US ex rel. Farmer v. Kaufman

• Decision Date: 10 September 1990
• Docket Number: No. 90 Civ. 35 (SWK).,90 Civ. 35 (SWK).
• Citation: 750 F. Supp. 106
• Parties: The UNITED STATES of America ex rel. Fyke FARMER, Plaintiff, v. Irving R. KAUFMAN, Defendant.
• Court: U.S. District Court — Southern District of New York

750 F. Supp. 106

The UNITED STATES of America ex rel. Fyke FARMER, Plaintiff, v. Irving R. KAUFMAN, Defendant.

No. 90 Civ. 35 (SWK).

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

September 10, 1990.

Fyke Farmer, Nashville, Tenn., pro se plaintiff.

Otto G. Obermaier, U.S. Atty., for the S.D.N.Y. by Steven M. Haber, Asst. U.S. Atty., New York City, for defendant.

MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

This action, brought purportedly on behalf of the United States by an attorney pro se, seeks declaratory relief relating to the famous trial and sentencing of Julius and Ethel Rosenberg. Currently before the Court is defendant Judge Kaufman's motion to dismiss the Complaint.

BACKGROUND

On August 17, 1950 the Rosenbergs were indicted for conspiring, between 1944 and 1950, to violate the Espionage Act of 1917.¹ There is some controversy about what version of that statute was in effect at the time. For purposes of this motion to dismiss, the Court will adopt plaintiff's proffered version, which reads in relevant part as follows:

SEC. 2. (a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, transmits, or attempts to, or aids or induces another to, communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country ... or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by imprisonment for not more than twenty years: Provided, That whosoever shall violate the provisions of subsection (a) of this section in time of war shall be punished by death or by imprisonment for not more than thirty years.

* * * * * *

SEC. 4. If two or more persons conspire to violate the provisions of sections two or three of this title, and one or more of such persons does any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as in said sections provided in the case of the doing of the act the accomplishment of which is the object of the conspiracy....

Sections 2(a) and 4 of the Espionage Act of 1917, attached as unmarked exhibit to Affidavit of Fyke Farmer in Opposition to Motion to Dismiss Motion (hereinafter "Farmer Affidavit") (emphases added). Judge Irving Kaufman, formerly of this Court, presided over the ensuing criminal trial. After the jury's verdict of guilty as charged, Judge Kaufman sentenced the Rosenbergs to death. After extensive post-trial proceedings,² including several rounds of appeals, motions for collateral relief, and an application for executive clemency, the Rosenbergs were executed on June 19, 1953.

Plaintiff Fyke Farmer filed this lawsuit nearly forty years later. Farmer's attack on Judge Kaufman essentially complains that, in sentencing the Rosenbergs, the Judge took into account crimes and facts not charged in the indictment or proven at trial. He claims that at sentencing, Judge Kaufman referred to the Rosenbergs'

... conduct in putting into the hands of the Russians the A-bomb years before our best scientists predicted Russia would perfect the bomb

* * * * * *

and that they passed what they knew was this nation's most deadly and closely guarded secret weapon to the Soviet agents.

Complaint at ¶ 6; Amended Complaint at ¶ (a). In his Complaint, Farmer thereupon alleges that:

There was no evidence in the case that the Rosenbergs put the A-bomb into the hands of the Russians or that they passed this nation's most deadly and closely guarded secret weapon to Soviet agents.

Not only was there no such evidence, but Julius and Ethel Rosenberg were not charged in the indictment with any crime that could subject them to the death penalty.

Id. at ¶ 7. Thus, his Complaint seems to center on the fact that the Rosenbergs were convicted only of conspiracy to violate the Espionage Act, whereas Judge Kaufman stated at sentencing that they accomplished the purpose of the conspiracy. He refers to this as "Judge Kaufman ... indicting the Rosenbergs anew." Complaint ¶ 14. This act, Farmer maintains, constituted the crime of Obstruction of Justice. Id.; Farmer Affidavit, at ¶ 26.

The Complaint seeks an adjudication that: (1) the Rosenbergs were not charged or convicted of any crime subjecting them to the death penalty, nor duly sentenced to death according to law; (2) the Rosenbergs were innocent of any crime; (3) Judge Kaufman was guilty of the crime of depriving the Rosenbergs of their lives in violation of the Constitution; and (4) Judge Kaufman was guilty of violating the obstruction of justice statute, 18 U.S.C. § 1503. Complaint ¶ 15(a)-(d).³

Judge Kaufman, represented here by the U.S. Attorney's Office,⁴ has moved to dismiss the case on several grounds: (1) plaintiff lacks standing; (2) this action is inappropriately framed, constituting neither a proper Bivens action nor a proper declaratory judgment action; and (3) plaintiff's claims are time-barred.

DISCUSSION

I. STANDING

Farmer has no standing under either of the statutes he cites, 18 U.S.C. §§ 4 and 1503, to maintain this action. Plaintiff may not bring a civil suit under these criminal statutes in qui tam. Leeke v. Timmerman, 454 U.S. 83, 86, 102 S.Ct. 69, 70, 70 L.Ed.2d 65 (1981) (per curiam) ("a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another") (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973)); In the Matter of an Application for Appointment of Independent Counsel, 766 F.2d 70, 74-76 (2d Cir.), cert. denied, 474 U.S. 1020, 106 S.Ct. 569, 88 L.Ed.2d 554 (1985); Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 84 (2d Cir.1972). Nor may he bring this suit as a "private attorney general," absent statutory authority. Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 14 n. 23, 16-17, 101 S.Ct. 2615, 2623 n. 23, 2624-2625, 69 L.Ed.2d 435 (1981) (citing cases). There is no explicit authority for private citizens to bring suit under these statutes, nor will the courts imply such authority. Dugar v. Coughlin, 613 F.Supp. 849, 852 n. 1 (S.D.N.Y.1985) (Section 4); Harberson v. Hilton Hotels Corp., 616 F.Supp. 864, 866 (D.Colo.1985) (same) (citing Odell v. Humble Oil and Refining Co., 201 F.2d 123, 127 (10th Cir.1953), cert. denied, 345 U.S. 941, 73 S.Ct. 833, 97 L.Ed. 1367 (1953); other citations omitted); Jones v. United States, 401 F.Supp. 168, 171-72 (E.D.Ark. 1975), aff'd 536 F.2d 269 (8th Cir.1976), cert. denied, 429 U.S. 1039, 97 S.Ct. 735, 50 L.Ed.2d 750 (1977) (same).

The Court further notes that even if plaintiff had authority to bring this action, he would have difficulty meeting the injury-in-fact requirement of Article III of the Constitution. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 473, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982) (courts not to be converted into "judicial versions of college debating forums"); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 40, 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976) ("abstract concern ... does not substitute for the concrete injury required by Article III"). Plaintiff alleges that, persuaded of the innocence of the Rosenbergs, he has "since spent all the time available to him to review the case in detail, in order that justice be done." Complaint at ¶ 15. He also explains that:

Irving Kaufman is violating my constitutional rights. I have the right, and the duty, to make this complaint, because nobody else is in a position to make it. I am a citizen of the United States and I have a right to insist on the laws of the United States being upheld and supported.

Farmer Affidavit, at ¶ 22. As the Second Circuit has stated, even assuming plaintiff's allegations to be true, "whatever injury plaintiff may have suffered in this context is one shared by society at large." In re Independent Counsel, supra, 766 F.2d at 76. The redress that plaintiff desires must be sought in a more suitable forum than the federal courts. This Court will not allow itself to be used as a "publicly funded forum for the ventilation of public grievances or the refinement of jurisprudential understanding...." Valley Forge, supra, 454 U.S. at 473, 102 S.Ct. at 759.

II. FAILURE TO STATE A CLAIM

A. Bivens Action

Although not specifically so pleaded, this case might be construed as a Bivens action. In 1971 the Supreme Court held in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 389, 91 S.Ct. 1999, 2001, 29 L.Ed.2d 619 (1971), that a violation of a constitutional guarantee by a federal official gives rise to a cause of action for damages, even where Congress has not specifically provided for such a remedy. The Supreme Court has lately been hesitant to expand the doctrine. Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 2467, 101 L.Ed.2d 370 (1988) ("our more recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts"). This case, in which plaintiff seeks to vindicate rights belonging to others, is entirely inappropriate for Bivens relief. Kinoy v. Mitchell, 851 F.2d 591, 594 (2d Cir.1988) (attorney prohibited from recovering money damages for alleged violations of his clients' fourth amendment rights).⁵

Such relief is especially improper where the real parties at interest, the Rosenbergs, vigorously advanced many of the same arguments nearly forty years ago on their own behalf. The Court takes judicial notice of the extensive post-conviction proceedings in connection with this case before the Rosenbergs'...