Wheeldin v. Wheeler, No. 17247.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBARNES, JERTBERG and MERRILL, Circuit
PartiesDonald WHEELDIN and Admiral Dawson, Appellants, v. William WHEELER, Appellee.
Docket NumberNo. 17247.
Decision Date30 January 1962

302 F.2d 36 (1962)

Donald WHEELDIN and Admiral Dawson, Appellants,
v.
William WHEELER, Appellee.

No. 17247.

United States Court of Appeals Ninth Circuit.

January 30, 1962.


A. L. Wirin, Fred Okrand, Los Angeles, Cal., and Marvin Leon, Beverly Hills, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Donald A. Fareed, Asst. U. S. Atty., and Clarke A. Knicely, Asst. U. S. Atty., Los Angeles, Cal., for appellee. Wright, Wright, Goldwater & Mack by Loyd Wright and Andrew J. Davis, Jr., Los Angeles, Cal., of counsel.

Before BARNES, JERTBERG and MERRILL, Circuit Judges.

MERRILL, Circuit Judge.

Appellants were on August 7, 1958, subpoenaed to appear before the Unamerican Activities Committee of the United States House of Representatives, which was then proposing to conduct a hearing in Los Angeles. They resisted their duty to comply with the subpoenas, and Appellant Wheeldin's conviction of contempt for failure to respond was upheld by this court in Wheeldin v. United States, 9 Cir., 1960, 283 F.2d 535, following Barenblatt v. United States, 1959, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115.

Appellants have now brought this action for money damages against appellee, a committee investigator who had been instrumental in issuing and serving the subpoenas, and have appealed to this court from judgment of the district court dismissing the action for failure of the complaint to state a claim.1 The gravamen of their complaint is that the subpoenas were invalidly, maliciously and mischievously issued and served for the sole purpose of exposing them to public

302 F.2d 37
scorn with consequent loss of employment and of esteem. They assert that they have a federal right to protection against such abuse of federal process; that since the subpoenas were not properly issued appellee in securing their issuance and service has subjected himself to personal liability

The invalidity of the subpoenas, as claimed by appellants, is based upon the fact that they were by the chairman of the committee signed in blank. The names of the appellants as the witnesses subpoenaed were later filled in by the appellee. Appellants assert that no valid subpoenas were issued since the only issuance was of something in blank; that to sanction this practice of signing in blank is in effect to permit a delegation of authority to issue subpoenas; that no power to delegate this authority has been granted.

The practical dilemma faced by those authorized to issue subpoenas has been pointed out by Justice Jackson, concurring in Fleming v. Mohawk Wrecking and Lumber Company, 1947, 331 U.S. 111, 123, 67 S.Ct. 1129, 11 L.Ed. 1375. As he explained, the workload is often such that the authorized individual "might sign large batches of blank subpoenas and turn them...

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4 practice notes
  • Norton v. McShane, No. 20722.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 15, 1964
    ...to bring the doctrine into play." The Court of Appeals for the Ninth Circuit had applied the doctrine of immunity. Wheeldin v. Wheeler, 302 F.2d 36 (9th Cir. 1962). It also should be observed that under Wheeldin state law governs the cause of action. Removal is permitted only because "* * *......
  • Wheeldin v. Wheeler, No. 493
    • United States
    • United States Supreme Court
    • June 3, 1963
    ...reversed. 9 Cir., 280 F.2d 293. On remand the District Court dismissed the action without opinion. The Court of Appeals affirmed. 9 Cir., 302 F.2d 36. The case is here on a petition for a writ of certiorari which we granted. 371 U.S. 812, 83 S.Ct. 58, 9 L.Ed.2d 54. The basic question presen......
  • Clayton v. United States, No. 16845.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 4, 1962
    ...The proceedings were regular in every respect; appellant has had his day in court; and is not, under the circumstances shown by this 302 F.2d 36 record, entitled to have the judgment and sentence vacated and set aside.1 Appellant's petition was filed under and pursuant to Title 28 U.S.C.A. ......
  • Inman v. Hirst, Civ. No. 542L.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • December 31, 1962
    ...F.2d 358, and Brownfield v. Landon, 113 U.S.App.D.C. 248, 307 F.2d 389. The Court of Appeals for the Ninth Circuit in Wheeldin v. Wheeler, 302 F.2d 36, affirmed the dismissal of a suit against a committee investigator for the Unamerican Activities Committee of the United States House of Rep......
4 cases
  • Norton v. McShane, No. 20722.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 15, 1964
    ...to bring the doctrine into play." The Court of Appeals for the Ninth Circuit had applied the doctrine of immunity. Wheeldin v. Wheeler, 302 F.2d 36 (9th Cir. 1962). It also should be observed that under Wheeldin state law governs the cause of action. Removal is permitted only because "* * *......
  • Wheeldin v. Wheeler, No. 493
    • United States
    • United States Supreme Court
    • June 3, 1963
    ...reversed. 9 Cir., 280 F.2d 293. On remand the District Court dismissed the action without opinion. The Court of Appeals affirmed. 9 Cir., 302 F.2d 36. The case is here on a petition for a writ of certiorari which we granted. 371 U.S. 812, 83 S.Ct. 58, 9 L.Ed.2d 54. The basic question presen......
  • Clayton v. United States, No. 16845.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 4, 1962
    ...The proceedings were regular in every respect; appellant has had his day in court; and is not, under the circumstances shown by this 302 F.2d 36 record, entitled to have the judgment and sentence vacated and set aside.1 Appellant's petition was filed under and pursuant to Title 28 U.S.C.A. ......
  • Inman v. Hirst, Civ. No. 542L.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • December 31, 1962
    ...F.2d 358, and Brownfield v. Landon, 113 U.S.App.D.C. 248, 307 F.2d 389. The Court of Appeals for the Ninth Circuit in Wheeldin v. Wheeler, 302 F.2d 36, affirmed the dismissal of a suit against a committee investigator for the Unamerican Activities Committee of the United States House of Rep......

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