Renard G. Davis v. Richard H. Ichord, Quentin Young v. Richard H. Ichord

LEVENTHAL, Circuit Judge

(concurring) :

I concur in the opinion insofar as it upholds the dismissal of the original complaint. As to the dismissal of the supplemental complaint, I concur in the judgment but I feel a different analysis is required.

The majority say that the supplemental complaint fails to present the elements of “case or controversy” required by Article III of the Constitution as a prerequisite to jurisdiction of a federal court to entertain an action. If this is sound the case must be dismissed for want of subject matter jurisdiction)'-‘Tn my view this litigation involves the elements required by the case or controversy clause.

"-What.-is..sought is a declaration of plaintiffs’ rights, and the case certainly presents, indeed fairly bristles with, adversaries and adversary interests.

There are questions of justiciability insofar as the action is brought against Congressmen. But this issue need not be faced since plaintiffs have moved to add parties defendant so that their action may be maintained against non-elected members of the staff of the House Committee. In my view that motion should have been granted on the authority of Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Dombrowski v. Eastland, 387 U.S. 82 87, S.Ct. 1425, 18 L.Ed.2d 577 (1967); Stamler v. Willis, 415 F.2d 1365 (7th Cir. 1969), cert. denied sub nom. Ichord v. Stamler, 399 U.S. 929, 90 S.Ct. 2231, 26 L.Ed.2d 796, 1970. Under these cases, if I read them right, the circumstance that an action lacks “justiciability” insofar as plaintiffs seek a decree directed at and binding on elected Congressmen, does not negative justiciability to entertain the action as against members of Committee staffs. Perhaps this doctrine means that actions of certain Congressmen may be immune from judicial scrutiny if all actions are taken by Congressmen themselves, but lose that immunity if the Congressmen call on non-elected staffs to take actions on a *1217basis that must be assumed, for purposes of testing jurisdiction, to be in violation of their oath of office, and official duties and obligations.

Appellants seek declaration that the staffs may not lawfully have access to or disclose to others information in the files of the Committee concerning plaintiffs. The issue is real, definite and concrete. This signifies to me the court has jurisdiction to entertain the action. This comes close to being merely a bare statement of an ultimate conclusion, and contrary to that reached by my brethren. Perhaps I can explain my position better by supposing that an action were brought against a private firm, alleging that it was the successor of an enterprise which had acted illegally and in violation of plaintiff’s rights both in obtaining information about plaintiff (and others), and in the disseminating of such information to others, including persons and agencies maintaining illegal “blacklists”; that the successor had not consigned the files to dead storage in a warehouse or other archives, but was keeping the files in such manner that they were accessible to an active staff, and that plaintiff sought a declaration that these files could not validly be used or disseminated by the staff of the successor enterprise. Perhaps plaintiff bringing such an action would not triumph on the merits, but it seems clear to me that the case would lie within the jurisdiction of a federal court as a case or controversy. And I think that. constitutional issue is no different because defendants are employees of the legislative branch.

The fact that defendants are Congres-' sional staff is relevant in the case, but to another issue, whether the court should exercise its sound judicial discretion to dismiss the action without a determination on the merits. Such judicial discretion has been exercised for hundreds of years in equity cases, on the ground that the case must be dismissed “for want of equity,” due to failure to show imminent, irreparable injury. The Declaratory Judgment Act has expanded not the jurisdiction of the court but the scope of actions that may be maintained consistently with sound exercise of judicial discretion, dispensing inter alia with the need for allegations of threatened irreparable injury.

The Declaratory Judgment Act grants authority to Federal courts “in cases of actual controversy.” This includes all the elements of “controversy” comprehended within Article III — the need for a “real and substantial controversy” that is “definite and concrete, touching the legal regulations of parties having adverse legal interests.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-241, 57 S.Ct. 461, 81 L.Ed. 617 (1937).

Pertinent doctrine, however, seems to me to provide or permit the dismissal, without adjudication on the merits, of an action brought under the Declaratory Judgment Act notwithstanding the existence of Article III jurisdiction. Thus the use of the term “actual controversy,” rather than merely “controversy,” although early referred to as connoting “emphasis rather than definition,” 1 was given particular emphasis in Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). And the Court’s ruling that the action, as of the time of remand, did not relate to a controversy “of sufficient immediacy and reality to warrant the issuance of a declaratory judgment” 2 seems to me to be a modern counterpart of the older doctrine providing for dismissal for want of equity.

There is a concept of “public interest” that limits the scope of actions maintainable under the Declaratory Judgment Act. This element appears, e. g., in Public Affairs Associates v. Rickover, 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962), where the Court declined to enter a ruling on an application for a dec*1218laration of the right to publish uncopy-righted speeches delivered by a public official.3 The Court said, see pp. 112-113, 82 S.Ct. p. 582:

The Declaratory Judgment Act was an authorization, not a command. It gave the federal courts competence to make a declaration of rights; it did not impose a duty to do so. [Citations omitted.]
Of course a District Court cannot decline to entertain such an action as a matter of whim or personal disinclination. “A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank, 333 U.S. 426, 431 [68 S.Ct. 641, 644, 92 L. Ed. 784]. We have cautioned against declaratory judgments on issues of public moment, even falling short of constitutionality, in speculative situations. Eccles v. Peoples Bank, supra, at 432 [68 S.Ct. at 644].
In these cases we are asked to determine matters of serious public concern. They relate to claims to intellectual property arising out of public employment. They thus raise questions touching the responsibilities and immunities of those engaged in the public service, particularly high officers, and the rightful demands of the Government and the public upon those serving it. These are delicate problems; their solution is bound to have far-reaching import. Adjudication of such problems, certainly by way of resort to a discretionary declaratory judgment, should rest on an adequate and full-bodied record. The record before us is woefully lacking in these requirements.

The “public interest” concept highlights for me the existence of parallels to be found between judicial doctrines announced as a gloss on the Declaratory Judgment Act and the doctrines that pulsed in chancery. The importance of “public interest” in equity doctrine was underscored by Justice Stone, a life-long student of equity, who taught it formally at Columbia Law School before he extended the reach of his rostrum to the Court. In his historic decision in Virginian Ry. v. System Federation No. 40, 300 U.S. 515, p. 552, 57 S.Ct. 592, p. 601, 81 L.Ed. 789 (1937), he wrote (citations omitted):

Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.

It should not escape unnoticed that public interest considerations may lead to extension as well as curtailment of relief — a concept that would seem fully applicable to judgments under the Declaratory Judgment Act.

In Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 the Court drew on this “supple principle” to fashion the so-called abstention doctrine — which still has vitality in special circumstances,4 saying (p. 500, 61 S.Ct. p. 645):

The history of equity jurisdiction is the history of regard for public consequences in employing the extraordinary remedy of the injunction. * * * Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies * .* *

' My own perceptions of appropriate doctrine have been sharpened by more recent opinions of the Court concerned with ripeness of actions to set aside administrative commands. In Abbott Laboratories v. Gardner, 387 U.S. 136, 87 *1219S.Ct. 1507, 18 L.Ed.2d 681 (1967), the Court permitted drug manufacturers to bring an action, for declaratory and in-junctive relief, that challenged the validity of regulations requiring that labels for prescription drugs identify their “established names.” The Court said (at pp. 148-149, 153, 87 S.Ct. at pp. 1515-1518):

The injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy “ripe” for judicial resolution. Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.
As to the former factor, we believe the issues presented are appropriate for judicial resolution at this time. First, all parties agree that the issue tendered is a purely legal one: Whether the statute was properly construed by the Commissioner to require the established name of the drug to be used every time the proprietary name is employed.
***** *
Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to non-compliance, access to the courts under the Administrative Procedure Act and the Declaratory Judgment Act must be permitted, absent a statutory bar or some other unusual circumstance, neither of which appears here.

On the same day, in Toilet Goods Association v. Gardner, 387 U.S. 158, 87 S. Ct. 1520, 18 L.Ed.2d 697 (1967), the Court affirmed an order granting a motion to dismiss the complaint on the ground that the case was inappropriate for declaratory relief.5 The case was one in which cosmetics manufacturers sought to challenge an FDA regulation that permitted the certification of color additives to be suspended as to firms denying FDA employees access to manufacturing facilities and formulae.

The Court held that the controversy did not meet the criteria of Abbott because the Court concluded that the underlying questions of whether the regulation was justified by the statutory scheme as a whole required a “judicial appraisal of these factors [that] is likely to stand on a much surer footing in the context of a specific application of this regulation than could be the case in the framework of the generalized challenge made here.” (387 U.S. at 163-164, 87 S.Ct. at 1524).6

The Court also took into account the “minimal” adverse consequences that would result from requiring the manufacturers to challenge the regulation by protesting a specific application, and concluded (387 U.S. at p. 166, 87 S.Ct. at p. 1525):

[We] think it wiser to require them to exhaust this administrative process through which the factual basis of the *1220inspection order will certainly be aired and where more light may be thrown on the Commissioner’s statutory and practical justifications for the regulation. Compare Federal Security Adm’r v. Quaker Oats Co., 318 U.S. 218 [63 S.Ct. 589, 87 L.Ed. 724], Judicial review will then be available, and a court at that juncture will be in a better position to deal with the question of statutory authority.

Similar considerations are applicable in the case before us. Plaintiffs refer to possibilities of misuse of material available to members of committee staffs. The doctrine of ripeness is properly examined with respect to the maintainability of an action for a declaratory judgment, even assuming constitutional jurisdiction over a case or controversy. Doctrines of ripeness are not fungible, to be transferred in bulk from one type of ease to another. In the ease at bar, there are cross-currents. On the one hand, plaintiffs are asserting constitutional rights, which present an element of public interest leading the court to maintain the action and to consider the claim on its merits. On the other hand, the fact that the action is constitutionally maintainable against committee staffs (and possibly Congressmen) involves the public interest consideration that they should not be required to defend their actions, which are presumptively in the public interest, unless there is a specific showing of actions taken by them or plainly threatened by them which entail a discernible impact on plaintiffs’ lives and protected freedoms.

There is judicial wisdom and sound discretion in avoiding “needless friction” with the coordinate legislative branch of the Federal Government, at least to the point of deferring decisions until the controversy is so sharpened by a specific factual context as to permit a sure-footed judicial appraisal of the pertinent factors. Since appellants do not allege any imminent impact on their own activities it is “wiser,” as the Supreme Court put it, to defer any intervention of the judicial process. The possibility of impact on the lives of others is a consideration for a broad reading on the merits of the scope of constitutional rights, but its inherent abstractness only reinforces the importance of awaiting a specific impairment or threatened impairment in order to assure a sure-footed judicial disposition.

The importance of a specific, factual context is dealt with at some length in the court’s opinion. But it seems to me important that the issue and ruling should be discussed, as in the Gardner cases, in terms of discretion and the propriety of entertaining actions seeking injunctive or declaratory relief, rather than in terms of constitutional jurisdiction. When problems are fluid, and the courts are engaged in a delicate balance of interests, the use of constitutional categories seems to me to impose unnecessarily rigid and restrictive limitations, and to inhibit the kind of wide-ranging and flexible analysis that is needed.

Since the judicial discretion that is involved in such matters is a sound discretion, turning on a determination of public interest, its exercise is subject to appellate review, and a federal court may not lightly turn aside a suitor who seeks a hearing and decision of his federal constitutional rights. Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). In the case before us, however, the pertinent criteria fully sustain the exercise of sound discretion to dismiss this action in its present context. Although the ruling of the District Court did not purport to constitute the exercise of discretion, the nature of the controversy, and the fullness of appellate review, are such as to make it appropriate for this court to exercise in the first instance the sound judicial discretion that is appropriate.

. Aetna Ins. Co. v. Haworth, supra, 300 U.S. at 240, 57 S.Ct. 461.

. See 394 U.S. at 108, 89 S.Ct. at 959-960, quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941).

. In Rickover the court did not dismiss the action, but remanded for amplification of the record. In the case before us, it seems appropriate to apply the underlying principle through an order dismissing the complaint. See Toilet Goods Association v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), discussed below.

. Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).

. Toilet Goods Association v. Gardner, 360 F.2d 677 at 679 (2d Cir. 1966).

. The Court had said (p. 163-64, 87 S.Ct. p. 1524) that the issue of validity “will depend not merely on an inquiry into statutory purpose, but concurrently on an understanding of what types of enforcement problems are encountered by the FDA, the need for various sorts of supervision in order to effectuate the goals of the Act, and the safeguards devised to protect legitimate trade secrets (see 21 CFR § 130.14(c)).”