Robert F. Kennedy, Attorney General of the United States v. Victor Rabinowitz and Leonard B. Boudin

318 F.2d 181

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 1, 1963
• Docket: 17105
• Status: Published

Opinions

WRIGHT, Circuit Judge.

The Foreign Agents Registration Act¹ provides criminal penalties² against anyone who represents a foreign government in this country and fails to register with the Attorney General. Certain exceptions are provided.³ Appellees are attorneys at law representing the Republic of Cuba who have been requested by the. Attorney General to register pursuant to the Act. Instead of registering, appellees filed this declaratory judgment action, alleging that since their representation of Cuba is limited to “legal matters, including litigation, involving the mercantile and financial interests of the Republic of Cuba,” they are exempt from registering under Section 3(d) ⁴ of the Act. They pray for a judgment so declaring. In effect, therefore, this proceeding is an effort to restrain the Attorney General from prosecuting appellees under the Act. The District Court denied appellant’s motion for judgment on the pleadings and certified this action for appeal.⁵

The threshold question is presented by the venerable, but creaking, doctrine of sovereign immunity. There is no suggestion that the United States has consented to this suit or that the Attorney General is being sued as an individual. Indeed, the named defendant is “The Attorney General of the United States,” the name of the current office holder not being included.'⁶ Consequently, the action, if maintainable at all, must fit the fiction created by Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). There it was held that where an officer acts unconstitutionally, “he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.” 209 U.S. at 160, 28 S.Ct. at 454, 52 L.Ed. 714, Since in such circumstances the officer is theoretically being sued as an individual, the-doctrine of sovereign immunity provides no bar. Thus a fiction is indulged to circumvent sovereign immunity.

Ex parte Young, supra, has spawned a welter of cases, all seeking to get under its umbrella.⁷ The confusion which ensued has been to some extent relieved by the holding in Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628, (1949), reiterated in Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962), that, an officer of the United States may indeed be sued in his individual capacity where the officer’s action is “not within the officer’s statutory powers or, if within those powers, only if the powers,, or their exercise in the particular case,, are constitutionally void.” 337 U.S. at 702, 69 S.Ct. at 1467, 93 L.Ed. 1628 and 369 U.S. at 647, 82 S.Ct. at 983, 8 L.Ed. 2d 168.

It is not alleged in the complaint that prosecution of the appelleesunder the Act would be unconstitutional⁸ or outside the Attorney General’s. statutory powers.⁹ Appellees’ primary argument nn the unconsented suit point seems to be that “the doctrine that a suit against a government officer in his official capacity may be a suit against the United States applies only in the situation where the suit is either for government funds or for specific property in the possession of the government.” We are not aware that the doctrine of sovereign immunity is so circumscribed. If '“[t]he ‘essential nature and effect of the proceeding’ may be such as to make plain that the judgment sought would * * * interfere with the public administration,” the suit is one against the sovereign. Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947), citing Ex Parte State of New York, No. 1, 256 U.S. 490, 500, 502, 41 S.Ct. 588, 65 L.Ed. 1057 (1921).¹⁰ Obviously, restraining the Attorney General from enforcing the criminal laws of the United States would “interfere with the public administration.”

Appellees rely heavily on Professor Borchard in arguing that civil procedure should be substituted for criminal procedure in the area not involving moral turpitude, particularly “where there is grave uncertainty as to what practices the general terms of a law prohibit.” Borchard, Declaratory Judgments (2d Ed. 1941), p. 1021. They also assert with Professor Borchard “that one of the main and most beneficial functions of declaratory judgment procedure is as a substitute for criminal prosecutions in the area of regulation of business practices.” Philosophically, we may agree. But the Congress has decreed otherwise, at least so far as agents representing foreign governments are concerned. Consequently, since appellees have failed to challenge the constitutionality of the Act, on its face or as applied, or the authority of the Attorney General to enforce it, this case should be dismissed on the pleadings as an unconsented suit against the United States.

So ordered.

1 . 52 Stat. 631, as amended, 22 U.S.C. §§ 611 et seq.

2 . 52 Stat. 633, as amended, 56 Stat. 257, 22 U.S.C. § 618.

3 . 52 Stat. 632, as amended, 56 Stat. 254, 22 U.S.C. § 613.

4 . 52 Stat. 632, as amended, 56 Stat. 254, 22 U.S.C. § 613(d).

5 . 28 U.S.C. § 1292(b).

6 . The Attorney General’s name first appeared on the appeal papers in this court.

7 . See 3 Davis, Administrative Law, ch. 27 (1958).

8 . In arguing that this is an appropriate caso for declaratory judgment, appellees assert that the penalties are so severe that they dare not await prosecution. Therefore, they assert, a civil forum must be available or the Act can never be tested. A civil forum may be available under these circumstances, for this argument may raise a constitutional question. Yakus v. United States, 321 U.S. 414, 438, 64 S.Ct. 660, 88 L.Ed. 834 (1944) ; Ex parte Young, supra, 209 U.S. at 145-148, 28 S.Ct. at 447-449, 52 L.Ed. 714. Appellees, aided by competent counsel, for reasons best known to themselves, have decided not to raise the constitutional issue. Under the circumstances, and for-the purposes of this motion, we accept appellees’ pleadings as presented.

9 . Appellees do argue in their brief that their activities “are expressly exempted from the Act by the terms of the Act itself” and that to this extent appellant’s demand that they register is “in excess of his statutory authority.” The Attorney General, however, is charged with enforcement of all the criminal laws of the United States, 28 U.S.C. § 507. Such duty obviously carries with it the authority to construe the individual statutes and apply them to the facts before him. At most, appellees’ claim is that appellant has erred, or will err, in construing the law. But the relief for which appellees here pray “can be granted, without impleading the sovereign, only because of the officer’s lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient.” Larson v. Domestic & Foreign Corp., supra, 337 U.S. at 690, 69 S.Ct. at 1461-1462, 93 L.Ed. 1628. See also United States v. Thompson, 251 U.S. 407, 413, 40 S.Ct. 289, 64 L.Ed. 333 (1920) ; Goldberg v. Hoffman, 7 Cir., 225 F.2d 463 (1955) ; Fay v. Miller, 87 U.S.App.D.C. 168, 171, 183 F.2d 986, 989 (1950) ; United States v. One 1940 Oldsmobile Sedan Automobile, 7 Cir., 167 F.2d 404 (1948) ; District of Columbia v. Buckley, 75 U.S.App.D.C. 301, 304, 128 F.2d 17, 20 (1942), cert. denied, 317 U.S. 658, 63 S.Ct. 57, 87 L.Ed. 529 (1942) ; United States v. Segelman, W.D.Pa., 86 F.Supp. 114 (1949) ; United States v. Brokaw, S.D.Ill., 60 F.Supp. 100 (1945).

10 . See also Larson v. Domestic & Foreign Corp., supra, Note 9, 337 U.S. at 688, 69 S.Ct. at 1460, 93 L.Ed. 1628; Stanley v. Schwalby, 147 U.S. 508, 13 S.Ct. 418, 37 L.Ed. 259 (1893) ; Reisman v. Caplin, 115 U.S.App.D.C.-, 317 F.2d 123, 125.