318 F.2d 181 | D.C. Cir. | 1963
Lead Opinion
The Foreign Agents Registration Act
The threshold question is presented by the venerable, but creaking, doctrine of sovereign immunity. There is no suggestion that the United States has consented to this suit or that the Attorney General is being sued as an individual. Indeed, the named defendant is “The Attorney General of the United States,” the name of the current office holder not being included.'
Ex parte Young, supra, has spawned a welter of cases, all seeking to get under its umbrella.
It is not alleged in the complaint that prosecution of the appelleesunder the Act would be unconstitutional
Appellees rely heavily on Professor Borchard in arguing that civil procedure should be substituted for criminal procedure in the area not involving moral turpitude, particularly “where there is grave uncertainty as to what practices the general terms of a law prohibit.” Borchard, Declaratory Judgments (2d Ed. 1941), p. 1021. They also assert with Professor Borchard “that one of the main and most beneficial functions of declaratory judgment procedure is as a substitute for criminal prosecutions in the area of regulation of business practices.” Philosophically, we may agree. But the Congress has decreed otherwise, at least so far as agents representing foreign governments are concerned. Consequently, since appellees have failed to challenge the constitutionality of the Act, on its face or as applied, or the authority of the Attorney General to enforce it, this case should be dismissed on the pleadings as an unconsented suit against the United States.
So ordered.
. 52 Stat. 631, as amended, 22 U.S.C. §§ 611 et seq.
. 52 Stat. 633, as amended, 56 Stat. 257, 22 U.S.C. § 618.
. 52 Stat. 632, as amended, 56 Stat. 254, 22 U.S.C. § 613.
. 52 Stat. 632, as amended, 56 Stat. 254, 22 U.S.C. § 613(d).
. 28 U.S.C. § 1292(b).
. The Attorney General’s name first appeared on the appeal papers in this court.
. See 3 Davis, Administrative Law, ch. 27 (1958).
. In arguing that this is an appropriate caso for declaratory judgment, appellees assert that the penalties are so severe that they dare not await prosecution. Therefore, they assert, a civil forum must be available or the Act can never be tested. A civil forum may be available under these circumstances, for this argument may raise a constitutional question. Yakus v. United States, 321 U.S. 414, 438, 64 S.Ct. 660, 88 L.Ed. 834 (1944) ; Ex parte Young, supra, 209 U.S. at 145-148, 28 S.Ct. at 447-449, 52 L.Ed. 714. Appellees, aided by competent counsel, for reasons best known to themselves, have decided not to raise the constitutional issue. Under the circumstances, and for-
. Appellees do argue in their brief that their activities “are expressly exempted from the Act by the terms of the Act itself” and that to this extent appellant’s demand that they register is “in excess of his statutory authority.” The Attorney General, however, is charged with enforcement of all the criminal laws of the United States, 28 U.S.C. § 507. Such duty obviously carries with it the authority to construe the individual statutes and apply them to the facts before him. At most, appellees’ claim is that appellant has erred, or will err, in construing the law. But the relief for which appellees here pray “can be granted, without impleading the sovereign, only because of the officer’s lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient.” Larson v. Domestic & Foreign Corp., supra, 337 U.S. at 690, 69 S.Ct. at 1461-1462, 93 L.Ed. 1628. See also United States v. Thompson, 251 U.S. 407, 413, 40 S.Ct. 289, 64 L.Ed. 333 (1920) ; Goldberg v. Hoffman, 7 Cir., 225 F.2d 463 (1955) ; Fay v. Miller, 87 U.S.App.D.C. 168, 171, 183 F.2d 986, 989 (1950) ; United States v. One 1940 Oldsmobile Sedan Automobile, 7 Cir., 167 F.2d 404 (1948) ; District of Columbia v. Buckley, 75 U.S.App.D.C. 301, 304, 128 F.2d 17, 20 (1942), cert. denied, 317 U.S. 658, 63 S.Ct. 57, 87 L.Ed. 529 (1942) ; United States v. Segelman, W.D.Pa., 86 F.Supp. 114 (1949) ; United States v. Brokaw, S.D.Ill., 60 F.Supp. 100 (1945).
. See also Larson v. Domestic & Foreign Corp., supra, Note 9, 337 U.S. at 688, 69 S.Ct. at 1460, 93 L.Ed. 1628; Stanley v. Schwalby, 147 U.S. 508, 13 S.Ct. 418, 37 L.Ed. 259 (1893) ; Reisman v. Caplin, 115 U.S.App.D.C.-, 317 F.2d 123, 125.
Dissenting Opinion
(dissenting).
The suit does not seem to me to be one to enjoin a criminal prosecution, which equity ordinarily will not entertain. The Foreign Agents Registration Act is not such a criminal statute as is involved in cases which illustrate the equitable doctrine. It is primarily a regulatory statute, with a penalty of not more than
Since the Attorney General is responsible for administering and enforcing the statute, appellees were under the necessity either of filing the detailed information required by a registration statement and acquiescing in the status attributed to them by appellant, or of being criminally prosecuted and risking the statutory penalties, unless they could secure a declaratory judgment as to their status. There is more in this situation than the impact upon appellees of the mere existence of the statute, and more too than a mere difference of opinion. There is a demand and insistence by appellant that they file the registration statement. A case or controversy — a justiciable issue — thus arose. See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937).
The suit is not accurately described as one to enjoin a criminal prosecution. It is to determine the existence of an obligation on appellees’ part affirmatively to register in circumstances which create a justiciable issue in that regard. No administrative remedy is provided and there is no remedy at law comparable in adequacy to that available through the Declaratory Judgment Act. See Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). The Act combines with equity to afford a remedy, for equity is served by not forcing registration in the face of well-founded doubt of the need to do so, until that doubt is resolved—a doubt which we must assume in the present posture of the case is held in good faith. See Terrace v. Thompson, 263 U.S. 197, 44 S. Ct. 15, 68 L.Ed. 255 (1923). The thrust of the suit is presently too far removed from an effort to enjoin a criminal prosecution to come within the principle adverted to under which equity sometimes denies itself jurisdiction. This principle long antedated the Declaratory Judgment Act and when now invoked should be considered in conjunction with that Act.
Unlike the situations in either Larson or Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962), this suit does not require the appellant to do or not to do anything. In Larson an injunction was sought prohibiting the Administrator of the War Assets Administration from selling certain property to anyone but plaintiff, who claimed to have a valid contract to buy it from the Administrator. The Court referred to “no allegation of any statutory limitation” on the Administrator’s powers as a sales agent. In Malone the action sought to eject a Government officer from land which he occupied under claim of title from the United States. Referring to Larson the Court pointed out that there “the plaintiff had not made an affirmative allegation of any relevant statutory limitation upon the Administrator’s powers.” In our case appellees rely upon a congressionally built-in exemption which is a limitation upon the statutory authority of appellant.
The suit is designed to ascertain what the statute contemplates. If appellees are held to come within the exemption the law is vindicated. If they are found not to come within the exemption appellant remains free to proceed as he deems advisable. In neither case does the suit seek to require appellants to act affirmatively, to surrender property, or even to stay his hand except as understandable self-restraint leads him to do so at present. The Government does not contend that declaratory judgments may never be entered against officers of the United States or that an express consent to be sued is always necessary. See Greene v. McElroy, supra, where there was no dis-
The exemption provision is contained in the statute itself and must be construed howsoever the status of appellees is determined. For this purpose the Declaratory Judgment Act is peculiarly appropriate. Of course that Act is not a waiver of sovereign immunity, but it is a means of determining the issue upon the resolution of which the application of the immunity turns.
The lines of the immunity doctrine are elusive. As this court suggested in Reisman, policy considerations are strong determinants in cases raising the problem. The majority opinion in this case does not discuss the policy reasons which serve to justify the result reached. Hussion of the immunity doctrine; Joint-j It seems'to me desirable to encourage judicial settlement of a legal dispute free from the coercive effect of penal sanctions when the dispute arises out of a regulatory statute like the one before us.
. Appellant cites Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), and Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416 (1941), both of which, however, involved efforts to have a federal court enjoin state action, which turn upon different considerations. Nor are Eccles v. Peoples Bank, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784 (1948), United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), and Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945), also cited, controlling, because no real controversies were presented for declara
. The existence of a justiciable controversy does not fall away because the decision has not been pursued further during the pendency of this litigation.
. The Supreme Court has said: “Courts of justice are established, not only to decide upon the controverted rights of the citizens as against each other, but also upon rights in controversy between them and the government * * United States v. Lee, 106 U.S. 196, 220, 1 S.Ct. 240, 260-261, 27 L.Ed. 171 (1882).
. A leading authority has indicated that courts have been too uncritical and unanalytieal in their application of the doctrine, with its exceptions created in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). See 3 Davis, Administrative Law, pp. 545-576 (1958).
In his dissenting opinion in Larson, Mr. Justice Frankfurter took occasion to say: “ ‘Sovereign immunity’ carries an august sound. But very recently we recognized that the doctrine is in ‘disfavor.’ [Citing Federal Housing Administration v. Burr, 309 U.S. 242, 245 [60 S.Ct. 488, 84 L.Ed. 724] (1940)]. It ought not to be extended * * 337 U.S. at 723, 69 S.Ct. at 1478, 93 L.Ed. 1628.