William J. Brennan, Jr.

“ We must presume that Congress, in specifying the conditions for the lawful delegation of the Committee on Un-American Activities' subpoena power, was mindful of the grave injustices which might be done to individuals as a result of the flouting of those conditions. In this sense, Rule XI (1) (q) (2) may be said to have created a protected class of private persons of which petitioner Dawson, if the allegations of his complaint be true, is a member. Moreover, a private damages action affords the only practicable means of redressing the kind of wrong Dawson alleges. ”

“ Even an unauthorized act may be within the scope of the immunity, so long as it is within the 'outer perimeter' of the officers' 'line of duty.' Barr v. Matteo, supra, 360 U.S. at 575, 79 S.Ct. at 1341. That, however, is a matter of defense. Whether respondent's issuance of the subpoena to petitioner Dawson was authorized by law would seem to be an element of the tort framed in the complaint.↑ The acts complained of as establishing the cause of action all took place, apparently, in California, and petitioner and respondent are both residents of California ”

“ But damages may not in every case be an adequate remedy. And if the existence of state damages remedies were relied upon to confine federal court jurisdiction to equitable actions against federal officers, a person seeking both equitable and damages relief could only invoke federal court jurisdiction at the cost of splitting his claim. So also, the broad provisions for the removal to federal courts of actions commenced against federal officers, 28 U.S.C. § 1442, unfairly give access to the federal courts to defendants which is denied plaintiffs. See Wechsler, supra, at 220 221. ”

“ I recommend this course because the instant case seems to be to raise novel and important questions which have not been adequately briefed or argued by the parties and which this Court consequently, in its opinion today, treats in a most cursory fashion. ”

“ A federal officer remains liable for acts committed 'manifestly or palpably beyond his authority.' Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780; see Colpoys v. Gates, 73 App.D.C. 193, 118 F.2d 16; Kozlowski v. Ferrara, D.C., 117 F.Supp. 650; Note, Remedies Against the United States and Its Officials, 70 Harv.L.Rev. 827, 835 (1957) . Liberally construed, see Virgin Islands Corp. v. W. A. Taylor & Co., 2 Cir., 202 F.2d 61; 2 Moore, Federal practice (2d ed. 1948) , 12.08, at 2245, petitioner Dawson's complaint alleges no less. ”