Wheeldin v. Wheeler/Dissent Brennan

Mr. Justice BRENNAN, with whom The CHIEF JUSTICE and Mr. Justice BLACK join, dissenting.

The Court of Appeals characterized petitioners' suit as follows: 'The gravamen of their complaint is that the subpoenas were invalidly, maliciously and mischievously issued and served for the sole purpose of exposing them to public scorn with consequent loss of employment and of esteem. They assert that they have a federal right to protection against such abuse of federal process; that since the subpoenas were not properly issued appellee in securing their issuance and service has subjected himself to personal liability.' 9 Cir., 302 F.2d 36-37. The Court of Appeals did not, however, decide whether such a 'federal right' exists and, if so, whether the complaint sufficiently alleged a denial of it. It sustained the District Court's dismissal on the sole ground that the allegedly unlawful acts had been committed by respondent in the line of his duty as a federal officer, and that therefore he was immune from suit by reason of the principles announced in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434. In this Court, the Solicitor General of the United States, appearing as counsel for the respondent, candidly admits that the Court of Appeals misapplied Barr v. Matteo. In that case we upheld the governmental-officer immunity in respect of 'action * *  * taken *  *  * within the outer perimeter of petitioner's line of duty.' 360 U.S., at 575, 79 S.Ct. at 1341. It has never been suggested that the immunity reaches beyond that perimeter, so as to shield a federal officer acting wholly on his own. A federal officer remains liable for acts committed 'manifestly or palpably beyond his authority.' Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780; see Colpoys v. Gates, 73 App.D.C. 193, 118 F.2d 16; Kozlowski v. Ferrara, D.C., 117 F.Supp. 650; Note, Remedies Against the United States and Its Officials, 70 Harv.L.Rev. 827, 835 (1957). Liberally construed, see Virgin Islands Corp. v. W. A. Taylor & Co., 2 Cir., 202 F.2d 61; 2 Moore, Federal practice (2d ed. 1948), 12.08, at 2245, petitioner Dawson's complaint alleges no less. He alleges that respondent 'secured from the staff of said Committee, blank subpoenas in large numbers' (emphasis supplied), and this can be read, the Solicitor General concedes, 'to allege that no member of the Committee even attempted to delegate the Committee's subpoena power to Wheeler.' Since members of the Committee's staff clearly have no power to delegate the issuance of subpoenas, respondent, according to the allegations of the complaint, was acting 'manifestly or palpably beyond his authority.'

I think the proper disposition of this case would be to vacate the Court of Appeals' judgment, based as it was wholly upon an erroneous ground, and remand the case to the Court of Appeals for consideration of the questions which that court found unnecessary to decide. I recommend this course because the instant case seems to be to raise novel and important questions which have not been adequately briefed or argued by the parties and which this Court consequently, in its opinion today, treats in a most cursory fashion.

The Court states that 'Dawson's main reliance is on the Fourth Amendment.' I cannot agree with this. As the Court of Appeals correctly apprehended, the gravamen of the complaint is the notion of a tort of malicious abuse of federal process by a federal officer. This to me raises a number of questions. Does the complaint state a claim actionable under common-law principles? If so, and if the claim is a creature of state law, may it nevertheless be entertained in the federal courts? Under what theory, if any, can the claim be deemed federal and within the original jurisdiction of the Federal District Courts? As will become apparent, these questions, which I shall discuss in order, do not require reference to the Fourth Amendment.

The Court of Appeals described the instant action as one claiming malicious abuse of process. But, as usually defined, that tort 'is committed when the actor employs legal process in a manner technically correct, but for a wrongful and malicious purpose to attain an unjustifiable end * *  * .' 1 Harper and James, Torts (1956), § 4.9; see 3 Restatement of Torts § 682; Prosser, Torts (2d ed. 1955), § 100. But succinctly, the tort is the 'perversion' of legal process. Mayer v. Walter, 64 Pa. 283, 286. In the instant case, the process allegedly abused was not judicial, but legislative. I do not, however, consider the distinction material. But cf. Comment, 63 Col.L.Rev. 326, 327, n. 13 (1963). Abuse of administrative process seems to be a recognized aspect of the tort, see 1 Harper and James, supra, § 4.10; 3 Restatement of Torts § 680; National Surety Co. v. Page, 4 Cir., 58 F.2d 145; but cf. Petherbridge v. Bell, 146 Va. 822, 132 S.E. 683, and so does abuse of the judicial subpoena power, Dishaw v. Wadleigh, 15 App.Div. 205, 44 N.Y.S. 207. The congressional subpoena is no less mandatory than the judicial, see Watkins v. United States, 354 U.S. 178, 187-188, 77 S.Ct. 1173, 1179, 1 L.Ed.2d 1273, no less a placing of governmental compulsion upon the recipient, cf. Sinclair v. United States, 279 U.S. 263, 292, 49 S.Ct. 268, 271, 73 L.Ed. 692. It may, of course, be the first link in a chain leading to eventual criminal prosecution. See, e.g., R.S. § 102, as amended, 2 U.S.C. § 192.

I should point out that the conventional notion of abuse of process assumes that the wrongdoer is a private person who procures the issuance of valid, authorized legal process, albeit with a wrongful intention and for an unjustifiable end. Comment, 63 Col.L.Rev. 326, 327, n. 13. The tort, thus, does not depend on the validity of the process, which may be 'technically correct,' yet still abusive. In the instant case, however, liability is sought to be imposed upon the officer who issues the process, and his authority vel non is of the essence. Pertinent here is the settled principle of the accountability, in damages, of the individual governmental officer for the consequences of his wrongdoing. See, e.g., Entick v. Carrington, 19 Howell's State Trials 1029 (C.P. 1765); Marbury v. Madison, 1 Cranch 137, 163 168, 2 L.Ed. 60; cf. Wolf v. Colorado, 338 U.S. 25, 30-31, n. 1, 69 S.Ct. 1359, 1362-1363, 93 L.Ed. 1782. With respect to federal officers, see, e.g., Little v. Barreme, 2 Cranch 170, 2 L.Ed. 243; Elliott v. Swartwout, 10 Pet. 137, 9 L.Ed. 373; Mitchell v. Harmony, 13 How. 115, 14 L.Ed. 75; Buck v. Colbath, 3 Wall. 334, 18 L.Ed. 257; Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471; Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377; Belknap v. Schild, 161 U.S. 10, 18, 16 S.Ct. 443, 445, 40 L.Ed. 599; Philadelphia Co. v. Stimson, 223 U.S. 605, 619, 32 S.Ct. 340, 343, 56 L.Ed. 570. This principle, in combination with the conventional notion of malicious abuse of process, seems to me ample warrant for concluding that the instant complaint makes out a common-law cause of action. Compare cases in which state judicial officers have been held liable in damages for abuse of process: Williams v. Kozak, 4 Cir., 280 F. 373; Dean v. Kochendorfer, 237 N.Y. 384, 143 N.E. 229; Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780, 173 A.L.R. 819.

If so, and if we assume that this claim is actionable under California law (postponing, for the moment, the question whether it may also be actionable under federal law), then it seems to me there are two possible theories for sustaining federal court jurisdiction over it. The first relies upon the principle of pendent jurisdiction drawn from Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148. Since the complaint asserts a nonfrivolous claim under the Fourth Amendment, federal court jurisdiction attaches, Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939, thereby permitting decision of the common-law claim which is based upon the same facts, see id., 327 U.S. at 686, 66 S.Ct. at 778 (dissenting opinion). Whether the instant complaint can be read as adequately claiming pendent jurisdiction would seem a matter best determined in the first instance by the courts below. I cannot accept the Court's flat assertion that 'petitioner has not attempted to state a claim under state law,' in view of the liberality of pleading practice under the Federal Civil Rules. 'A motion to dismiss a complaint, without the aid of anything except the complaint itself, is usually a most undesirable way for a defendant to seek a victory. For, on such a motion, the court must construe the complaint's language in a manner most favorable to the plaintiff; and, if that language is at all ambiguous, seldom will it, when thus generously construed, fail to show a cause of action.' Virgin Islands Corp. v. W. A. Taylor & Co., supra, 202 F.2d at 65. The dismissal of the instant complaint was on motion by defendant

The second possible theory builds from Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577. A shareholder sued to enjoin the Trust Company, a Missouri corporation, from investing in certain federal bonds, on the ground that the Act of Congress authorizing their issuance was unconstitutional. It was claimed that under Missouri law an investment in securities the issuance of which had not been authorized by a vaid law was ultra vires and enjoinable. The cause of action, thus, was state-created. Nevertheless this Court held that the action was one arising under federal law within the meaning of the predecessor section to 28 U.S.C. § 1331(a). See also Fielding v. Allen, 2 Cir., 181 F.2d 163. It has been suggested that later decisions, e.g., Puerto Rico v. Russell & Co., 288 U.S. 476, 53 S.Ct. 447, 77 L.Ed. 903; Gully v. First Nat. Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70, repudiated Smith. London, 'Federal Question' Jurisdiction-A Snare and a Delusion, 57 Mich.L.Rev. 835, 853 (1959). But those decisions are clearly distinguishable as attempts to found federal jurisdiction upon 'remote federal premises, or mere federal permission * *  *, or other merely possible federal defenses.' Hart and Wechsler, The Federal Courts and the Federal System (1953), 769. Smith remains firm authority for the principle that 'where federal law has inserted itself into the texture of state law, a claim founded on the national legislation could be brought into a federal forum' even if the right of action was state-created. Mishkin, The Federal 'Question' in the District Courts, 53 Col.L.Rev. 157, 166 (1953). Stated differently, 'in the Smith case the claim under federal law was an essential ingredient of the plaintiff's case, without which he could assert no right to relief.' Hart and Wechsler, supra, at 766. In short, there is federal-question jurisdiction if a proposition of federal law is inherent in the plaintiff's claim. Cf. Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law and Contemp.Prob. 216, 225 (1948).

How does the instant complaint fare under this standard? The matter is not free from doubt, but it is arguable, at least, that inherent in a claim to abuse of federal process by a federal officer are certain propositions drawn from the network of federal statutory and constitutional provisions governing congressional investigations. In other words, implicit in the notion of abuse of process are the principles controlling the proper use of process. Concretely, the instant complaint asserts that respondent's use of congressional process was unauthorized and was for an 'unjustifiable end,' p. 655, supra; surely the contours of this authority and the classification of justifiable and unjustifiable ends of congressional process are matters of federal law. Thus, just as Smith is a case 'where state law incorporates federal standards by reference,' Wechsler, supra, at 225, n. 46, so here a basic element of the common-law tort is the body of federal law authorizing and defining the issuance of federal legislative process. I do not wish, however, to be understood as suggesting that the analogy is perfect.

I come now to the question whether petitioner Dawson's cause of action may be deemed created by federal law apart from the Fourth Amendment. It is not claimed that any federal statute in terms confers a remedy in damages for malicious abuse of federal process by a federal officer. But it is argued that such a remedy (1) may be implied from the Act of Congress respecting the issuance of subpoenas by the House Un-American Activities Committee and its subcommittees, and (2) is given by the federal common law.

The Legislative Reorganization Act of 1946, c. 753, § 121(b), House Rule XI(1) (q)(2), 60 Stat. 828, provides in part: 'Subpenas may be issued under the signature of the chairman of the committee (on Un-American Activities) or any subcommittee, or by any member designated by any such chairman * *  * .' If this provision be interpreted to prohibit respondent from issuing the Committee's subpoenas on his own, may a right of action in damages be implied in favor of one injured as a direct consequence of respondent's unlawful use of such a subpoena? I see no reason why it may not. 'Implied rights of action are not contingent upon statutory language which affirmatively indicates that they are intended. On the contrary, they are implied unless the legislation evidences a contrary intention.' Brown v. Bullock, D.C., 194 F.Supp. 207, 224, aff'd on other grounds, 2 Cir., 294 F.2d 415. Increasingly, the tendency in the federal courts has been to infer private rights of action from federal statutes unless to do so would defeat manifest congressional purpose. See, e.g., Texas & Pac. R. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187; Neiswonger v. Goodyear Tire & Rubber Co., D.C., 35 F.2d 761; Reitmeister v. Reitmeister, 2 Cir., 162 F.2d 691; Fitzgerald v. Pan American World Airways, 2 Cir., 229 F.2d 499; Roosevelt Field, Inc. v. Town of North Hempstead, D.C., 84 F.Supp. 456; Wills v. Trans World Airlines, Inc., D.C., 200 F.Supp. 360; 2 Loss, Securities Regulation (2d ed. 1961), 932-956; Note, 48 Col.L.Rev. 1090 (1948). We must presume that Congress, in specifying the conditions for the lawful delegation of the Committee on Un-American Activities' subpoena power, was mindful of the grave injustices which might be done to individuals as a result of the flouting of those conditions. In this sense, Rule XI(1)(q)(2) may be said to have created a protected class of private persons of which petitioner Dawson, if the allegations of his complaint be true, is a member. Moreover, a private damages action affords the only practicable means of redressing the kind of wrong Dawson alleges. Since he was never called to testify he could not use the circumstances surrounding the issuance of the subpoena defensively, and, for the same reason, his prayer for injunctive relief was struck below as moot, 280 F.2d 293 (per curiam). And cf. Pauling v. Eastland, 109 U.S.App.D.C. 342, 288 F.2d 126; Mins v. McCarthy, 93 U.S.App.D.C. 220, 209 F.2d 307.

Nor is it the case that a congressional rule (in the instant case contained in an Act of Congress) stands on a different footing, as respects judicial enforcement, from a rule respecting administrative, executive, or other conduct. It has long been settled that rules of Congress and its committees are judicially cognizable. Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826; United States v. Smith, 286 U.S. 6, 52 S.Ct. 475, 76 L.Ed. 954; United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321. I therefore see no objection in principle to grounding a private action in such a rule.

A final approach to the problem of founding federal jurisdiction is by way of the federal common law. Mr. Justice Brandeis' dictum: 'There is no federal general common law,' Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188, cannot, of course, be taken at its full breadth. '(A) lthough federal judicial power to deal with common-law problems was cut down in the realm of liability or its absence governable by state law, that power remained unimpaired for dealing independently, wherever necessary or appropriate, with essentially federal matters, even though Congress has not acted affirmatively about the specific question.' United States v. Standard Oil Co., 332 U.S. 301, 307, 67 S.Ct. 1604, 1608, 91 L.Ed. 2067. 'Were we bereft of the common law, our federal system would be impotent.' D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 470, 62 S.Ct. 676, 685, 86 L.Ed. 956 (concurring opinion). And so in a wide variety of cases the federal courts have assumed to fashion federal common-law rights. Ordinarily, to be sure, such fashioning is done under the aegis of a more specific jurisdictional grant than 28 U.S.C. § 1331(a). But I agree with the test set forth in United States v. Standard Oil Co., supra, and would recognize the existence of federal common-law rights of action 'wherever necessary or appropriate' for dealing with 'essentially federal matters.' Plainly, this test supports recognition of a federal cause of action on the facts of the instant complaint. '(A)ctions against federal officials * *  * are necessarily of federal concern.' Wechsler, supra, at 220. This is not to say that federal law is necessarily implicated whenever the defendant is a federal officer. See Johnston v. Earle, 9 Cir., 245 F.2d 793. But where, as here, it is alleged that a federal officer acting under color of federal law has so abused his federal powers as to cause unjustifiable injury to a private person, I see no warrant for concluding that state law must be looked to as the sole basis for liability. Under such circumstances, no state interest is infringed by a generous construction of federal jurisdiction, and every consideration of practicality and justice argues for such a construction. To be sure, once the federal common-law cause of action is recognized, the much-mooted problem remains whether such a cause arises under federal law within the meaning of 28 U.S.C. § 1331(a). This Court has never decided the question. For the position that it does, see my separate opinion in Romero v. International Terminal Operating Co., 358 U.S. 354, 389 412, 79 S.Ct. 468, 489-501, 3 L.Ed.2d 368, and Kurland, The Romero Case and Some Problems of Federal Jurisdiction, 73 Harv.L.Rev. 817, 831-833 (1960).

Let me make clear that I am not suggesting that this Court enjoys the same freedom to create common-law rights of action as do truly common-law courts. But there is a matrix of federal statutory and constitutional principles governing the rights, duties, and immunities of federal officers acting under color of federal authority. The existence of this matrix makes the matter of private actions against such officers respecting conduct alleged to be in excess of their authority of essentially federal concern, which justifies, in my view, the exercise of the residual common-law power which we unquestionably possess. 'At the very least, effective Constitutionalism requires recognition of power in the federal courts to declare, as a matter of common law or 'judicial legislation,' rules which may be necessary to fill in interstitially or otherwise effectuate the statutory patterns enacted in the large by Congress.' Mishkin, The Variousness of 'Federal Law': Competence and Discretion in the Choice of National and State Rules for Decision, 105 U. of Pa.L.Rev. 797, 800 (1957).

Thus the theories of an implied right of action based on Rule XI(1)(q)(2) and a federal common-law right ultimately coalesce. 'It seems monstrous to imply that when Congress as a matter of federal law lays the foundation for a right or condemns any conduct as a wrong, nothing can be done about it by courts without clear warrant in statutory language and legislative history.' Powell, Use of Common-Law Techniques and Remedies in Statutory Enforcement-A Study in Judicial Behavior, 57 Harv.L.Rev. 900, 902 (1944). Rule XI(1)(q)(2) at least provides the foundation; the superstructure may be derived from the various sources I have canvassed. I should not like to believe that this Court is helpless to inaugurate in the federal courts the salutary '(r)estoration of the doctrine that a government officer is civilly responsible in damages for an exercise of official discretion which is motivated by personal vindictiveness or desire for personal gain.' Hart and Wechsler, supra, at 1230. I do not believe that the matter can properly be remitted entirely to the state courts. See Foote, supra, note 13, for a trenchant criticism of existing state remedies for the wrongful acts of public officers. Cf. Mapp v. Ohio, 367 U.S. 643, 651-652, 81 S.Ct. 1684, 1689-1690, 6 L.Ed.2d 1081.

I have dealt with the foregoing problems in a deliberately tentative manner. My discussion is intended to be only suggestive, not exhaustive; I am not prepared to offer definitive solutions. But it seems to me that these novel and difficult problems permeate the case and justify our adoption here of the disposition we made in Bell v. Hood of remanding the case for a consideration of them by the courts below in the first instance.