Ostrer v. Aronwald

• Decision Date: 21 June 1977
• Docket Number: No. 76 Civ. 3701.,76 Civ. 3701.
• Citation: 434 F. Supp. 379
• Parties: Louis C. OSTRER, Rita Ostrer, Jack Ostrer, and Dina Gelman, Plaintiffs, v. William I. ARONWALD, Robert B. Fiske, Jr., Alan Naftalis, Marvin Sontag, James Killeen, Edward H. Levi, and the United States of America, Defendants.
• Court: U.S. District Court — Southern District of New York

434 F. Supp. 379

Louis C. OSTRER, Rita Ostrer, Jack Ostrer, and Dina Gelman, Plaintiffs, v. William I. ARONWALD, Robert B. Fiske, Jr., Alan Naftalis, Marvin Sontag, James Killeen, Edward H. Levi, and the United States of America, Defendants.

No. 76 Civ. 3701.

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

June 21, 1977.

COPYRIGHT MATERIAL OMITTED

Alan M. Dershowitz, Cambridge, Mass., for Louis C. Ostrer.

Silverglate, Shapiro & Gertner, Boston, Mass., for Rita Ostrer; Harvey A. Silverglate, Boston, Mass., of counsel.

Wynn & Atlas, New York City, for Jack Ostrer and Dina Gelman; Jeffrey M. Atlas, Richard H. Wynn, New York City, of counsel.

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, for defendants; Gary G. Cooper, New York City, of counsel.

ROBERT J. WARD, District Judge.

Defendants William I. Aronwald, Robert B. Fiske, Jr., Alan Naftalis, Marvin Sontag, James Killeen, Edward H. Levi, and the United States of America move for an order pursuant to Rule 12(b), Fed.R.Civ.P., dismissing the complaint in this action. For the reasons hereinafter stated, the motion is granted.

Plaintiffs Louis C. Ostrer, his wife Rita Ostrer, his father Jack Ostrer, and his sister Dina Gelman bring this action seeking injunctive and other relief against certain government officials and the United States of America. They claim that the government is using unlawful and unethical means in an effort to coerce Louis C. Ostrer into testifying before a federal grand jury about his business associates, some of whom may have "connections with organized crime."

The complaint identifies the defendants as follows: Aronwald is employed by the United States Department of Justice and was Chief of the Organized Crime Strike Force for the Southern District of New York ("the Strike Force"). Naftalis also belonged to the Strike Force and is in charge of the investigation of which plaintiffs complain. Fiske is the United States Attorney for the Southern District of New York. Levi was the Attorney General of the United States. Both Sontag and Killeen were members of the Strike Force and are investigators with the Internal Revenue Service.

Plaintiffs seek to enjoin defendants from presenting any further evidence regarding plaintiffs to the grand jury, from obtaining indictments against plaintiffs prior to a hearing and decision on the merits, from seeking retaliation against plaintiffs or their immediate families, and from releasing to the news media and others incriminating stories about the plaintiffs.

In addition, plaintiffs ask the Court to order suppressed any evidence obtained by unlawful or unconstitutional means and the fruits thereof and to order the defendants to cease harassing and interfering with plaintiffs and their lawful activities and associations. Plaintiffs ask the Court to discharge the grand jury and to declare plaintiffs immunized with respect to the "alleged crimes, evidence being presented to, and indictments being sought from, the Grand Jury." Finally, the complaint demands an award of actual damages of twenty million dollars and punitive damages of thirty million dollars, plus litigation costs against the defendants jointly and severally.

The jurisdictional allegations of the complaint are lengthy. Listed are 18 U.S.C. § 2515 et seq.; the first, fourth, fifth, and sixth amendments to the Constitution; Rules 6, 41 and 42, Fed.R.Crim.P.; 28 U.S.C. §§ 2201, 2202, 1331, 1346, 1361 and 2241; 18 U.S.C. § 6001 et seq. and Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); as well as, "this Court's inherent supervisory powers over the Federal Courts, Federal judicial and quasi-judicial proceedings, grand juries, and officers of the Court." At the outset, the Court must determine whether jurisdiction exists.

The Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, does not confer subject matter jurisdiction. It provides a remedy where jurisdiction exists. Arthur v. Nyquist, 415 F.Supp. 904, 909 n. 3 (W.D.N. Y.1976).

28 U.S.C. § 1346 is also pleaded as a jurisdictional base. The relevant portions of § 1346 read as follows:

United States as defendant

(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:

. . . . .

(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States.

(b) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

Insofar as this is a suit for non-monetary relief, 28 U.S.C. § 1346 does not provide a jurisdictional basis for plaintiffs. § 1346(b) relates solely to the recovery of "money damages." § 1346(a)(2) permits an award of damages, not injunctive or declaratory relief. Lee v. Thornton, 420 U.S. 139, 95 S.Ct. 853, 43 L.Ed.2d 85 (1975) (per curiam). Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973).

§ 1346(a)(2) does not in itself establish a waiver of sovereign immunity. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); Duarte v. United States, 532 F.2d 850 (2d Cir. 1976). Further,

Tucker Act jurisdiction (28 U.S.C. § 1346(a)(2) is properly invoked where the claim does not exceed $10,000 or where the claimant waives any amount sought in excess of the Act's jurisdictional limit. See Perry v. United States, 308 F.Supp. 245 (D.Colo.1970), aff'd, 442 F.2d 353 (10th Cir. 1971).

Commonwealth of Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 25 (3d Cir. 1975). As noted above, plaintiffs claim damages in the millions.

Regarding plaintiffs' allegation of jurisdiction under § 1346(b), defendants assert that plaintiffs have not filed an administrative claim, a prerequisite to suit. Altman v. Connally, 456 F.2d 1114, 1116 (2d Cir. 1972); Heaton v. United States, 383 F.Supp. 589, 590 (S.D.N.Y.1974). Plaintiffs apparently do not contest this assertion.

Moreover, it appears that plaintiffs' claims would fall within the discretionary acts exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a). See Myers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252, 1256-57 (2d Cir. 1975); Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967).

28 U.S.C. § 1361 reads as follows:

Action to compel an officer of the United States to perform his duty

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

Traditionally, jurisdiction under this section arises only if the defendant has "a clear duty to perform a non-discretionary act." Davis v. United States Dep't of HEW, 416 F.Supp. 448, 451 (S.D.N.Y.1976). Conversely, mandamus is appropriate if the activity sought to be prevented is "so plainly prohibited as to be free from doubt." Naporano Metal & Iron Co. v. Sec'y of Labor, 529 F.2d 537, 542 (3d Cir. 1976).

This Circuit recently stated:

The prerequisites to the issuance of a writ of mandamus have been stated as (1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the defendant's part to do the act in question; and (3) lack of another available, adequate remedy.

Billiteri v. United States Board of Parole, 541 F.2d 938, 946 (2d Cir. 1976). This Court finds these prerequisites lacking.

In Fifth Avenue Peace Parade Committee v. Hoover, 327 F.Supp. 238, 243 (S.D.N. Y.1971), aff'd, 480 F.2d 326 (2d Cir. 1973), cert. denied, 415 U.S. 948, 94 S.Ct. 1469, 39 L.Ed.2d 563 (1974), it was stated:

a court must have the benefit of some specific statutes or regulations against which to measure the duties said to have been specifically ignored by the defendant or defendants. Plaintiffs have not made such a showing here. They rest upon the flat assertion that defendants have a duty not to violate the constitutional rights of plaintiffs. Although the proposition cannot be denied, I think that to allow it as a basis for federal jurisdiction under § 1361 would be to stretch mandamus far beyond its proper limits.

Here, plaintiffs similarly assert that defendants have a duty not to violate their civil rights and not to engage in activities which constitute crimes under state law.

In Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 379 (2d Cir. 1973), the Second Circuit refused mandamus to compel the United States attorney to investigate and prosecute certain state officers, indicating that to do so would be an unwise interference with prosecutorial discretion. This Court believes that mandamus is similarly unavailable to compel a United States attorney not to prosecute.

Plaintiffs claim to be "in custody" for purposes of this...