Earl Warren: Number 493, Donald Wheeldin and Admiral Dawson, Petitioners, versus William Wheeler; Mr. Wirin?
A. L. Wirin: Mr. Chief Justice, may it please the Court. The issues raised by the instant petition as the petitioners view it are two. First, whether or not, the District Court, and I say District Court for the Southern District of California, had jurisdiction to adjudicate the issues raised by a suit filed in that court and secondly, whether or not, the complaint states a cause of action warranting relief or requiring the trial on the merits. The complaint which I can summarize very quickly is in behalf of two persons, both of whom were subpoenaed to appear before the House Committee on Un-American activities. The defendant below, the respondent here, is an agent of that Committee, is the investigator for that Committee in California and the complaint recites in effect that the respondent secured or issued subpoenas against the petitioners for the purpose of harassing them and that particularly with respect to the petitioner Admiral Dawson. And I may say the only public official in this case is the respondent, Wheeler, the petitioner, Admiral Dawson is not a public official. He is -- the Admiral is merely his first name. Be that as it may, with respect to that petitioner that the complaint alleges that the respondent, Wheeler, arranged for the process to be served at Admiral Dawson’s place of employment with the intention that such service would result in a loss of employment and that as a result of such service at that place and for that purpose in actual fact, Admiral Dawson did lose his employment through this damage of course. The complaint as filed in the District Court sought both equitable and relief, and relief at law. It sought a declaratory judgment as to the validity of the subpoena and additionally sought damages on -- because of the manner of the service of the subpoena and the nature of the subpoena.
Earl Warren: Mr. Wirin. Is your case --
A. L. Wirin: Yes, Your Honor.
Earl Warren: Is the case of Wheeldin before us?
A. L. Wirin: No. Well, let me come. I -- I'll answer Your Honor's question right now that I had intended to do so in a moment. The petitioners, or the petitioner Wheeldin, has determined to withdraw his petition with a certiorari and asked leave of Court to do so and has so stated in the preliminary statement in the reply brief. We have done that because we feel that the damages to the petitioner, Wheeldin, are not substantial. The jurisdictional statute requires damages in a sum of $10,000 and also there are some problems in res judicata which is raised by the Government which we think unnecessarily obfuscate or deviate the central issues so that, if Your Honor's grant a leave of court to the petitioner, Wheeldin, to withdraw his petition, the only petitioner remaining is the petitioner, Dawson, and the only matters which are at issue pertain to the petitioner, Dawson. And I shall address myself, my oral argument exclusively to the issues as raised in the complaint in connection with the petitioner, Dawson. Now, I brief -- further word by way of -- of the -- of the history of the -- of the proceedings below because that would, which I will now state, will -- I think, tell some light upon the import of certain concessions made by the Solicitor General in his brief, concessions which are to the petitioner of a considerable consequence. When the suit was first filed, the respondent through a licensed attorney and special counsel retained for the respondent by the Congress, by the House Representatives, urged that the Court have no jurisdiction. The trial court agreed with that view, but upon appeal, the Court of Appeals reversed the judgment and took the view that there was jurisdiction in the trial court. From that ruling by the Court of Appeals, the first decision that government took no -- sought no review in this Court. In any event, at the second round, when the matter was remanded to the trial court, the Government then took the view that the complaint didn't state a cause of action. The trial court sustained that position granting a motion to dismiss. And that position was posited on the claim that the respondent Wheeldin, was -- had complete, absolute immunity from liability under Barr versus Matteo, the decision of this Court that a public official in some circumstances when he commits an alleged libel, he's absolutely privileged. Before the Court of Appeals, the sole basis for the Government's contention was the claim of absolute immunity and the sole basis for the cause of ruling was absolute immunity. In this Court, however, and this is what I'm getting to now, with respect to the petitioner, Dawson, the Government recedes from that contention made in the courts below upon which the courts below rendered its judgment. And it concedes that as to the petitioner, Dawson, the -- to the respondent, Wheeldin has no absolute immunity that the complaint alleges -- now, I'm stating my own view of the matter, that the complaint alleges that the respondent, Wheeler, secured subpoenas without the knowledge of the Chairman of the Committee or so far as the complainant is concerned, without the knowledge or approval of any member of the Committee. And I state to Your Honors now, so that Your Honors will understand what I'm saying at -- state in the context. The applicable federal statute is a resolution by the Congress which is now designated by the House as Rule IX, which authorized -- which of course is set forth in the -- in our briefs, that resolution authorizes the Committee to hold hearings and with respect to the issue in subpoenas, expressly provides that only the Chairman of the Committee, or the Chairman of a subcommittee, or a member of Congress who was the Chair -- who is a member of either of this committees especially designated by the Chairman of either Committee may issue subpoena. And so, the Government in this case, on the merits, concedes that the defendant, Wheeler, as alleged in the complaint and that is all there is before this Court for the trial court sustained a motion to dismiss, that the defendant, Wheeler, exceeded his authority and acted beyond his statutory powers. And in effect -- now, I'm just paraphrasing it and using my own understanding of it, the Solicitor General will of course explain the position of the Government. In effect, the Government concedes, as we view it, liability on the part of the defendant, Wheeler, but urges that -- that libel should be determined in the state court rather than the federal court on the ground that there is no federal claim stated. Now, one further -- one further --
Arthur J. Goldberg: How do you concede that there was no cause of action? Is the -- do you concede that there was a cause of action you're arguing under state law?
A. L. Wirin: Yes.
Arthur J. Goldberg: And do you concede that it's a cause of action, your argument on federal law?
A. L. Wirin: We concede it as a cause of action arising solely and entirely under federal law, having no basis in or rooted in any state law and for the following three reasons. In the first place, we say that it arises under a law in the Constitution of the United States, certainly within the concepts announced just recently by this Court in a unanimous decision written by Justice White a week ago or yesterday. First, because it's -- the cause of action stems from the -- a law of Congress namely, the resolution of a House, namely Rule XI, under which this Committees function. And we say that probably construed that statute, barred the respondent Wheeler from issuing a subpoena without any authorization or without any knowledge of any member of the -- of the Committee. And that impliedly the statute having imposed an obli -- an obligation upon the respondent not to issue a subpoena, conferred a right upon the petitioner to be free from that kind of the exercise of excessive authority by an agent of the Committee, but more than that, we say that the cause of action arises under the Constitution of United States. I already talked about the law of United States, the jurisdictional statute, Your Honor, Section 1331, 28 U.S. Code, conferred jurisdiction upon the federal courts where a claim arises either out of the law or out of the Constitution. And with respect to the matter--
Byron R. White: [Inaudible]
A. L. Wirin: Well, we rely primarily upon the Fourth, but also upon the Fifth and the reasons for our reliance upon the Fourth but that -- of the --
Byron R. White: What's -- what's -- what's subdivision of the Third?
A. L. Wirin: The Due Process Clause. First, with respect to the Fourth, which of course is a broad guarantee against unreasonable searches and seizures, the Government makes the argument here that the Fourth Amendment is directed exclusively against the use of the securing of evidence or seizure through physical force only. And we agree, of course, that the service of the subpoena per se is not the exercise of physical force similar to the seizure of a person through his imprisonment, or the seizure of books and papers which are the result of the -- of the search of man's defects. On the other hand, this Court to -- seems to us has clearly decided generations ago, in Boyd versus United States, and as recently reaffirmed the view that a subpoena duces tecum, which is too broad in its scope violates the guarantees of the Fourth Amendment.
Byron R. White: The service of it?
A. L. Wirin: The issuance and service of it.
Byron R. White: That's all?
A. L. Wirin: That's all and that a person who claims that the subpoena on its face is too broad, may challenge the subpoena and tell me successfully, if you convince -- you can convince the Court it's too broad, merely because of the issuance of a subpoena on the ground that the subpoena duces tecum on itself prior to the actual seizure of the records which are the subject matter of the subpoena is too broad. So that we think Your Honors have not extended, but have recognized the principle that a broad subpoena may violate the Fourth Amendment.
Byron R. White: Duces tecum?
A. L. Wirin: Duces tecum, yes. Now a subpoena not --
Speaker: [Inaudible]
A. L. Wirin: This is the --
Speaker: Duces tecum?
A. L. Wirin: It was not. It was the plain subpoena, subpoena against [Inaudible]
Earl Warren: Do I understand Mr. Wirin that the Government admits that this was an invalid subpoena?
A. L. Wirin: It admits that the respondent exceeded his authority in securing the subpoena in the manner set forth in the complaint, and it so admits it, in its brief on page -- on pages 31 and 32.
Arthur J. Goldberg: [Inaudible]
A. L. Wirin: So -- yes, it did.
Arthur J. Goldberg: [Inaudible] -- what the Government says is that [Inaudible].
A. L. Wirin: Yes.
Arthur J. Goldberg: And as alleged. There you'd have to say that it's not valid to say the words that the [Inaudible] is out of the court?
A. L. Wirin: Yes.
Arthur J. Goldberg: [Inaudible]
A. L. Wirin: Oh, indeed. I misstated myself. What I meant was, that the matter being before Your Honors upon a motion to dismiss the complaint where the allegations of the complaint are deemed to be -- deemed to be true for the purposes of the motion to dismiss. That's all I meant, of course. The Government doesn't concede the matter on the merits. And indeed I -- all our -- all we desire is if we're successful or if we're lucky is a ruling from this Court that the petitioner is entitled to a trial and to be given an opportunity to prove the allegations in the complaint.
Byron R. White: But that is also in Barr and Matteo [Inaudible]?
A. L. Wirin: Precisely.
Byron R. White: And [Inaudible]
A. L. Wirin: Well, I think it makes a difference so far as the petitioner's case is concerned. I think also to answer Your Honor's question a little bit more directly, I would view it that a person who is a public official clothed with authority and there is no question the respondent was that and represents one of the great agencies of the Government, the Congress of the United States --
Byron R. White: Well, do you agree with the Government's reading in the complaint that you allege that this man knew and should've known through the proceedings authority that he had no authority to service --
A. L. Wirin: I agree with that -- with that interpretation of the complaint -- about the complaint.
Byron R. White: [Inaudible]
A. L. Wirin: I don't always agree with Government but I do when a --
Byron R. White: [Inaudible] -- how was he distinguished -- how was he distinguished [Inaudible]? He knew he wasn't acting through a Government's official [Inaudible]
A. L. Wirin: Oh, oh, all right. Now, let me just -- I think I have nothing to answer Your Honor's question. Now, I admit that I had to do so. So far as liability is concerned -- I -- there would be no difference in view of the Government's statement whether he was a pri -- or just a person acting as one who try to commit a joke or was acting seriously --
William J. Brennan, Jr.: Oh, would you have a -- would you have --
A. L. Wirin: But --
William J. Brennan, Jr.: [Inaudible]
A. L. Wirin: But -- but --
William J. Brennan, Jr.: [Inaudible]
A. L. Wirin: Precisely, precisely. But if he were not acting under color of authority, and if he were not undertaking to act for the Committee --
William J. Brennan, Jr.: [Inaudible] employee.
A. L. Wirin: Yes. We're --
William J. Brennan, Jr.: While a federal employee, [Inaudible]
A. L. Wirin: Exactly.
William J. Brennan, Jr.: Who acted outside the scope of his authority?
A. L. Wirin: Precisely. And it's because of that--
Byron R. White: [Inaudible] -- isn't it -- if we go too far this brings us jurisdiction --
A. L. Wirin: Well, I don't want to go that far. [Laughter] I don't want to go that far but -- but I think it's clear, both from the allegations in the -- in the complaint and from the -- and from the contentions of the parties in this case, that the respondent at all times was a person in the employee of the Congress and undertook to act before the Congress and was acting under color of authority and the petitioners make no contention or suggestion to the contrary. And so in short, we say, because of that -- that the state court, that the federal court had jurisdiction that the matter is not within the jurisdiction of the state court at all, and even if it were within the jurisdiction of the state court and had been filed in the state court, the Government would have a right under the removal statute to remove it to the federal court where the issues would be tried and -- but we say that the court, District Court had (a) jurisdiction and (b) should have denied the motion to dismiss so that the case could be tried in the federal court on the merits to adjudicate it, the controverted issues of fact.
Earl Warren: Mr. Rosenthal.
Alan S. Rosenthal: Mr. Chief Justice, may it please the Court. As Mr. Wirin has indicated, in this case, the petitioner, Dawson, sought to invoke the jurisdiction of a Federal District Court to recover damages from the respondent an employee of the Congress for an alleged violation by respondent of certain constitutional rights of the petitioner, basically, the Fourth Amendment. Now, we think it's important to bear in mind at the outset that the conduct complained of amounted to nothing more than the issuance, purportedly unauthorized issuance, by the respondent of a subpoena ad testificandum, directing that the petitioner appear at a hearing of the Committee of the Congress and give unprivileged testimony. There is no claim in this case by the petitioner, nor could there be, of any action on the part of the respondent beyond the mere issuance of this assertedly unauthorized subpoena, or for that matter of any action on the part of the petitioner in response to the subpoena. Dawson, not only did not testify, but he did not even appear at the Committee's hearings.
Arthur J. Goldberg: [Inaudible]
Alan S. Rosenthal: Because Your Honor, there's no allegation in this complaint that there was any appearance or any action on the part of the petitioner in response to the subpoena. We've --
Arthur J. Goldberg: [Inaudible]
Alan S. Rosenthal: That's right, Your Honor.
Arthur J. Goldberg: [Inaudible]
Alan S. Rosenthal: That's right.
Arthur J. Goldberg: [Inaudible]
Alan S. Rosenthal: That's right.
Arthur J. Goldberg: [Inaudible]
Alan S. Rosenthal: That is -- that is correct. There is an allegation of economic loss. Of course, I would stress to Your Honor that the question as to whether there's been an infringement of a constitutional right is determined in the first instance by the conduct which is charged, not by the fact that there may or may not be economic injury. There are a lot of -- there's a lot of torturous conduct which results in injury, which by no stretch to the imagination could be regarded as involving an infringement of the constitutional right. In this case, we submit, in view of the allegations of this complaint, the petitioner's constitutional claim is wholly insubstantial. Now, I would like at this point to correct one statement which Mr. Wirin made. The argument which we are advancing in this Court was advanced in the Court of Appeals, the argument that the constitutional claim was insubstantial. The Court of Appeals to be sure, decided it not on that ground but on the ground of the applicability of Barr against Matteo which as Mr. Wirin correctly points out, the Government does not rely on with respect to the one remaining petitioner in this case in this Court. It would be pointless -- most certainly may in the brief which was filed below on behalf of the respondent. Now, we say that this constitutional claim is wholly insubstantial because even if it were to be assumed that there is a right to damages for a violation of the Fourth Amendment, this was the question which this Court left open in Bell against Hood, we think that the amendment cannot possibly be read as granting protection against being required to appear and give testimony to a legislative, judicial or administrative body, or granting a claim to one who in fact, some of the allegations of the complaint neither testified nor appeared. Now, notwithstanding this insubstantiality, we do not urge that the District Court was without jurisdiction to entertain petitioner's complaint under 28 U.S.C. 1331. As we read this Court's decision in Bell against Hood, it is of no moment in the resolution of the jurisdictional issue that the complaint does not state a claim upon which relief can be granted under the constitutional laws of the United States. The Court held that whether or not a valid cause of action is stated where the complaint is drawn as it is here, as to seek recovery directly under the constitutional laws of the United States, the federal court must entertain the suit. Now, there was some indication in Bell against Hood that there might be an exception where the alleged constitutional claim is either clearly immaterial or wholly insubstantial. But the court went on to suggesting Bell and again in Baker against Carr that it is doubtful at dismissals on these grounds, but insubstantiality, it could properly be considered as jurisdiction. And as for this reason, again, we do not in response to the question which the Court posed at the time that it granted certiorari, we do not urge that the District Court was without jurisdiction. Rather we suggest that the complaint was appropriately dismissed for the failure to state illegally cognizable claim.
Arthur J. Goldberg: [Inaudible]
Alan S. Rosenthal: That's right. But as long as his complaint is drafted so as to be based, you see, the right to recover to be based upon the Constitution or the laws of the United States, there is federal jurisdiction irrespective of how insubstantial the claim may be. At least, this is the way that we read Bell against Hood and the way indeed that the Ninth Circuit read it.
Hugo L. Black: What is the ground on which you say you distinguish and say that this one should have been dismissed for what reason?
Alan S. Rosenthal: In this case, for the fairness to state a claim upon which relief could be granted in an action in a Federal District Court where jurisdiction rested necessarily upon Section 1331 of the judicial code.
Hugo L. Black: You mean failed to state the cause of action?
Alan S. Rosenthal: That's right. Fail to state a claim under the laws of the United States or the Constitution of the United States.
Hugo L. Black: Failed to state a cause of action.
Alan S. Rosenthal: That's correct. Whether it's a state -- cause of action or a claim upon which relief could be granted.
William J. Brennan, Jr.: And I gather you're relying on -- what suit is the civil rule, 12 or something rather, isn't it? That permits, what, dismissal for failure to state a cause of action?
Alan S. Rosenthal: Yes, I think so. I think --
William J. Brennan, Jr.: Is that what you are relying?
Alan S. Rosenthal: That's correct. Now, we submit if the Court pleases, that insofar as the claim is asserted under the Fourth Amendment, that we think that the history of the amendment, its terms and its interpretation by this Court, all compel the conclusion that the Fourth Amendment does not reach the issuance of a subpoena ad testificandum. With respect to the history of this amendment, the background of the Fourth Amendment has many times been discussed by this Court as recently as in Frank against Maryland. As the Court has noted, the Fourth Amendment had it's genesis in the infamous general arrest and search warrants which were prevalent in Great Britain in the 18th century. And their colonial counterpart, the general writs of assistance which were employed principally in the colony of Massachusetts Bay for the purpose of the enforcement of the revenue laws. Now, as it was made clear in both Lord Camden's opinion in Entick against Carrington which this Court has many times referred and which held that the English warrants were invalid and the famous argument of James Otis against the Colonial Writs of Assistance, the fundamental vice there involved to which the Fourth Amendment was directed was the denial of two essential liberties. The first of these liberties was the right of privacy in one's home, one's possessions and one's papers. The second was the denial of the freedom from preemptory arrest and detention without probable cause. And both the English general search warrants and the Colonial Writs of Assistance offended one or both of these essential rights. The -- of the first American precedence of a constitutional character for the Fourth Amendment was the Virginia Bill of Rights of 1776. Both its Article 10 which condemn general search and arrest warrants oblivious in the press and the like constitutional provisions which were adopted in six other states in the period between 1776 and 1784 reflected against a concern only for the privacy in one's residence and possessions for freedom from unreasonable arrest and complaint. Now, these we submit, are rights involving interests which are markedly different and considerably more important than those which would be affected by an unauthorized order to appear and testify at an unprivileged matter. We think that the terms of the Fourth Amendment confirmed that it was not intended to protect witnesses from being compelled to testify. Testimonial compulsion, we submit plainly does not involve the right of the people to be secure in their person's, houses, papers and effects against an unreasonable search and seizure. Similarly, the issuance of the subpoena ad testificandum is by no means an arrest or in the terms of the amendment, the seizure of a person. What the amendment protects against the net context is the immediate detention of the individual under a forced -- under threat of force or under the assertion of some legal right to detain the person at once not the direction that the person appear at some future date to give testimony before a judicial legislative or administrative tribunal.
Speaker: In saying that, you've drawn out a distinction between a case where the witness doesn't testify -- actually testified or where he does?
Alan S. Rosenthal: That's -- well, we're dealing of course here Mr. Justice --
Speaker: And before the --
Alan S. Rosenthal: -- Harlan with the merely issuance of the subpoena and that is all that Mr. Wheeler is charged with. And the issuance of the subpoena directing the recipient to appear at some future date to give testimony before a Committee of the Congress before a judicial body that in and of itself is not immediate detention and it's never been regarded as being an arrest. We refer --
Byron R. White: [Inaudible]
Alan S. Rosenthal: If he appeared and refused to testify on the basis of the Fourth Amendment, well then at that point, since the claim at least in our view would be entirely substantially, would be subject to that point of arrest.
Byron R. White: [Inaudible]
Alan S. Rosenthal: No, Your Honor, because in that instance, if he were arrested, he would not --
Byron R. White: I'm saying [Inaudible] it's his right not to testify with the basis of the Fourth Amendment. Is that the same question that's involved from -- whether or not the services of warrant or service of the subpoena violates the [Inaudible] --
Alan S. Rosenthal: I don't think so.
Earl Warren: In other words, your case would be no different if he had appeared before the Committee.
Alan S. Rosenthal: Precisely Your Honor. On this phase of our argument, we do point out in -- another phase of our argument is this that even if you could say that the -- directing of somebody to appear to testify was a search or constituted an arrest. In this case, since the individual neither appeared nor testified, there would plainly be no search or seizure even if the terms had that broad meaning. That even if again, even if you were to assume that the Fourth Amendment would reach this type of subpoena in the absence of demands that are actually responding to this subpoena appearing to give testimony, there plainly could be no Fourth Amendment violation. This is no different we would think as we've suggest in our brief in the situation where an officer with a totally unlawful search warrant were to appear at a man's home and demand admission and the man was to turn him away from the door. In that case, so we would submit, there would be plainly no basis for any action against the officer because in point of fact no search or seizure took place. By the same token here, even if the Fourth Amendment applied to subpoenas ad testificandum which it doesn't there would be no claim stated under the Fourth Amendment because there was no appearance and no testimony was given.
Earl Warren: But what I want to get clear in my mind is if you -- you were giving us the history Mr. Rosenthal of the Fourth Amendment. And you said that the mere service of a subpoena would never contemplate it by the -- those who drafted the Amendment. Now, could you say exactly the same thing if he had appeared and testified?
Alan S. Rosenthal: That's correct.
Earl Warren: That's -- that's --
Alan S. Rosenthal: That is correct. The subpoena ad testificandum, we're again only talking about a --
Earl Warren: Yes.
Alan S. Rosenthal: -- testifying subpoena --
Earl Warren: Yes.
Alan S. Rosenthal: -- as it were.
Earl Warren: Yes.
Alan S. Rosenthal: Now, this brings me, if the Court pleases, to this Court's prior decisions in this area.
Byron R. White: [Inaudible] -- this whole affair is illegal, it's in violation of the Fourth Amendment, he won't answer a thing. Then he's arrested. His Fourth Amendment rights then [Inaudible] --
Alan S. Rosenthal: Absolutely --
Byron R. White: -- as to that point.
Alan S. Rosenthal: I would say, absolutely not.
Byron R. White: Why?
Alan S. Rosenthal: The -- because in --
Byron R. White: Assume for the moment that you concede that subpoena in the first place is illegal, [Inaudible] --
Alan S. Rosenthal: Well --
Byron R. White: But you do I take it if this -- for the purpose of this --
Alan S. Rosenthal: For the purpose of the case. Well, now, I think we've got of course two questions. This -- the first question is whether his rights have been violated by the individual who issued the subpoena. That's plain enough and we're assuming that he appears before the Congressional Committee and he's asked these questions and he stands on the Fourth Amendment and he is then subject to arrest by the Committee itself or by the -- and the arrest is presumably effected by United States Martial. Now in that case, there would be no conduct possibly on the part of the respondent here given that sequel to the issuance of the subpoena here which could be regarded as an invasion of any Fourth Amendment right on his part, because the arrest --
William J. Brennan, Jr.: But why is this -- on the theory of waiver or something or because he responded to the subpoena and showed up, what was it?
Alan S. Rosenthal: No.
William J. Brennan, Jr.: Waive it or what?
Alan S. Rosenthal: No, it wouldn't be the waiver but that it would be that the Fourth Amendment again is directed to the protection of the right of the individual to be secure in his person.
Byron R. White: Well, he isn't very secure after he's arrested.
Alan S. Rosenthal: But his -- the lack of security after he is arrested if the Court pleases, is not because of any action on the part of the issuer of the subpoena. All that has transpired in this case suppresses that the respondent issued this piece of paper which directed him to appear. Now, if subsequently he appears that --
Byron R. White: When he didn't have to?
Alan S. Rosenthal: When he didn't have to.
Byron R. White: That he didn't have to answer any questions then?
Alan S. Rosenthal: Then if he is arrested, if he is arrested at this juncture, if there is a violation of the Fourth Amendment, the violation is on the part of the people who arrested him.
Byron R. White: Well, but if -- but the rights that has been violated are his Fourth Amendment rights.
Alan S. Rosenthal: Well, is a possibility in those circumstances of a violation of the Fourth Amendment. On the other hand, in the hypothetical that you pose Mr. Justice White, it -- it would seem to me that his -- he would have absolutely no cause of action because there would be no substance to his claim whether these -- that -- based upon the Fourth Amendment. Now, in the area of testimonial compulsion, this Court has established in the series of opinions the applicability of the Fifth Amendment's protection against self-incrimination, quite recently in NAACP against Alabama, the First Amendment's protection of the right of association and of course it also held sometime ago in the -- in Kilbourn against Thompson that the witness is immunized from testifying in circumstances where the congressional inquiry does not have a valid underlying legislative purpose. But it's never been suggested to my knowledge, if Your Honor pleases, that the testimonial compulsion at any stage of the procedure is subject to the guarantee of the Fourth Amendment. Now, the Fourth Amendment has come in as was noted earlier in connection with the subpoena duces tecum. And as Mr. Wirin correctly points out, this Court has held that a subpoena duces tecum is within the ambit of the Fourth Amendment.
Hugo L. Black: What was the basis of that?
Alan S. Rosenthal: The basis of that holding was that a subpoena duces tecum can accomplish the substantial objects of a forcible entry into a man's house and a search of his papers.
Hugo L. Black: Its -- it was based was it on the fact that it was summoning him to bring those papers was equivalent to compulsory production of papers --
Alan S. Rosenthal: That's right.
Hugo L. Black: -- to make the nonproduction of them, a confession of the allegation which pretended they were proved.
Alan S. Rosenthal: That's right. But it was in the --
Hugo L. Black: But here, suppose a man is summoned to appear in a wholly wrongful summoning, he does not appear, what happens to him?
Alan S. Rosenthal: At this point Your Honor, if he does not appear, he would be at that point subject to trial on the question as to whether or not his failure to appear --
Hugo L. Black: You mean, you're using it less euphoniously, euphemistically that he would then be subject to be prosecuted for failing to appear.
Alan S. Rosenthal: That's right but he would have it --
Hugo L. Black: And in the Boyd case, I'm trying to get whether there any distinction, in the Boyd case, tell not the mere facts, he would get those papers later that he was trying to get those papers. But when they summoned him to get them with the knowledge that if he didn't produce them, he could be prosecuted, they had violated his rights.
Alan S. Rosenthal: Boyd case, if Your Honor pleases, was com -- wholly, we submit, in the context of the fact that it is papers or possessions of the individual which are being --
Byron R. White: They're more important than the person themselves?
Alan S. Rosenthal: They're not more important Your Honor than the person itself. There are protections --
Byron R. White: Well, the one they -- compelled him to bring the document and the other -- tell them to bring himself?
Alan S. Rosenthal: Well, in the -- I don't think it's a matter of relative importance. It's a -- it is a matter of the -- being regarded traditionally, being regarded traditionally that a man has this right to privacy in his papers and in his possessions. Now, insofar --
Hugo L. Black: But why do you keep emphasizing privacy? The First Amendment, the Fourth Amendment does not use the word privacy. Can you either reduce or expand the scope of the First Amendment by taking in however much has been used, the word privacy in substituting it for the language of the Fourth Amendment.
Alan S. Rosenthal: Well, Your Honor, the -- we would submit that the underlying thought in the Fourth Amendment was that of privacy.
Hugo L. Black: That's one of the reasons.
Alan S. Rosenthal: And --
Hugo L. Black: It's one of the many. It would be quite a different amendment would it not if it had said a man's right of privacy shall not be invaded?
Alan S. Rosenthal: Well, it is a man's -- if Your Honor pleases, it is, it seems to us in effect certainly that the Fourth Amendment is addressed to the man's right of privacy in his papers and his possessions. It is that -- that you -- the --
Hugo L. Black: It's addressed in its language that its unreasonable search and seizure, search for those papers and the unreasonable seizure of -- then you have to pass on it. It maybe that the facts it's a particular type of thing its done would be -- consider them to -- determining whether or not it's reasonable. But it seems to me that there'd been much talk about the privacy which tends to reduce the value of the Fourth Amendment, to limit it to that on the one hand. And on the other hand, tends to expand it to a vaguely indefinite field where nobody knows what it's about.
Alan S. Rosenthal: Well, we --
Speaker: Have a lot of these [Inaudible] cases up here and I'm just trying to think perhaps I'm wrong but you can correct me. I can't think of any case where it's been -- counsel has suggested that if he was -- that his client was asked to come before the Un-American Activities Committee or subpoenaed that he had a claim under the Fourth Amendment to resist answering.
Alan S. Rosenthal: We -- Your Honor know -- not only know of no such case of that kind but we know of no such case where it has been suggested either in the context of a Congressional Committee proceeding, a judicial proceeding or an administrative proceeding that there is a Fourth Amendment right involved in directing the man to appear and give testimony.
Speaker: That's the --
Alan S. Rosenthal: This is the first case. Now, in the area of congressional investigations, the first congressional investigation took place in 1792 when Congress sought -- set up a committee of seven of its members, the House of Representatives with full power to call persons and to seize papers and that investigation was in the connection with Major St. Clair's disastrous invasion against the Indians in the Northwest Territory when that's -- since that time as -- until this case as of any suggestion that the Fourth Amendment has any bearing whatsoever to being called to give testimony and we would again submit that insofar as the Boyd case is concerned that it was the fact that a subpoena duces tecum can accomplish. The Court said --
Hugo L. Black: It cannot accomplish it on the basis of the Court's holding. The Court held, as I understand it, maybe I'm wrong, it's the reason I asked you the question, as I understand it, what it held was this. Here's a subpoena issued to bring the paper. If you don't bring them you can be prosecuted. The Court held that since the subpoena was bad, it violated his rights. Now, why would not that same reasoning apply to this subpoena?
Alan S. Rosenthal: Because, Your Honor, again, the Boyd case itself as Your Honor may recall had discussed at some length the background of the Fourth Amendment and that went through Entick against Carrington and the landmark opinions of Lord Camden and also the James Otis --
Hugo L. Black: But it's the holding was the other, wasn't it?
Alan S. Rosenthal: No. But it's holding there was -- again was, as we read that case what it held was this and that is that what the Fourth Amendment was directed against was someone breaking in under a color authority into one home and seizing his papers. And the Court said that even though here, you don't -- you do not have that drastic form of governmental action that the subpoena duces tecum with this compulsions that attaches to it, directing the individual to bring the papers or else --
William J. Brennan, Jr.: But the Fourth Amendment also talks about arresting the person, doesn't it?
Alan S. Rosenthal: That's right, but the -- in this case, again, that -- we're dealing here again with the issuance of the subpoena. Now, we submit again that it cannot possibly, the arrest, the security of --
William J. Brennan, Jr.: Well, the Fourth Amendment certainly doesn't deal only with seizing papers.
Alan S. Rosenthal: No, it -- the Fourth Amendment also says that -- it said the right of the people to be secure in their person's, houses, papers and effects against the reasonable search and seizure shall not be violated and that no warrant shall issue but upon probable cause supported by --
Byron R. White: The people arrest the person out on the street without probable cause and without a warrant, his the Fourth Amendment right violated or not?
Alan S. Rosenthal: I would say his Fourth Amendment rights might well be violated, no sir.
Byron R. White: So really, the Fourth Amendment deals with persons and not his papers.
Alan S. Rosenthal: It does Your Honor in terms of the --
Byron R. White: Well, I just don't understand how you've even came -- come closer in answer to Justice Black's question.
Alan S. Rosenthal: The Fourth Amendment, if the Court pleases, protects two things in -- two in -- types of invasions of personal liberties. And one of them is the search and seizure part that has nothing to do with individuals except to the extent that the individual may be searched himself or his papers. The other part of the Fourth Amendment is the security of the individual against what? Against arrest. Now, in the Boyd case, they were dealing where --
Hugo L. Black: Can I ask you (Voice Overlap) -- before you -- just to add to what you've answered to Justice White. Suppose they'd thrown out a warrant for a man, a search warrant for stealing, having stolen goods in his possession and as Mr. Justice White said, they don't execute it but there he is -- could that -- is that man -- does he have a right to sue this man for issuing such a -- causing such a warrant to be issued against him?
Alan S. Rosenthal: Just on the issuance of the --
Hugo L. Black: And arrest, yes, just for the issuance. The sheriff decides, I'm not going to serve this thing. I don't like it.
Alan S. Rosenthal: No, not for the mere issuance of it, no.
Hugo L. Black: Are there any cases? Have you looked up the point that was -- that in connection with state cases?
Alan S. Rosenthal: Well, if Your Honor pleases, let me make one point quite clear at this point. We are not suggesting, that's why I think we make it quite clear on our brief, that if the facts are as alleged in this complaint, that this individual would have no right of action, the petitioner here against the respondent that where a federal official outside the scope of his authority but acting under the color of law, invades an individual's rights, a from of trespass, from a conversion of his property, and form false arrest or false imprisonment. He has a common law right, no question about that. But we're dealing with here if the Court pleases, necessarily since the jurisdiction of the District Court in this case is wholly dependent upon 28 U.S.C 1331. There is no diversity jurisdiction alleged in this case.
William J. Brennan, Jr.: You're saying that he has a state remedy but no federal remedy --
Alan S. Rosenthal: Precisely.
William J. Brennan, Jr.: -- on this allegation?
Alan S. Rosenthal: He might have. He might have a state remedy and in the state remedy, he might -- it would be for abuse of process if he has one. The California law of abuse of process is somewhat elusive.
Byron R. White: So you'd say that even if -- your first point is that the Fourth Amendment doesn't -- won't give – provide him any protection in any way. But even if it did, it doesn't give a -- it doesn't form the basis for his -- in his simple relief.
William O. Douglas: Well, the Fourth --
Alan S. Rosenthal: (Voice Overlap)
William O. Douglas: -- Fourth Amendment is a -- turn -- sets up a procedure so there will not be abuse of process, isn't that it?
Alan S. Rosenthal: Your Honor, the -- well, if it's just --
William O. Douglas: The things that have to be done.
Alan S. Rosenthal: Well, abuse of process can take many forms.
William O. Douglas: Yes.
Alan S. Rosenthal: And we would be -- certainly, the Fourth Amendment is designed to protect against the -- against the issuance of either unwarranted search warrants or arrest warrants, but there -- of course, process is a much broader concept than that. An abuse of process will cover in addition such things as the writs of attachments and subpoenas. Now, we say that a subpoena ad testificandum isn't within the bounds of the Fourth Amendment. It is plainly, however, this has been held to be within the bounds of the concept of abuse of process. Now, if again, that our position is here -- is not that necessarily on the allegations of this complaint, there is no cause of action at all. Our position is that there is no federal cause of action cognizable in a diversity suit but there is a cause of action and it is under state law. Now, I would like to point out in that connection.
William J. Brennan, Jr.: Is this a diversity of [Inaudible] --
Alan S. Rosenthal: No, it's not Your Honor and that is the -- that is the hurdle that we think that the petitioners cannot overcome is that the -- there is no diversity here because it's alleged in the complaint that both petitioner, respondent were residents of California. And therefore, the claim has to be based upon 1331 and it doesn't arise under the Constitution. Now, it clearly also does not arise under the laws of the United States. There's been some reference by Mr. Wirin of the enabling resolution. As this Court has held on many occasions, a claim does not satisfy the jurisdictional requirement of federal jurisdiction merely because the course of its decision will raise a question under the Constitution or a federal statue. The claim must base its right to recover squarely upon the Constitution or an Act of Congress. And I think that this Court's examination of Rule XI, will convince it that the resolution cannot possibly be regarded as being a direct source of a right to money damages.
Arthur J. Goldberg: Mr. Rosenthal, [Inaudible]
Alan S. Rosenthal: It doesn't involve immediate detention but directs him merely to appear in Court. We would say no.
Arthur J. Goldberg: [Inaudible]
Alan S. Rosenthal: We would say --
Arthur J. Goldberg: [Inaudible]
Alan S. Rosenthal: It -- we would say that's a little closer obviously to the line between arrest and not arresting in this case but we have cited in our brief an opinion of Justice Cardozo when we was sitting on the New York Court of Appeals which indicates -- reflects, I should think the common law view that arrest involves immediate detention, not merely the appearance in Court at some subsequent day. But in the case which you hypothesize Mr. Justice Goldberg, at least there -- the individuals being called to answer, a criminal or quasi criminal charge. In this case is merely being directed to do with millions of people over the years have been directed to do and that is to respond to a subpoena to give testimony.
Earl Warren: Mr. Wirin.
A. L. Wirin: May it please the Court.
William J. Brennan, Jr.: Mr. Wirin, has it [Inaudible] on this, any violation of the Civil Rights Act at all?
A. L. Wirin: None at all.
William J. Brennan, Jr.: Any reason for that?
A. L. Wirin: Yes. I think the Civil Rights Act (Voice Overlap) --
William J. Brennan, Jr.: It only applies to state action (Voice Overlap) -- I beg your pardon?
A. L. Wirin: I think the Civil Rights Act probably (Voice Overlap) --
William J. Brennan, Jr.: That's right.
A. L. Wirin: -- conduct by state officers --
Potter Stewart: That's right.
A. L. Wirin: And that this is a conduct by a federal official.
Potter Stewart: That's right. Thank you.
A. L. Wirin: Now, I dissent from the views of the Solicitor General's office with respect to the meaning of the phrase arise under law or Constitution, and the suggestion made that in order for a federal court to have jurisdiction, in order for a matter to arise under a law or the Constitution, the law or Constitution must expressly confer a specific right. This Court explored this entire matter in International Association of Machinists versus Central Airlines a week ago yesterday. And in that case, what was involved was a contract presumably made under -- under state law, but stemming from obligations which arose out of federal law and this Court took the view that the federal court had jurisdiction.
Potter Stewart: I don't think there's any issue between these two, the jurisdiction and the federal court as I understand it.
A. L. Wirin: Well, I think perhaps there isn't, but what I really ought to go on to say is that not only is there jurisdiction but in such circumstances then there is a statement of a cause of action invoking a federal claim.
Potter Stewart: And that is the --
A. L. Wirin: And if so, there would be -- if so, the motion to dismiss which was sustained here because the complaint doesn't state the claim, I suppose presumably doesn't say the federal claim was improvidently granted.
Byron R. White: Mr. Wirin --
A. L. Wirin: Yes.
Byron R. White: -- there is a -- the Government does not agree with you however that there -- that the case arises under a law. It does agree with you that it arises under the Constitution.
A. L. Wirin: Yes.
Byron R. White: And I don't --
A. L. Wirin: Now, we say --
Byron R. White: I don't understand why in your mind it's significant for you to insist that there -- it arises under a law as well as under the Constitution?
A. L. Wirin: Well, if we have two strings to our bow, could be -- maybe a little better off than just one.
Potter Stewart: You don't need any if the other side agrees with you.
A. L. Wirin: Well, but you see, their agreement with us, Your Honor, to be candid, is nominal rather than substantive because they concede there was jurisdiction and then they proceed to argue that there is no cause of action stated because no federal claim is stated.
William J. Brennan, Jr.: Well, is it – [Inaudible] on the ground that any federal claim stated is so insubstantial and frivolous that it does not state a cause of action. Isn't that rather what the Government's position is?
A. L. Wirin: I'm not sure.
William J. Brennan, Jr.: I thought --
A. L. Wirin: If they -- if --
William J. Brennan, Jr.: I thought they were relying -- I thought they were saying the fact that under Bell and Hood, you've got two things. You've got jurisdiction and cause of action and if you rest it on the Constitution, you state jurisdictional right but no cause of action unless the federal constitutional claim is substantial and non-frivolous?
A. L. Wirin: Alright, now let me address myself to that summarily, and also say something that I neglected to say in my opening argument with respect to the matter of the Fifth Amendment as well as the Fourth Amendment, we're trying three strings rather than two. We say that in addition to there being a violation of the Fourth Amendment, there was a violation of the Fifth because the process here was issued arbitrarily and hence not in the accordance to due process of law that it affects the petitioner's liberty because it's compulsory process which compels this petitioner to go to some place and be there at a certain time (Voice Overlap) --
William J. Brennan, Jr.: Arbitrarily, only because it was an excess of authority to issue, is that it?
A. L. Wirin: That's right. And therefore we say that a process which issues arbitrarily violates due process of law, and if it affects liberty by some restriction of liberty that it's a separation of liberty without due process of law in violation of the Fifth.
Potter Stewart: Well now, isn't that true --
A. L. Wirin: And --
Potter Stewart: Every subpoena issued by every court in the land and they're (Inaudible) -- issued by the thousands everyday, affects to some extent the liberty of those upon whom those subpoenas are served.
A. L. Wirin: With these three, Your Honor.
Potter Stewart: Because if they have to go to court, instead of going to work that day or instead of going to the ball game.
A. L. Wirin: But every such subpoena would not abridge liberty without due process of law unless if it were issued arbitrarily. And if it is issued arbitrarily, we would say, and if it was federal process, we would say that it is a matter which should be adjudicated to the validity of the process, should be adjudicated by the federal courts. And that leads me then to what I want to say --
Arthur J. Goldberg: [Inaudible]
A. L. Wirin: It would --
Arthur J. Goldberg: [Inaudible]
A. L. Wirin: Yes, I think that's correct. I think probably that's the import of -- that's the inescapable effect of my argument.
Hugo L. Black: Are you basing --
A. L. Wirin: I'm not too sure now.
Hugo L. Black: -- your case on that?
A. L. Wirin: Pardon?
Hugo L. Black: Are you basing your case on that?
A. L. Wirin: No, not at all because --
Hugo L. Black: If you are, you probably will --
A. L. Wirin: Because of --
Hugo L. Black: -- have to make a full argument you've made of --
A. L. Wirin: Yes. No, I'm not basing my case.
Hugo L. Black: Which provision of the Constitution says arbitrarily and capricious? I thought you're on the Fourth Amendment?
A. L. Wirin: Well, all I'm saying is, I think we also have a due process. Deprivation of liberty without due process under the Fifth Amendment and in that connection what I want to say is --
Hugo L. Black: What it is, is a deprivation of that due process, isn't it if it violates the Fourth Amendment in order to make the arrest?
A. L. Wirin: Well, I --
Potter Stewart: What was the arrest (Voice Overlap) --
A. L. Wirin: I have to go a little farther (Voice Overlap) --
Potter Stewart: What arrest was there in this case?
Hugo L. Black: I mean to make this -- serve the subpoena --
A. L. Wirin: I am not contending there was any (Voice Overlap) --
Potter Stewart: I didn't think you were.
A. L. Wirin: I'm not contending to what arrest. But I am saying --
Speaker: [Inaudible]
A. L. Wirin: Well, alright. A subpoena is a form of compulsory process. It requires a person to do that which otherwise he's under no requirement to do, and to do it on pain of prosecution and to that extent it's a --
Speaker: [Inaudible]
A. L. Wirin: -- is not serious violation.
Speaker: If the man didn't show up [Inaudible] --
A. L. Wirin: As a matter of fact, counsel was incorrect about that in two respects. He's talking about a different man. He's talking about Wheeldin, not Dawson. As a matter if Dawson did show up. To be sure, we don't say it in our complaint, we don't think it's necessary to say it.
Speaker: [Inaudible] as far as the --
A. L. Wirin: Well, the complaint --
Speaker: -- complaint is concerned, you're (Voice Overlap) --
A. L. Wirin: The complaint said nothing --
Speaker: [Inaudible]
A. L. Wirin: -- the complaint says nothing about that one way or the other. And what I was tying -- what I want to say is that I think Boyd versus United States decides and I think this Court has either decided or has been committed on a number of occasions that the dividing language in the Fourth and the Fifth is a fine complaint that both the Fourth and the Fifth, we're talking about due process, are designed to protect as Boyd versus United States says, the security of the person and his effect.
William J. Brennan, Jr.: [Inaudible] in respect to relation there has been -- in respect to the privilege against self-incrimination has it been not for the due process?
A. L. Wirin: But Your Honor, I think you've -- if Your Honor will look again at Boyd versus United States in 116 (Voice Overlap) --
William J. Brennan, Jr.: It went beyond the privilege?
A. L. Wirin: It didn't discuss the privilege at all. It was discussing merely the securing of evidence from a person against him through compulsory process by the Government.
William J. Brennan, Jr.: Well, does it --
A. L. Wirin: There through a subpoena duces tecum --
Potter Stewart: Haven't you -- haven't you right there put your finger on the big distinction between a subpoena duces tecum and a subpoena to appear and testify ad testificandum. In Boyd against the United States which relied as you rightly say on both the Fourth and the Fifth Amendments and which involved a subpoena to bring a lot of papers and records. It was necessary right at that point in order to assert the witnesses' rights under the Fourth and Fifth Amendments to resist that subpoena because those records, once they were in the hands of the opposite party or in the Court, could not stand up and say, “I rely on my privilege under the First Amendment. I rely under -- on my privilege right under the Fifth Amendment.” To them, it would've been done, but a live witness, not compelled to bring anything with him but only to come there himself can come there with all his constitutional rights intact and those can be tested if as it when he asserts them in answer to any interrogation that may be addressed to him.
A. L. Wirin: Your Honor --
Potter Stewart: Isn't that the difference?
A. L. Wirin: -- is quite right and I agree with you entirely but let us take your example one step further. Suppose the person who was subpoenaed in Boyd versus United States have sued for damages. He would say, my -- the federal court has jurisdiction and I am fitting a federal claim because my rights under the Fourth Amendment have been taken away. Now in -- what we're saying is that when a person is served with a subpoena whether duces tecum or ad testificandum, at least his liberty has been affected to the [Inaudible] and if it injures him seriously as it did as to petitioner, Dawson, we say, at least he may go to the federal court and secure relief. Now in this case, the original suit sought declaratory judgment that the subpoena was invalid, an injunction against the enforcement of the subpoena with respect to which the state courts of California couldn't possibly have any jurisdiction and it also sought damages.
Potter Stewart: All that's left is damages, am I right?
A. L. Wirin: All that is left is damages and all that we are saying is -- and the narrow question which finally results from this discussion about the broad constitutional principle which are in this case is the narrow question as to whether the plaintiff -- the petitioner is in the right hall and we say he is in the federal court correctly.
Potter Stewart: It's a little more than that. It's whether a trial -- whether or not a claim has been stated under the Constitution or law of the United States.
Speaker: What you're saying in effect, that you're arguing is that, under the due process, in that federal clause involved either a (Inaudible) -- a deprivation to liberty without due process of law or an unreasonable seizures of [Inaudible]?
A. L. Wirin: Yes. And may --
Speaker: [Inaudible]
A. L. Wirin: Yes and may in addition violate a statute here, Rule 9 (a). Now finally, I am also saying this that the Government's present concession that we can sue this respondent in the state court comes pretty late to help the petitioner for two reasons. In the first place, the statute of -- California statute of limitations has long since come and gone, but more seriously, this Court has said that a denial of a motion to -- the denial -- the granting of a motion to dismiss on the ground that a cause of action is not stated is an adjudication on the merits. And so even if we could file a suit in the state courts in California, we will be met by the doctrine of res judicata on the ground that there has been an adjudication on the merits of the claim, and indeed, Mr. Justice Black, in Bell versus Hood, the chief case on this subject said that a ruling, granting a motion to dismiss because a claim is misstated is not a ruling and that the Court has no jurisdiction that's allowing another court with extra jurisdiction, but is a ruling on the merits.
Potter Stewart: All right this is a -- the ruling here was that a claim under the Constitution or of the United States or a law of the United States hadn't been stated. There is no ruling that a claim had been stated under some federal or under some state statutory or common law, right?
A. L. Wirin: The ruling by the Court -- United States Court of Appeals which Your Honors are reviewing was directly to the effect that the plaintiff -- that petitioner had no right to relief because the defendant had it complete and asked for the immunity, no.
Potter Stewart: But that's no longer the issue as to both of you now also.
A. L. Wirin: If that is -- that's the law in which we proceed with the issue. Now finally, let me say these things. We think that sound judicial policy, but first, by congressional and federal executive policy calls for this kind of a case to be tried on the merits by a federal court rather than by a state court for these reasons. In the first place, the Congress has indicated a policy that suits against federal officials be tried in the federal courts by providing peremptorily in the removal statute that a federal official sue as this federal official is may summarily cause the matter to be removed to the federal court where he has acted under color of authority.
Arthur J. Goldberg: [Inaudible]
A. L. Wirin: I'm merely drawing the comfort that at least in that respect the Congress intended that in that situation, a federal tribunal is a proper tribunal. I'm going to say that in addition to that, the Department of Justice, and we set forth in an appendix to our reply brief, the policy of the Department of Justice of removal of cases to the federal courts. And we think it would be improvident and might even be unfair to public officials if their conduct was to be tried in a state court as subject to the vagaries of state court decisions and it could lead to a more uniform and more acceptable administration of justice where the citizen claims a federal official has deprived him of his rights if the federal district courts were to adjudicate those controversies.