J. Kramer, Asst. U.S. Atty., of counsel.

MEMORANDUM and ORDER

COSTANTINO, District Judge.

In this action plaintiff Allard K. Lowenstein, a former candidate for Congress in the 14th Congressional District in Brooklyn, New York, seeks declaratory and injunctive relief and damages against various present and former government officials for their alleged improper and unlawful conduct toward him. This opinion considers those motions to dismiss and for summary judgment which have been submitted to the court at this time. To deal with these motions an overview of the entire complaint is necessary.

The first cause of action alleges that certain unknown agents of the Federal Bureau of Investigation (John Doe and Richard Roe) conspired with the defendant Congressman John J. Rooney in 1972 to search FBI records and to investigate the private and political activities of the plaintiff. It is alleged that the investigation was unlawful and was performed as a result of the close relationship that had developed between Congressman Rooney and the FBI because Congressman Rooney was Chairman of the House Subcommittee on Appropriations for State, Justice, Commerce, and the Judiciary, the Subcommittee which recommends appropriations for the FBI. Plaintiff alleges that the information obtained through this investigation is still contained in FBI files under the control of defendant Kelley. He asserts that he has been:

injured and burdened in the exercise of his First Amendment right to engage in political activities without being the subject of illegal surveillance, information gathering and dissemination by the defendants under color of law. Such acts also invaded his Fourth, Fifth and Ninth Amendment rights to be free from government intervention into his private life.

Plaintiff further asserts that the activities alleged constituted a conspiracy in violation of Title 42, United States Code, section 1985, and that the "rights of the voters within the 14th Congressional District to exercise their electoral rights without being the target of deceptive or illegal practices by the defendants or their agents" were violated.

The second cause of action in the complaint is broader in scope than the first. It alleges that as a result of plaintiff Lowenstein's political activities, including opposition to the Nixon Administration's policies in Vietnam and his organization

401 F. Supp. 955
of efforts to register young voters, officials of the Administration, including the defendants Colson, Dean, Higby, Ehrlichman and Haldeman, attempted to injure him by improperly utilizing agencies of the federal government.1

Specifically, the complaint alleges that the defendants Colson, Dean and Higby prepared an "enemies list" or "political opponents list" of persons who would be subject to harassment by agencies of the government. Plaintiff Lowenstein was on that list. Another allegation is that the defendants Colson, Higby, Haldeman and Ehrlichman with the assistance of defendant Caulfield "urged and/or ordered" the Internal Revenue Service to audit the income tax returns of plaintiff. Plaintiff alleges that as a result of these efforts and with the aid of defendant Barth, there was an audit of his 1969 federal tax return and, at the request of the Internal Revenue Service, his 1970 New York State income tax return.2 The complaint further alleges that information about plaintiff's political activities was gathered unlawfully. The defendants Colson, Dean, Ehrlichman, Haldeman, Higby, Caulfield, and Barth are sued in their "individual and former official capacities." Defendants Rooney, Doe and Roe are sued in their individual and official capacities. Defendants Kelley and Alexander are sued in their official capacities as custodian of certain records. The second cause of action alleges the same injuries as the first cause of action.

Lowenstein requests the following relief: a declaratory judgment that the alleged activities violated his First, Fourth, Fifth and Ninth Amendment rights and are beyond any statutory authority; a permanent injunction restraining the defendants and their agents from engaging in the activities declared to be unconstitutional and illegal; a mandatory injunction and writ of mandamus ordering defendants Kelley and Alexander to produce for destruction all files, records and reports relating to the activities alleged; monetary damages against all defendants except Kelley and Alexander for violation of plaintiff's rights; punitive damages; and reasonable costs and attorneys' fees.

The motions presently before the court are as follows:

(1) Motion on behalf of defendants Kelley, John Doe and Richard Roe to dismiss the first cause of action on the ground that there is no case or controversy and no justiciable dispute between the parties, Rule 12(b)(1) and (6), Fed.R.Civ.P.;
(2) Motion on behalf of the fictitious parties John Doe and Richard Roe to dismiss the first cause of action on the ground that they are improper parties and relief may not be granted as to them, Rule 12(b)(6), Fed.R.Civ.P.;
(3) Motion on behalf of the fictitious parties John Doe and Richard Roe, for summary judgment on the ground that no unlawful FBI investigation was conducted, Rule 56, Fed.R. Civ.P.;
(4) Motion on behalf of defendant Haldeman to quash service of process, Rule 12(b)(2)(3)(4) and (5), Fed.R. Civ.P.; and
(5) Motion on behalf of defendant Higby to quash service of process, Rule 12(b)(2)(3)(4) and (5), Fed.R. Civ.P.
401 F. Supp. 956

JUSTICIABILITY

The first motion is based upon the contention of the FBI defendants in the first cause of action (Kelley, Doe and Roe) that plaintiff has not stated a justiciable claim. The judicial power of federal courts is limited by Article III of the Constitution to situations where a "case" or "controversy" is involved. The doctrine of justiciability is utilized by the courts to define these terms.

Justiciability is . . . a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action.

Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968). The Supreme Court in Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), reh. denied, 409 U.S. 901, 93 S. Ct. 94, 34 L.Ed.2d 165 (1972), set down the standards which this court must follow in judging the justiciability of the questions plaintiff raises. The plaintiff must claim that "he has sustained, or is immediately in danger of sustaining, a direct injury as a result" of the governmental action he is attacking. 408 U.S. at 13, 92 S.Ct. at 2325, quoting from Ex parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937). Stated differently, the Court said:

Allegations of a subjective "chill" are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.

408 U.S. at 13-14, 92 S.Ct. at 2325. This court must determine whether the injuries claimed are not so subjective and non-specific as to justify "invoking the judicial power to determine the validity of executive . . . action," Ex parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937). This requires an examination of the factual backgrounds of several of the cases in which the standard has been utilized.

Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), was a suit in which alleged "targets" of United States Army "surveillance" of "peaceful civilian political activity" sought declaratory and injunctive relief on the ground that the surveillance "chilled" their First Amendment rights. A divided Court of Appeals reversed the District Court's dismissal of the complaint and held that plaintiffs had presented a justiciable controversy even though the "chilling" was allegedly caused not by any "specific action of the Army against them, but only by the existence and operation of the intelligence gathering and distributing system, which is confined to the Army and related civilian investigative agencies." 144 U.S.App. D.C. 72, 444 F.2d 947, 953 (1971). The Supreme Court in quoting from the opinion of the Court of Appeals, noted that there was "no visible injury," "no specific action of the Army against them," "no evidence of illegal or unlawful surveillance activity," no "clandestine intrusion by a military agent," in fact "nothing more than a good newspaper reporter would be able to gather by attendance at public meetings and the clipping of articles from publications available on any newsstand." 408 U.S. at 9, 92 S.Ct. at 2323. Additionally, the Court noted that it was not improper for the Army to collect the information, it being necessary to assist the Army's efforts in aiding local authorities with domestic violence. 408 U.S. at 3-8, 92 S. Ct. 2318.

The Supreme Court concluded that the Court of Appeals had correctly identified the issue as follows: may "the jurisdiction of a federal court . . . be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere

401 F. Supp. 957
existence, without more, of a governmental investigative and data-gathering activity that is...

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16 practice notes
  • Spock v. United States, No. 76 Civ. 4457 (VLB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 18, 1978
    ...cites Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and Lowenstein v. Rooney, 401 F.Supp. 952 (E.D.N.Y.1975) as authority for the proposition that this type of designation, for real persons whose names are not yet known to the plaintiff,......
  • Writers Guild of America, West, Inc. v. FCC, No. CV 75-3641-F
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • November 4, 1976
    ...action against the defendants in their official capacity, the doctrine of sovereign immunity remains available. Lowenstein v. Rooney, 401 F.Supp. 952, 962 (E.D. N.Y.1975); Environmental Defense Fund v. Corps of Engineers, 325 F.Supp. 728, 732 (E.D.Ark.1971). On the other hand, the plaintiff......
  • Kipperman v. McCone, No. C-75-1211-CBR.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • October 26, 1976
    ...Plaintiff's Response and Opposition, filed June 21, 1976, at 16. As authority for her position, she cites Lowenstein v. Rooney, 401 F.Supp. 952, 962 (E.D.N.Y.1975), in which the court found "to assert that because the defendants are no longer in government service the plaintiff may not......
  • Driver v. Helms, No. 77-1482
    • United States
    • U.S. Court of Appeals — First Circuit
    • May 25, 1978
    ...See Driver v. Helms, supra, 74 F.R.D. at 398-400; United States v. McAninch,435 F.Supp. 240, 245 (E.D.N.Y.1977); Lowenstein v. Rooney, 401 F.Supp. 952, 962 (E.D.N.Y.1975). We do not think it absurd or plainly at variance with the policies of § 1391(e) to limit it to those who are government......
  • Request a trial to view additional results
16 cases
  • Spock v. United States, No. 76 Civ. 4457 (VLB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 18, 1978
    ...cites Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and Lowenstein v. Rooney, 401 F.Supp. 952 (E.D.N.Y.1975) as authority for the proposition that this type of designation, for real persons whose names are not yet known to the plaintiff,......
  • Writers Guild of America, West, Inc. v. FCC, No. CV 75-3641-F
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • November 4, 1976
    ...action against the defendants in their official capacity, the doctrine of sovereign immunity remains available. Lowenstein v. Rooney, 401 F.Supp. 952, 962 (E.D. N.Y.1975); Environmental Defense Fund v. Corps of Engineers, 325 F.Supp. 728, 732 (E.D.Ark.1971). On the other hand, the plaintiff......
  • Kipperman v. McCone, No. C-75-1211-CBR.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • October 26, 1976
    ...Plaintiff's Response and Opposition, filed June 21, 1976, at 16. As authority for her position, she cites Lowenstein v. Rooney, 401 F.Supp. 952, 962 (E.D.N.Y.1975), in which the court found "to assert that because the defendants are no longer in government service the plaintiff may not util......
  • Driver v. Helms, No. 77-1482
    • United States
    • U.S. Court of Appeals — First Circuit
    • May 25, 1978
    ...See Driver v. Helms, supra, 74 F.R.D. at 398-400; United States v. McAninch,435 F.Supp. 240, 245 (E.D.N.Y.1977); Lowenstein v. Rooney, 401 F.Supp. 952, 962 (E.D.N.Y.1975). We do not think it absurd or plainly at variance with the policies of § 1391(e) to limit it to those who are government......
  • Request a trial to view additional results

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