PROCEDURE FOR JUDICIAL REVIEW OF CERTAIN ADMINISTRATIVE AGENCY ACTION

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000800160001-9
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• Document Page Count: 30
• Document Creation Date: December 12, 2016
• Document Release Date: May 13, 2002
• Sequence Number: 1
• Publication Date: September 22, 1976
• Content Type: REPORT

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ppilL ONORESS HO i r E fATIVES I REPORT
2d Session No. 94-1656
LL'
PROCEDURE FOR JUDICIAL. REVIEW OF CERTAIN
ADMINISTRATIVE AGENCY ACTION
SEPTEa&BER 22, 197G.-Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. FLOWERS, from the Committee on the Judiciary,
submitted the following
REPORT
The Committee on the Judiciary, to whom was referred the bill
(S. 800) to amend chapter 7, title 5, United States Code, with respect
to procedure for judicial review of certain administrative agency
action, and for other purposes, having considered the same, report
favorably thereon without amendment and recommend that the bill
do pass.
Purtrosa
The proposed legislation would amend section 702 of title 5, U.S.C.,
so as to remove the defense of sovereign immunity as a bar to judicial
review of Federal administrative action otherwise subject to judicial
review.
The bill would also eliminate the requirement of the $10,000 juris-
dictional amount in federal question cases, that is, actions arising un-
der the Constitution, laws or treaties of the United States, where the
action is brought against the United States, any agency thereof, or any
officer or employee thereof in his official capacity.
Further, the bill would simplify technical complexities concerning
the naming of the party defendant in actions challenging Federal
administrative action by amending section 703 of title 5, to permit
the plaintiff to name the United States, the agency or the appropriate
officer as defendant. This will eliminate technical problems arising
from plaintiff's failure to name the proper Government officer as de-
fendant.
Finally, the bill amends section 1391 (e) of title 28, U.S.C., to pro-
vide that, in actions against the United States, its agencies, or officers
or employees in their official capacities, additional persons may be
joined in accordance with the Federal Rules of Civilrocedures and
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with other venue requirements which would be applicable if the United
States, its agencies or one of its officers or employ ee were not a party.
STATEMENT
The Justice Department in its comments to the Senate committee
on this bill indicated that it favors its enactment in the form in which
it passed the Senate. This bill is also supported by the Administrative
Conference of the United States.
The bill S. 800 contains a series of amendments to titles 5 and 28
of the United States Code which have been endorsed by the American
Bar Association and by the Administrative Conference of the United
States. The bill' would first amend section 702 of tit. le 5 of the United
States Code. That section currently provides that a person suffering
legal wrong because of agency action, or adversely affected or ag-
grieved by agency action within the meaning of a relevant statute, is
entitled to judicial review thereunder. S. 800 would not alter this pro-
vision ; it would add to it. In so doing the bill would provide for abol-
ishment of the defense of sovereign immunity in certain actions against
the United States. More specifically, it would add to section 702 a pro-
vision that an action in a court of the United States seeking relief
other than money damages and stating a claim that an agency or an
officer or employee thereof acted or fail'ed to act in an official capacity
or under color of legal authority shall not be dismissed nor relief
therein be denied an the ground that it is against the United States
or that the United States is an indispensable party. It would also pro-
vide that the United States may be named as a defendent in any such
action, and a judgment or decree may be entered against the United
States.
In considering these recommended additions, it is important to note
that the amended section 702 would specifically provide that it would
not affect other limitations on judicial review or, the power or duty
of the court to dismiss any action or deny relief on any other appro-
priate legal or equitable ground. Further, section 702 clearly would
specify that it does not confer authority to grant relief if any other
statute granting consent to suit expressly or impliedly forbids the
relief which is sought.
This bill would also amend section 703 of title 5 of the United
States Code to remove the current uncertainty as to who may be named
as a defendant when the United States is sued. Specifically, the sen-
tence to be added to section 703 would.provide that if no special statu-
tory review proceeding is applicable, the action for judicial review
may be brought against the United States, the agency by its official
title, or the appropriate officer.
The bill S. 800 also provides two amendments to title 28 of the
United States Code. Section 2 of the bill would emend section 1331
to eliminate the current requirement that there be a $10,000 amount
in controversy in order to establish the jurisdiction of a federal court
over federal questions. The amendment provides that whenever a
federal question is litigated in an action brought against the United
States, any agency thereof, or any officer or employee thereof in his
official capacity, federal courts would have jurisdiction without regard
to the amount in controversy.
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Section 3 would amend section.1391(e) of title 28 to permit joinder
of third parties in litigation in which the Federal government is a
defendant.
The purpose of this bill is best summarized by stating that it would
remove three technical barriers to the consideration on the merits of
citizens' complaints against the Federal Government, its agencies. or
employees. The amendment made to section 702 of title .5 would elimi-
nate the defense of sovereign immunity as to any action in a Federal
court 'seeking relief other than money damages and stating a claim
based on the assertion of unlawful official action by an agency or by
an officer or employee of the agency. The amendment to section 702
would not affect other limitations on judicial review-such as that the
plaintiff lacks standing to challenge the agency action, that the action
is not ripe for review, or that the action is committed to. unreviewable
agency discretion. Similarly, the amendmentwould not confer author-
ity to grant relief where another statute provides?~ form of relief
which is expressly or impliedly exclusive. The amendment to section
702 is meant to eliminate onl the doctrine of sovereign immunity as
a bar to naming the United Mates. It is not addressed to. the issue of
proper parties defendant. That is treated in the second sentence'added
to section 703 by the bill.
As has been noted, section 1 of the bill would also amend section
703 of title 5, United States Code, by the addition of a new second
sentence which would permit the plaintiff in, actions for nonstatu-
tory review of Administrative action to name the United States, the
agency, or the appropriate officer as defendant. This is intended to
eliminate technical problems arising from' a plaintiff's failure to
name the proper Government officer as a defendant. The first clause of
the new sentence is intended to preserve specific provisions regarding
the naming of parties which have been or may in the future be estab-
lished by Congress. Stich provisions may be part of a fully developed
review procedure or may be provisions' which are even more narrowly
directed only to the required naming of a particular defendant where
such requirement has intended consequences, sucli,.'as the restriction
of venue or service of process. An example of the latter is 16 U.S.C.
831c(b), which displays an intent that litigation -involving actions
of the Tennessee Valley. Authority be brought against that agency
only' in its own name. See National Resources G ouncil v. Tennessee Val-
ley Authority, 459 F. 2d 255 (2d Cir:1972)
Another problem which may arise in fictions for judicial review of
administrative action is that the right asserted: cannot'be valued in
dollars 'and cents. Section 2 of the bill meets this problem by amend-
ing section 1331 (a) of title 28 by. adding an exception to the.require-
ment that there be at least $10,000 in controversy, so that when the
action ;is brou'glit against the United States; any agency thereof, or
any officer or employee thereof in his official capacity, the establish-
ment of any such sum or value. would not be required.
As has been indicated, the bill would remedy certain other technical
problems concerning the naming of the United States, its agencies,
or employees as parties defendant in actions challenging Federal
administrative action, and also relating to the joinder of appropriate
non-Federal parties.
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BACKGROUND OF THE BILL
The bill S. 800 implements Recommendations 684, 69-1 and 70-1 of
the Administrative Conference of the United States,' and the texts of
the recommendations of the Conference are set out at the end of this
report. This bill, and the companion House bill, H.R. 10199, are also
supported by a wide range of organizations and agencies, including
the American Bar Association,2 the Federal Bar Association," the En-
vironmental Defense Fund,' the Judicial Conference of the United
States,5 and the Department of Justices
The bill H.R. 10199 was the subject of a subcommittee hearing
before this committee's Subcommittee on Administrative Law and
Governmental Relations on December 4, 1975 at which representatives
of the Administrative Conference of the United States and the Amer-
ican Bar Association testified in support of the bill.' Hearings were
held S. 800 in the Senate by the Subcommittee on Administrative
Practice and Procedure of the Senate Committee on the Judiciary on
April 28 and May 3,19.76 .8 On May 10, 1976 the Department of Justice
submitted its written views on the bill S. 800 to the Senate committee.
The Department supports the bill in the form passed by the Senate.'
Congress has made great strides toward establishing monetary lia-
bility on the part of the Government for wrongs committed against its
citizens by passing the Tucker Act of 1875, 28 U.S.C. sections 1346,
1491, and the Federal Tort Claims Act of 1946, 28 U.S.C. section
1346 (b).10 S. 800 would strengthen this accountability by withdrawing
the defense ofsovereign immunity in actions seeking relief other than
money damages, such as an injunction, declaratory judgment, or writ
of mandamus. Since S. 800 would be limited only to actions of this
type for specific relief, the recovery of money damages contained in
1 See exhibit A, below, for text of the Conference recommendations.
2 See statements of William Warfield Ross, Esq. and Francis M. Gregory, Jr., Esq.,
American Bar Association. In Hearings before the Subcommittee on Administrative
Practice and Procedure on 'Bills to Amend the Administrative Procedure Act," April 28,
May 3, 1976, 94th Cong., 2d seas. (1976) (hereinafter cited as "1976 Hearings"). Also
see statements of the same witnesses in Hearing Serial No. 29 of the House Judiciary
Committee subcommittee on Administrative Law and Governmental Relations, Dec. 4,
1975.
Federal Bar Association, 1976 Hearings.
,See statement of Donald A. Rage, Esq., See statement of Jacqueline Warren, Esq., Environmental Defense Fund, 1976 Hearings.
See letter from William E. Foley, Deputy Director, Administrative Office of the United
States Courts, Nov. 3, 1970, exhibit B, below (hereinafter cited as "Foley letter"), support-
ing earlier version of bill, S. 3568.
8 See letter from Antonin Scalia, Assistant Attorney General Office of Legal Counsel,
May 10, 1976, exhibit C, below (hereinafter cited as "Scalia letter't).
7 House Committee on the Judiciary Hearing, Serial No. 29.
8 Senate 1976 Hearings supra.
9 Department of Justice letter of May10, 1976.
10 At the state level, the trend has also been toward the reduction or elimination of the
sovereign immunity defense. For example, 21 states and the District of Columbia have
by judicial decision overturned, in varying degrees, the sovereign immunity defense to
tort actions. (Alaska, Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois,
Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Nebraska, Nevada, New Jersey,
Pennsylvania, Rhode Island, West Virginia, and Wisconsin.) Approximately ten other states
(Connecticut Delaware, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, South
Dakota, Washington and Wyoming) have constitutional provisions which enable the legis-
lature to prescribe the manner and venue in which a suit against the sovereign may be
brought. The jurisdictions of Iowa, New York, Oregon, and Utah have ended by statute
the sovereign immunity defense to tort actions. Furthermore, the state of Montana has
completely abrogated the doctrine by constitutional amendment. For further discussion,
see Iljort. The Passing of Sovereign Immunity in Montana: The King is Dead! 34 Montana
L. Rev. 283 (1973) ; Comment, To Catch the Elusive Conscience of the King: The Status
of the Doctrine of Sovereign Immunity in Alabama, 26 Alabama L. Rev. 463 (1974).
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the Federal Tort Claims Act and the Tucker Act governing contract
actions would be unaffected.
Courts can make a useful contribution to the administration of
Government. by reviewing the legality of official conduct which ad-
versely affects private persons. The acceptance of judicial review is
reflected not only in court decisions but in the many statutes in which
Congress has provided a special procedure for reviewing particular
administrative activity. For years almost every regulatory statute
enacted by Congress has contained provisions authorizing Federal
courts to review the legality of administrative action that has adversely
affected private citizens.
Unfortunately, these special statutes do not cover many.of the func-
tions performed by the older executive departments, such as the De-
partments of State; Defense, Treasury, Justice, Interior and Agri-
culture. In addition, there are omissions and gaps in the application
of special review statutes. In these instances, judicial review is avail-
able, if at all., through actions involving matters which arise "under
the Constitution, Laws, or treaties of the United States" as provided
in section 1331 (a) of title 28. These actions are referred to. as "non-
statutory review" actions and jurisdiction for these review procedures
is in United States district courts.
These actions usually take the form of a suit for injunctive, declara-
tory or mandamus relief against a named Federal officer on the theory
he is exceeding his legal authority. In theory such actions are against
the officer and not against the Government for whom he is acting and
is a legal fiction developed by the courts to mitigate the injustice caused
by strict application of the sovereign immunity doctrine. At the Senate
hearings Richard K. Berg, executive secretary of the Administrative
Conference of the United States, noted :
* * * if this action were logical, easy to apply and did sub-
stantial justice, perhaps there would be no problem. But it
does not. On the contrary, it has set lawyers and courts to
chasing conceptual will-o'-the-wisps.11
there is no specific statute authorizing judicial review, the suit is dis-
missed on the basis of sovereign immunity.
Dean Roger Cramton of Cornell Law School, a former chairman of
the Administrative Conference and Assistant Attorney General and a
leading scholar on sovereign immunity, has described the effect of these
wispy fictions on the judicial process:
The problem is that judges who are not familiar with the history of
the fiction and its purpose attempt to make determinations whether
the suit is actually directed at the Government rather than the named
defendant. This practice in turn raises a number of complex questions
involving the relationship between the official and his employer-the
Government. If it is found that the Government is the actual defend-
ant, and there is no specific statute authorizing judicial review, the
suit is dismissed on the basis of sovereign immunity.
Dean Roger Cramton of Cornell Law School, a former chairman of
the Administrative Conference and Assistant Attorney General and a
1976 clearings, testimony of Richard K.:Berg,
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leading scholar on sovereign immunity, has described the effect of
these wispy fictions on the judicial process :
The basic problem with the sovereign immunity doctrine is
that it has developed by fits and starts through the series of
fictions. The resulting patchwork is an intricate, complex and
not altogether logical body of law. The basic issue-balanc-
ing the public interest in preventing undue judicial inter-
ference with ongoing governmental programs against the
desire to provide judicial review to individuals claiming that
Government has harmed or threatens to harm them-is
obscured rather than assisted by the doctrine of sovereign
immunity in its present form.12
Representing the Department of Justice, which supports S. 800,
Assistant Attorney General Antonin Scalia wrote:
No one can read the significant Supreme Court cases on
sovereign immunity, from United States v. Lee, 106 U.S. 196
(1882) to Malone v. Bowdoin, 369 U.S. 643 (1962), Dugan v.
Rank, 372 U.S. 609 (1963) and Hawaii v. Gordon, 373 U.S.
57 (1963) (per curiam), without concluding that the field is
a mass of confusion; and if he ventures beyond that to attempt
some reconciliation of the courts of appeals decisions, he will
find confusion compounded. Accepting the elimination of the
doctrine of sovereign immunity is not, then, a, case ofexchang-
ing the certain for the uncertain, or the known for the
unknown.13
The Senate report referred to a number of cases which illustrate
the problem referred to by Mr. Scalia. It was pointed out that the
doctrinal confusion caused by sovereign immunity has been high-
lighted in recent courts of appeals decisions. In Schlafly v. Volpe,
495 F.2d 273 (7th Cir. 1974), the court described sovereign immunity
as :
one of the more ill-defined aspects of federal jurisdiction.
Perhaps the only irrefutable statement that can be made
regarding this doctrine is that it appears to offer something
for everyone.14
The court then reviewed the leading Supreme Court cases and per-
tinent courts of appeals decisions in reversing in part a district court
dismissal of a suit challenging the legality of suspended Federal high-
way funding. The court held that the Federal Government had waived
sovereign immunity and, in any event, the ultra vires exception to the
doctrine rendered it inapplicable.
Writing of the, doctrine's exceptions, the Selala fly court noted :
In anticipation of the government's cry that the sovereign
cannot be sued without consent, complaints are drawn with
a covetous eye on the doctrine's `exceptions,' only to be con-
fronted with assertions that the facts present an `exception
to the exception,' or `qualify' the exceptions, or that enter-
12 Report of the Committee on Judicial Review of the Administration Conference of the
United States, 1 Recommendations and Reports of the Administrative Conference 191, 194
(1969) (hereinafter cited as "ACUS Reports").
calia letter, exhibit C. below.
131
14 495 F.2d at p. 277.
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tainment of the plaintiff's claim would create an `intoler-
able burden on governmental functions, requiring use of the
doctrine despite its otherwise applicable exceptions.' 1?
In Littell v. Morton, 445 F.2d 1207 (1971), the Court of Appeals
for the Fourth. Circuit reversed a district court dismissal of a suit on
sovereign immunity grounds. The suit by an attorney for an Indian
tribe sought review of the Secretary of the Interior's action in disal-
lowing his claim for compensation for services. The court's opinion
frankly recognized the problems in applying sovereign immunity :
It must be recognized at the outset that an.effort to estab-
lish logical consistency in the decisions dealing with sover-
eign immunity is bound to be frustrating. The authorities are
not reconcilable, and there are conceptual conflicts in the
various holdings with which an intermediate appellate court
must grapple. Our task is magnified because. we have been
unable to find any case in which the. Supreme Court has
sought to, reconcile the notion of sovereign immunity with the
fundamental concept of the APA that a person adversely o f-
feeted by administrative action. is presumptively entitled to
judicial review of its correctness."
As Judge MacKinnon noted in Know Hill Tenants Council v. Wash-
ington, 448.F.2d 1045 (D.C. Cir.1971) :
The result of course is a condition of hopeless confusion in
judicial opinions, and an invitation to Government attor-
neys to assert the applicability of the doctrine whenever the
opportunity reasonably presents itself. A federal trial court
is faced with a thankless task whenever it is called upon to
decide whether the dgetrine is applicable in a particular case.'-"
,The doctrinal confusion is such that the courts are divided on the
fundamental questiton of whether or not sovereign immunity bars ac-
tions for equitable relief. For example, in American Federation Q f Gov-
ernment Employees, Local 188 v. Callaway, 398 F. Supp. 176 (N.D.
Ala. 1975), the court said :
It is a well-recognized principle that the doctrine of sover-
eign immunity bars suits against government agencies or of-
iicials for monetary damages, but does not bar suits for in-
junctive or declaratory relief.."
On the other hand, in Penn v. Schlesinger, 490 F.2d 700 (5th Cir. 1974)
reversed on other grounds 497 F.2d 970 (5th Cir. 1974) the court held
that:
A declaratory judgment (against the sovereign), if equiva
lent to a claim for injunctive relief, would be.* * * barred
by the doctrine of sovereign. immunity.,
One area where misunderstanding of the sovereign immunity doc-
trine has perpetuated considerable confusion .and injustice is that of
1r 495 F.2d at p. 277- (citations omitted).
19 445 V .2d at pp. 1211-12.
17 449 F.2d at p.. 1059..
' 99R F. Rupp. at p. 191.
19 490 F.2d'at p. 704.
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employment discrimination or discharge suits against Federal officers.
Reviewing these cases, one commentator noted that :
Several federal courts of appeals, covering states where fed-
eral employment discrimination is greatest, have held that
sovereign immunity prevented them from banning employ-
ment discrimination by federal officials, (thus ignoring or mis-
applying the recognized exception to the doctrine of ultra
vires or unconstitutional action by Federal officers.] 20
Based on the testimony presented to this committee and to the
Senate committee, it appears that the consensus in the administrative
law community among scholars and practitioners is strong with regard
to the elimination of sovereign immunity.21 Professor Cramton sum-
marizes this when he notes that "the application of the doctrine of
sovereign immunity to actions challenging the legality of Federal
conduct is totally erratic, haphazard, unpredictable, unfair, inconsist-
ent, and, in some situations, unjust." 22 To Professor Kenneth Culp
Davis, enactment of S. 800 is "urgent" in order to remove "the unnec-
essary injustice caused by sovereign immunity." 23
The application of sovereign immunity is illogical and one can-
not predict in what case the injustice is likely to occur. The Senate.
report observed that more probably than not, an average person with
a less experienced attorney will be thrown out of court by the sov-
ereign immunity doctrine while the wealthy corporation with expen-
sive, experienced counsel will be able to sidestep the doctrine. The fact
remains that the injustice of sovereign immunity may occur in any
case, with respect to any form of government conduct, unless there
is a specific statute allowing judicial review.
Perhaps the only situation under recent case law other than suits
for damages, where it was fairly predictable-and intended by Con-
gress-that a court would uphold a claim of sovereign immunity, in-
volved disputed title to real property
so .24 The results in these cases were
obviously unjust that in 1972 wit
h the enactment of legislation also
considered and reported by this committee,25 Congress enacted legis-
lation to permit actions to quiet title to be brought against the United
States. 28 U.S.C. sections 1346(f), 1402(d), 2409(a).26
20 Abernathy, Sovereign Immunity in a Constitutional Government: The Federal Employ-
ment Discrimination Cases, 10 Harvard Civ. Rights-Civ. Lib. L. Rev., pp. 322, 326-27, 367
(1975). See also Bramblett v. Desobry, 490 F.2d 405 (6th Cir. 1974) (suit by discharged
employee of non-appropriated fund activity against commanding officer, alleging "arbi-
trary," "capricious,' and "unconstitutional" action, dismissed because "the United-States,
as sovereign, is immune").
21 See e.g., K. C. Davis, Administrative Law Treatise ch. 27 (1958, Stipp. 1965) ; Cram-
ton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Re-
form, of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 Mich.
L.Rev. 389 (1970) ; Scalia, Sovoreign Immunity and Nonstatutory Review of Federal
Administrative Action: Some Conclusions from, the Public-Lands Cases, 68 Mich.L.Rev. 867
(1970) ; Currie. The Federal Courts and the American Law Institute (pt. II), :38 U.Chi.L.
Rev. 268 (1969) ; Byse, Proposed Reforms in Federal "Nonstatutory" Judicial Review:
Sovereign Immunity, Indispensable Parties. Mandamus, 75 Harv.L.Rev. 1479 (1962)
Carrow, Sovereign Immunity in Administrative Law-A New Diagnosis, 9 J.Pub.L. 1
(1460) Abernathy, Sovereign Immunity in a Constitutional Government: The Federal
Emploument Discrimination Cases, 10 Harvard Civ. Rights-Civ. Lib.L.Rev. 322 (1975).
22 1970 Hearings at n. 46.
211 Letter from Kenneth Culp Davis, to Senator Edward M. Kennedy, Apr. 12. 1976.
1976 Hearings (hereinafter cited as "Davis letter"). -
24 See Malone v. Bowdoin, 369 U.S. 643 (1962) ; Gardner v. Harris, 391 F.2d 885 (:5th
Cir. 1968) .
r:, Public Law No. 92-562, 92d Cong., 2d sees. -
26 The Senate Committee on Interior and Insular Affairs commented on the sovereign
Immunity doctrine in its report on this legislation : -
Because of the common law doctrine of "sovereign Immunity," the United States cannot
now be sued in a land title action without giving its express consent. Grave Inequity often
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Just as there is little reason why the United States as a landowner
should be treated any differently from other landowners in an action
to quiet title, so too has the time now come to eliminate the sovereign
immunity defense in all equitable actions for specific relief against a
Federal agency or officer acting in an official capacity.
The importance of ameliorating the effect of the sovereign immunity
doctrine in other areas besides quiet title actions is emphasized by the
number and variety of cases in which the defense is still raised. The
committee has been advised that the doctrine has been invoked in
hundreds of cases each year concerning agricultural regulations, gov-
ernmental employment, tax investigations, postal-rate matters, admin-
istration of labor legislation, control of subversive activities, food
and drug regulation, and administration of Federal grant-ill-aid
programs.27
In each instance, the sovereign immunity doctrine diverts the court's
attention from the basic issue concerning the availability or scope of
judicial review. Sovereign immunity beclouds the real issue whether
a particular governmental activity should be subject to judicial review,
and, if so, what form of relief is appropriate. Its elimination as pro-
posed in S. 800, in the words of Richard K. Berg, executive secretary,
Administrative Conference, "would be a major step in rationalizing
the law of judicial review of agency action. It might not change many
outcomes, but it would force the courts to ask an to answer t11e right
questions." 28 Where S. 800 would change the outcome of a suit, the
committee believes that the result would be justified. For, as Senator
Kennedy observed at the Senate hearings :
A review of the cases-as confused as they are-reveals
one certain conclusion : where sovereign immunity has been
held to be a bar to suit, and where no other defenses * * *
would have been applicable, unjust or irrational decisions
have resulted.29
The committee does not believe that the partial elimination of sov-
ereign immunity, as a barrier to nonstatutory review of Federal ad-
ministrative action, will create undue interference with administra-
tive action. Rather, it will be a safety-valve to ensure greater
fairness and accountability in the administrative machinery of the
Government.
Other methods found in the substantial and growing body of law
governing availability, timing, and scope of judicial review, provide
a much more rational basis for controlling unnecessary judicial inter-
ference in administrative decisions than does the defense of sovereign
immunity. Thus, a case is unreviewable if it involves actions
"committed to agency discretion by law." Other defenses include
(1) statutory preclusion; (2) lack of ripeness; (3) failure to exhaust
administrative remedies; and (4) lack of standing. The availability
of these defenses-all of which provide a sounder substantive basis
has resulted to private citizens who are thereby excluded, without benefit of a recourse
to the courts, from lands they have reason to believe are rightfully theirs. * * * [T]he
committee believes this principle is not appropriate where the courts are established, not
for the convenience of the sovereign, but to serve the people.
S. Rept. 02-575, 92d 'Gong., 1st sees., at p. 1.
27 See 1970 Hearings ; authorities cited at note 22, supra.
PA 1970 Senate Hearings, testimony of Richard K. Berg.
2e 1970 Hearings at p. 3.
IT. Rept. 94-1656--76-2
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to control court review on the merits than the confusing doctrine of
sovereign immunity--indicates that the policy against indiscriminate
judicial interference with Government action would not be abandoned
by eliminating the defense of sovereign immunity.
Further the modification of sovereign immunity will not overwhelm
Federal courts and government lawyers with a flood of litigation.
til
Apparently, the Judicial Conference of the United States shares this
view, since it has endorsed identical legislation in the past.ao
Since the application of sovereign immunity is unpredictable it
seldom deters the bringing of a suit though it may affect the result or
induce an error which requires correction at the appellate level. As
a practical matter, the usual economic costs of bringing suit and the
defenses cited above will operate to prevent inundation of the courts.31
Also, any increase in litigation on the merits is likely to be offset by
a decrease in litigation on the question of sovereign immunity. Present-
ly, sovereign immunity is raised as an additional, complex issue in liti-
gation which requires considerable judicial time and effort to resolve
or circumvent. When the issue is the basis of decision in the first in-
stance, it invites appeals and further litigation on the matter.32 The
elimination of the vexing and difficult preliminary question of sover-
eign immunity in a large number of cases would probably provide a
net savings of time and money to the Federal Government even if a
few more cases did proceed to a determination on the merits of the
legality of Federal administrative action.
However, even if there is a slight increase in caseload, the time has
finally come when the injustice and inconsistency resulting from the
unpredictable application of the sovereign immunity doctrine should
be remedied.
As Government programs grow, and agency activities continue to
pervade every aspect of life, judicial review of the administrative
actions of Government officials becomes more and more important.
Only if citizens are provided with access to judicial remedies against
Government officials and agencies will we realize a government truly
under law. The enactment of section one of S. 800 -the partial elimi-
nation of the sovereign immunity defense in actions for equitable re-
lief-is an important step toward this goal.
Amendmnet of 5 U.S.C. Section 702
The portion of S. 800. that modifies the doctrine of sovereign im-
munity adds three new sentences to the existing language of 5 U.S.C.
section 702, which deals with the right to judicial review of Federal
administrative action.33
?Foley letter, exhibit B. below.
ss See 1976 Hearings, testimony of Ralph Nader, Public Citizen, Inc.
n See 1970 Senate Hearings at p. 54.
Some Federal courts of appeals have held that 5 U.S.C. section 702 (1970) ("A person
suffering legal wrong because of agency action, or adversely affected or aggrieved by
agency action within the meaning of a relevant statute, is entitled to judicial review
thereof.") constitutes a general waiver of sovereign immunity in actions seeking judicial
review of Federal administrative action. See, e.g., Kingsbrook Jewish Medical Center v.
Richardson, 486 F.2d 663. 668 (2d Cir. 1973) ; Seanwell Laboratories v. Shaffer, 424 F.2d
859. 874 (D.C. Cir: 1970) ; Estrada v. Ahrens. 296 F.2d 690 (5th Cir. 1961). But c1.
C,oslon, V. Hickel. 428 F.2d 1046 (5th Cir. 1970). In clear conflict, however. five other
circuits have held that the APA does not constitute a waiver of sovereign immunity. Rea
Cyrus V. United States. 226 F.2d 416 (1st Cir. 1955) : Littell v. Morton. 445 F.2d 1207
(4th Cir. 1971) : Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe,
.470 F.2d 529. 532 (8th Cir. 1967) : State of Washington v. Udall. 417 F.2d 1310 (9th Cir.
1969) : Motah. Y. United States, 402 F.2d 1 (10th Cir. 1968). The Supreme Court has
yet to resolve the circuit conflict regarding the impact of section 702 of the APA on the
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The first of the additional sentences. provides. that claims challeng-
ing official action or nonaction, and seeking relief other 'than money
damages, should not be barred by sovereign immunity. The explicit
exclusion of monetary relief makes it clear that sovereign immunity
is abolished only in actions for specific relief (injunction, declaratory
judgment, mandatory relief, etc.). Thus, limitations on the recovery
of money damages contained in the Federal Tort Claims Act, the
Tucker Act, or similar statutes are unaffected. The consent to suit
is also limited to claims in courts of the United States; hence, the
United States remains immune from suit in state courts. -
Since the amendment is to be added to 5 U.S.C. section 702, . it
will be applicable only to functions falling within the definition of
"agency" in 5 U.S.C. section 701. Section 701(b) (1) defines "agency"
very broadly as "each authority of the Government of the United
States, whether or not it is within or subject to review by another
agency" except for a list of exempt agencies or functions : Congress,
Federal courts, governments of territories or of the District of Colum-
bia, mediation boards, courts-martial and certain other military, war-
time and emergency functions.
The proposed amendment will also not affect the operation of the
rule that review is not available "to the extent that * * * statutes
preclude review * * * or * * * agency action is committed to agency
discretion by law." 5 U.S.C. section 701(a). The case law concerning
these two categories of review is thus untouched by the proposed
amendment. The amendment would apply to bar the assertion of
sovereign immunity and force the court to articulate the true. rationale
for a decision not to grant relief.
Effect on the United States
Actions challenging official conduct. are intrinsically against the
United States and are now treated as such for all practical purposes.
Thus, for example, the defense of Federal administrative action is
conducted by the Department of Justice or, in some cases, by agency
counsel. The second new sentence of section 702 allows the plaintiff
to name the United States as a defendant in such actions and permits
the entering of a decree against the United States.
At the request of the Department of Justice, the Senate amended
the bill to provide "that any mandatory or injunctive decree shall
specify the Federal officer or officers (by name or title) and their suc-
cessors in Office, personally responsible for compliance." This will as-
sure clear definition of the particular individuals who will be per-
sovereign immunity doctrine. For general discussion, see Littell v. Morton, 445 F.2d 1207,
1212 (4th Cir. 1971) ; Sehlaflhi v. Volpe, 495 F.2d 273, 280-82 (7th Cir. 1974).
'On this problem Professor Davis notes that :
"As a matter of history, Congress clearly did' not attend the APA to waive sovereign
immunity. But judges of federal courts of appeals have such a strong -sense of _ Justice
that five courts of appeals have held that the APA constitutes a waiver of sovereign
immunity. I can imagine that all the judges who have so held are somewhat uncomfortable
in so holding, but their choice is between treating plaintiffs unjustly or straining the
historical materials. Congress should relieve our good judges from. such an unnecessary
dilemma.
The ease law as a whole is somewhat complex and confused. Congress should
simplify and clarify it by amending the APA in accordance with the [sovereign immunity]
proposal of the Administrative Conference and the American Bar Association." Davis
letter, 1976 Hearings.
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sonally responsible for compliance with the court decree. The new
sentence would read :
The United States may be named as a defendant in any such
action, and a judgment or decree may be entered against the
United States, provided, that any mandatory or injunctive
decree shall specify the Federal officer or officers (by name or
by title), and their successors in office, personally responsible
for compliance.
As has been stated previously in this report, this provision is meant
to eliminate only the doctrine of sovereign immunity as a bar to
naming the United States. It is not addressed to the issue of proper
parties defendant, which is treated in the second sentence of section
703 of title 5 as added by this bill.
LAW OTHER THAN SOVEREIGN IMMUNITY UNCHANGED
S. 800 is not intended to affect or change defenses other than sover-
eign immunity. All other than the law of sovereign immunity remain
unchanged. This intent is made clear by clause (1) of the third new
sentence added to section 702:
Nothing herein (1) affects other limitations on judicial
review or the power or duty of the court to dismiss any action
or deny relief on any other appropriate legal or equitable
ground.
These grounds include, but are not limited to, the following : (1)
extraordinary relief should not be granted because of the hardship
to the defendant or to the public ("balancing the equities") or be-
cause the plaintiff has an adequate remedy at law; (2) action com-
mitted to agency discretion; (3) express or implied preclusion of
judicial review; (4) standing; (5) ripeness; (6) failure. to exhaust
administrative remedies; and (7) an exclusive alternative remedy.
Special doctrines favoring the United States as a litigant, such as
the inapplicability of statutes of limitations to claims asserted by the
United States, are unaffected. Statutory or rule provisions denying
authority for injunctive relief (e.g., the Anti-Injunction Act, 26 U.S.C.
section 7421, and 28 17.S.C. section 2201, prohibiting injunctive and
declaratory relief against collection of federal. taxes) and other mat-
ters (e.g., Rule 13(d), dealing with counterclaims against the United
States) also remain unchanged. It should be noted in particular that
5 U.S.C. section 701(a) is unchanged and remains applicable.
Other Exclusive Remedies or Statutory Limitations
Likewise, the amendment to 5 U.S.C. section 702 is not intended to
permit suit in circumstances where statutes forbid or limit the relief
sought. Clause (2) of the third new sentence added to section 702
contains a second proviso concerned with situations in which Congress
has consented to suit and the remedy provided is intended to be the
exclusive remedy. For example, in the Court of Claims Act,34 Congress
created a damage remedy for contract claims with jurisdiction limited
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to the Court of Claims except in suits for less than $10,000. The meas-
ure is intended to foreclose specific performance of government con-
tracts. In the terms of the proviso, a statute granting consent to suit,
i.e., the Tucker Act, "impliedly forbids" relief other than the remedy
provided by the Act. Thus, the partial abolition of sovereign immunity
brought about by this bill does not change existing limitations on
specific relief, if any, derived from statutes dealing with such mat-
ters as government contracts, as well as patent infringement, tort
claims, and tax claims.35
The language of clause (2) of the proviso directs attention to par-
ticular statutes and the decisions interpreting them. If a statute "grants
consent to suit" with respect to a particular subject matter, specific
relief may be obtained only if Congress has not intended that provi-
sion for relief to be exclusive.
Clause (2) of the proviso does not withdraw specific relief in any
situation in which it is now available. It merely provides that new
authority to grant specific relief is not conferred when Congress has
dealt in particularity with a claim and intended a specified remedy
to be the exclusive remedy.
Clause (2) of the proviso, at the request of the Department of
Justice,- has been amended to read as follows :
Nothing herein * " * (2) confers authority to grant relief
if any other statute that grants consent to suit [for money
damages] expressly or impliedly forbids the relief which is
sought. (Emphasis added.)
This language makes clear that the committee's intent to preclude
other remedies will be followed with respect to all statutes which
grant consent to suit and prescribe particular remedies. The proviso
as amended also emphasizes that the requisite intent can be implied
as well as expressed.
The amount in controversy requirement in subsection (a) of section
1331 of title 28 prevents an otherwise competent United States district
court from hearing certain cases seeking "non-statutory" review of
Federal administrative action. These cases "arise under" the Federal
Constitution or Federal statutes, and the committee believes they
are appropriate matters for the exercise of Federal judicial power
regardless of the monetary amount involved.
The purpose behind the amount-in-controversy requirement was to
reduce case congestion in the Federal courts by setting a figure "not
so high as to convert the Federal courts into courts of big.business nor
so low as to fritter away their time in the trial of petty controversies." 37.
Yet Congress has substantially lessened the importance of the
amount-in-controversy requirement with respect to section 1331 by
passing many statutes that confer Federal question jurisdiction with-
36 See, e.g., The Anti-Injunction Act. 26 U.S.C. section 7421. prohibiting snit "Por the
purpose of restricting the assessment or collection of any tax ? * * " C.P. Bob .ionea Uni-
versity v. Simon, et al., 416 U.S. 725 (1974) ('action to enjoin revocation of letter ruling
declaring qualification for tax-exempt status held to be within and barred by the Act).
36 See Scalia letter, exhibit C. below.
37 S. Rept. 1830, 85th Cong., 2d sess., pp. 3099, 3101 (1958).
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out such a requirement. In Lynch v. Household Finance Corp., 405 U.S.
538 (1972), the Court noted:
A series of particular statutes grant jurisdiction without
regard to the amount in controversy in virtually all areas that
otherwise would fall under the general Federal question stat-
ute. Such special statutes cover : admiralty, maritime, and
prize cases, 28 U.S.C. section 1333; bankruptcy matters and
proceedings, 28 U.S.C. section 1334; review of orders of the
Interstate Commerce Commission, 28 U.S.C. section 1336;
cases arising under any Act of Congress regulating commerce,
28 U.S.C. section 1337; patent, copyright, and trademark
cases, 28 U.S.C. section 1338; postal matters, 28 U.S.C. section
18339; internal revenue and custom duties actions, 28 U.S.C.
section 1340; election disputes, 28 U.S.C. section 1344; cases
in which the United States is a party, 28 U.S.C. sections 1.345,
1346, 1347, 1348, 1349, 1358, and 1361; certain tort actions by
aliens, 28 U.S.C. section 1350; actions on bonds executed
under Federal law, 28 U.S.C. section 1352; cases involving
Indian allotments, 28 U.S.C. section 1353; and injuries under
Federal law, 28 U.S.C. section 1357.38
On the other hand, there are a significant number of situations in-
volving "nonstatutory" review in which a plaintiff must still ground
his action on section 1331 and, therefore, must establish that "the lnat-
-ter in controversy exceeds the sum or value of $10,000, exclusive of
interest and costs." In some of these cases the jurisdictional amount
requirem dnt cannot be met because it is impossible to place a monetary
value on the right asserted by the plaintiff.39
In other cases,. the plaintiff's claim that he is entitled to a Federal
grant or benefit such as Federal employment 40 or welfare 41 may be
assigned a monetary value, but the amount in controversy may be
$10.000 or less.
The resulting denial to litigants of a Federal forum for Federal
claims considered incapable of dollars and cents valuation or too small
in monetary amount and not permitted to be aggregated has been de-
scribed as "an unfortunate gap in the statutory jurisdiction of the
Federal courts." 42
Section 2 of S. 800 would end the requirement of 28 U.S.C. section
1331 that more than $10,000 be in controversy in order for a Federal
court to have jurisdiction of a Federal question case brought against
the United States, an agency thereof, or an officer or employee thereof
in his official capacity.
Accordingly,. no jurisdictional amount requirement would apply
to cases against the Federal Government, a Federal agency, or any
ae 405 U.S. at p. 549.
' How can one value, for example, an individual's claim that he is entitled to remain
'free from continuous police surveillance, Giancana Y. Johnson, 335 k'-2d 366 (7th Cir. 1964),
cert. denied, '379 U.S. 100 (1965), or military service, Oestereieh V. Selective Service
S,jste,n Local Board No. 11, 393 U.S. 233 (1968), or to distribute political leaflets,
Goldsmith V. Sutherland, 426 F.2d 1395 (6th Cir. 1970), cert. denied, 400 U.S. 960
(1970) ? See also cases cited in Wright, Miller and Cooper, 13 Fed+oral Practice and Proce-
dure. section 3561 (1975).
40 See e.g., Fischler v. McCarthy, 177 F. Supp. 643 (S.D. N.Y. 1954), aff"d on other
grounds, 218 F.2d 164 (2d Cir. 1954).
41 See, e.g., Randall v. Goldmark, 495 F.2d 358 (1st Cir. 1974), cert. denied, 419 U.S.
879 (1975).
42 Wolff v.Selective Service Local Board No. 16, 372 F.2d 817, 826 (2d Cir. 1967).
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official or employee where the plaintiff alleges that the official or em-
ployee has acted in his official capacity or under color of law.
Like section 1 of S. 800, however, the partial elimination of sover-
eign immunity, the grant of subject matter jurisdiction without it
required jurisdictional amount would not affect other limitations on
the availability or scope of judicial review of Federal questions, in-
cluding, , for example, lack of standing, ripeness, or exhaustion of
administrative remedies.
The factors relevant to the question whether a Federal court should
be available to a litigant seeking protection of a. Federal right have
little, if any, correlation with the minimum jurisdictional amount.
Thus, as Assistant Attorney General Scalia in his comment in behalf
of the Justice Department concluded :
the existence of monetary damages in cases involv-
ing agency action is an erratic factor to begin with, not
necessarily related to either the private or public importance
of the issue involved . . . the `amount in controversy' pro-
vision of section 1331 is seen to have a very limited and virtu-
ally irrational application, at least as applied to judicial
review of administrative action. 13
Instead, the important considerations include whether there is need
for a specialized Federal tribunal or whether there are defects in the
state judicial system that might substantially impair consideration
of the plaintiff's claim. 44 These factors have special force in cases in
which specific relief is sought against a Federal officer because state
courts generally are powerless to restrain or direct a Federal officer's
action which is taken under color of Federal law. 45 The denial of a
Federal forum for lack of the jurisdictional amount may therefore
be a denial of any remedy whatsoever. 46 Justice clearly requires elimi-
nation of this deficiency.
Impact on Federal caseload
According to leading authorities, elimination of the amount-in-
controversy requirement in Federal question cases, even if it were also
to be eliminated in strictly private litigation, will have no measurable
impact on the caseload of the Federal courts. 41 S. 800, as amended,
would only eliminate the statutory requirement in suits against the
United States, its agencies, or officers or employees.
Presently, the jurisdictional amount requirement is applicable,
where aggrieved private persons are seeking nonstatutory review of
Federal administrative actions in suits brought against Federal officers
or agencies. This category provides the only significant instances in
43 Scalia letter, exhibit C, below.
44 See Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law and
Contemp. Prob. 216, 225-26 (1948).
45 See Arnold, The Power of State Courts to Enjoin Federal Officers, 73 Yale L.J. 1385
(1964.)
n Fox v. Hillside Realty Corp., 79 F.Supp. 832 (D.-N.Y. 1948), a federal action
challenging a rent increase allowed by federal officials was dismissed for lack of the
jurisdictional amount. A subsequent suit in state court was unsuccessful because the state
courts held that they lacked power to pass on the action of the federal officials. Fo,S v.
1) Hillside Realty Corp., 87 N.Y.S.2d '351 (1949) aff'd., 95 N.Y.S.2d 598, 278 App.Div.
994 (1950)." Wright, Miller and Cooper, 13 Federal Practice and Procedure, section 3301,
at p. 393, n. M.
47 Id., C. Wright, Law of Federal Courts, p. '107 (2d ed. 19'70) 1970 Hearings at pp. 53-
(1975).
54, Wright, Miller and Cooper, 13 Federal Practice and Procedure, section 3561
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16
which the jurisdictional amount requirement of 28 U.S.C. section 1331
is an effective limitation, either because the right cannot be valued or
it is worth less than $10,000 and there is no special statute applicable
without an amount-in-controversy provision. 48 Yet even in this situa-
tion, the limitation can be circumvented if the plaintiff brings his
action in the District of Columbia or if he can cast his action in the
form of a mandamus proceeding under 28 U.S.C. section 1361, the
Mandamus and Venue Act of 1962.
The resulting situation is hardly a logical or defensible one. In
1962 Congress, disturbed by the inability of litigants to obtain man-
damus relief in local courts distributed around the country, conferred
such jurisdiction on all district courts without regard to the amount
in controversy. The more traditional exercise of injunctive or declare,-
tory authority, however, remains subject to the requirement of a
minimum jurisdictional amount whenever no special Federal question
statute is available-except in the District of Columbia. The same
arguments that supported the Mandamus and Venue Act of 1962-
the expense and inconvenience of forcing litigants from all over the
country to bring their claims to a, District of Columbia court-support
the elimination of the remaining anachronism in injunction suits
against Federal officers: the jurisdictional amount in controversy.
The number of additional cases that will be brought in Federal
courts if section 1331 is amended to eliminate the jurisdictional
amount requirement is likely to be quite small. According to Profes-
sor Wright :
There is no risk that ending the amount in controversy
requirement for federal question cases would open the federal
courts to unpredictable numbers of unknowable kinds of
cases. The terrain is well marked. The cases affected are
those in which federal action is challenged and in which
state action is challenged on grounds that i o not come within
section 1343(3). These are important cases for which a fed-
eral forum is especially appropriate .4?
Elimination of the amount in controversy is not likely in itself to
increase even the number of suits against Federal officers since some
courts are already adopting a very lax interpretation of the require-
ment in such cases.-I0 But elimination of the requisite jurisdictional
amount will eliminate a technical barrier to judicial relief which many
courts are avoiding or circumventing altogether in order to avoid in-
48 The amounts-in-controversy requirement in this category of eases was reaffirmed in
dictum in Lynch v. Houschold Finance Corp. 405 538, 547 (1972) ("in suits against
federal officials for alleged deprivations of constitutional rights it is necessary to satisfy
the amount-in-controversy requirement for federal jurisdiction" The significance of this
dictum, however, was recently questioned In Earnest, the Jurisdictional Amount in Con-
troversy in Snits to Enforce' Federal Rights, 54 Texas L. Rev. ; 545, 557 588 (1976).
(Hereafter cited as "Earnest")
401970 Hearings at p. 259. More recently, Professor Wright has described as "rare and
insignificant" some of the cases to which the amount requirement remains applicable.
Thus, "a municipality cannot be sued under the civil rights provisions of 42 U.S.C.A. section
1983 and 28 U.S.'C.A. section 1343(3) and thus a suit against a municipality on the basis of
the Federal Constitution or laws must be brought under 28 U.S.C.A. section 1331 and more
then .$10,000 must be in controversy. Calvin v. Coniisk, 367 F.Supp. 476 (D. Ill. 1973). It
remains an open question whether a suit challenging a state statute on the ground that it
is inconsistent with a Federal statute may be brought without regard to 'amount in con-
troversy under 28 U.S.C.A. section 1343(3). Ifagans v. Lavine, 415 U.S. 528, 633 n. 5
(1974)." Wright, Miller and Cooper, 13 Federal Practice and Procedure, section 3561,
at p. 392. n. 17 (1975).
80 See Earnest, supra note 49; letter from Roger Cramton, May 24, 1976, 1976 Hearings.
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justice.5' Professor Davis noted in connection with the elimination of
the sovereign immunity defense in equitable actions, "Congress should
relieve our good judges from such an unnecessary dilemma." 5z It
should enact S. 800 and thus eliminate the jurisdictional amount-
in-controversy requirement in all Federal question cases where the suit
is against the United States, any agency thereof, or any officer or
employee thereof in his official capacity.
As with the partial elimination of the sovereign immunity defense,
the partial elimination of the jurisdictional amount requirement in
Federal question cases is likely to result in a more efficient use of
judicial resources, with courts and counsel no longer having to waste
time and energy on the question of amounts in controversy.
Caseloads and efficiency aside, a larger issue remains. For as Pro-
fessor Wright has written :
We do nothing to encourage confidence in our judicial
system or in the ability of persons with substantial griev-
ances to obtain redress through lawful processes when we
close the courthouse door to those who cannot produce $10,000
as a ticket of admission.53
The size and complexity of the Federal Government, coupled with
the intricate and technical law concerning official capacity and parties
defendant, has given rise to numerous cases in which a plaintiff's claim
has been dismissed because the wrong defendant was named or served.5'
Nor is the current practice of naming the head of an agency as de-
fendant always an accurate description of the actual parties involved
in a dispute. Rather, this practice often leads to delay and technical
deficiencies in suits for judicial review.55
The unsatisfactory state of the law of parties defendant has been
recognized for some time and several attempts have been made by
Congress to cure the deficiencies.68
Despite these attempts, problems persist involving parties defen-
dant in actions for judicial review. In the committee's view the ends
gild. Such avoidance, however, abdicates a court's constitutional and statutory duties
"to ensure that each case before it falls within the limited jurisdictional power of the
Federal judiciary. Moreover, such evidence adds to the confusion surrounding the requisite.
calling on the Congress rather jurisdictional amount, especially in the lower courts, and
fosters arbitrary and haphazard application of jurisdictional standards." IS. at p. 585. See
also Wright. Miller and Cooper, 13 Federal Practice and Procedure, section 3501, at pp.
395-96, calling on the 'Congress rather than the courts to fill in the "unfortunate gap in
the statutory jurisdiction of the Federal courts."
52 Davis letter, 1976 Hearings.
as 1970 Senate Hearings at p. 254.
h4 See, e.g., Clegg V. Treasury Department, et al.- F. Supp. - (D. Mass. 1976), 38
Pike and Fisher Ad. L. 2d 229 (March 16, 1976), (action against the Treasury Department
and the Secret Service for allegedly failing to provide Secretary Service protection to
plaintiff as a presidential candidate dismissed for lack of jurisdiction based In part on
misjoinder and failure to name the correct parties defendant).
55 See statement of Francis M. Gregory, Jr., vice chairman, Committee on Judicial Review,
Section of Administrative Law, American Bar Association, 1976 Hearings.
60 First, 'Congress In 1962 amended section 1391(e) of Title '28 in order to allow broad-
ened venue and extra-territorial service of process in suits against Federal officers and thus
to circumvent the formerly troublesome requirement that superior officers be joined as par-
ties defendant. Second, Rule 25 (d) of the Federal Rules of Civil Procedure was amended In
1961 to provide for the automatic substitution of successors' In office. That rule also states
that "any misnomer not affecting the substantial rights of the parties shall be disregarded"
and that the officer may be "described as a party by his official title rather than by name."
Third, Rule 15(c) of the Federal Rules was amended in 1966 to deal with the plaintiff's
failure to name any appropriate officer or agency as defendant.
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of justice are not served when government attorneys advance highly
technical rules in order to prevent a determination on the merits of
what may be just claims.
When an instrumentality of the United States is the real defendant,
the plaintiff should have the option of naming as defendant the United
States, the agency by its official title, appropriate officers, or any com-
bination of them. The outcome of the case should not turn on the
plaintiff's choice. S. 800 accomplishes this objective by including a
new sentence between the first and last sentences of section 703 of title
5 to provide the plaintiff with this option in judicial review actions,
providing no special statutory review proceeding is applicable. The
new sentence would read :
"If no special statutory review proceeding is applicable the
action for judicial review may be brought against the United
States, the agency by its official title, or the appropriate
officer."
The first clause of this sentence is intended to preserve specific pro-
visions regarding the naming of parties which have been or may in
the future be established by Congress. Such provisions may be part
of a fully developed review procedure or may be provisions which are
more narrowly directed only to the required naming of the particular
defendant where such requirement has intended consequences such as
the restriction of venue or service of process. The example previously
cited in this report is 16 U.S.C. 831c(b), a statutory provision which
provides that litigation involving actions of the Tennessee Valley Au-
thority be brought against that agency only in its own name. National
Resources Council v. Tennessee Valley Authority, 459 F.2d 255 (2d
Cir. 1972).
Joinder of Third Persons
A related problem concerns joinder of third persons as parties de-
fendant:. When section 1391(e) of title 28, which governs venue of
actions against Federal officers and agencies, was enacted in 1962, its
broadened venue and extra-territorial service of process were limited
to judicial review actions "in which each defendant is an officer or em-
ployee of the United States or an agency thereof." (emphasis added.)
This language can be interpreted to prevent a plaintiff from joining
non-Federal third persons as defendants in actions under sect-ion
1391 (e). For example, in Chase Savings c& Loan A ssociaton v. Fed-
eral Home Loan Bank Board, 269 F. Supp. 965 (E.D. Pa. 1967), the
court dismissed an action which had joined the Federal board and a
local bank on the ground of improper venue. The court in Town of
East Haven v. Eastern Airlines, 282. F. Supp. 507 (D. Conn.= 1968),
also dismissed an action on the same grounds but not before criticizing
the requirements of section 1391(e).
More recent cases, cognizant of the awkwardness and inconvenience
of the section, have held to the contrary. In Green v. Laird, 357 F.
Stipp. 227 (N.D. Ill. 1973), for example, the court ?held that an inter-
pretation of section 1391(e) which excludes non-Federal defendants
is inconsistent with the congressional intents'
''See also Macias v. Finch, 324 F.Supp. 1252, 1254-55 (N.D. Cal. 1970) : People of
Saipan V. Dept. of the Interior, 356 F.Supp. 645, 651 (D. Hawaii (1973), modified on
other grounds, 502 F.2d 90 (9th Cir. 1974).
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There is no functional justification for this limitation on joinder.
Moreover, it prevents relief in some situations in which the Federal
courts can make a special contribution.'8
Section 3 of S. 800 amends 1391(e) of title 28 to make it clear that a
plaintiff may use the section's provisions for broad venue and extra-
territorial service of process against Government defendants, despite
the presence in the action of a non-Federal defendant.
The amendment substitutes the word "a" for the word "each," and
adds a new sentence permitting joinder of non-Federal defendants
who can be served in accordance with normal rules governing service of
process. Other objections to such joinder, stemming from the discre-
tion vested in the trial judge under the Federal Rules of Civil Pro-
cedure to control the dimensions of the law suit and to protect
particular parties, would be unaffected.
The Department of Justice objected that section 3, as introduced,
"would permit any plaintiff to obtain venue against any private de-
fendant by simply joining as a party to the action a Federal official
over whom venue may be obtained under 28 U.S.C. section 1391(e)." 59
To avoid any hardship or unfair disadvantage to private defendants
that might result from subjecting them to plaintiff's broadened choice
of venue under section 1391 (e) as amended, the Senate amended the
pertinent sentence of section 3 of S. 800 to read as follows :
Additional persons may be joined as parties to any such
action in accordance with the Federal Rules of Civil Pro-
cedure and with such other venue requirements as would be
applicable if the United States or one of its o ficers, employees
or agencies were not a party. (emphasis added.)
In effect, this will mean that a private defendant can only be sued in
a venue where he could have been sued if the Government had not been
a party. As a practical matter, it will usually mean that the plaintiff
will have to bring suit in the district where the defendant resides
rather than in his own district.
CONCLUSION
The subjects of this bill are long overdue for reform. S. 800 contains
limited, modest, and reasonable reforms in a carefully drafted bill.
Its principal provision, the partial elimination of sovereign im-
munity as a defense to actions for equitable relief, has the support of
the most eminent scholars and practitioners of administrative law, as
well as the Judicial Conference of the United States and the Depart-
ment of Justice.
The partial elimination of sovereign immunity will facilitate non-
statutory judicial review of Federal administrative action without
r0 "In many public land controversies, for example, three parties are involved-the
official, a successful applicant, and an unsuccessful one. Effective relief cannot he obtained
In an action in which the United States or its officer is not involved ; but if the Govern-
ment is named as defendant, 1391(e) prevents the joinder of the other private person as a
rlefendant, and that person cannot be joined as a plaintiff because his interest is adverse to
that of the plaintiff. Another common type of situation in which the limitation is
troublesome is that in which the specific relief is sought against Federal and state officers
who are cooperating in a regulatory or enforcement program.
"There are no sound reasons why the general principle that control party joinder in
Federal courts should not be applicable in these situations," Statement of Roger Cranton,
1970 Senate Hearings at p. 39.
60 Scalia letter, exhibit C, below.
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affecting the existing pattern of statutory remedies, without disturb-
ing the established law of judicial review, without exposing the Gov-
ernment to new liability for money damages, and without upsetting
congressional judgments that a particular remedy in a given situation
should be the exclusive remedy.
Like sovereign immunity, other anachronisms in the law of judicial
review such as the jurisdictional amount in controversy and the nam-
ing and joinder of parties defendant have outlived their usefulness,
continue to cause confusion and injustice, and are overdue for elimi-
nation or reform.
The adoption of S. 800, therefore, will make a substantial contribu-
tion to both administrative justice and judicial efficiency by promoting
rationality in a complex and intricate field of Federal law. By remov-
ing artificial and outmoded barriers to judicial review of official action,
S. 800 will also help restore public confidence in the responsiveness
and accountability of the Federal Government.
For these reasons, the committee recommend, that the bill be
considered favorably.
CHANGES IN ExISTING LAW MADE BY THE BILT., AS REPORTED
In compliance with clause 3 of rule XIII of the Rules of the House
of Representatives, changes in existing law made by the bill, as re-
ported, are shown as follows (existing law proposed to be omitted is
enclosed in black brackets, new matter is printed in italic, existing
law in which no change is proposed is shown in roman) :
? 702. Right of review
A person suffering legal wrong because of agency action, or ad-
versely affected or aggrieved by agency action, within the meaning of
a relevant statute, is entitled to judicial review thereof. An action in
a court of the United States seeking relief other than money damages
and stating a claim that an agency or an officer or employee thereof
acted or failed to act in an official capacity or under color of legal
authority shall not be dismissed nor relief therein be denied on the
ground that it is against the United States or that the United States is
an indispensable party. The United States may be named as a defend-
ant in any such action, and a judgment or decree may be entered
against the United States, provided, that any mandatory or injunctive
decree shall specify the Federal officer or officers (byname or by title),
and their successors in office, personally responsible for compliance.
Nothing herein (1) affects other limitations on judicial review or the
power or duty of the court to dismiss any action or deny relief or any
other appropriate legal or equitable grounds; or (L) confers authority
to grant relief if any other statute that grants consent to suit expressly
or impliedly forbids the relief which is sought.
5 U.S.C. 703
? 703. Form and venue of proceeding
The form of proceeding for judicial review is the special statutory
review proceeding relevant to the subject matter in a court specified
by statute or, in the absence or inadequacy thereof, any applicable
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form of legal action, including actions for declaratory judgments or
writs of prohibitory or mandatory injunction or habeas corpus, in a
court of competent jurisdiction. if no special statutory review pro-
ceding is applicable, the action for judicial review may be brought
against the United States, the agency by its official title, or the appro-
priate officer. Except to the extent that prior, adequate, and exclusive
opportunity for judicial review is provided by law, agency action is
subject to judicial review in civil or criminal proceedings for judicial
enforcement.
28 U.S.C. 1331
? 1331. Federal questions
(a) The district courts shall have original jurisdiction of all civil
actions wherein the matter in controversy exceeds the sum or value of
$10,000, exclusive of interest and costs, and arises under the 'Constitu-
tion, laws, or treaties of the United States[.] except that no such sum
or value shall be required in any such action brought against the
United States, any agency thereof, or any officer or employee thereof
in his official capacity.
(b) Except when express provision therefor is otherwise made in
a statute of the United States, where the plaintiff is finally adjudged
to be entitled to recover less than the sum or value of $10,000, com-
puted without regard to any setoff ar counterclaim to which the de-
fendant may be adjudged to be entitled, and exclusive of interests and
costs, the district court may deny costs to the plaintiff and, in addition,
may impose costs on the plaintiff.
28 U.S.C. 1391(e)
(e) A civil action in which [each] a defendant is an officer or em-
ployee of the United States or any agency thereof acting in his official
capacity or under color of legal authority, or an agency of the United
States, or the United States, may, except as otherwise provided by law,
be brought in any judicial district in which[:] (1) a defendant in
the action resides, or (2) the cause of action arose, or (3) any real
property involved in the action is situated, or (4) the plaintiff resides
if no real property is involved in the action. Additional persons may
be joined as parties to any such action in accordance with the Federal
Rules of Civil Procedure and with such other venue requirements as
would be applicable if the United States or one of its officers,
employees or agencies were not a party.
STATEMENTS UNDER CLAUSE 2(1) (2) (B), CLAUSE 2(1) (3) AND
CLAUSE 2(1) (4) OF RULE XI AND CLAUSE 7(a) (1) OF RULE XIII
OF TIIE HOUSE OP REPRESENTATIVES
COMMITTEE VOTE
(Rule XI 2(1) (2) (B) )
On September 21, 1976, the Full Committee on the Judiciary
approved the bill S. 800 by a record vote of 26 ayes and one no.
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The bill S. 800 is procedural in nature and clarifies the jurisdiction
of Federal courts. The limited expansion of jurisdiction should not
require additional appropriation of funds to either the judiciary or
the agencies.
OVERSIGHT STATEMENT
(Rule XI 2(1) (3) (A))
The Subcommittee on Administrative Law and Governmental Rela-
tions of this committee exercises the committee's oversight responsi-
bility with reference to administrative law and procedure in accord-
ance with Rule VI (b) of the Rules of the Committee on the Judiciary.
The favorable consideration of this bill was recommended by that
subcommittee and the committee has determined that legislation should
be enacted as set forth in this bill.
(Rule XI 2(1) (3) (13))
As has been indicated in the committee statement as to cost made
pursuant to Rule XIII(7) (a) (1), the bill merely provides for
amendments to procedural provisions in titles 5 and 28 of the U.S.
Code relating to judicial review of administrative action. The bill
does not involve new budget authority nor does it require new or
increased tax expenditures as contemplated by Clause 2(1) (3) (B)
of Rule XT.
ESTIMATE OF THE CONGRESSIONAL BUDGET OFFICE
(Rule XI 2(1) (3) (C) )
No estimate or comparison was received from t lie Director of the
Congressional Budget Office.
OVERSIGHT FINDINGS AND RECOMITENDATIONS OF TIM COMMITTEE ON
GOVERNMENT OPERATIONS
(Rule XI 2(1) (3) (D))
No findings or recommendations of the Committee on Government
Operations were received as referred to in subdivision (D) of clause
2(1) (3) of House Rule XI.
(Rule XI 2(1)(3))._
In compliance with. clause 2(1) (4) of House Rule XI it is stated
that this legislation will have no inflationary impact on prices and
costs in the operation of the national economy.
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EXHIBITS
EXHIBIT A
RECOMMENDATIONS OF TILE ADMINISTRATIVE CONFERENCE OF TILE
UNITED STATES
RECOMMENDATION No. 68-7-ELIMINATION OF JURISDICTIONAL.
AMOUNT REQUIREMENT IN JUDICIAL REVIEW
Title 28 of the United States Code should be amended to eliminate
any requirement of a minimum jurisdiction amount before United
States district courts may exercise original jurisdiction over any action
in which the plaintiff alleges that he has been injured or threatened
with injury by an officer or employee of the United States or any
agency thereof, acting under color of Federal law. This amendment is
not to affect other limitations on the availability or scope of judicial
review of Federal administrative action.
(Adopted December 10-11,1968)
RECOMMENDATION No. 69-1-STATUTOIZY REFORili OF TILE SoyEREICN
IMMUNITY DOCTRINE
The technical legal defense of sovereign immunity, which the Gov-
ernment may still use in some instances to block suits against it by its
citizens regardless of the merit of their claims, has become in large
measure unacceptable. Many. years ago the United States by statute
accepted legal responsibility for contractual liability and for .various
types of misconduct by its employees. The `,`doctrine of sovereign iin-
inunity" should be similarly limited where it blocks the right of citi-
zens to challenge in courts the legality of acts of governmental
administrators. To this end the Administrative Procedure Act should
be amended.
RECOMMENDATION
1. Section 702 of Title 5, United States Code (formerly section 10 (a)
of the Administrative Procedure Act), should be amended by adding
the following at the end of the section :
An action in a court of the United States seeking relief other
than money damages and stating a claim that an agency or an
officer or employee thereof acted or failed to act in an official ca-
pacity or under color of legal authority shall not be dismissed nor
relief therein denied on the ground that, it is against the United
States or that the United States is an. indispensable party. The
United States may be named as a defendant in any such action,
and a judgment or decree may be_ entered against the. United
(23)
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States. Nothing herein (1) affects other limitations on judicial
review or the power or duty of the court to dismiss any action or
deny relief on any other appropriate legal or equitable ground;
or (2) confers authority to grant relief if any other statute that
grants consent to suit expressly or impliedl y forbids the relief
which is sought.
2. Section 703 of Title 5, United States Code (formerly section
10(b) of the Administrative Procedure Act), should be amended by
adding the following sentence after the first full sentence :
If no special statutory review proceeding is applicable, the
action for judicial review may be brought against the United
States, the agency by its official title, or the appropriate officer.
(Adopted October 21-22, 1969)
RECOMMENDATION No. 70-1-PARTIES DEFENDANT
The size and complexity of the Federal Government, coupled with
the intricate and technical law concerning official capacity and parties
defendant, have given rise to innumerable cases in which a plaintiff's
claim has been dismissed because the United States or one of its agen-
cies or officers lacked capacity to be sued, was improperly identified,
or could not be joined as a defendant. The ends of justice are not
served when dismissal on these technical grounds prevents a deter-
mination on the merits of what may be just claims. Three attempts to
cure the deficiencies of the law oi` parties defendant have achieved
only partial success and further changes are required to eliminate
remaining technicalities concerning the identification naming, capac-
ity, and joinder of parties defendant in actions challenging federal
administrative action.
1. The Federal Rules of Civil Procedure contain liberal provisions
for substitution of parties and for amendment of pleadings and cor-
rection of defects as to parties defendant. The Department of Justice
should instruct its lawyers and United States Attorneys to call the
attention of the court to these provisions in cases involving technical
defects with respect to the naming of parties defendant in any situa-
tion in which the plaintiff's complaint provides fair notice of the
nature of the claim and the summons and complaint were properly
served on a United States Attorney, the Attorney General, or an officer
or agency which would have been a proper party if named. The De-
partment of Justice should be responsible for determining who within
our complex federal establishment is responsible for the alleged wrong
and should take the initiative in seeking correction of pleadings or
adding of proper parties. Since the Department of Justice has ac-
quiesced in the substance of this recommendation, it would also be
appropriate for the Department of Justice and the Administrative
Conference of the United States to seek an amendment of the Federal
Rules or Civil Procedure to provide that the Attorney General shall
have the responsibility to correct such deficiencies.
2. Congress should enact legislation:
(a) Amending section 703 of title 5 to allow the plaintiff to
name as defendant in judicial review proceedings the United
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25
States, the agency by its official title, the appropriate officer, or
any combination of them.
(b) Amending section 1391 (e) of title 28 to include within
its coverage actions challenging federal administrative action in
which the United States is named as a party defendant, without
affecting special venue provisions which govern other types of
actions against the United States.
(c) Amending section 1391 (e) of title 28 to allow a plaintiff
to utilize that section's broadened venue and evtraterritorial serv-
ice of process in actions in which nonfederal defendants, who can
be served in accordance with the normal rules governing service
of process are joined with federal defendants.
(Adopted June 2-3,1970)
EXHIBIT B
ADMINISTRATIVE OFFICE OF TIlE UNITED STATES COURTS,
Washington, D.C., November 3, i070.
Hon. EDWARD M. KENNEDY,
Conittee on the Judiciarrt ,
U.S. Senate, Washington, D. C.
DEAR SENATOR KENNEDY : This is in further reference to your letter
of May 1, 1970, to the Chief Justice requesting.the views of the Judicial
Conference on S. 3568,* relating to judicial review of administrative
action and containing sections relating to venue and parties defendant.
The Judicial Conference of the United States met on October 29 and
30, 1970, and voted its approval in principle of S. 3568 and specifically
endorsed Section 2 of the bill relating to the jurisdictional amount
requirement and Section 3 providing for suit in the same judicial dis-
tricts in which the federal official or agency may be sued.
Sincerely,
WILLIAM E. FOLEY,
Deputy Director.
EXHIBIT C
DEPARTMENT OF .JUSTICE,
Washington, D.C., May 10,1976.
HOIn. EDWARD M. KENNEDY,
Chairman, Subcommittee on Administrative Practice and Procedure,
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN : This is in response to your request at my testi-
mony before your Subcommittee on April 28, 1976 that I submit the
written views of the Department. of Justice on S. 800, a bill "It]o
amend chapter 7, title 5, United States Code, With respect to procedure
for judicial review of certain administrative agency action, and for
other purposes."
SECTION 1-SOVEREIGN IMMUNITY
Section 1 of S. 800 would amend 5 U.S.C. 702 to eliminate the de-
fense of sovereign immunity of the United States in actions in United
States courts seeking relief other than money damages. The Depart-
ment has in the past opposed such a change.
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In light of the tenacious and well reasoned support of this proposal
by such knowledgeable and responsible organizations as the Adminis-
trative. Conference of the United States and the American Bar Asso-
ciation, we have reconsidered that opposition, and are now prepared to
endorse the concept in principle, and to support the text of S. 800, with
two small but important changes and a number of caveats concerning
its proper interpretation. The arguments in favor of this aspect of
S. 800 have been described in testimony presented by others before
your Subcommittee. Foremost among them, in my view, is the failure
of the criteria for sovereign immunity, as they have been expressed in
A. long and bewildering series of Supreme Court decisions, to bear any
necessary relationship to the real factors which should determine when
the Government requires special protection which ordinary litigants
would not be accorded.
The main argument against S. 800 is one that can be made against
most statutes which seek to make a change in encrusted principles of
the common law : the difficulty of obtaining complete assurance that
no untoward result will be produced. The Department of Justice has
been unable to identify any, assuming that the modifications and inter-
pretations proposed in this letter are accepted. We are sure, how-
ever, that the Committee will give careful consideration to the sub-
missions of other agencies on this point with respect to their particular
areas of activity.
It should also be pointed out that the status quo itself is not without
uncertainty. No one can read the significant Supreme Court cases on
sovereign immunityy, from United States v. Lee, 106 U.S. 196 (1882)
to Malone V. Bowdoin, 369 U.S..643 (1962), Dugan v. Rank, 372 U.S.
609 (1963) and Hawaii v. Gordon, 373 U.S. 57 (1963) (per curiam),
without concluding that the field is a mass of confusion; and if he
ventures beyond that to attempt some reconciliation of the courts of
appeals decisions, he will find confusion compounded. Accepting the
elimination of the doctrine of sovereign immunity is not, then, a case
of exchanging the certain for the uncertain, or the known for the
unknown.
Indeed, if the present bill is properly understood and properly ap-
plied by the courts, it is likely to produce a more stable and predictable
system of immunity from suit than the present doctrine of sovereign
immunity can ever attain-because it will be a system directly and
honestly based upon relevant governmental factors rather than upon
a medieval concept whose real vitality is long since gone and which
we have tried vainly to convert to rational modern use. It is not the
intent of the Department nor, as I understand it, the intent of the
drafters of this bill, that all of the cases which have heretofore been
disposed of on the basis of sovereign immunity would in the future
be entertained and adjudicated by the courts. To the contrary, one of
the very premises of the proposal is the fact that many (indeed, I
would say most) of the cases disposed of on the basis of sovereign
immuriity could have been decided the same way on other legal
grounds, such as: lack of standing; lack of ripeness; availability of an
alternative remedy in another court; express or implied statutory
preclusion of judicial review; commission of the matter by law to
agency discretion; privileged nature of the defendant's conduct; fail-
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.ire to exhaust administrative remedies; discretionary power to refuse
equitable relief; I and the "political question" doctrine.2 As stated in
The essential and sound policy underlying sovereign im-
-munity-that courts should not engage in indiscriminate in-
terference with governmental pro rams-is not abandoned
merely because an artificial and outmoded doctrine is
abolished. The same basic policy is inherent in the. body of
law that governs the availability and scope of judicial review.
The doctrine of sovereign immunity is unnecessary to prevent
courts from (a) entering fields which the Constitution or
Congress has deegated to the executive, and (b) displacing
executive or administrative judgment. (1 4CUS Reports. at
225.)
In addition to the common law doctrines which afford certain gov-
ernmental processes needed protection, it is also an important factor
in our support for the bill that the waiver of immunity, since it is
made via ? 702, will only applpy to claims relating to improper official
action; and will be subject to the other limitations of the Administra-
tive Procedure Act, including that which renders review unavailable
"to the extent that-(1) statutes preclude judicial review, or, (2)
agency action is committed to agency discretion by law." 5 U.S.C.
701 ca) . They also include the requirement that "the form of proceed-
ing for judicial review is the special statutory review proceeding rele-
vant to the subject matter," where such a proceeding exists and is not
inadequate. 5 U.S.C. ? 703. These features were considered of great im-
portance by the Administrative Conference Committee which origi-
nally drafted this legislative proposal, and they are important ele-
ments of the Department's support for the bill.
In one respect, the proposed ? 702 differs from the version recom-
mended by the Administrative Conference, and we believe the change
is undesirable. Clause (2) of the last sentence,, as proposed by the
Administrative Conference, would have provided that nothing in
the legislation confers authority to. grant relief "if any other statute
that grants consent to suit expressly or impliedly forbids the relief
which is sought." This has been chan ?ed to read : "if any other statute
granting consent to suit for money damages forbids the relief which
is sought." (emphasis added). The underscored phrase and the elimina-
tion of the phrase "expressly or i.mpliedly" could be interpreted to
limit the disclaimer in such a fashion as to raise serious questions con-
cerning the scope of the new reviewability which would be created.
We see no reason why a congressional intent to preclude other remedies
should be honored only with respect to statutes for money damages,
and otherwise ignored. Nor do we believe it should be left in any doubt
that the requisite intent need not be express (which, in a prior system
which assumed the existence of sovereign immunity, would be ex-
tremely rare) but can he found from all the circumstances normally
available to assess legislative will. Because existing statutes have been
i See the cases on each of these points cited in the Report of the Commission on Judicial
Review of the Administrative Conference of the United States, 11 Recommendations and
Reports of the Administrative Conference (hereinafter "ACUS Reports") 101, 222-23.
2 See, e.g., C. & S. Air Lines Y. Waterman Corp., 3'33 U.S. 103 (1D48).
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enacted against the backdrop of sovereign immunity, this will prob-
ably mean that in most if not all cases where statutory remedies already
exist, these remedies will be exclusive; that is no distortion, but simply
an accurate reflection of the legislative intent in these particular areas
in which the Congress has focused on the issue of relief. It would be
unwise to upset these specific determinations by a general provision
of this sort, without considering them individually, or even knowing
precisely -what they are. In the many areas Where Congress has not
acted, however, and when its action is not addressed to the type of
grievance which the, plaintiff seeks to assert, suit would be allowed.
The Department of Justice strongly urges that the Administrative
Conference's original and well considered recommendation on this
point be reinstated.
Our second disagreement with the text of section 1 of the bill relates
to the next to the last sentence of the revised ? 702, which provides
that "the United States may be named as a defendant in any such
action, and a judgment or decree may be entered against the United
States." This was part of the original' Administrative Conference pro-
posal. Its purpose was to eliminate the "technicalities of the law of
parties defendant" and to assure the "binding effect of judgments"
against the United States. (See 1 ACUS Reports 220-22.)
We have no quarrel with these objectives, nor with the text of the
provision insofar as it provides for the initial naming of the United
States. The provision for the entering of a judgment or decree against
the United States, however, is inadvisable without some modification.
In order to assure that. the binding effect of a judgment will not lapse
with the departure of the Federal officer who happens to have been
named, it seems to us unnecessary to leave to the Justice Department-
or perhaps to the Government as a whole--the task of deciding what
individual has personal responsibility (presumably under pain of
contempt) for compliance with a court's mandatory decree. Leaving
the matter thus unspecified is either unfair to the individual who may
be responsible or else destructive of the enforceability of the decree.
We suggest that all the values sought to be achieved by this provision
can be preserved, and the foregoing difficulty eliminated, by adding
to the sentence in question the following proviso :
provided, that any mandatory or injunctive decree shall
specify the Federal officer or officers (by name or by title),
and their successors in office, personally responsible for
compliance.
In connection with this provision, I may also note our understanding
that the ability to name the United States in the initial pleading does
not alter the degree of specificity with which the plaintiff must plead
and establish his case. For example, where the plaintiff knows that
particular officers of a particular agency caused the wrong alleged, he
cannot merely plead that it was caused by unspecified officers of the
United States, leaving it to the Department of Justice to circularize
the entire Government in order to respond to the complaint. Such a
pleading would be subject to a motion for more definite statement
under Rule 12(e) of the Federal Rules of Civil Procedure.
With the revisions suggested above, the Department supports enact-
ment of section 1 of S. 800.
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Section 2 of S. 800 would amend 28 U.S.C. section 1331 to eliminate
the requirement that there be at least $10,000 in controversy, and thus
provide federal court jurisdiction over all civil cases raising "federal
questions" regardless of the monetary amount involved.
The Department of Justice has in the past supported removal of
the "amount in controversy" requirement in cases alleging unconstitu-
tional action by federal agents. The Administrative Conference of the
United States has recommended the somewhat broader approach of
eliminating the requirement with respect to cases in which the plain-
tiff alleges that he has been injured or threatened with injury by an
officer or employee of the United States, or an agency thereof, "acting
under color of Federal law." Conference Recommendation 68-7. Vir-
tually all of the additional ground covered by the Conference pro-
posal would be encompassed by existing law if section 10 of the APA,
5 U.S.C. $~ 701-03, were established to be an independent grant
of jurisdiction. This is presently the law of the District of Columbia
Circuit Pickus v. United States Board of Parole, 507 F. 2d 1107 (D.C.
Or. 19(4), though it is not universally accepted. Moreover, the juris-
dictional amount requirement can be avoided if suit can be cast in the
form of an action "in the nature of mandamus," so as to qualify under
the Mandamus and Venue Act of 1962, 28 U.S.C. $ 1361. See Re-
port of the Committee on Judicial Review of the Administrative
Conference, 1 AC US Reports 170,176-77. When these means of avoid-
ing the requirement are added to the fact that the existence of mone-
tary damage in cases involving agency action is an erratic factor to
begin with, not necessarily related to either the private or public im-
portance of the issue involved, the "amount in controversy" provision
of ~ 1331 is seen to have a very limited and virtually irrational
application, at least as applied to judicial review of administrative
action. The Department therefore supports the Administrative Con-
ference recommendation.
The amendment contained in S. 800, however, would go beyond the
Conference proposal, and would remove the "amount in controversy"
requirement not merely in suits for review of federal agency action
but in all federal question cases. We do not know the volume and the
character of cases which this further extension would add to federal
court dockets. The Administrative Conference Committee report of
course did not address the point, and we know of no other study which
does. It is conceivable that the small volume of such cases, or their
relatively high importance, renders the extension unobjectionable. If
the Subcommittee has reliable information on the point, we will be
pleased to examine it and provide our further views. Absent such data,
however, we think it advisable to adhere to the carefully considered
Administrative Conference recommendation, which would limit sec-
tion 2 to the important category of suits seeking review of agency
action.
Section 3 of S. 800 would amend 28 U.S.C. ? 1391(e) to permit
additional persons to be joined as parties in actions against the United
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States, its agencies, officers or employees, "without regard to other
venue requirements." Presently, 28 U.S.C. ? 1391(s), which grants
venue not merely in the defendant's district but in the plaintiff's
district, whether the cause of action arose or There real property
which it involves is situated, applies to a civil action in which "each
defendant" is an officer or employee of the United States or any
agency thereof. The amendment proposed would make the presence
of a single federal defendant sufficient..
While the question must be regarded as still open, the limitation on
joinder set forth in ? 1391 (e) has been held by some courts to apply
only to those individuals as to whom that section itself is the sole
basis of venue. That is, additional defendants may be joined so long
as an independent basis of venue with respect to them exists. See
National Resources Defense Council, Inc. v. Tennessee Valley Author-
ity, 459 F. 2d 255, 257 n. 3 (2d Cir. 1972). If the effect of the present.
E were merely to codify this interpretation of ? 1391(e), the
Department would support it. However, the amendment as written
goes much further. It would permit any plaintiff to obtain venue
against any private defendant by simply joining as a party to the
action a federal official over whom venue may be obtained under.
28 U.S.C. ? 1391(e). The Department sees no reason why the facili-
tation of suits against the Government should lead to the imposition
of hardships against non-Government defendants which the ordinary
venue rules are designed to avoid. See Town of East Haven v. Eastern
Airlines, 282 F. Supp. 507, 510-11 (D. Conn. 19(18). We may note,
incidentally, that the portion of the Administrative Conference Com-
mittee report which was the origin of this proposal did not address
the point we have here raised, and indeed in all except its last sentence
discussed the problem as though the only issue were permitting the
joinder of persons as to whom independent grounds of venue existed.
See 1 ACUS Reports 431-32.
The Department's objection would be met if the final phrase of sec-
tion 3, "without regard to other venue requirements," were replaced
by: "and with such other venue requirements as would be applicable
if the United States or one of its officers, employees or agencies were
not a party."
For the reasons stated above, the Department of Justice recom-
mends enactment of this legislation with the suggested amendments.
The Office of Management and Budget has advised that there is
no objection to the submission of this report from the standpoint of
the Administration's program.
Sincerely,
ANTONIN SCALTA,
Assistant Attorney General, Ogee of Legal Counsel.
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