*1 Ill Craig, any plaintiffs ligence Neither has filed the driver of defendant vehicle, negligence opposition of de- the motion memorandum one and the Harris, Harris, second nor to dismiss- defendant the driver fendant requested hearing, that at them also assert vehicle. Plaintiffs alleged provisions place acci- within the* time limita- the time and dent, acting within tions set forth in of this defendant Harris was Local scope employment as em- Court. of his Department, ployee of the Post Office day It is therefore ordered this 25th agency of defendant United States September, 1967, by the United States monetary America. Plaintiffs seek dam- Mary- District for the District of ages pursuant 1346 and 28 U.S.C. §§ against land, plaintiffs that the action of seq. 2671 et Defendant Harris Harris, be, defendant A. Jr. Ernest grounds, inter moved dismiss on the is, hereby against the same dismissed as alia, statutory remedy exclu- said defendant. sively against the United States against employees. The one of its Gov- ernment, defendant, in its answer al- position
so takes the that Harris is not
proper party defendant. 2679(b) provides: of U.S.C.
(b) remedy by against suit provided by United States as section Dr. Allen M. KREBS and Walter D. 1346(b) damage of this title for Teague III, on their own behalf and on property personal injury, or for includ- persons similarly behalf all other sit ing death, resulting opera- from the uated, Plaintiffs, by any employee of the Govern- any ment of motor vehicle while act- ASHBROOK, John M. Buchanan, John H. scope within the of his office or Jr., Clawson, Pool, Del Joe R. Richard employment, shall hereafter be exclu- Ichord, Tuck, H. George William M. F. pro- sive of other civil action or Senner, Jr., Weltner, Charles L. Edwin ceeding by. reason of the same sub- Willis, individually E. and as Chairman ject against employee matter and Members of the Committee on Un gave his estate whose act omission American Activities of the United States rise to the claim. David G. Bress, Attorney United States for the In Perez F.Supp. Columbia, District of Defendants.* Judge (S.D.N.Y.1963), Peinberg, Civ. A. No. 2157-66. Judge, reviewing then a District after legislative history U.S.C. § United States District Court 2679(b), against held that a suit the Gov of Columbia. employee, ernment driver in his individ Sept. capacity, alleged negligent ual for his operation aof Government vehicle scope employment by of his the Govern ment, is barred of that language
statute. The of 28 U.S.C. §
2679(b) legislative history itself and the Judge Peinberg as set forth in Perez
clearly impose the bar which is the basis
of the motion to dismiss of defendant position
Harris and the Government’s
that same effect.
* judicial The Court takes notice of the fact the defendants named at' the time this complaint position changed. official filed of several of has been *2 Washington, Ackerly, D. L. Robert Kunstler, City, C., York M. New William Washington, Speiser, D.
and Lawrence C., plaintiffs. Hannon, Alexander,
Harry Joseph M. Zimmerman, Q. Frank Nebeker Gil Attys., for defendants. U. Asst. S. BAZELON, Circuit Chief Before Judge, Judge, FAHY,** Circuit Judge. CORCORAN, District Judge. FAHY, Circuit stages early case was In its convening thought require 2282,1 since the of, 28 U.S.C. § mandate Judge Fahy Cir- Circuit became Senior shall States tion April Judge by any cuit granted district court application therefor thereof unless provides: 1. Section 2282 district is heard and determined injunc- interlocutory permanent An opera- section enforcement, restraining of Con- of this tion or execution of gress title. repugnance the Constitu- injunctive complaint, seeking I Title alleged pertinent against appellees, part this case. of the Act that Rule “Changes entitled in Rules of Sen- ón ate and House” after which follows
charter of House Committee Un- “Rule-making subtitle, enacted Power American Legislative Reorganization *3 con- title then of and House.” The Senate following provision: unusual and tains the 60 Stat. was unconstitutional. being question deemed The constitutional following sections 101. The Sec. three-judge insubstantial, District Congress: by the title are enacted this Court was convened under the terms of (a) of the rule-mak- exercise As an prescribes the 28 U.S.C. ing and the House power the Senate procedure composition for and three- respectively, Representatives, as and required by District Court they part considered as such shall be three-judge 2282. At the outset this House, respective- rules of each requested court memoranda on issue they ly, or of that House to which proceed whether “this case should before specifically apply; rules and such specially constituted supersede shall other rules single remanded to a they that are extent inconsistent Judge.” parties promptly Both filed therewith; and memoranda, ques- neither but raised (b) recognition full of the con- With tion whether Rule XI was an “Act right of either House stitutional Congress.” 14,1967, April Thereafter on change (so relating such rules far as “Supplement defendants filed to Motion House) any procedure at to the time, in such * * *,” urging to Dismiss that Rule in the manner and to same adopted by XI is a “Rule of Procedure any other same extent the case of as Representatives (acting the House of rule of [60 814.] such House. Stat. singly).” The close reexamination of the provides A “Part 1” then “Stand- genesis XI, prompted and status including Senate,” Rules of the by “Supplement,” defendants’ led us “Standing Committees of the Senate.” to conclude that Rule XI is not an “Act provides A 2” “Rules of the Congress” “Part as that term is used in Sec- including Representatives,” House of “Standing that the of defend- activities Committees of the House injunctive ants as to which is caption Representatives.” sought Under by plaintiffs have been and are X,” first rule set “Rule which is the conducted under aof rule of forth, stated, elected is “There shall be it. House of rather than by House, at commencement of an Act of Con- standing following Congress, gress, that, therefore, and the case is on Un- committees:” Committee “17. one that comes within the Activities, of nine American to consist Section 2282. provides “Pow- members.” Rule Complaint alleges Plaintiffs’ Bill of due ers and of Committees.” In Duties Legislative Reorganization that the Rule comes “Commit- course enacts, alia, inter Rule XI of the Its tee on Un-American Activities.” Representatives, Rules of the House of powers and forth as duties there set referred to as the charter of the .Commit- follows: tee, that, as thus enacted the Rule “(A) face, Un-American activities. including origin, void on setting within which the Committee “(2) on Un-Ameri- The Committee operated past, in and as the Rule whole or sub- can as a applied plaintiffs, in that it violates committee, from to make is authorized Constitution, particular Article investigations (i) time to time I, III, Section Clause character, objects and Article extent, as of un- respects well as in propaganda other in the forth. activities set House,” (ii) enacted diffusion with- and states that rule- in the United of subversive and exercise “[a]s States propaganda making power that un-American Senate stigated foreign respectively, countries origin prin- they be considered as a domestic ciple and attacks the and as such shall respec government House, part of each form rules they guaranteed Constitution, tively, or of to which recognition our (iii) questions specifically apply”, other in relation all any change right thereto would aid either House to legislation. necessary relating procedure remedial House, man time or the same “The on Un-American “in the ner and the same extent as report Activities shall *4 any House.” case other rule such (or to the the Clerk of House if the provision Ar This the conforms with session) House is not the in results I, ticle of the Section 5 Constitution: any together investigation, such may Rules the “Each House determine such as it ad- recommendations deems ” * Proceedings In con of trast, visable. upon II of Title the Act bears any purpose “For the such Congress, but the affairs of internal vestigation, the Committee on Un- by provision makes no for amendment any Activities, or subcom- purport not and does to thereof, mittee to sit and is authorized rule-making power the “[a]n exercise of places act at such and times within Repre of the and Senate whether sentatives, respectively”. provisions Its sitting, recessed, House is adjourned, or has “Statutory Provisions.” are denominated hearings, to hold such re- to 2 quire the attendance of witnesses such production books, sitting and papers, of such as Com- the House was While documents, and take to consider mittee of to the Whole necessary. testimony, Monroney, Congressman deems as it the 1946 Subpenas may be issued leader, the floor stated: signature of chairman com- Chairman, I con- Mr. unanimous ask any any subcommittee, by mittee or portions bill sent that the designated any member such chair- 13, page page line to line man, may by any per- served in printed read and be considered as designated by any son such chairman portion the bill Record. That or member. 828-29.] Stat. [60 exclusively rules of deals with the Legislative Reorganization ofAct exercises Senate over which pertaining restates the rules ex- jurisdiction, no would and it real to the House Un-American Activities pedite treat of the to consideration bill Committee. The Committee achieved its init this manner. standing committee status and first re- objection procedure. to There was no this charter, reads, presently ceived its it Congress- 10061-62. The House Resolution touching stated, man also are “We Sess., Cong.Rec. 10, (1945). 15 States, See changing rules, our the Senate we also Watkins v. United changes at rules rules. The Senate 178, 201-203, 1173, 1 L.Ed.2d same Id. at 10040. time.” reading I, particularly We Part note Title I is of Title that Prior “Changes headed in Rules of Senate 2 of the Bill before II, designated tory Relating 2. Title which is “Miscel- Committees Provisions laneous,” parts Congress,” 1— and “Part 3—Provisions —“Part Statutory Pages.” Relating Relating Capitol Provisions Con- gressional Personnel,” “Part 2—Statu- Stat.
H5 spectively, own Congressman the conduct of its busi- House, Celler the Whole inquired:
ness.
disposition
em-
we
Would
right
enlarge
scope
in this bill have
bodied
not
readily
Congress
change
Kennedy
appears
next
rules of
Mendoza-
despite
Martinez,
152-155,
this
fact
that
bill was
recog
passed
and the House?
U.S.
Moreover, Bailey
inal
*
liberality, but
reveal 266
cal in the strict sense of the term and
sional
amendments which were
* *
the section in obedience to
social
* *,
history
scope,
applied
policy
*,
policy
the close construction
the narrowness
as
as an
be construed
as a measure of
§
such.
piece-meal
266 [now 2281]
enactment techni-
*,
Patterson,
made to
of its
combine
Congres-
§
L.Ed.2d
explicit
broad
given
great
orig-
to the Buder-Bransford-Case rule [Ex
federal courts
with
70 L.Ed.
ment technical in the
should be
exaggerated,26
determinations each
Phillips
the term and to
parte Buder,
Although the number of
[******]
broad
efficient
great liberality,
S.Ct.
social
kept
1036;
operation
in mind.
persuades
policy
this Court’s
U.S.
Ex
year
applied
parte
but as
to be
strict
85 L.Ed.
of the lower
should
us to return
Bransford,
construed
as
an enact-
U.S.
sense
concern
not be
such,”
84 L.Ed.
We hold
simi-
1249;
Bowles, 327
Case v.
larly
here,
required when,
prior
thereby
90 L.Ed.
con
552]
make
decisions
frivolous
claim
forming with the constrictive
view
segre-
[permitting
that a state statute
three-judge jurisdiction
gation
transportation
fa-
interstate
*6
traditionally
Ex
Court has
taken.
on its face is
cilities]
not unconstitu-
* * *
Collins,
parte
565, 48 S.Ct.
277 U.S.
tional.
for
The
reasons
990;
585,
&
72 L.Ed.
Oklahoma Gas
convening
extraordinary
an
court are
Packing Co.,
Elec. Co.
292
v. Oklahoma
inapplicable
cases,
in such
for
1318;
386,
732,
U.S.
L.Ed.
78
policy
three-judge require-
behind the
Commissioners,
Rorick
307
v. Board of
single
ought
ment—that a
not
1242;
59
U.S.
83 L.Ed.
S.Ct.
empowered
to be
to invalidate a state
Phillips
States,
v. United
statute
apply.
a
not
federal claim—does
In Zemel held a stated, supra, properly ed court was convened contrary, this convening S.Ct. at 484. On the totally “paralyze surely suit operation seeks in this case with coincides regulatory pas- legislative policy underlying entire * * indeed, scheme,” regulatory Appellant sage scheme *. § 2282 promote designed challenge merely and administered case does security “single, unique the Nation. exercise” of the See- fortify- foregoing, yet Representatives. Apart Since Representatives position the in- there taken as to the House of each Congresses passed applicability Rule House the eleven its own Acting singly, XI, rules. the House has under which the Committee Sub- Leg- appear ma- amended functioned in the matters rules which committee Reorganization case, adopted Rule islative as a Act.7 These terial legal by House, unicameral actions the House demon- status which with a interpretation upon strate its consistent Reor- does rest Title I Repre- ganization is, Act of Pro- the House Act.6 is a Rule Repre- adopted sentatives still creates cedure the House of January 4, (acting singly) own committees. sentatives on Sess., .8, Cong., 1965. H.Res. 89th 1st Though the Committee has stated Cong.Rec. 21, Ill This resolution upon Act and both the rests reads: rules, statement, understandable analysis is, it as does not constitute Resolved, That Rules of the legal not a situation. And Eighty- position advanced the House itself eighth Congress, together ap- all Congress. Indeed, quite it is plicable provisions of the practice of the House. with the Reorganization consistent as amend- Act of House, XLII, the last rule of the they hereby adopted ed, be, as are provides: Representa- the Rules of the House of * * * Congress, Eighty-ninth tives of the Leg- provisions of the [T]he Act of islative amendments the substance with certain amended, govern House in shall material. of which is not here they applicable, all cases to which Repre- To the extent that the House of they are not inconsistent which Eighty-ninth sentatives standing orders with the Reorganiza- “adopted” the terms *. the House powers 1946, specifically Act of Un-American Activities Deschler, the House of Rules of Lewis Committee, it did an exercise of the so as H.R.Doc. No. own make its Cong., H.Res. Sess., 499. See 2nd Com- Activities Sess., rules. Un-American 83d prior incorporates first mittee existed time for the first permanent then as an ad hoe and as a XLII. in- Rule the terms *7 pursuant of the exception committee to Moreover, of resolutions constitutionality Any 6. decision as to the Workers’ Ladies’ Garment International might Co., Donnelly XI of Rule be decisive on Garment v. Union constitutionality Act, 879, 875, but the of the 1946 58 S.Ct. Supreme Flemming 1316; quoted part Court has stated: provide 603, 607, 2282] does not Nestor, [now Section 363 U.S. validity Pennsylvania for a an act Pub. case where L.Ed.2d ques- Congress merely Co., Pennsylvania is drawn in R. Util. Comm. tion, question decided, be L.Ed.2d albeit only an but for a case where there is 324. application interlocutory enjoin Here, course, plaintiffs for an to seek injunction permanent acting to restrain under Committee Congress. they enforcement of an act of but Rule XI or the 1946 * * * Congress Had intended the if the entitled to the latter provision operating in section for three Committee apply appeal, and direct to whenever Rule. question validity a of an act Sess., Congress involved, Congress Cong., E.g., became 1st H.Res. 89th naturally amending portions Cong.Rec. familiar would phrase have used the Ill question,” pertaining “drawn as in the Committee XI to the of Rule provisions. first section of [now the act 28 U.S.C. on Rules other 2403]. Eighty-third Congress, authority Congress, each third the charter of present explicitly adopted “all since Committee.5” foot applicable provisions of the note also shows that the a “charter” was practice nothing Resolution, Act.” This And more. incoming Gojack States, see 702, 706-707, dicates that each v. United to itself has considered n. writing slate, 870, including on clean 16 L.Ed.2d be ing a notwithstand- the sentence: Act practice It is the to the House adopt including may, Rule house of Each Rules— which establishes the course, Un-American of consulting amend its own rules without body.8 Activities Committee and defines the an other Such scope begin- authority clearly of its “Act of amendment not an —at ning Congress. g., Congress” See, e. No three- Cong.Rec. therefore, Cong., 88th judge 1st Sess. could, District Court (1963); enjoin jurisdiction an action to have over (1955). enforcement, Sess. operation, execution be It would of such amendment. True it that as a matter en hold anomalous to action policy injunction sought when an there join conduct sections under some good would seem to three- be reason a Representa present of the House of rules pass court to on a constitutional jurisdiction of a is within the tives three-judge challenge congres solely because sional committee. But when Section they Act restated in the fact that were 2282 was enacted there was no occasion involving a an action of subsequently whereas seeking functioning protect not be rule would amended lay problems a committee. The purview of Section 2282. within the elsewhere, until now. Section 2282 was significant existed, they that the problems directed opinions putting traced operation has in several of an out Congress. Activities Un-American court also If a required resolutions of policy should as matter of be In Watkins than to the 1946 Act. rather of House under to strike down a rule 201-203, operates Con which House committee 1 L.Ed.2d gress should address its attention forth, history is set of the Committee problem. new (footnote page it is the latter said at omitted): also, quite It is as we have true suggested, supra, that were see note beginning of occasions, at five On unconstitutional such held Congress, made sessions holding constitu a tionality would undermine the authorizing part resolution Re of the like House.44 they organization should But would come under attack. sources the text and the Antecedents in *8 authority precedential clearly the that because the footnote in 44 reveal holding. To come House the “it” sentence is the in the above Congress operations alone, the Representatives Con Act of not the object the the direct gress. under it must be injunction In Barenblatt v. United Nestor, Flemming sought. v. 3 360 U.S. omitted), supra. the defend the It is conduct of (footnote L.Ed.2d 1115 challenge XI that Rule “Rule ants under House Court refers to the Eighty- object if authorized Even of this suit. of the House of (amendment Cong., XXII See, e.g., of Senate 1st Sess. Sess. 8. 88th H.Res. adoption provide (amendment for of cloture as to X so as so of House Rule present enlarge membership those Senators two-thirds of the Commit- voting). Rules); 86th tee on S.Res.
H9 Reorganization Ickes, Act, D.C., Rule XI Tribe of Indians does 45 F. Supp. 179, aff’d, depend upon U.S.App.D.C. 77 that for Resolution denied, Representatives 133 F.2d cert. 8 of the House of 1704; Eighty-ninth Congress Marcello alone was S.Ct. grant Kennedy, D.C., F.Supp. authority com- under which its operate. mittees were ORDER opinion In accordance filed Having concluded the case does September 11, 1967, herein the order require statutory three-judge Dis August 16, convening this three- Court, problem trict there remains judge vacated, District Court of what we should do. Were a unani dissolved, and the mous decision on the merits reached Judge case is remitted to District How- respected authority judges, the three disposition. ard F. for Corcoran suggests they should render the decision. Wickham, F.Supp. Swift & Co. v. BAZELON, Judge, Chief Circuit dis- (S.D.N.Y.). advantage. This sents. appeal An from that decision could be Supreme filed both and al Court Judge BAZELON, (dis- Chief Circuit ternatively Appeals. in the Court of If senting) : Supreme Court the case should decide statutory three-judge majority not to be one for The concludes ac that ap District it tivities of are conducted Court would dismiss the the defendant peal. a rule of the Review would then be available appeal under the un alternative in the Court rather than Appeals. Wickham, Congress. der & Co. v. of an Act of Swift disagree. By incorporating I Rule XI 15 L.Ed. S.Ct. Legislative 2d 194. could Or into the Act appeal papers application Congress treat as an estab Stat. prior.to Ap it for certiorari Court of for the House lished a dual authorization peals City Mem decision. Turner v. Committee Activities. on Un-American phis, 7 L.Ed. hesitated Committee itself has not necessary 2d 762. But it is not for the it to state that derives its mandate unanimity Congress and to an Act from rules seek as well as therefore, jurisdiction view, my decide In the case. House.1 In adopted, injunction to course heretofore we now re this case does involve an Congress statutory follow, is to three- dissolve strain enforcement of an Act U. court and remit the case of 28 and falls within the Judge pre plaintiffs it to whom was first that S.C. 2282.2 The fact Osage sented, disposition by trying enjoin for him. enforcemént operates See, e.g., on Un House Committee tee on Un-American Activities Report [1946]; Congress Annual is Public Law * * stating the Tear *.” 60 Stat. 812 statutory basis “has think, therefore, Reor Public 601 —the I is unneces- Law. ganization may sary cir- of 1946 —as well as to decide whether there Representa rule of Rules of cumstances which a report spoke regarded of “the could tives.” or Senate purpose purposes creation of 2282. See in the “congres committee” and of Fed’n for Social Action v. Methodist [Emphasis F.Supp. (D.D.C.1956), Eastland, sional add mandate.” Ibid. *9 jurisdic- three-judge took ed] See also House on Un where a court Report challenging to decide a Annual case validity Resolu- Senate Concurrent Year Wilkin, opinion especially Every publication . the Committee tion. See dissenting grounds, id., begins legis- J., on other “The with the recital lation under the House Commit- rule of not render the House does inoperative. majority suggests if even un- conducted
defendants’ activities are Re- der the
organization Act, that statute is
type when of Act had mind required of a three- the convocation however,
judge court. Section “any Congress,”
speaks Act of
neither nor guidance provided us with sufficient exceptions to it.
to carve out my
Accordingly, I breth- dissent lacked that a
ren’s view
jurisdiction case. SCHULER, J. Administrator
Gerald Betty Carlier, Estate Mae Plaintiff, Deceased, BERGER, D.,
Melvin M. M. Defendant.
No. 31457.
United States District Court Pennsylvania. E. D.
Sept.