CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner Dawson*fn1 was served with a subpoena to appear before the House Un-American Activities Committee. He alleges that the subpoena was signed in blank by the Committee Chairman and that respondent Wheeler, an investigator for the Committee, filled in Dawson's name without authorization of the Committee. We read the complaint, as does the Solicitor General, most favorably to Dawson and conclude that the complaint alleges that no member of the Committee even attempted to delegate the Committee's subpoena power to Wheeler. The complaint also alleges that Wheeler intended to subject petitioner, when he appeared as a witness before the Committee, to public shame, disgrace, ridicule, stigma, scorn and obloquy, and falsely place upon him the stain of disloyalty without any opportunity of fair defense, to petitioner's irreparable injury. The complaint alleges not only the lack of authority of respondent Wheeler to fill in the blank subpoena but also the unconstitutionality of the House Resolution and the Act of Congress, 60 Stat. 828, authorizing the Committee to act and to subpoena witnesses. The complaint alleges that the mere service of the subpoena on Dawson cost him his job and that Wheeler caused service to be made while petitioner was at work knowing that loss of employment would result. It prays that the subpoena be declared void and of no force or effect, and asks for damages and for an injunction.
The District Court denied declaratory and injunctive relief, holding that since Dawson's appearance did not seem imminent the case was not ripe for equitable intervention and that the mere apprehension that a federal
right might be infringed at some future time did not warrant declaratory or injunctive relief at the present time. The District Court held that no federal cause of action was stated as respects damages and dismissed the complaint for lack of jurisdiction over the subject matter. The Court of Appeals held that declaratory relief, being within the District Court's discretion, was properly denied and that the claim for injunctive relief had become moot. It held, however, that "in the sense of Bell v. Hood, 327 U.S. 678," there was "jurisdiction to entertain the claim for money damages," and to that extent reversed. 280 F.2d 293. On remand the District Court dismissed the action without opinion. The Court of Appeals affirmed. 302 F.2d 36. The case is here on a petition for a writ of certiorari which we granted. 371 U.S. 812. The basic question presented is whether a federal claim for damages is stated.
We agree with the Court of Appeals in its first opinion (280 F.2d 293) that on the face of the complaint the federal court had jurisdiction. As we stated in Bell v. Hood, 327 U.S. 678, 685, "the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another. For this reason the District Court has jurisdiction." And see Bock v. Perkins, 139 U.S. 628, 630.
But on the undisputed facts, as they appear on argument of the case, no federal cause of action can be made out. Dawson's main reliance is on the Fourth Amendment, which protects a person against unreasonable searches and seizures. Its violation, he contends, occurred when an unauthorized subpoena was served on him. But there was neither a search nor a seizure of him. He was neither arrested nor detained pursuant to any subpoena; nor, so far as the complaint discloses, did he
respond to the subpoena and either testify or refuse to testify; nor was the subpoena used to cite him for contempt. Cf. Williams v. United States, 341 U.S. 97. In short, the facts alleged do not establish a violation of the Fourth Amendment. And the provisions of the Civil Rights Act are clearly inapplicable to this kind of case. See R. S. §§ 1979, 1980, 42 U. S. C. §§ 1983, 1985;*fn2 Tenney v. Brandhove, 341 U.S. 367; Monroe v. Pape, 365 U.S. 167.
Apart from any rights which may arise under the Fourth Amendment, Congress has not created a cause of action for abuse of the subpoena power by a federal officer, at least where the subpoena was never given coercive effect. No claim is made that the Federal Tort Claims Act reaches that far.*fn3 Cf. Hatahley v. United States, 351 U.S. 173. There is much discussion in the briefs of Barr v. Matteo, 360 U.S. 564. But that was a libel action brought against a federal official in the District of Columbia. And the immunity doctrine of that case and Howard v. Lyons, 360 U.S. 593, upon which the
Court of Appeals rested, is not relevant here, for, as the Solicitor General has conceded, under the allegations of the complaint respondent Wheeler was not acting sufficiently within the scope of his authority to bring the doctrine into play.
It is argued that the statute governing the issuance of subpoenas*fn4 not having been complied with, a cause of action for damages "arises" under it within the meaning of 28 U. S. C. § 1331. As respects the creation by the federal courts of common-law rights, it is perhaps needless to state that we are not in the free-wheeling days ante-dating Erie R. Co. v. Tompkins, 304 U.S. 64. The instances where we have created federal common law are few and restricted. In Clearfield Trust Co. v. United States, 318 U.S. 363, we created federal common law to govern transactions in the commercial paper of the United States; and we did so in view of the desirability of a uniform rule in that area. Id., p. 367. But even that rule was qualified in Bank of America v. Parnell, 352 U.S. 29. In Tunstall v. Brotherhood, 323 U.S. 210, the federal right was derived from the federal duty of the union to act as bargaining representative for all members of the union.*fn5 But it is difficult for us to see how the present statute, which only grants power to issue subpoenas, implies a cause of action for abuse of that power. Congress
has not done here what was done in Textile Workers v. Lincoln Mills, 353 U.S. 448, and left to federal courts the creation of a federal common law for abuse of process.
When it comes to suits for damages for abuse of power, federal officials are usually governed by local law. See, e. g., Slocum v. Mayberry, 2 Wheat. 1, 10, 12. Federal law, however, supplies the defense, if the conduct complained of was done pursuant to a federally imposed duty (see, e. g., Mayor v. Cooper, 6 Wall. 247; cf. Tennessee v. Davis, 100 U.S. 257), or immunity from suit. See Barr v. Matteo, supra; Howard v. Lyons, supra. Congress could, of course, provide otherwise, but it has not done so. Over the years Congress has considered the problem of state civil and criminal actions against federal officials many times. See Hart and Wechsler, The Federal Courts and the Federal System, 1147-1150. But no general statute making federal officers liable for acts committed "under color," but in violation, of their federal authority has been passed. Congress has provided for removal to a federal court of any state action, civil or criminal, against "any officer of the United States . . . , or person acting under him, for any act under color of such office . . . ." 28 U. S. C. § 1442 (a)(1). That state law governs the cause of action alleged is shown by the fact that removal is possible in a nondiversity case ...