SECTION 2-AMOUNT IN CONTROVERSY

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 unconstitutional 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 plaintiff 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. Virtually all of the additional ground covered by the Conference proposal 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. Cir. 1974), though it is not universally accepted. Moreover, the jurisdictional 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 Report of the Committee on Judicial Review of the Administrative Conference, 1 ACUS Reports 170, 176-77. When these means of avoiding the requirement are added to the fact that the existence of monetary damage in cases involving 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" 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 Conference 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 sectión 2 to the important category of suits seeking review of agency action.

SECTION 3-VENUE

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

States, its agencies, officers or employees, "without regard to other venue requirements." Presently, 28 U.S.C. § 1391 (e), which grants venue not merely in the defendant's district but in the plaintiff's district, whether the cause of action arose or where 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 Authority, 459 F. 2d 255, 257 n. 3 (2d Cir. 1972). If the effect of the present proposal 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. 1968). We may note, incidentally, that the portion of the Administrative Conference Committee 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 section 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 recommends 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 SCALIA, Assistant Attorney General, Office of Legal Counsel.

O

2d Session

No. 94-1657

AMENDING THE WILD AND SCENIC RIVERS ACT, AND FOR OTHER PURPOSES

SEPTEMBER 22, 1976.-Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Mr. HALEY, from the Committee on Interior and Insular Affairs, submitted the following

REPORT

[to accompany H.R. 15422]

The Committee on Interior and Insular Affairs, to whom was referred the bill (H.R. 15422) to amend the Wild and Scenic Rivers Act, and for other purposes, having considered the same, report favorably thereon with amendments and recommend that the bill as amended do pass.

The amendments are as follows:

Page 2, line 13, strike out "lands."." and insert "lands. No funds authorized to be appropriated pursuant to this paragraph shall be available prior to October 1, 1977.."

Page 2, line 24, strike out "lands."." and insert "lands. No funds authorized to be appropriated pursuant to this paragraph shall be available prior to October 1, 1977.."

Page 4, line 21, strike out "section 2(1)" and insert "section 202 (1)". Page 7, line 19, strike out "section 2" and insert "section 202”. Page 9, lines 4 and 5, strike out "development."." and insert "development. No funds authorized to be appropriated pursuant to this paragraph shall be available prior to October 1, 1977..”

PURPOSE

The purpose of H.R. 15422,1 as reported by the Committee on Interior and Insular Affairs, is to add segments of the following three

↑ H.R. 15422 and H.R. 15423 were introduced on September 2, 1976, by Mr. Taylor of North Carolina and cosponsored by Mr. Baucus, Mr. Bingham, Mr. Byron, Mr. Carr, Mr. Don H. Clausen, Mr. Cotter, Mr. de Lugo. Mr. Dodd, Mr. Duncan of Tennessee, Mr. Glaimo, Mr. Johnson of California, Mr. Kastenmeier. Mr. Lagomarsino, Ms. Lloyd of Tennessee. Mr. McKinney, Mr. Meeds. Mr. Moffett, Mr. Roncalio, Mr. Sarasin, Mr. Sebelius. Mr. Seiberling, Ms. Smith of Nebraska, Mr. Steelman, Mr. Stephens. Mr. Tsongas and Mr. Won Pat. In addition, several other bills on specific areas were introduced by interested members which have been incorporated into this omnibus legislation. Similar bills authorizing the establishment of the Missouri River as a Wild and Scenic River (S. 1506) and providing for a study of the Housatonic River (S. 10) for possible inclusion in the system, have been approved by the Senate.