30585. Special purpose foods.   Suits for declaratory judgment and injunction.
American Dietaids Co., Inc., Yonkers, New York, a manufacturer of special 
purpose foods, filed complaint for a declaratory judgment and injunction, in the 
United States District Court for the Southern District of New York against 
Anthony J. Celebrezze, Secretary of the Department of Health, Education, and 
Welfare, and against Edward Warner and Carl E. Lorentzson, inspectors of 
the Food and Drug Administration. The facts as alleged in the complaints 
are contained in the court opinions set forth below.
DISPOSITION : The defendants filed a motion for dismissal of the complaint filed 
on or about August 20, 1962, and on November 5, 1962, the court handed down 
the following opinion and order relating to the dismissal of the complaint:
MCGOHET, District Judge:
Memorandum and Order
"The defendants move under Rule 12(b) of the Federal Rules of Civil 
Procedure for dismissal of the complaint on the grounds (1) that the Court 
lacks jurisdiction over the defendant Anthony J. Celebrezze, Secretary of 
Health, Education, and Welfare, and (2) that in the absence of such jurisdic- 
tion over the Secretary, there is a failure to join an indispensable party.
"Service was attempted to be made upon the Secretary by delivery of copies 
of the summons and complaint to the United States Attorney for the Southern 
District of New York and, by registered mail, to the United States Attorney 
General in Washington, D.C, and by delivery of another copy of the summons 
and complaint by a United States Marshal to an officer allegedly authorized 
to accept service for the Secretary in Washington, D.C. This attempted per- 
sonal service upon the Secretary was made on August 24, 1962, before the 
recent amendment of 28 U.S.C. section 1391. Pub. L. No. 748, 87th Cong., 2d 
Jess. § 2 (Oct. 5, 1962). Since at the time there was no authorization for such 
service of the process of this Court outside the territorial limits of the State 
of New York, Fed. R. Civ. P. 4(f), the attempted service in Washington, D.C. 
was without effect.1 The complaint must therefore be dismissed as against 
the Secretary.
"The complaint alleges that on or about August 9, 1962, the defendants 
Warner and Lorentzson, Inspectors of the Food and Drug Administration, 
gained entry to the plaintiff's business premises under color of authority for 
the purpose of making a factory inspection pursuant to section 704(a) of the 
Food, Drug and Cosmetic Act, 21 U.S.C. section 374(a) ; that they brought 
into the premises on that occasion a concealed tape recording device with- 
out the knowledge or consent of the plaintiff; that the defendants were thus 
able to 'record statements and conversations of persons in plaintiff's business 
premises including agents, employees, and representatives of the plaintiff'; 
that a representative of the plaintiff became aware of the presence and use 
of the device and demanded that the tape be turned over to the plaintiff, which 
demand was refused; and that 'upon information and belief the aforesaid 
acts were committed 'pursuant to and upon the direction of Secretary Clea- 
red. The complaint asks for a declaration that the acts of the defendants 
were unauthorized by the statute and illegal under the Fourth Amendment; for 
an injunction restraining 'the defendants and each of them, their servants, 
agents, employees and representatives' from further engaging in such acts, and 
for a further injunction 'directing defendants to turn over to plaintiff the
1 Stewart v. United States, 5 Cir., 242 F. 2d 49; Heiser Ready Mix Co. v. Fenton. 7 Circ 
26,5 F. 2d 277.
tapes used in the recording device as hereinabove complained of, together with 
any copies, reproductions, memoranda, notes or other records made from such 
tapes.'
"It seems clear that a decree granting the relief sought would require some 
higher official than Warner or Lorentzson 'to take action, either by exercising 
directly a power lodged in him or by having a subordinate exercise it for him.' 
Williams v. Fanning, 332 U.S. 490, 493. Certainly the most important relief 
sought, an order directing that the tapes be turned over to the plaintiff, could 
only be obtained by a decree binding an official having present custody or 
authority over the tapes. Whether the indispensable superior officer is the 
Secretary himself or some lesser, local official need not be decided now, for it 
is clear that, in any case, no such official is presently before this Court.
"Accordingly, the complaint will be dismissed, but with leave to file a new 
complaint naming the official or officials against whom the relief desired, if 
granted, may be effectively decreed.
"So Ordered."
As a result of the foregoing opinion a new complaint was filed on or about 
November 15, 1962, as indicated above. The defendants thereafter filed a mo- 
tion for dismissal and on 3-22-63, the court granted such motion and handed 
down the following opinion (215 F. Supp. 252) :
DAWSON, District Judge: "This is a motion by defendants, pursuant to Rule 
56 of the Rules of Civil Procedure, for an order dismissing the complaint.
"The action purports to be one for declaratory judgment pursuant to Section 
1337, Title 28, U.S.C, declaring that certain acts of the defendants are un- 
authorized by law and in violation of the provisions of Section 704(a) of the 
Federal Food, Drug and Cosmetic Act, and for a declaration that they consti- 
tute an interference with plaintiff's rights against illegal search and seizure. 
The complaint also asks for an injunction.
"The acts complained of may be summarized as follows:
"The defendants Warner and Lorentzson are inspectors of the Federal Food 
and Drug Administration of the Department of Health, Education and Wel- 
fare. On or about August 9, 1962, these defendants presented to the plaintiff 
a notice of inspection to inspect the plant of plaintiff and were granted access 
to the premises. It is alleged in the complaint that they had a tape recording 
device with them, and
'That said defendants WARNER and LORENTZSON, did thereupon carry 
said hidden and. concealed tape recording device into and through plaintiff's 
business premises, wherein it was able to and did pick up and record 
statements and conversations of persons in plaintiff's business premises 
including agents, employees, and representatives of the plaintiff.'
"There is no indication that any proceeding, criminal or otherwise, is pend- 
ing or that respondents are seeking to use or intending to use the tape recording 
referred to in the complaint.
"It may be pointed out that the use of such hidden tape recording device is 
not a violation of the constitutional prohibition against unreasonable search 
and seizure. On Lee v. United States, 343 U.S. 747 (1952) ; United States v. 
Kaoot, 295 F. 2d 848 (2d Cir. 1961) cert, denied 369 U.S. 803 (1962).
"However, a more important issue is presented at the threshold. The facts 
alleged in the complaint do not present an issue for which declaratory judg- 
ment is an appropriate remedy. Plaintiff seeks a declaration that something 
done in the past was illegal. It does not contend that any present actual 
controversy exists. In order to get jurisdiction under the declaratory judg- 
ment statute it must be shown that the case involves what the statute calls 
an 'actual controversy.' Section 2201, Title 28, U.S.C. An actual controversy 
is one appropriate for legal determination. It must be definite and concrete. 
It must relate to the relations of parties having adverse interests. It differs 
from one that is academic or moot. Aetna Life Ins. Co. v. Haworth, 300 U.S. 
227 (1937).
"Here there is no adversary proceeding seeking a determination of the 
legal rights of parties to a presently existing or contemplated controversy.
Plaintiff is saying no more than that a wrong has been done in the past and it 
wants a declaration that these past acts constitute a wrong. This is not the 
function of an action for declaratory judgment. If a wrong has been done 
in the past plaintiff can sue to remedy that wrong. If plaintiff is afraid that 
the tape recording will be used in the future in a criminal proceeding not yet 
instituted, it has an adequate remedy at the time of the institution of suit 
toy a motion to suppress.
"If plaintiff is concerned lest similar acts take place in the future, the com- 
plaint is still not adequate. Circumstances may well be different in the future. 
Each such incident must be considered in the light of the facts of the incident. 
It is not proper to say that because a wrong was done plaintiff is entitled to a 
declaration that he should not be wronged in the future. Borchard, Declara- 
tory Judgment (2d Ed.) p. 84.
"The action is not one which is appropriate for declaratory judgment. The 
motion for summary judgment dismissing the complaint is granted. So 
ordered."
The case was appealed by American Dietaids Co., Inc.,<to the United States 
Court of Appeals for the Second Circuit and on 5-17-63, such Court affirmed 
the judgment of the District Court in the following opinion (317 F. 2d 658) :
SMITH, Circuit Judge: "Appellees Warner and Lorentzson, inspectors of the 
Food and Drug Administration of the United States Department of Health, 
Education and Welfare, pursuant to department policy, on August 9, 1962, 
carried with them a concealed tape recorder while inspecting under authority 
of § 704(a) of the Federal Drug and Cosmetic Act, 21 U.S.C. § 374(a) 1 the 
premises of plaintiff, a manufacturer of special purpose foods and allied 
products.
"Due to a malfunction of the recorder, plaintiff's representatives discovered 
its use and demanded that the tapes be surrendered, which was refused. 
Thereupon this action was commenced in the Southern District of New York 
against the Secretary of Health, Education and Welfare and the two inspectors, 
seeking a declaration that the acts of the inspectors were violative of the pro- 
visions of § 704(a) and of the Fourth Amendment's prohibition of illegal 
search and seizure, and seeking surrender of the tapes and injunction against 
'such acts'. On defendants' motion, the Court, Archie O. Dawson, Judge, 
granted summary judgment dismissing the complaint. We hold that this 
action will not lie on the facts here established, and affirm the judgment.
"Even though the government concedes that such use of recorders is in 
accord with department practice, there is no showing of any intention or 
threat again so to inspect plaintiff's premises. There is no ground in such a 
single past incident for declaratory relief against possible future inspections. 
There is no actual controversy now existing on which to found declaratory 
relief. Borchard, Declaratory Judgment (2d Ed. 1941), pp. 81-86. Public 
Service Commissioner v. Wycoff Co., 344 U.S. 237 (1952) ; Eccles v. People's 
Bank of Lakewood Village, Cat, 333 U.S. 426, 431, 'Especially where govern- 
mental action is involved, courts should not intervene unless the need for 
equitable relief is clear, not remote or speculative.' Here we are not shown 
what use of the tapes, if any, may be intended.   If a civil or criminal action
1 § 374. Factory inspection—Right of agents to enter premises; notice; promptness
(a) For purposes of enforcement of this chapter, officers or employees duly designated 
by the Secretary, upon presenting appropriate credentials and a written notice to the owner, 
operator, or agent in charge, are authorized (1) to enter, at reasonable times, any factory, 
warehouse, or establishment in which food, drugs, devices, or cosmetics are manufactured, 
processed, packed, or held, for introduction into interstate commerce or are held after such 
introduction, or to enter any vehicle being used to transport or hold such food, drugs, 
devices, or cosmetics in interstate commerce; and (2) to inspect, at reasonable times and 
within reasonable limits and in a reasonable manner, such factory, warehouse, establish- 
ment, or vehicle and all pertinent equipment, finished and unfinished materials, containers, 
and labeling therein. A separate notice shall be given for each such inspection, but a 
notice shall not be required for each entry made during the period covered by the inspection. 
Bach such inspection shall be commenced and completed with reasonable promptness.
should be brought and if claimed improper use of the tapes is then attempted, 
motion to discover or suppress the tapes may be appropriate. On Lee v. 
United States, 343 U.S. 747, 756 (1952). The courts are reluctant to decide 
important constitutional questions at a stage of proceedings when the necessity 
of their resolution has not been established. Poe v. Ullman, 367 U.S. 497 
(1961).   Declaratory and injunctive relief were properly denied.
"Nor do we reach the merits of the claim to possession of the tapes, upon 
whatever theory plaintiff may contend for such a right, for this is plainly an 
action against the sovereign, to which it has not consented. The tapes were 
recorded and retained by agents of the Secretary of,Health, Education and 
Welfare in carrying out inspections authorized by the statute and pursuant to 
department policy. This is not an action to recover damages from defendants 
personally because of their personal actions. It seeks in this phase recovery of 
specific government property so that while nominally against the individuals 
it is in substance against the government over which the court, in the absence 
of consent, has no jurisdiction. Larson v. Domestic & Foreign Corp., 337 U.S. 
682, 688 (1949).   Dugan v. Rank—U.S.—April 15, 1963, 31 L 4347.
"The judgment dismissing the complaint is affirmed."
A petition for certiorari was subsequently filed in the Supreme Court and on 
10-28-63, such petition was denied (375 U.S. 896).