Sheila Payne, Next Best Friend of Franklin Payne, a Minor v. Government of the District of Columbia

Secretary is suffi- We think the the categories, authority certain in report data data which to the statistical is an authority to disclose to disclose ciently related here re- upon are to eventually called statistical the firms data which does not numerical Section protected under any person, port identify corporation, entity we do no it clear that think 9(a)(1). Totals, We any way. perhaps subtotals and statute, particularly to violence categories, nevertheless divisions but expressed intent of emphatically thrice merely figures numerical are within this information, if census protect Congress meaning. Individual names and addresses as the word “furnished” interpret we not. purposes. ultimate statistical “gathered” for summary, we think the District Court context, source the from whatever In that denying plaintiff right access to the compiled by the were and addresses names material, Bureau right both before Census Bureau, gathered for the Bu- they were to Exemption the amendment 3 of the provi- purposes under statistical reau’s and after effective FOIA date of the Title.10 of this sions worded, way Whichever amendment. the cross-reference Sec does Nor exemption sought covered census data 8(b) help plaintiff’s 9(a) to Section tion here. 8(b) says: cause. Section Affirmed. the limitations contained Subject Title, Secretary of this 6(c) and 9 §§ and. copies of tabulations

may furnish which do not materials statistical

other reported by, or the information

disclose of, particular respondent, any

on behalf special compila- make statistical

and departments, agen- surveys, and

tions of the Federal cies, establishments PAYNE, next best friend of Government, public and Sheila ... or the Payne, minor, et al., Franklin a agencies, private persons Appellants, as to what interpret the reference here We persons Secretary may “private furnish sta- being as agencies” tabulations OF GOVERNMENT the DISTRICT OF nature, not of a numerical tistical materials et al. COLUMBIA individuals specific addresses names and Bu- data Census reporting to the or firms No. 74-1861. list of and addresses names reau. While Appeals, United States Court “tabulation,” considered be a might be Columbia Circuit. contrary to the usual this would

yet understanding understanding. Our Sept. 8, 1975. Argued computation to ascertain is a “tabulation” 7, 1977. Decided June perhaps of figures, a column total of June As Amended in a certain the names listed counting individual supplying than group, rather interpretation is addresses. This

names and in sub- clearer the reference

made even 8(b) “tabulations and other statis-

section

tical materials.” furnished, course, recognize, information later do the some of the

10. We acquires never be- in this case. We take no view on Bureau names information mill, grist applicability of 13 9 to information of either be- U.S.C. for its statistical comes g., person- (e. functionally unrelated these sorts. cause it is merges records) into or because it never nel Hopkins, Richard J. Washington, D.C., LeFlore, with whom Christine Dennis D.C., Washington, was on the ap- brief for pellants. ROBINSON, III, for W. Cir- Gorman, Corp. Counsel SPOTTSWOOD Asst. N.

Leo D.C., Judge: Columbia, cuit Washington, Corp. Coun- Murphy, C. Francis whom with litigation of this gravamen Corp. Robbins, Asst. Principal sel, P. Louis Lea, Jr., Officer David claim Barton, Asst. Counsel, W. and Richard wilfully Police Metropolitan Department, D.C., Counsel, were Washington, Corp. maliciously aimed and several times brief, appellees. appellants2 a firearm1 at while discharged Asserting an an occupied automobile.

they TAMM, infringement thereby and Mac- secured ROBINSON Before Amendment,3 KINNON, Judges. Fifth filed an Circuit seeking District Court dam- action Officer Lea and the District of ages Statement. Per Curiam Jurisdiction of the court was Columbia.4 general under federal-question invoked Judge SPOTTS- by Circuit Opinion filed statute, 1331(a),5 28 U.S.C. § and the com- ROBINSON, III. W. WOOD $15,000 demanded each appellant plaint filed Circuit Concurring Opinion compensation for alleged injuries, largely Judge TAMM. emotional, shooting from the and another $15,000 punitive aas award. MacKIN- Judge by Circuit filed Opinion of Columbia The District moved to dis- NON, concurring specially. grounds action on the miss the that no federal question presented and that no PER CURIAM: exceeding $10,000 for judgment any appel- Judge Tamm, Judge Robinson and Judge justified.6 would be lant The District Court Judge opinions. separate file MacKinnon on both agreed granted counts and the mo- by in the result reached concurs Tamm The court held that “to legal tion. cer- opinion. Judge in his Robinson Judge is [appellant] ... no entitled tainty concurs in the result reached MacKinnon properly judgment could recover a to or opinion. judgment The Tamm in his Judge ,”7 $10,000. The of court excess reversed, and the case from appealed present case is a held “that the tort further for further the District Court remanded [appellants] for assault and action proceedings. allege or indicate circumstanc- failed raise their claims to a constitution- es which ordered. So costs, record, subsequently developed of interest and and arises to fil- exclusive as The 1. Constitution, laws, weapon complaint, treaties of the ing identifies the under the the of 1331(a) (1970). § revolver. 28 U.S.C. service United States.” the officer’s Payne, Larry Franklin are The 2. sought Only District of Columbia dismiss- the 6. Jones, Parney Martin. and Preston Jenkins process Initial service of on bases. al on these litigation this minors when first three were The re-served, quashed and he was Lea Officer was instituted. almost 18 months after the shoot- until but not complained ing of. Officer Lea then incident charges complaint the violations of also The 3. complaint ground to dismiss moved I In the view Amendments. and Sixth Fourth one-year statute of limita- the District’s take, present be- occasion to look is no there battery suits had run. See for assault tions appellants’ Amendment claims. yond Fifth 12-301(4) The District D.C.Code alleges complaint that at the time of The 4. motion, appar- not rule on latter did Court “acting police was a officer Lea Officer incident unnecessary ently it felt it to do so in because engaged employment his course of in the light of the entire case for lack its dismissal performance offi of his duties as jurisdiction. (r 6). infra. note 40 cer” (J.App.) Appendix 40. Joint juris- original courts shall have district “The wherein the actions matter of all civil diction $10,- controversy or value of the sum exceeds jurisdic- to confer I sufficient al dimension Court,”8 [appellants’] and “that on this tion leading precedent The on the compo- first immaterial, claims insub- general nent federal-question jurisdiction stantial, solely purpose for the and made parties is Bell v. Hood.15 agents There sued of this Court. invoking jurisdiction of the Federal Bureau of Investigation in ,”9 reasons, the court For these the District Court for the Southern District jurisdic- of California16 “for lack of on the theory dismissed the action that Fourth and Fifth Amendment tion,” appeal which was taken. after invaded.17 had been The District Court dis- quite thus summoned is Appellate review missed the suit for want of jurisdic- federal predicated dismissal was narrow. Since the Appeals and the Court tion for the Ninth jurisdic- federal-court an absence of upon affirmed.18 Circuit On review, further tion, question before the District single however, Supreme Court reversed. Be- jurisdiction was to be Court was whether controlling of its importance cause in the since rested sole- found.11 And bar, pause I to analyze case the Bell 1331(a), the answer to the ly on Section depth. in some decision depended upon ability ap- question began Court by rejecting argu- to survive each of the two pellants’ claims ment because the complaint charged a erected.12 tests which that section Did the trespass law, actionable under state it did Constitution, laws, “arise under action question: raise a federal the United States”?13 or treaties of Did the complaint Whether or not as draft- controversy exceed “the sum the matter in law ed states a common trespass action in $10,000”?14 In the or value of view that law, made actionable state it is clear satisfied, requirements were both of these the way it was drawn petition- reversal of the District join judg- Court’s recovery squarely seek ground ers on the and remand of ment of dismissal the case respondents violated the Fourth and proceedings. for further It charges Fifth Amendments. that the J.App. contemplation within its District of Colum- States, “agency” of the United bia is an J.App. 9. 40. employee” Officer Lea is an “officer or of the capacity.” “in United States sued his official J.App. 10. 40. Compare Columbia, v. District of Marshall - at---, 20, L.Ed. at 943-944. at at at 90 L.Ed. at Id. “Respondents’ does not show contention 943-945. petitioners’ cause is insubstantial or frivo- lous, complaint does in fact raise seri- and the alleged violations of the Constitution “[T]he fact, questions, law and which the both of ous but form rather here are not immaterial the only it can decide after has as- District Court say sought. the sole basis of relief Nor can we controversy. jurisdiction over the sumed alleged patently that the cause of action so grant federal courts can of law is whether justify, issue money recovery merit as to even under the without damages to have noted, for said been qualifications for the court’s dismissal violating of officers Ap- as a result federal jurisdiction. suffered of want of peals The Circuit Court ques- That correctly complaint Fourth and Fifth Amendments. the states stated that ‘the by cases, specifically any decided this strong allegations tion has never been and if the truth, plaintiffs’ legal rights the issue thus raised has sufficient Court. That foundation the jurisdiction ruthlessly of federal exercise merit to warrant have been violated.’ Petitioners’ adjudicating purposes it can be seen complaint of asserts that the Fourth and Fifth for rights guarantee this Court has sustained their to the cases where Amendments be free from unjustified imprison- jurisdiction of the district courts suits unauthorized and the brought from depriving for and from unreasonable searches and sei- to recover ment distinguished sharply protection the Amendments’ the Court from unreason- poses, presented deprivations for imme- question able searches and liberty of questions the merits process resolution from due without Thus, diate of law. unavoidably pretermitted determination petitioners of right to recover under litigation: stages later will complaint be their sustained if the and laws therefore, of Jurisdiction,, is not defeated Constitution the United one contend, given are by to States respondents seem construction will and might they given averments fail defeated if that the be possibility another. peti- action on which reason a cause of For this Court has to state actually recover. For it jurisdiction.26 tioners could the failure to state a well settled that The instant case essentially is not proper judg- action calls for a cause of different from Bell. The core germi issues and not for merits a dismiss- ment on the by appellants’ complaint nated are whether jurisdiction. Whether al for want of by alleged attack impinged- Officer Lea cause complaint states a of action on by rights on secured Fifth Amendment granted is a ques- which relief could be and, so, if whether there is a federal reme just as issues of tion of law and fact it dy by which those transgressions can must be decided after and not before the vindicated awards of damages. Appel jurisdiction court has assumed over the invoke lants protection a- —as controversy. If the court does later exer- matter of Fifth liberty^ Amendment jurisdiction cise its determine that the against ruptures malicious of bodily complaint allegations in the do not state a officers;27 integrity mental they relief, ground for then dismissal of the insist also that a cause of action for redress merits, would be on the case for want springs of such invasions from the same jurisdiction.24 constitutional source. As was the situation then, Applying principles, these the Court Bell, “the right [appellants] to recover jurisdiction: there concluded complaint under their will be sustained if petitioners Whether the are entitled to the Constitution ... of the United depends upon interpretation recover an given one construction will States [is] 41(1)25and 28 U.S.C. given § determina- be defeated if another.”28 Un is] [it scope tion of the of the Fourth appellants’ and Fifth less action falls within one right vote in citizen of the violation of the 26. 327 S.Ct. at practice Compare established Lusby, Constitution. And it is L.Ed. at 994. James v. 352, 356, to sustain the U.S.App.D.C. Court federal 499 F.2d injunctions protect rights Latin, courts (1974); to issue Hartigh U.S.App.D.C. safeguarded by the Constitution to restrain denied, 485 F.2d 1068 cert. doing individual state officers what (1974). See also the State 14th Amendment forbids to do. Wilson, U.S.App.D.C. 242, 250- Gomez v. Moreover, federally protected where (1973); 477 F.2d Sullivan 'invaded, has been the have been rule from Murphy, beginning adjust will be that courts alert to denied, 414 U.S. cert. grant necessary their remedies so as to L.Ed.2d 125 well settled that relief. And it is also where invaded, legal rights have been a federal 1331(a) (1970) suits 28 U.S.C. extends to general right provides statute for a sue for against District of Columbia officials invasion, courts such federal use capacity.” “acting purely Apton local in a remedy good wrong available to make Wilson, 776-777, 683-684, 66 at done.” Id. at S.Ct. (1974). cases also cited infra note 77. See omitted). (footnotes L.Ed. at 944 26; supra at note 28. See text Wheeldin Id. at at 90 L.Ed. at 24. Wheeler, 373 U.S. (citations omitted). (1963). L.Ed.2d 1331(a) The forerunner of 28 U.S.C. § 25. (1970). Act of Mar. ch. fl 36 Stat. 1091. Bell, the bility of mechanism for local delineated remediation exceptions two of Section component ipso not facto foreclose the

federal-question possibility does present. action, concurrent 1331(a) of a federal cause of and party brings “the who a suit is that master that Court believed what law he rely upon. to decide will claims fell Amendment Fifth appellants’ » 33 exception as constitution first Bell’s within to be “clearly appearing] The District Court also supplications ap- denominated al purpose solely made for and position constitutional “insubstan- pellants! immaterial obtaining jurisdiction.”29 Since tial,”34 categorization ostensibly within that conclusion is unac reciting judgment exception second litigation Bell’s for “whol- explanatory opinion or by an companied insubstantial and I ly Again frivolous.”35 memorandum, why to I am unable discern disagreement. myself Bell, find As in of Columbia so. The District felt the court of law is whether issue federal courts “[t]he ease the simple is a tort that this argues money recovery grant for damages can said exclusively on which will turn outcome suffered as the been result to of [a] it is “in and that principles, law common violating federal officer[ ] might prevail conceivable It Fifth seems to me ].”36 Amendment on claims and lose constitutional on their no less here than there “the thus is.sue By claims.”30 this law tort common their sufficient merit to warrant exer- has raised the constitutional is said approach, it jurisdiction federal cise of purposes ”37 immaterial complaint appellants’ cast it. . adjudicating imparted only in an and was action Moreover, since Bell was decided into the District Court. get endeavor significant have been developments there It unimpressive. argument this find jurisdiction more indicative of all where the claimant that, in situations Hagans vine,38 Supreme La case. claim and a constitutional on prevail could elaborated the meaning Court of “insub common law coun concurrent lose on a yet frivolous,” stantial the characteristic suggestion is more the District’s terpart, will remove a claim from the ambit which certainly But it does not easily dismissed.31 jurisdiction: of federal-court fact that constitu the mere follow —from power courts are without federal an action theories of [T]he and local-law tional otherwise claims within their entertain ad together perish coexist must —that they if are “so attenuated claim is of the constitutional vancement as to be absolutely de- unsubstantial jurisdiction. garner federal an effort just merit,” “wholly . . . insub- that, void of to the assuming respect with Even ; stantial,” “obviously . . . frivo- pro local law shooting, federal and alleged ; unsubstantial,” lous,” “plainly and redress identical same interests tect open ; longer to discus- the availa- “no clear that Bell makes injuries,32 (1971); Latin, Hartigh v. supra note 21. L.Ed.2d at See text 29. supra note 77 infra. appellees at 6. See note Brief 30. F.2d at 1072. See, Washington g., Techni- e. Cardinale supra at note 20. 33. See text Inst., cal (1974). 791, 795-796 F.2d note 34. See text decision, Though to the not essential supra at note 21. 35. See text respectively appear the interests would law protected federal supra. note 23 36. See congruent, law are assault local acting under color injuries officers inflicted supra. note 23 37. See kind from significantly different law are private persons. resulting acts of those L.Ed.2d 577 Agents, Named Unknown Bivens v. Six 818 question may “The be The . . . claims which

sion assert do not unsubstantial, either because it is plainly me to fall appear to within this definition merit’ or ‘obviously without because ‘its insubstantiality. The constitutional in- clearly results from so unsoundness put they terest forth is freedom from un- of this court as to fore- previous decisions justified governmentally-inflicted bodily subject and leave no room for close the harm and from apprehension thereof, question sought the inference that hardly completely which is devoid of consti- subject can be the of controver- be raised tutional appeal.40 sy.’ . . . is recalled that And when once the insubstantiality” “Constitutional right established, is only concepts with such equated been has remaining question is “whether compensa fictitious,” ; “essentially . “whol- ‘necessary’ tory relief or ‘appropriate’ insubstantial,” ; . ly . . “obviously vindication,”41 thereupon ; frivolous,” two later [its] . . . and Su “obviously preme Court decisions merit,” come . . . . The limiting without to the fore. have co- Bivens v. Six Unknown “wholly” “obviously” words and Agents,42 Named gent legal significance.39 Court, addressing question left open Lavine, 38, Hagans supra, Rhodes, v. note 415 U.S. at v. 416 U.S. Scheuer 94 S.Ct. 536-537, 1378-1379, 90, 94 S.Ct. 39 L.Ed.2d at (1974); 40 L.Ed.2d 96 Oneida (citations omitted). 581-588 County Oneida, Indian Nation v. 661, 666-667, 414 U.S. 772, 776-777, 94 S.Ct. 39 L.Ed.2d States, Compare, g., Logan e. v. United 73, (1974); Carr, 186, 78-79 Baker v. 369 U.S. 263, 282-283, 617, 622-623, 691, 700-701, 663, 429, Averett, (1892); 435-436 Jenkins L.Ed. (1962). Even a “[f]ailure to state a claim 1228, (4th 1970); F.2d Cir. York v. deprive jurisdic does not the District Court of 450, Story, (9th 1963), 324 F.2d 455-456 Cir. 1331(a)” tion under 28 U.S.C. § since that also 939, denied, cert. 376 U.S. S.Ct. affecting only Apton is a matter the merits. (1964), and L.Ed.2d 659 cases cited therein at Wilson, supra note at 35 n.12. n.16, n.16; Conley Gibson, 506 F.2d at 96 cf. indispensable prerequisite An to the District 41, 45-46, 99, 101-102, 355 U.S. 1331(a) Court’s under 28 U.S.C. § (1957). L.Ed2d 84-85 (1970) was a nonfrivolous assertion that Officer course, appellants’ ability prove Of their governmental Lea acted under color of authori- allegation that Officer Lea acted under color of ty g., at the time of the incident in suit. E. authority police might his as a officer Collegiate Howard Univ. v. National Athletic summary judg been tested on a motion for Ass’n, 260, 263-264, 510 F.2d ment, but Fed.R.Civ.P. that was not the upon 216-217 Were it incumbent dismissal, sought District’s effort. Its motion requirement of this us to assess satisfaction on strictly grounds and other than Officer record, Lea’s agree of the entire I the basis would occurred, capacity shooting when the (separate opinion I) Judge pt. with by Tamm ruling equally District Court’s was limited. appellants’ the Bell standard action was not Moreover, supra think, however, text at notes 6-10. scope without a that the dismissible. challenge specifically inquiry proper directed to the in the instant existence case much more point, of evidence on that no restricted. one can be sure Appellants’ complaint alleged “[djuring the record reflects all that could be brought upon Compare all times . Lea . . to bear it. [Officer] Local duly appointed qualified police Bonatz, officer of Amer. Fed’n of Musicians v. 475 F.2d Metropolitan Department, agent (3d 1973); Police Georgia 437-438 Cir. A. & F. Municipal Corporation Ry. R.R., of the v. Atlantic Coast Line Columbia, acting Cir.), denied, District of the course (5th 497-498 cert. 389 U.S. employment engaged perform- of his in the (1967); 19 L.Ed.2d 120 Cohen v. ance of his duties as a officer.” Com- Cahill, (9th 1960); F.2d Cir. plaint allegation quite obviously 6. That Cooper Penitentiary, fl v. United States charges governmental action the constitu- (10th 1970). Cir. sense, parte Virginia, Ex tional Agents, 41. Bivens v. Six Unknown Named su- 25 L.Ed. and its factu- pra note 403 U.S. at 91 S.Ct. at accuracy al is not before us at this time. Juris- (concurring opinion). at 632 L.Ed.2d 1331(a) depends upon degree diction under sufficiency plaintiff’s of substantive Supra note 32. upon probability claim and not of success 24; text on the merits. See note

819 Bell,43 stage litigation of action for our mission at this of the a cause inferred Amend upon a Fourth consequent damages whether similar outcome should decide process, In the the Court violation.44 ment in this case.51 follow The court exhausts its utilized a standard factors considered function when it concludes that present treatment of for similar guidance yielding has Court make that District jmusdictioruto of rights.45 In District constitutional other upon reaching the merits.52 determination Carter,46 Court, v. holding Columbia conclude, then, the interests at remedy statutory available a federal litigation in this are not “so insub- stake inapplicable a state47 against stantial, implausible, prior foreclosed de- Columbia, point was careful District of Court, Supreme] of or otherwise cisions [the not mean that for result did out devoid of completely merit as not to involve of—arrest and as complained incident controversy the,jurisdiction within a federal possible claim officer —“a sault Court, whatever be the alleged deprivation of against [the officer] of resolution the federal ultimate issues litigable is not constitutional of merits.”53 It follows that the District of the District.”48 To courts federal .jurisdiction possessed appellants’ over Court add decisions from other I would these damages if they for satisfied also action causes action recognizing federal courts 1331(a)’s requirement respecting Section provisions violation Amendment,49 amount in controversy,54 Fourth in and to that than the other I now question the Fifth.50 It is not turn. cluding prominently Hood, 15, supra (1972) (Fourth Amendments); note 327 U.S. at and Fifth v. 749 43. Bell 777, Shultz, 1146, 684-685, 90 L.Ed. at 944. at Lines v. 498 F.2d 66 S.Ct. Marine States 1974) (Fifth Amendment); (4th Cir. 1156-1157 Agents, Named su- v. Six Unknown Bivens 44. Laird, 1133, F.Supp. 391 1138-1139 Revis v. (E.D.Cal.1975) 390-397, 32, pra U.S. at 91 S.Ct. at note 403 (First Amendments); and Fifth 2001-2005, at 623-627. 29 L.Ed.2d States, 1035, F.Supp. United 365 Butler v. (D.Haw.1973) (First Amendment); 1039-1040 2004-2005, 395-397, at 91 S.Ct. 29 Id. at 45. Carlson, 737, F.Supp. v. 392 739-740 Patmore 626-627. L.Ed.2d at (Fifth Amendments). (E.D.Ill.1975) Eighth (6th Perrigan, Jones v. 459 F.2d 81 Cir. See also Supra note 12. 46. 1972) (false imprisonment prose and malicious cution). has court declared that "Bivens One 1983 See 42 U.S.C. 47. recognizes of action for a cause Carter, supra constitutionally protected of Columbia v. note 48. District in violation 433, 610, 12, 1389, at 34 L.Ed.2d Murphy, F.Supp. at 93 S.Ct. 409 U.S. v. 377 terest.” Gardels (N.D.Ill.1975). at 625. 1398 have refused to extend While a few courts supra. 49 50. See note Amendment, beyond the Fourth see Ar Bivens 384, Callaway, F.Supp. 385 388 v. chuleta Hood, 15, 682, supra Bell v. note 327 U.S. at (D.Colo.1974); Schiesinger, Moore v. 384 943, 776, quoted L.Ed. at in text at 90 66 S.Ct. 163, (D.Colo.1974); F.Supp. Davidson v. 165 24; Dep’t supra Lewis v. D. at note C. 922, (E.D.Va.1972); Kane, F.Supp. 924 see 337 49, Corrections, U.S.App.D.C. supra 174 note Broadcasting Sys., v. Smothers Columbia also Inc., 711; Wilson, 484, Apton supra v. F.2d at at 533 622, (C.D.Cal. F.Supp. 625-626 & n.4 35, 96; U.S.App.D.C. at 506 F.2d at note 1972), willingness has indicated a this court Inst., supra Washington Technical v. Cardinale application. Lewis v. D. C. a broader consider n.5, U.S.App.D.C. at 128 500 F.2d note Corrections, U.S.App.D.C. Dep’t n.5. at 796 Wilson, (1976); Apton v. F.2d supra at note supra notes cases cited 52. See 95-96; Washington Tech at Cardinale F.2d Inst., supra at note nical Lavine, supra Hagans 415 U.S. at note n.5, at 796 n.5. Other courts quoting L.Ed.2d at at variety expansively to a of con applied Bivens Oneida, County of su- Nation v. Indian Oneida provisions. ex rel. United States stitutional pra at U.S. at note Koelzer, (3d Cir. Moore 78-79. Reid, 39 L.Ed.2d Amendment); 1972) (Fifth Bethea v. 1971), (3d Cir. cert. de F.2d nied, notes 11-14. text 54. See

II plaint the amount in controversy sur passes statutory figure suffices58 unless to invocation precondition The second disputed by his opponent the court 1331(a) jurisdictional as a predicate Section sua sponte.59 And even in the event of a controversy matter in is that “the exceed[ ] challenge, must appear legal to a “[i]t cer $10,000, value of exclusive the sum or tainty that the claim really for less than complaint, their interest and costs.”55 In jurisdictional justify amount to dismissal.” appellants sought $15,000 each of the four 6 damages and a compensatory in like punitive damages. in amount To the Dis- Appellants’ complaint alleges, in es Court, appealed] trict . . . to a “[i]t sence, that Officer Lea pointed and several certainty [appellant] that no legal times fired revolver at them. only Not do properly to or could entitled recover a [was] they say they that were then conducting $10,000.”56 me, in excess of judgment To peaceful in a themselves and lawful manner however, that assessment is not nearly so they specifically but charge that the officer clear. wilfully and acted maliciously. They say, too, that principles

The basic officer’s governing conduct was deliber ately of amount calculated to controversy place determination them in apprehen being shot, settled. On that score sion of well rule gov and that resultantly they “[t]he erning dismissal for want of experienced severe mental anguish. brought that, sum, in the federal they cases court seek damages for an allegedly gives rule, the law unless a different unprovoked unjustified assault with a plaintiff claimed sum controls deadly weapon by if officer intent on apparently good claim is made in faith.”57 injuring them or at least putting them in allegation plaintiffs Thus an in the com of death or fear serious bodily harm.61 It supra. 55. note effect, L.Ed. at 848-849. See to the same Latin, Hartigh supra 26, U.S.App. note J.App. 293, 1071; at D.C. 485 F.2d at Gomez v. Wil 26, son, supra 251, note at Mercury Co., 57. St. Paul Indem. Co. v. Red Cab supra 477 F.2d at 420. See also cases cited 283, 288, 586, 590, 303 U.S. 845, 82 L.Ed. notes 58-59. (1938) (footnotes omitted). See also cases cited infra notes 58-59. prior 61. Several months judgment to the Buck, 66, 72, 725, dismissal, Gibbs U.S. inaugurated S.Ct. District of Columbia 1111, (1939); 83 L.Ed. St. discovery proceedings, Paul Mer- during the course of cury Co., supra Indem. Co. v. Red Cab note interrogatories appel- which were addressed to 303 U.S. at 848; 58 S.Ct. at 82 L.Ed. at deposed. Appellants’ lants and each an- Smith, 632, 642, Smithers v. 204 U.S. interrogatories swers to were on file before 51 L.Ed. judgment was entered but the District Court’s docket indicates that depositions the transcribed KVOS, Press, Inc. v. Associated 299 U.S. days did not arrive until two later. 269, 277-278, 197, 200-201, 81 L.Ed. appellants’ responses searching inquir- From to (1936); 187-188 McNutt v. General Mo ies, this court obtained a detailed account of Corp., Acceptance tors 298 U.S. they complain. the incident of which 780, 782-783, 80 L.Ed. S.Ct. (1936). Appellants car, were seated in their two in Mercury See also St. Paul Indem. Co rear, front and the engaging other two in the Co., supra note v. Red Cab 303 U.S. at double-parked conversation. The car was next Upon 58 challenge, at L.Ed. at 848. such a they ap- Officer Lea’s car. When saw him plaintiff’s it is the burden to show proaching, up their car was backed to allow appear legal certainty it does not to a that him to enter his car. The officer was dressed than the claim is for less they in civilian clothes and did not know he Buck, supra amount. Gibbs v. note policeman. got was a car, Officer Lea out of his 1115; at 59 S.Ct. at 83 L.Ed. at appellants’ gun walked back to car with a Acceptance Corp., Motors McNutt v. General supra, hand, approaching passenger in his on the side. at 298 U.S. S.Ct. at 80 L.Ed. driver, Martin, gun Preston did not see the at 1141. first, Larry Pamey Jenkins, but Jones and Mercury Co., side, passenger 60. St. Paul Indem. Co. v. Red spotted Cab seated on the it imme- diately. note 58 S.Ct. at everyone Lea get Officer ordered events, posture these if leaves gainsaid me with the hardly be conviction can appellants each of the possibly could. jury, satisfaction of a would to the proven goes It saying for sizeable without that for verdicts likely produce injury any financial loss physical That a viable defense favor. in their therewith, compensatory dam associated proffered does may lawsuit appellants’ equally be awarded. It is clear ages of amount in contro- question affect an armed attack creating substan versy.62 personal apprehension harm —the tial anciently reaction redressable emotional are not realize compensatory dam an action assault65 — their claims in order aggregate permitted similarly awardable.66 And since are ages amount.63 up jurisdictional the make to ultimately found that be constitu may it to the subscribe I cannot But infringed,67 were compensation tional that no unelucidated conclusion64 Court’s must likewise be counted toward therefor meet any chance whatever of has appellant amount.68 In addition to regard. mandate in this statutory ing aggravated nature of components, these appraisal portends of the situa an allowance of contrary, my alleged attack theOn damages,69 may properly in- which present punitive in its by the record portrayed tion car, threatening involving cognate jur to blow off their memorandum. out of cases they obey. rulings, if did isdictional-amount we have heads indicated shouting occupants desirability Hearing explanation at the the officer as an aid to trying get realizing Co., was that he into and car, See Davis v. Peerless Ins. review. 103 “immediately' escape 125, n.6, U.S.App.D.C. 534, drove off to Martin 127-128 & 255 F.2d appeared trying (1958). to be a crazed man from what n.6 See also Block v. 535-536 & Dis occupants Columbia, 380, 384, of the vehicle which he U.S.App.D.C. harm the 160 trict of driving.” Interrogatory 646, 49. (1974). Answer to No. was F.2d 650 492 car; fired several shots into the Lea Officer appellants number, of the exact but are unsure Prosser, 37, (3d 65. See W. Torts 10 at 38 ed. approximately was six. One bullet it believe 1964); (Second) Restatement of Torts §§ 21-29 window, knocking right passenger it struck out; (1965). penetrated speedometer bullet another through went the back win- and still another Tours, g., Inc., E. Bullock v. Tamiami 66. Trail appellants’ vehicle had a one in dow. No 326, (5th 1959) (applying F.2d 332 Cir. 266 by police weapon; showed that a test ordered Mashburn, law); F.Supp. Tollett v. Florida 183 weapon. appellants had fired a of the none 120, aff’d, (W.D.Ark.1960), (8th 291 126 1961) F.2d 89 immediately Appellants the scene to find left law). (applying Arkansas And “in Cir. nearby parking policeman lot found and at a a assessing damages . actual [is] Larry them of the incident. and informed two any injury proper to take into account suffered policemen by one of the to a was taken Jones hospital mind, body and to or consider the humilia for cuts he sustained for treatment outrage may to which tion and [the victim] flying glass. The other three subjected, might been to the end that have [he] parking at the car at the lot for remained fairly compensated under all the be circum minutes, they twenty and then went to a about Washington case.” stances of the Axman v. police station. Co., 150, App.D.C. Gaslight (1912). 38 160 Co., Mercury Indem. Co. v. Red Cab St. Paul 57, 298, 590, supra at at note 303 U.S. 58 S.Ct. 40, supra 67. See text at notes Smith, 848; supra v. note at Smithers 82 L.Ed. 642, 299, 58, 27 at 51 L.Ed. at 204 U.S. at S.Ct. Latin, 26, Hartigh supra 68. See note 158 Moline, 660; Milburn & Standard Schunk v. 293, 1072; U.S.App.D.C. at 485 F.2d at Wolff v. 500, 505, 416, 417, Co., 147 U.S. Local Bd. No. Selective Serv. 372 F.2d (1893). L.Ed. 1967). (2d supra. See also note Cir. Co., Paper 414 U.S. Zahn v. International See, Chesapeake g., e. & Potomac Tel. v.Co. 505, 508-509, L.Ed.2d 206, 209, Clay, Harris, (1973); Snyder v. 394 U.S. (1952). Punitive need 891 any not bear 1053, 1056, necessary relationship compensatory Pinel, 594, 596, (1969); Pinel v. 240 U.S. Publishing damages. Afro-American Co. v. 416, 417, (1916). 60 L.Ed. Jaffe, F.2d Petrie, judgment (1966); is of dismissal Wardman-Justice Motors The District Court’s explanatory opinion App.D.C. unaccompanied an costs,70 difficulty. ter some judicial fees other But the counsel func- elude tion beckoned here is not presently tied to a possibly element of recov- another thus still unattainable degree of mathematical exact- appel- damages emerges.71 That an erable While, course, itude. the valuation must $10,- less than actually realize might lant speculative,73 than more it suffices that all, at does not affect nothing or indeed there is some probability subject question.72 suit of the is worth matter least sure, any to set a mone- endeavor To be minimum,74 statutory and there guide- intangibles apt to encoun- value on tary pointing to that posts possibility here.75 At principles Since these was sore for several A.L.R. 648 months after the incident Lea, pause because, believed, intercept piece glass I need not to con- Officer he small was they lodged extend to the District of whether sider therein. Jones also states that for three party Officer Lea remains shooting episode Columbia also. after the four months he case, supra, note 6 and as we hold this today, see felt humiliated condition of his face. juris- the District. With federal so does expense emergen- $24 Jones’ medical them the District Court would diction over cy plus unspecified room treatment some purposes pendent prescription. only amount monetary for a other respondeat supe- application doctrine of outlay by any ap- thus far identified Lavine, Hagans note rior. $50, pellant paid legal which each “for serv- 587; 39 L.Ed.2d at 94 S.Ct. at in connection with this incident.” ices Answer Operating Terminal v. International Romero Interrogatory No. 22. It seems that aside 380-381, 468, Co., 354, 79 S.Ct. 484- 358 U.S. treatment, emergency from Jones’ there has 368, 485, (1959); Hartigh v. 386-387 been little effort to benefit from medical atten- 293, Latin, 26, U.S.App.D.C. supra note 158 at tion. note 77 485 F.2d at 1072. See also infra. respects relatively In other than this small however, special damages, appel- amount of Jaffe, Publishing Afro-American Co. v. su- 70. prospects for lants’ substantial recoveries are 83, 69, pra U.S.App.D.C. note 125 at brighter. Their much ord, statements the rec- at 652. by jury, a if believed would leave no doubt shooting placed Soc'y, abject that them in Bell v. Preferred Life Assurance 320 terror 5, 15, 6, injury, of imminent death or 88 L.Ed. 18 and that the ef- U.S. (1943); 64 S.Ct. 26, considerably Lusby, supra momentary. note 162 fects were more than James v. 357, 493; Martin, car, U.S.App.D.C. Hartigh operator at 499 F.2d at Preston was “fear- 26, Latin, supra U.S.App.D.C. passengers,” note 158 at ful for life and the life of his v. his “immediately escape 485 F.2d at 1071-1072. and drove off to what appeared to be a crazed man.” Answer to Interrogatory No. 49. He himself “was scared 397, n.6, Wyman, 397 U.S. 405 90 72. Rosado v. 442, 1207, n.6, 25 L.Ed.2d 451 n.6 S.Ct. (1970); 1214 scared, it, Deposi- I I was was scared.” Mercury St. Paul Indem. Co. v. Red Larry tion at Jones also was “scared for a 57, 289, Co., supra 303 U.S. at note Cab while,” Deposition 39; good little at Franklin 590, at 82 L.Ed. at 848-849. Payne said that “it scared me. ... It lot,” 48; Deposition scared me a whole at and Latin, 26, Hartigh supra v. note Parney point Jenkins “was so scared to a U.S.App.D.C. at 485 F.2d at 1072. Deposi- where I had a nervous breakdown.” samples tion at 43. are but These of the testi- Flowers, Aetna & Sur. Co. v. Cas. mony generally Jury-Ver- on that score. See 91 L.Ed. 67 S.Ct. Research, Inc., Injury dict 2A Personal Valua- Wilson, supra (1947); note Gomez Handbooks, Rep’t No. tion at 1064-1066 n.51, n.51; U.S.App.D.C. at 251 477 F.2d at 420 (1970). Int’l, v. Machinists Friedman Moreover, alleged should Officer Lea’s tort denied, cert. magnitude, later be accorded constitutional see U.S. L.Ed. supra, placed Part I the value on the high. Compare could well be only appellant injured physically by violated Sullivan 75. The Murphy, supra Jones, Larry note shooting was who received cuts— n.34, n.34; my F.2d at 960-961 Walker all over of cuts ... “a multitude McCune, F.Supp. face,” (E.D.Va.1973). flying glass Deposition at 10-11—from forget, punitive we of the car was a And lest loom when the windshield struck represent- deposition large that in circumstances such as those In his Jones stated he bullet. eyes supra accompa- applied for about two ed here. See notes 68-71 and medication his weeks, year preceding nying his text. and that for eye pain Lusby, experienced deposition occasional In James v. note this court holding blurry testified that his nose also a that the amount vision. Jones sustained in contro- bottom, say legal certainty I cannot “to sufficient doubt remains as to the capacity really for [appellants’] acting in which Lea was to preclude claim[s] [are] dis- jurisdiction. amount.”76 lack of than the missal for less then, conclude, preconditions that both I 1381(a) are satisfied by section specified case in Every the pleadings .which District Court consequently the under allege a claim federal law does not litigation.77 of this jurisdiction has automatically come within 1331(a) section TAMM, Judge, concurring: though even jurisdiction, Circuit the amount requirement controversy has been satisfied. I concur the result reached Hood, In Bell v. in this case but wish to elucidate the court L.Ed. 939 Supreme Court reasoning that leads me to do so. expressly stated that a suit may sometimes view, appellants’ it is essential suc my for want dismissed federal question general ques invocation federal cessful jurisdiction jurisdiction, 1331(a) (1970), tion U.S.C. § alleged where the claim under the Consti- they make out a nonfrivolous claim federal tution statutes clearly appears acting was color his au Lea under solely made to be immaterial for the a “federal” officer at the thority as purpose obtaining jurisdiction incident.1 If the district court of this time where such a claim is wholly insubstantial pleadings concluded from the could have and frivolous. properly Lea evidence before it Id. acting governmental as a clearly 66 S.Ct. at 776. The standard readily affirm I could its dismissal of want of agent, “substantiality” stringent is a one, either satisfy action for failure and “if there is foundation of arising” controversy or amount re to the claim plausibility “case federal thorough Wright, After a review of 13 C. A. quirements. exists.” Miller & E. Coo- however, appeal, 3564, I find that Federal Practice per, the record and Procedure § $10,000. 27, 35, versy U.S.App.D.C. 96, I not exceed The claimant at 506 did 165 F.2d at do with involved in a verbal altercation a not reach it here. had been officer, arrested, following police was which he handcuffed, briefly incarcerated and later con- 1. Police officers of the District of Columbia are disorderly upon States, conduct a forfeiture employees victed of the United considered record, purposes. On the we concluded that of collateral. certain at least for See Bradshaw v. States, 344, U.S.App.D.C. own contribution to the affair the claimant’s 143 United 443 F.2d punitive damages; 759, (1971). may that the claimant foreclosed 766 Actions nevertheless be mitigate impact 1331(a) against brought of the events § had failed to under District of Co officials, of; though they although acting complained even that he averred welts lumbia capacity. Apton Wilson, purely handcuffing, a U.S.App.D.C. local v. 165 from the he admitted- on his wrist ly 22, 83, (1974); attention; and, quite 506 F.2d 96 Sulli seek medical did not 28, Murphy, U.S.App.D.C. v. 156 mentally van 478 F.2d importantly, that he denied he was denied, 938, 960, (1973); 414 U.S. cert. 880 see by U.S.App.D.C. incident. 169 distressed Carter, 418, v. District of Columbia 409 U.S. 357, The us F.2d at 493. record before 499 432-33, (1973). 34 L.Ed.2d 613 93 S.Ct. magnitudinous deficien- does not indicate the Columbia, itself, District of Whether or not the there. cies uncovered employ for the tortious acts of can be sued its supra at note 60. 76. See text remedy implied directly ees where is an issue which has the Constitution not been question has not raised 77. The District court, by although it has been decided liability 42 its exclusion from under whether supra, Apton, U.S.App.D.C. 165 raised. (1970), District of Columbia v. § U.S.C. 1983 Wilson, at 96. See also Shifrin v. 412 506 F.2d F.Supp. case, Carter, impairs supra note resort (D.D.C.1976). 1305-06 1331(a) jurisdiction against it. Mt. Cf. § Healthy issue addresses the merits and not Doyle, Bd. of 429 School Dist. Educ. jurisdiction scope conferred on the 276-279, 568, 570-572, by 1331(a). Hood, 50 U.S. court Bell v. 327 district (1977). “ques- (1946); 477-479 As that L.Ed.2d S.Ct. 90 L.Ed. 839 U.S. 66 Corrections, goes Department not to the District Court’s tion Lewis v. D.C. 174 merits,” Wilson, Apton (1976). note but to see Ha- well (1976) Wright]; case disclose that a at 428 defendant [hereinafter Lavine, 415 gans v. U.S. acting was not a clearly governmental (1974); 1372, L.Ed.2d 577 Montana S.Ct. in which case a agent, district court must County, v. Missoula Missions Catholic conclude the constitutional claim was L.Ed. 398 U.S. solely for “made the purpose of obtaining (1906). jurisdiction” must dismiss the action any plausible for lack nexus between the by The constitutional claim raised right and its by violation certainly this case cannot government. plaintiff Otherwise a could “wholly insubstantial frivo labelled a assert “substantial” merely but Hood, factually lous”, clearly supra, Bell v. held since federal claim as to adjudi- baseless so seek money grant can dam that a federal court of a cation related state law claim ages by the violation a federal under a to redress pendent court’s jurisdiction, fifth amendment federal person’s officer of a even the federal though claim was rights. 327 U.S. S.Ct. dismissed on However, allegation plaintiff ALI, Study the mere a the merits. See of the Division govern was acting a as a defendant Jurisdiction Between State and Federal ipso not suffice facto agent (1969). mental should Courts exceptions the other delimited to avoid opinion court’s refers throughout to has very This court made it clear that Bell. “Officer Lea as Lea” “police or as the offi- attach, jurisdiction to is nec for federal “it cer”, apparently assuming straightway that exer essary to show that Government acting in he was his capacity as a of control cises some form over the actions throughout officer question. incident in private party.” Spark v. Catholic of [a] though the permits Even only record a America, University reconstruction sketchy of the factual back- require This ground, contains considerable evidence to may pose ment substantial hurdle for a was, fact, indicate Lea not acting in plaintiff distinctly where the defendant is capacity. undisputed2 his official It is private entity, private university, such as a time of shooting at the Lea had been See, hospital e.g., or restaurant. Moose duty for at forty-five off least minutes,3 Irvis, Lodge No. 107 car,4 driving his own was dressed in (1972); L.Ed.2d Wahba v. mufti,5 and was simply attempting to inves- University, (2d Cir.), York New F.2d 96 possible tigate theft of certain items denied, cert. Appellants car.6 from his apparently never (1974). Though L.Ed.2d 113 the status realized that he police even was a officer policeman may off-duty an be a somewhat until sometime after had they reported the case, easier I see no reason awhy court incident.7 automatically require should hold that the more, governmental ment of is involvement met Without have to would conclude simply because a defendant is employed by governmental there was no that involve- government. The any given the record in that, ment in incident therefore, and Record, 2. But Interrogatories Plaintiffs; cf. Document No. at 1-4. 33 to Answer of Record, Depo- Document at 5. No. Jenkins 23; Deposition 28; Interrogatories sition Martin 3. Answers 3 7 to of and the Jones 25-26, 46; Deposition Payne Investigations, Corpora- Deposition Chief of Office of the 23-24. Counsel, Columbia; Record, tion District of Payne Deposi- Document No. at 1-2. Cf. Supplementary Statement taken from Officer 20, 1972; Record, tion 17-18. Lea on Dec. Document No. 25, at 2. Interrogatories 4. Answers and 49 to of Plaintiffs; Record, Document No. at 5. Un- Deposition 25-27, 35; 7. Jenkins signed of Plaintiffs on Statements taken Dec. Deposition 32; Deposition 54; Martin Jones 16, 1972, by Metropolitan Depart- Police Payne Deposition Depo- 38. Cf. Martin (Fourth District); Record, ment Document No. 26; Deposition Jones 27-30. sition Deposition Payne at 1-4. 24-25. justified.” Record, could tioned Document constitutional appellants’ as a by (emphasis Lea’s actions added). violated been No. govern- have The except on thirteenth individual only Lea private “discharged answered that ment If were the grounds.8 such amendment his service revolver to defend himself from claim would case, constitutional appellants’ Record, harm. Document No. juris- subject to implausible clearly be reply 2. This makes no attempt to more, how- There dismissal. dictional Lea deny acting that was agent as an of the a service were fired from The bullets ever. might District Columbia and even be the real difference What makes revolver.9 pregnant as with an read admission that he is the that the my opinion, fact though, in Finally, the record also four was. contains no indication whatsoever contains record unsigned “Statements” of the appel- several denied, of Columbia ever that police, all prepared of which lants Lea’s indirectly, specifically either with dubious replete to “admissions” to his official duties. were related actions that Lea unmistakenly effect wear- was in- Complaint, of the Paragraph six uniform, ing badge his showed his and oth- stance, alleges that Lea was a expressly police identified himself as a erwise officer officer qualified police “duly appointed Record, the shooting. to prior Document Police Department Metropolitan 25, at In "view of No. these rather 1^4. acting in course of his . and vague indications that Lea have been course of engaged employment governmental acting agent as a and mind- Record, officer.”10 duties his ful that dismissals are not fa- 1, at 2. No. The District Document vored, agree I cannot with the district court however, Answer, deny fails Columbia’s appellants allege “have failed acting under color of his offi- Lea which indicate circumstances raise their merely authority. It comments cial claim to constitutional dimension suffi- allegation was a “conclusio[n] to confer cient J.A. 40. [it].” Record, requiring no answer.” pleader vein, 3, at 2. In the No. same Document II Interrogatory Eight directed to the District though claims of Even these constitution- government that the requested Columbia the exceptions al tort survive forth in set facts particularity with “[sjtate [sic] Hood, supra, Bell can still not your rely upon support intend to you general question jurisdiction federal actions taken the Dis- invoke allegation that all $10,000 they also agents regard satisfy or its with of Columbia unless amount trict proper, legally controversy sanc- requirement Plaintiffs were to the section decidedly impart v. Six I am case not a Bivens disinclined to much This constitution Agents of Bureau of Named Federal al relevance this fact alone. Unknown Members of the Narcotics, Department Metropolitan carry Police must Pape, duty or a Monroe v. revolvers whether on their service or off. L.Ed.2d Govt., (1961) Metropolitan Dept. Police 5 L.Ed.2d 492 Manual D.C. 2.3:1, type situation where nexus between at 10 circumstances sur revolver, rounding its under interest and violation the use of a service rather use, governmental authority is clear. mere of its than the fact constitution color Belcher, agents Stengel Narcot- the Federal Bureau of of al relevance. Bivens family dismissed, (6th 1975), petitioner in his cert. manacled front of 441 Cir. 429 ics and, searching apartment, (1976). L.Ed.2d the took him to after U.S. reasonably interrogated Surely he where was one could not courthouse maintain that a federal off-duty police subjected strip whose a visual search. officer revolver acci an and dentally discharged 13 Chi- and hurt someone was act 1999. Monroe U.S. at 91 S.Ct. ing governmental authority. cago police into in the color of broke a home under officers occupants early morning, from bed drove the every allegation, moreover, to stand naked while repeated by forced them and This was ransacked, petitioner after which interrogatories. was appellants room in their answers to interrogated Plaintiffs; at the incommunicado Interrogatories was Answer 43 Rec- ord, station. at 7. Document No. 1331(a).11 appellants injury, Each of the four de- and none appears of them to have $15,000 $15,000 compensatory in mands any significant suffered emotional injury, damages. Appellants punitive may in not though alleges each anguish”. “mental up juris- claims to make aggregate their my reading depositions, From of the amount; appear it must dictional each physical injury appears minor, relatively require- of them satisfies the every one notwithstanding injured appellant’s tes- Co., Paper Zahn v. International ment. timony that it caused his vision to become 291, 294-95, U.S. impaired Record, occasionally. Document (1973). allegations of The the com- No. at 14-15. injuries The emotional are not conclusive on the plaint question of alleged do not very seem convincing, met, requisite amount has been whether though surely some degree of “mental an- but, been, finding in has not a court guish” accepted must be only natural legal must conclude “to a certainty that under the circumstances.13 really jurisdiction- claim is for less than the While I believe that the district court Paul Mercury Indemnity al amount.” St. would not have abused its Co., discretion 283, 289, v. Red Cab in Co. holding physical (1938), quoted L.Ed. 845 emotional in- Wilson, juries appellants Apton clearly satisfy did not (1974). F.2d jurisdictional amount requirement, question still remains puni- whether their problem valuation The in this case is damage tive claims alleged and the viola- Judge than opin- more difficult Robinson’s tion of their constitutional interests are suf- ion seems to intimate. There were only $24 carry ficient the matter in controversy special damages arising from the shoot- $10,000 across the threshold. compen- Both ing: emergency charge an room for treat- satory punitive ing appellants damage one superficial gen- for claims are flying glass.12 erally facial lacerations from to be Only considered in this determina- of the any physical tion, one sustained Bell v. Preferred Co., Life Assurance jurisdictional requirement 11. The amount Like Q. what? 1331(a) recently by Congress was § eliminated sitting police precinct A. I was in the and I brought against where the “action [is] the Unit- found— States, thereof, any agency any ed employee officer or right Five minutes Oh, Q. after. capacity.” thereof in his official Act complaints? A. what of Oct. Pub. L. No. Yes. Q. applicability Stat. 2721. of this revision to complaints A. All kinds of because . pending litigation need not be addressed in my ran lot of stuff across mind because I that, case, holding appel- view of our doing thing sitting. wasn’t but lants have met the amount re- you any pain, physical pain? Did feel Q. quirement. A. I don’t know I ... can’t remember. How about ten minutes after? Q. analogous procedural 12. In another case A. Yes, I don’t know. I still can’t posture appellant prayed $100,000 remember. where an pain sitting I felt a compensatory damages little because I alleged violation Yes, glass. rights, something. coincidentally some I felt of his constitutional but Twenty only bills, $24 of minutes later? Q. had sustained medical understatedly court remarked that view A. “[i]n don’t remember. Deposition very injuries, may these limited medical Despite improb- there Jenkins 54-55. question arise some ability evaluating credibility amount in contro printed from a Latin, versy.” Hartigh record, impres- I nevertheless have the distinct denied, cert. portions deposition sion of this same Marsh, Columbia v. testimony appellant’s as to his “mental an- 39 L.Ed.2d 564 guish” may exag- have involved considerable geration. See id. at 43-51. The same following deposition testimony 13. The of one of unfairly testimony. of much said of the other appellant’s typical of that of the other See, e.g., Deposition 30-32; Payne Dep- Martin three: 46-52; Deposition osition Jones 39-40. complaints you have, physical What did Q. mental, and place? five minutes after this took A. All kinds.

827 5, 240, any 88 L.Ed. 15 be recovered for 238, injury 64 suffered U.S. 320 the latter need a result of violation of amount of the fourth and the amend- (1943), 397, 91 Id. to the for ment. S.Ct. 1999. There necessary relation was any have Petrie, whatsoever no mention in Bivens of Motors v. 59 Wardman-Justice mer. availability punitive of possible damages by 512, (1930); 262, F.2d 515-16 39 App.D.C. such a way of federal cause Jaffe, of action. v. Publishing Co. Afro-American see 649, 662 70, 366 F.2d U.S.App.D.C. The decisions of this partic- circuit on this banc). (en (1966) question appear ular to be in conflict. For instance, v. Hartigh Latin, 158 U.S.App. claims of damage punitive These 289, 485 F.2d (1973), denied, D.C. cert. talis though do not Marsh, 948, 415 U.S. 94 S.Ct. Columbia puni not favor The law does effect. manic (1974), 1470, recovery where punish them to damages but will award tive under a Bivens sought theory, a panel aggravated intentional deter punitive held that this court damages are a conscious dis that evidences wrongdoing in determining included jurisdic- be g.,E. Brown v. rights. another’s regard for under amount 1331(a).14 section tional Id. Coates, decision, however, In another at 1072. this Levine, U.S.App. (1958); Mills appears to have expressly court limited the denied, F.2d cert. U.S. D.C. available under the Bivens deci- remedies 1 L.Ed.2d 67 As 77 S.Ct. compensatory damages. sion to Zweibon v. worst, ap as we must on suming the Mitchell, outrageous of Lea were actions peal, denied, (1975), cert. their conse life-endangering, though (1976), 48 L.Ed.2d 187 and this fortunately slight. In the were quences is not inconsistent with the ration position us case, which the one now before usual holding for the Court’s in Bi ale advanced not, might agree with readily clearly Bivens, supra, vens. See U.S. at 395— ap conclusion here Judge Robinson’s 1999. Justice Harlan in his allegations make out at least a pellants’ concurring opinion, instance, for fairly char- punitive damages, claim for some colorable question facing the essential acterized considered as another must be concerning damages as “whether Court Bell, su calculus. into the valuation input relief is compensatory ‘necessary’ ‘appro- pra. vindication of to the the interest priate’ me, however, puni- Bivens, not clear to supra, It is 91 S.Ct. at asserted.” where, in the damages are available J., (Harlan, concurring). tive Whether or of tradi- statutory authorization compensation absence is limited to not “vindication” remedies, the remedies tionally open question. available for now an It must remain alleged constitutional violations sought argued though punitive well be could the terms of implied directly from damages unnecessary are to the vindication must case, Bi- germinal jus- In the interests because their Constitution. of constitutional Agents of tificatory pun- Unknown Named functions of deterrence and v. Six vens Narcotics, might just as well be served Bureau ishment Federal according the victims of constitutional vio- L.Ed.2d 619 damages compensatory damages,15 see id. at money lations held Supreme Court 14. See also 15. Punitive salutory actions England the few instances suits (6th still awarded. was first where end Cir. government damages may Hanna 1975). recognized, deterring in which exemplary principle in civil Drobnick, officials. the unconstitutional Rookes v. Barnard serve an this remains punitive especially F.2d fact, one of marks: ^[1964] which an award serve strength gory law a long tical [T]here A.C. to the criminal. justification principle a useful oppressive, are certain the law and which purpose exemplary damages arbitrary categories of cases in admitting where Lord Devlin ought thus affording . The first cate- vindicating logically or unconstitu- into the civil to be- prac- can re- especially where the Wright, 395; supra, see, e.g. § setting compensa- of clear standards lack Da Yen Nguyen v. Kissinger, 528 F.2d given permit case may amplifi- in any tion (9th 1201 n.10 1975). Cir. exemplary grounds an award on cation of This is to say, however, not At least in such a as anyway.16 case this of valuation constitutional rights in dollars one, too, illegal may subject actions and cents should be ignored simply because agent to the governmental possibility of may be fact, difficult. In decisions of prosecution,17 which criminal should serve this circuit have been generous more than not, perhaps, if as effective a similar deter- valuing stingy basic rights. civil purpose. In Go rent Wilson, mez v. 155 U.S.App.D.C. 242, 477 may someday While it be settled that (1973), 420 n.51 quoted F.2d in Commit damages punitive are an type additional of Rights tee For GI v. Callaway, U.S.App. by permissible relief afforded Bivens and F.2d (1975), D.C. for exam perhaps appro- its even as an descendants — ple, this court substitute deterrent for priate applicable the exclu- articulated the not sionary rule —I do believe that such principle is as follows: rule; necessarily better nor does the Although the value of rights certain question warrant further examination in of precise be difficult measurement, procedural posture light of this case difficulty does not make the claim non- the ultimate conclusion I reach justiciable under 1331(a). Section . jurisdictional amount issue. certainty Absolute as to the amount view, In my appellants’ case must thus essential; it suffices that is a there perish on the survive valuation to be present probability that alleged accorded violation of their con- right sought protected to be meet the stitutional interests. Some courts have statutory requirement. flatly decreed that rights Thus, purposes, this court $10,000,18 than though worth more Profes- has found that some alleged twelve hours of Wright notes approvingly sor that “the imprisonment false by sufficed itself to majority of great courts have resisted this $10,000 satisfy amount temptation requirement. and have declined the invitation jurisdiction invent v. Murphy, Sullivan 156 U.S.App.D.C. 28, themselves that Congress yet grant.” has not fit seen n.34, 960-61 denied, cert. govern- By any tional action servants of the [much], other name would as [hurt] govern- ment. . . . servants of the [T]he 17. Section 4-176 of the District of Columbia people also ment are the servants of the provides “[a]ny Code officer who uses power always use must be their subor- unnecessary severity arresting and wanton duty dinate to their of service. any person guilty . . shall be deemed country, nevertheless, punitive damages and, battery, upon conviction, pun- assault traditionally foreign been have considered ished therefor.” D.C.Code relief, equitable Dobbs, see D. Remedies 211-12 (1973), and Justice Harlan makes clear that the E.g., Cortright Resor, F.Supp. scope “equitable of the Court’s remedial discre- grounds, (E.D.N.Y.) rev’d on other fashioning the Bivens remedy tion” was “de- denied, (2d 1971), Cir. cert. according to the termined distinctive historical ” L.Ed.2d 240 where the equity as traditions an . institution. district court stated: Bivens, supra S.Ct. at 2009 J., Furthermore, concurring). (Harlan, pu- monetary price hardly placed A can on the liability entities, governmental nitive guaranteed by such the First Amendment. Columbia, very the District limited, has often been say priceless rights many To these so sovereign immunity even where has fought protect and died to are worth apply. abolished or does been not otherwise nothing principles upon insult the basic Dobbs, at 217-18. which this nation was founded. speech definition, Free is almost worth Shakespeare, Juliet, 16. Cf. Wm. Romeo and $10,000, allegation 2,1.42: than ii, more so Act sc. upon ought based not to be What’s in a name? that which call we subject to denial. [thorn] (1973). district courts. The proper L.Ed.2d means of dis- U.S. v. Apton claims, however, were in of baseless posing reached valuations should Similar usually by be U.S.App.D.C. at Wilson, summary judgment fail- a claim (fourth and amendment state upon fifth ure which relief can at and Latin, granted not Hartigh supra, 158 be by v. dismissal for lack violations) and of See (fifth jurisdiction. Depart- 485 F.2d at 1072 Lewis v. D. C. at Corrections, of violations). U.S.App.D.C. 483, ment eighth amendment 710, 712 F.2d (1976). Where a federal “national may well be a There claim brought under section increasing in cases awards toward trend upon 1331(a) allegation rests an govern- misconduct,” see . alleging involvement that clearly baseless, mental 352, 499 Lusby, James however, suit may the and should be dis- sup- lend which would F.2d jurisdiction. for want While missed the decisions. The determination these port to presently before this may pose action court must neverthe- amount jurisdictional of the in question this respect, a close I believe the facts of predominately on judged less be more adopted the cautious alternative as in the they case particular appear a preferable today is the one. probative facts in this The essential record. foregoing reasons, the For uncontested, they were in without case are expressing any views as to the merits supra, where this court Lusby, James case, I concur in the decision of this had not jurisdictional amount held reversing the court district court’s dismissal to the con- despite allegations satisfied been action for this lack of jurisdiction. Indeed, single important most trary. or not in this case—whether fact ultimate vigor- were in self-defense —is shots Lea’s MacKINNON, Judge, concurring Circuit background, Against ously disputed. specially: poses valuation a controversy in the amount expressed by concur in result Corporation as the Counsel question, close Judge Tamm, generally opinion of Columbia admitted at for the expresses. he There reasons serious yet as a mat- argument, jurisdictional oral whether the monetary value of question must, my judgment, resolved in be ter it allegedly $10,- violated here meet the sum, appellants. of the here in favor jurisdictional amount but I leave this me apparent is not further determination of the trial court. legal certainty recover cannot statute has also been Mercury In- amount claimed. See St. Paul $10,000 recently to remove the amended Wilson, Co., su- supra; Gomez v. demnity requirement specified certain instances:

pra. original The district courts shall of all civil actions wherein Ill in controversy the matter exceeds the $10,000, value of exclusive of sum in- local law every violation of Not costs, and arises under terest into a constitutional may be transformed Constitution, laws, or treaties of the be plaintiff simply whim of a tort at the except that no such sum United States governmental aby was committed cause it required any value shall such action authority. agent under color official States, against brought the United 693, 699-701, Davis, Paul v. thereof, or agency any officer or employ- (1976); cf. Coo 47 L.Ed.2d 405 capacity. his official ee thereof California, U.S. per v. 1331(a), insen I am not as amended 28 U.S.C. Pub.L. 2721). regard growing (90 to the burden sitive in this Oct. Stat. On upon our the trial consider constitutional claims remand court should of unsound issues raised this amendment additional MEDIA, LTD., BASIC light opinion statute in the of our Petitioner, Columbia, v. District of Marshall -, -,

App.D.C. FEDERAL COMMUNICATIONS COM (Nos. etc). America, MISSION United States of Respondents, Gaffney Broadcasting mind, the my To most serious shortcom- Company, Intervenor. ing appellant’s complaint seems to be the presents doubt it as to to whether the claim MEDIA, LTD., BASIC Appellant, government against the is insubstantial and solely purpose raised for the conferring FEDERAL COMMUNICATIONS jurisdiction. grave I have doubts that ap- COMMISSION, Appellee. allegations against pellant’s the officer are MEDIA, LTD., Petitioner, to convert an ordinary BASIC sufficient tort into cognizable constitutional violations under 42 U.S.C. § FEDERAL COMMUNICATIONS COM MISSION United States necessary govern- While the existence of America, Respondents. involvement mental could be resolved at the summary judgment stage, Judge Tamm’s Nos. 76-1513 and 76-1514. proposes, appropriate, concurrence it is United States Court Appeals, cases, to govern- certain find such a lack of Columbia Circuit. deny mental connection as to 28 U.S.C. Argued April 1, 1977. jurisdiction on a pre-summary judg- § Decided June Davis, ment motion. Paul v. upheld before summary judgment dismissal governmental where insufficient action was case, In that

alleged. the complained-of

defamation was particularly pre- harmful

cisely because it was uttered

chief; such additional connection between government lacking and the tort Though

here. I concur in the remand re-

sulting case,-1 in this agree would not with

any inference that challenges governmental

based insufficient action against

cannot succeed 28 U.S.C.

cases. notes 11. See text infra at 75-1651, 1977). (No. 726 at 729-730 Carter, 12. District of Columbia (1973), precludes 34 L.Ed.2d 613 15. 327 U.S. 66 S.Ct. 90 L.Ed. 939 (1970) § reliance or on U.S.C. its con- statute, jurisdictional comitant 28 U.S.C. 1343(3) (1970). § Hood, (9th 1945). 16. See Bell v. 150F.2d 96 Cir. supra. requirement 13. See note 5 This is dis- agents illegally 17. The claim was that the in Part I cussed infra. homes, petitioners’ pa- seized- searched their pers, and arrested and incarcerated them. As supra. requirement, prereq- note This 14. See Court, Supreme complaint the described filed, appellants’ suit uisite when cussed in Part II infra. On October is dis- 21, 1976, damages alleged that the were suffered as a requirement Congress for respondents cases imprisoning pe- abolished result jurisdiction of a wherein the district court is in violation of their titioners right constitutional ground that invoked on the the matter arises deprivation to be free of their brought the “action under federal law and against law, [is] liberty process without due and sub- States, any thereof, agency the United jecting premises to their search and their violation of their employee or thereof in his or capacity.” officer official seizure, possessions in to § Pub.L. No. 90 Stat. right be to free constitutional from unreason- agree all of the court 2721. Since members that, able searches and seizures. being, jurisdic- time for the least Hood, Bell note 327 U.S. at met, requirement tional-amount it is unnec- (footnote omitted). at 940 90 L.Ed. S.Ct. at essary inquire to to as whether Pub.L. No. litigation, Hood, supra note 16. Bell applies pending or whether conspired prohibit- to do acts federal or constitutional respondents specifi- claims as alleges amendments and by these ed eally petitioners as have done would not to the con- pursuant conduct respondents’ conclusive always against the party damages in excess of resulted spiracy suit, bringing where complaint, as therefore $3,000.19 It cannot be doubted here, drawn is so as recovery to seek purpose to make pleaders’ it was the directly under the Constitution or laws of provi- of these violation States, United court, federal but Before decid- the basis of this suit. sions possible two exceptions for ., . . jurisdiction, there is no the Dis- ing that entertain suit.20 must way must look to the trict Court exceptions, said, These the Court “are so complaint is drawn to see if it is drawn that a suit sometimes be dismissed for right claim a to recover under the as to where want the alleged claim and laws United Constitution the Constitution or under federal statutes party that extent “the For to States. clearly appears to be immaterial and made suit is master to decide brings a who purpose solely obtaining jurisdic- rely upon will . . . law he what where such a tion or claim is wholly insub- bring whether he will determine does and frivolous.”21 found, The stantial Court arising under’ the . . . ‘suit [Con- however, the federal claims there in- of the United States stitution laws] were neither bill.” volved his declaration immaterial22 nor insub- And, set out Though the mere failure to critically present stantial.23 pur- They respondents’ amount-in-controver- 19. The then zures. claim that invasion requirement. sy Act of June ch. damages caused the of these they for which point 62 Stat. seek to recover and further to 28 41(1) 1331(a)] § U.S.C. which autho- § [now Hood, supra note 327 U.S. at Bell v. try the federal district courts rizes ‘suits of a 681-682, 66 90 L.Ed. at 942- controversy civil nature’ where the matter in Specialty quoting The Fair v. Kohler Die & the Constitution ‘arises under or laws of the Co., 57 L.Ed. States,’ ‘equi- United whether these are suits in (1913). The Court added: argue ty’ ‘law.’ Petitioners or at this stat- allegations specific far less than the Thus ute authorizes the Court to entertain this action complaint before us in the have been ones recovery grant at law and to for the adequate show held controversy the matter allegedly Respondents sustained. contend that under the arose Constitution of provisions the constitutional here involved are the United States. reason for against prohibitions the Federal Government as jurisdic- the court must assume this is that 41(1) government and that 28 U.S.C. does allegations tion to decide whether the state a recovery money damages not authorize grant which the court can cause of action on against unauthorized officials who ac- suits as to determine issues of fact relief as well respondents position cording are in the same controversy. arising in the trespassers.” individual 776, Id. at 327 U.S at (citations omitted). 66 S.Ct. at 90 L.Ed. at 943

Case Details

Case Name: Sheila Payne, Next Best Friend of Franklin Payne, a Minor v. Government of the District of Columbia

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 15, 1977

Citation: 559 F.2d 809

Docket Number: 74-1861

Court Abbreviation: D.C. Cir.