*1 contrariwise, congressional command
impact of Feres cannot be avoided.9
We judgment affirm the district
court.
AFFIRMED.
CITIZENS ENERGY IN COALITION OF
DIANA, d/b/a Action Citizens Coalition Indiana, al., Plaintiffs-Appellees, et SENDAK, Attorney
Theodore L. al., Defendant-Appellant. et 78-2509,
Nos. 78-2601. Appeals,
United States Court of
Seventh Circuit.
Argued Feb.
Decided
9. Given our conclusion that
to service or that the
without
viduals,
battery,
Claims Act claims
ment officers of the
Stawnychy’s
cute
arrests for violations of federal
government argued
cers,
impliedly permits
where a
person.”
pressed
limited the
committed
of the United States for assaults and batteries
Feres extends to
1974 amendment
2680(h),
Section
searches,
. who
the action.
to decide the
independent authority
but
and thus were
superior
brig guards,
See
would alter
2680(h)
by “investigative
73 S.Ct.
arrest,
[are]
Dalehite v.
to seize
amended waives
officer was sued as a
intentional
arising
empowered
United
excludes
that the correctional offi-
were
Federal
question
fact,
decision
evidence,
H59 *2 Crapo, L. Asst. Young, Richard A. Alan Ind., defend- Atty. Gen., Indianapolis, ant-appellant. Ind., Indianapolis, Rosenberg,
Louis plaintiffs-appellees. are FAIRCHILD, nancial now made the De- Judge, and
Before Chief TONE, Judges. partment Energy. SPRECHER Circuit provides gov An statute SPRECHER, Judge. Circuit appoint attorney as practicing ernor shall of a appeal granting from the This is represent counselor to preliminary injunction enjoining the Attor- hearings before the state Public utility rate *3 refusing to ney of Indiana from General Ind.Code 8-1 — 1—4. Service Commission.2 assistance approve subgrants for financial 1977, the September, Public Counselor of by the Public Counselor Indi- allocated of had for applied Indiana and received ana, 205(a) in accordance with of Section Department Energy (DOE) from of a the Energy the Conservation and Production $200,000 6805(a), under grant which was § 6805(a), Act of establish- U.S.C. § approved by the Indiana General offices, ing protection solely state consumer legality.” Eighty-Four as to “form and on the the retain subgrantees basis grant of this Thousand dollars was allocat- lobbyists. ed for financial and technical to assistance par- groups in order to consumer facilitate I ticipation utility proceedings. rate in part Enacted as of Conserva Energy the Coun On December the Public Act, 205(a) tion and Production Section a proposed selor executed contract with the (hereafter referred to as 42 U.S.C. Coalition, Energy (Coalition), Citizens Inc. 6085(a)) was financial provide intended to § not-for-profit organiza an private, Indiana assistance to state offices of consumer serv tion, performed for services to be ices purpose facilitating pre for the of the $5,000 6805(a). under An Coalition for § of sentation consumer interests before utili provides that all Indiana statute contracts ty regulatory commissions. 42 U.S.C. agencies ap by entered be into shall 6801. A state office of services § consumer proved legality by as form and Attor to the so must in financed “assist consumers the ney 4—13-2-14.3 On General. Ind.Code presentation positions of their utility before the Indiana Gen regulatory “advocate, commissions” on and disapproved proposed eral the in contract behalf, its position own a it deter part which the a because Coalition maintained represents position lobbyist mines the registered most advanta and “a conflict arise may geous 6805(a).1 to consumers.” Fi- seq.” Section under the terms of IC 2-4-3 et 1. 42 vide for ered to— States sumers regulatory provided offices regulatory only commissions; The Administrator of their other affected tion sition most operated independently U.S.C. (1) (3) advocate, for an office of consumer impact which it make assist of proposed regulatory under this section shall be positions consumers; consumer commission and which is their 6805(a) provides: commissions. establishment general consumers . under advantageous determines proposed presentations on its before services factual assessments of may this section to own in the of represents rate utility regulatory and Any actions may behalf, services before changes presentation operation consumers, such assist assistance provided upon empow- which utility utility posi- con- pro- and po- all to of 4. The grant lobbyists. public tending duties.” The district court concluded that contract because consumer solely The Ind.Code 4-13-2-14 works and tion], All A shall be filed tending design reform. appeal. taking form and copy contracts applications counselor to lessen the groups pursuant for a term the basis into However supply [department every legality by and account General also from with for financial assistance leases shall be such contract or lease “would have the effect longer refusing provides: the director of performance developments public such than one [1] also attorney-general. disapproved to consider groups of administra- U.S.C. counselor enjoined approved in rate public retain year sub- did ex- “it
H61 May In letters of 30 and “disap held that court The district the Coalition and December 1977 on Public Counselor advised prove the contract he was Group the Research unable to the contract would be grounds approve requests for financial 2-4-3-7 their assist [prohibiting with Ind.Code conflict ruling ance “in of the Indiana would view of lobbying pay officials] prohibits my which con disapproval.” be an erroneous tracting any organization with individual (cid:127) Attorney General had After registered during the lobbyist as a most contract, the Coalition proved the Coalition recent session the Indiana General Ass the Public Counselor three submitted to embly.”7 6805(a) financial assist- proposals seeking § ap- The $46,000. The Public totaling ance plication financial assistance in the (Research Group Group), Interest Research $24,000 by amount of the Consumer Center or- private, not-for-profit also an Indiana organization Wayne, of Fort which registered ganization which maintained *4 lobbyist. retain a lobbyist, proposal a for financial submitted $9,785 of to the the amount assistance in June, 1978, publie In directed the DOE Public Counselor. spending counselor or to refrain com- mitting any further funds allocated for the Public on In meantime Counselor the 6805(a) assistance “until such financial § 5, 1978, Attorney to the Gener April wrote time as has been ‘lobbyist’ the issue satis- affidavits, re supporting requesting al with factorily resolved.” orig disapproval of the of the consideration $5,000 days later the inal contract. Several 14, 1978, June On the Coalition and the the returned Public Coun Attorney General complaint their Group Research filed in this that the- “A.G. letter with a notation selor’s against Attorney action the General and lobbyist organization or accept will not the Public October Counselor. On contract.”6 court, plaintiffs’ the upon the mo- district injunction. tion, granted the 1978, 17, the
On April by requested the advice of the Attor- letter II or ney whether not he could General as to 6805(a) Attorney the appeal under to consumer his General § make preceding argued first district court groups who had lobbied the that the did not Assembly. subject jurisdiction. the Indiana General matter The dis session of juris trict response No or written was court concluded that did have formal informal diction, request. finding ever that “the constitutional made to this firm, corporation person, Attorney or association from of the was within the discretion Gen- ground, indirectly any disapprove which eral to the contract on that or receives he might ground compensation salary, the but not on the that contract other than the state or Indiana, county, township, city, conflict with Ind.Code 2-4 —3-7.” The Coali- of or the appealed validity tion has not the of the town or central committee with which state proval upon lessening contract of the of the is associated. he ground. performance duties 6. The found that “this evidence district court Attorney any proof that comes closest provides part: 5. 2-4 —3-7 Ind.Code ‘Organization’ nonacceptance of the General’s any public official of It shall be unlawful arbitrary was in nature.” state, county, any township, city or this or town, including appointive elective and offi- refused to also consider The Public Counselor officer, any employees, cers and or member 6905(a) application financial assistance any employee or state central committee grounds on the Indiana State AFL-CIO any party, any compensation receive during group had lobbied that consumer general assembly appear before the of the preceding General session state of or before either house or ineligible Assembly a re- was and therefore general assembly any or committees of the Attorney understanding Gen- sult of his any or before member as either house thereof policy. eral’s any legislative agent counsel or on behalf of 1162 River, Supreme
claims in this action are Court noted in Colorado substantial” and that the raised the issue of whether supra action n. 96 at S.Ct. “the acting officials under color of state jurisdiction presence of a federal basis for deprived plaintiffs law have of their opposed diversity jurisdiction] may [as rights. constitutional In addition the cause justification raise the level of needed for arises Congress. under an act of U.S.C. abstention.” The General has not justification shown sound which would make appropriate. abstention
In regard
Gener
argument
al’s
the Eleventh
Amend
Finally the Attorney General has
action,
Supreme
ment bars the
Court
argued
preliminary injunction
-
Quern
Jordan,
again reaffirmed in
jeopardizes
right
his
to exercise discretion
-,
U.S.
99 S.Ct.
59 L.Ed.2d in approving contracts. The district court
“under the
landmark de-
found and concluded as to
argument
this
Young,
cision in Ex Parte
agree:
and we
(1908),
plaintiffs], parties said would not become injunction may inflict on the defend public officials or employees within the ants; (3) plaintiffs whether the have at meaning of Ind.Code 2-4-3-7. least a reasonable likelihood of success on merits;
The district properly granting court exercised the whether the and its declining discretion in preliminary injunction abstain. As will not disserve Harvestore, Valley interest. Fox Products, America, Harvestore
Inc. v. A. O. Smith STATES of UNITED 1976). Inc., (7th Plaintiff-Appellee, Cir. 545 F.2d expressly found district court The HODGE, Johnny Edward Linda S. Jones weigh and to all factors exist of these Herrin, and James A. plain heavily favor particularly Defendants-Appellants. found example, court tiffs. For funding for Indiana consumer federal 78-1532, and 78-1569. Nos. 78-1568 paralyzed by groups has been Appeals, United States Court approve subgrants to General’s refusal Seventh Circuit. retaining lobbyists and organizations envisaged by program the entire Argued Feb. subject to 6805(a)may jeopardy be in Decided The Gen imminent destruction. factors in his
eral not addressed these has say that
appeal. Consequently we cannot abused its discretion.
the district court af- order is
The
firmed.
TONE, Judge, concurring. Circuit courts enough give
It the federal
jurisdiction that the First Amendment fur- going
question is substantial. Without question,
ther in our consideration of high proba-
we should affirm because of will at least on
bility plaintiffs succeed *6 interpre- proper state law issues 2^r-3—7 and the absence
tation of Ind.Code ground other sufficient This, to-
proval General.
gether making other factors with the
preliminary appropriate, I therefore
enough support affirmance. injunc- affirming
concur in
tion.