the scope of discretion. Id. at 573, 79 S.Ct. 1335. We conclude
that there is nothing about Murphy's duties or responsibilities
which justifies cloaking him with official immunity.
By Murphy's own admission at deposition, his tasks were
"belittling" and "just detail work", and involved lining up
limousines, seeing that persons in the motorcade got to the
proper car, taping signs on buses and windows, and roping off
areas. Policy decisions were made by those with greater
authority; no discretion was needed in his job. Therefore, as
Bivens concludes, "The real question to be asked is whether or
not [the performance of such] duties warrant the protection of
the immunity defense." 456 F.2d at 1346. We hold, in this case,
it does not.
Murphy further argues that plaintiffs have failed to state a
cause of action, inasmuch as Bivens v. Six Unknown Agents of the
Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29
L.Ed.2d 619 (1971), when properly limited to its facts, pertains
only to suits alleging violations of the Fourth Amendment. We
reject that contention. While there are a smattering of cases
which restrict Bivens in this manner, the overwhelming number of
authorities, and in this court's opinion the better-reasoned
ones, refuse to read Bivens so narrowly. Justice Harlan's
compelling logic in his concurrence clearly does not depend for
its validity upon the fact that the Fourth Amendment, as opposed
to the First or the Fifth Amendments for example, was involved.
United States ex rel. Moore v. Koelzer, 457 F.2d 892 (3rd Cir.
1972); Bethea v. Reid, 445 F.2d 1163 (3rd Cir. 1971); Sullivan
v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938, 965 n. 2 (1973);
Marsh v. Kitchen, 480 F.2d 1270, 1271 n. 2 (2d Cir. 1973);
Butler v. United States, 365 F. Supp. 1035 (D.Hawaii 1973). Bivens
recognizes a cause of action for damages for violation of any
constitutionally protected interest.
Murphy also seeks dismissal of this action on the grounds that
plaintiffs have failed to complain of an action wherein the
amount in controversy exceeds $10,000, as required under
28 U.S.C. § 1331. Even discounting the jurisdictional sum attached
to the injunctive portion of this suit, since, as we have noted
with regard to defendant Henkel, the justiciability of that
aspect of the lawsuit is doubtful, we still find that plaintiffs
have alleged the requisite jurisdictional amount. It is not
incumbent upon plaintiffs to show to an absolute certainty that
each plaintiff will obtain a verdict in excess of $10,000.
Rather, before a suit will be dismissed for lack of jurisdiction,
it must appear to a legal certainty that plaintiff will not
recover that amount. Jeffries v. Silvercup Bakers, Inc.,
434 F.2d 310 (7th Cir. 1970). Furthermore, the action at bar is, at its
core, an action sounding in tort and one for which punitive
damages are recoverable; where both actual and punitive damages
are recoverable under a complaint each must be considered to the
extent claimed in determining jurisdictional amount. Bell v.
Preferred Life Assurance Society, 320 U.S. 238, 64 S.Ct. 5, 88
L.Ed. 15 (1943). That plaintiffs believe Murphy acted with intent
and malice is clear from the complaint, and allegations of such
behavior by an advanceman in service of the President is not to
be lightly dismissed for lack of jurisdictional amount without a
stronger showing than that made herein.
Finally, Murphy seeks summary judgment, arguing that his
affidavit conclusively reveals that he is a private businessman
from Eugene, Oregon, engaged in the lumber business, and not a
federal official who can be held liable in a federal district
court under a Bivens-type cause of action. Murphy argues that he
was merely an agent of the Republican Party, that he never
received any compensation from the government, that his expenses
were paid by the Republican Party and by the Committee to
Re-Elect the President, and that he was merely continuing in the
role of spare-time voluntary advanceman, which role he initially
undertook to help assure the
re-election of President Nixon. Even assuming such to be true,
this court is uncertain, in light of other facts before us, that
defendant. Murphy's actions were so "private" as to create
insufficient "federal color" for purposes of shouldering
liability under Bivens; at a minimum, there is a genuine issue of
fact precluding summary judgment.
We note, first, that President Nixon's trip to Pekin, Illinois,
in June, 1973, occurred approximately six months into his second
term of office, and so was clearly unrelated to any partisan
election campaign; such a fact might have a bearing in
determining whether Murphy was acting in a governmental capacity
— volunteer or otherwise — or "merely" as an agent of the
Republican Party. We do not have before us the question of
Murphy's actions as an advanceman on a clearly partisan campaign
It is not persuasive for defendant Murphy to argue his agency
with the Republican Party as precluding his acting under color of
federal authority; if the Republican Party were acting as an
agent for the Executive Branch in aiding with the advance work
for this trip, defendant Murphy would be a sub-agent to the
Advance Office of the White House. Specifically, this court sees
no reason why the Advance Office could not delegate part of its
authority and duty to aid in the logistics and preparation of a
Presidential trip to a political party, which party and its
agents would then be acting under color of federal authority.
An analogous concept is utilized in determining whether actions
by political parties is "state action" for purposes of stating a
cause of action under the Civil Rights Act, 42 U.S.C. § 1983, and
invoking jurisdiction under 28 U.S.C. § 1343. In Smith v.
Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944), the
Supreme Court examined the legality of "white primaries",
inasmuch as the Democratic Party in Texas limited its membership
to white citizens and excluded blacks from voting in its primary
elections. The Court said:
The [political] party takes its character as a state
agency from the duties imposed upon it by state
statutes; the duties do not become matters of private
law because they are performed by a political party.
(Emphasis added). 321 U.S. at 663, 64 S.Ct. at 765.
While it is clear that political parties become agents of the
state in elections as a matter of statutory scheme, it also seems
clear that a political party could establish a common law agency
with the government whenever the government delegates authority
to it. This would be true, of course, on both a national and
Further, Murphy's deposition indicates that his
responsibilities as a volunteer advanceman were so closely
intertwined to those of the officially government-compensated
members of the Advance Office of the White House, that we would
be remiss and overly-narrow in our perception of the facts to
conclude that Murphy was not acting as an agent for, and on
behalf of, the White House and the U.S. government. Defendant was
asked by the Advance Office in the Executive Office Building to
go to Pekin. (Murphy deposition p. 49). He had a superior in the
Advance Office named Gartland who gave him his assignment in
Pekin (Murphy dep., p. 50). His duties were to help coordinate
the President's visit, and particularly, to help at the airport
and at the library dedication area (Murphy deposition p. 51, 61).
He was given instructions that were used in coordinating the
trip, and he attended a countdown advance meeting with the Secret
Service at which instructions were given to him by the Secret
Service and the Mayor of Pekin (Murphy deposition p. 60).
Additionally, he was given a clearance pin to wear on his suit to
show he had security clearance and to permit him in areas where
the general public was not permitted. There are clearly
sufficient indicia, then, for one to conclude that Murphy was
acting with the mantle of federal authority draped about him, and
to preclude summary judgment on his behalf.
Having made these rulings, we look now to the propriety of
designating this action as one to proceed by class and find we
must deny plaintiffs' request to so proceed. In light of our
ruling as to the non-justiciability of the equitable aspects of
the complaint, the allegations which remain are grievances by
relatively few people seeking damages for harassment, threat,
intimidation, and attempted suppression of free speech. Also, the
factual questions to be resolved in determining the existence of
threats and intimidation will vary from plaintiff to plaintiff.
Since two of the prerequisites to establishing a class action —
impracticable joinder of all members, and common questions of law
or fact — are absent, we need proceed no further in our analysis
of Rule 23 to determine that class action is inappropriate.
Finally, we address briefly Murphy's contention that, in the
event we either dismiss Murphy or grant summary judgment for him
with regard to alleged constitutional violations, we should
properly abstain from consideration of the Count II assault
charge. Because we have concluded that Murphy is entitled neither
to dismissal nor to summary judgment, we need not rule on
abstention. We note paranthetically, for the sake of
completeness, that this is not a proper situation for abstention.
The subject matter is not so uniquely state-related as to
threaten state sovereignty by federal adjudication, nor is there
a skein of state law whose unentanglement by the clear authority
of a state court is required.
In sum, then, we dismiss defendant Henkel because he is immune
from a damage suit under the doctrine of official immunity, and
because plaintiffs' prayer for equitable relief against defendant
Henkel does not present a justiciable case or controversy.
Alternatively, we find that plaintiffs have failed to raise an
issue of triable fact as to defendant Henkel, and that he is
entitled to summary judgment.
We further find that defendant Murphy is entitled neither to
dismissal nor to summary judgment, and he is ordered to further
plead or move in accordance with the rules of procedure.
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