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CONSEJO PUERTORRIQUENO POR LA PAZ v. DIRECTOR

UNITED STATES DISTRICT COURT, DISTRICT OF COLUMBIA


September 14, 1978

CONSEJO PUERTORRIQUENO POR LA PAZ et al., Plaintiffs,
v.
DIRECTOR, FEDERAL BUREAU OF INVESTIGATION et al., Defendants

The opinion of the court was delivered by: GASCH

MEMORANDUM

Plaintiff Consejo Puertorriqueno por la Paz (Consejo) and other groups advocating independence for Puerto Rico brought this action seeking to enjoin the Federal Bureau of Investigation (FBI) and other defendants from disrupting or interfering with activities of the plaintiff groups or their members. Plaintiffs are alleging that acts committed by defendants violate plaintiffs' First Amendment and other constitutional and statutory rights. Defendants have moved to dismiss the cause on the grounds that the complaint fails to state a claim upon relief may be granted because it does not present a justiciable case or controversy within the requirement of Article III of the Constitution. *fn1"

 Plaintiffs allege that defendants engaged in disruptive activities prior to a 1967 plebiscite on independence for Puerto Rico. Included in the alleged activities were such actions as making it falsely appear that members of plaintiff groups were FBI informants, sending anonymous disparaging cartoons and press releases, and establishing sham organizations for the purpose of disruption. Plaintiffs also allege, on information and belief, that defendants are currently engaged in the same type of disruptive activity, with respect to the United States Democratic National Party primary election scheduled for October 1, 1978, in Puerto Rico. *fn2" With their complaint, plaintiffs also filed a motion requesting that they be allowed to take expedited depositions of defendants. Plaintiffs were then requested to file an affidavit particularizing their claims of recent harassment by defendants, 3 and on August 7, 1978, the motion for expedited discovery was denied. On September 8, 1978, a hearing was held on defendants' motion to dismiss.

 Defendants contend that plaintiffs have failed to present this Court with a justiciable controversy, having alleged no specific and direct harm or threat of harm. Defendants maintain that plaintiffs have alleged no disruptive activities by defendants more recent than 1967, and that any allegations of recent disruptive activities are conclusory and without factual foundation.

 The Court concludes that defendants' motion to dismiss should be granted. The complaint fails to state a claim upon which relief can be granted because plaintiffs have not shown that they are subjected to a specific present objective harm or a threat of specific future harm. See Laird v. Tatum, 408 U.S. 1, 14, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972). Plaintiffs have only presented general conclusory allegations that defendants have continued their 1967 activities into 1978. "(W)here the claims in a complaint are insufficiently supported by factual allegations, these claims may properly be disposed of by summary dismissal." Harper v. United States, 423 F. Supp. 192, 196 (D.S.C.1976); See Jewell v. City of Covington, 425 F.2d 459 (5th Cir.), Cert. denied, 400 U.S. 929, 91 S. Ct. 195, 27 L. Ed. 2d 189 (1970). *fn4"

 All of the allegations in plaintiffs' complaint refer to incidents and events occurring prior to the 1967 plebiscite on Puerto Rican independence. In an attempt to provide the Court with a factual basis for the allegations that such activities have continued to the present, plaintiffs filed an affidavit purporting to set out recent instances of defendants' misconduct. *fn5" The affidavit, however, provides no factual basis for determining that these defendants have engaged in disruptive activities to the harm of these plaintiffs since 1967. The affidavit mentions several instances in which plaintiffs have discovered that they were under investigation. *fn6" Mere surveillance, however, without more, cannot establish the specific injury or threat of injury mandated by Laird v. Tatum, supra.

 In Laird v. Tatum, supra, certain individuals claimed that their First Amendment rights had been inhibited and curtailed by the creation and maintenance of an information gathering system under the aegis of United States Army Intelligence. In reviewing a motion to dismiss, the Supreme Court held that no justiciable controversy was present inasmuch as the plaintiffs had not shown any resulting direct injury or immediate threat of harm. 408 U.S. at 13-14, 92 S. Ct. 2318. Plaintiffs here seek to distinguish Laird on the basis that Laird involved "passive surveillance," while this case involves "active disruption." This attempted distinction is of no avail, however, because plaintiffs alleged no activities by defendants since 1967 that can be said to be "active disruption." All of the recent activities identified by plaintiffs and attributed to defendants seem clearly to be within the surveillance and information gathering category specified by Laird as not constituting specific direct harm to constitutional rights. *fn7"

 Plaintiffs also allege that recent events possibly constituting more than "mere surveillance" have occurred. *fn8" Among these are the murder of a plaintiff's son, the bombing of a plaintiff's house, *fn9" and gunshots fired at a plaintiff's residence. Plaintiffs provide absolutely no basis, however, for believing that these actions are in any way attributable to these defendants. Indeed, the recent activities relied on by plaintiffs to establish specific and direct harm are very different from the activities allegedly conducted by the defendants in the 1960's. *fn10"

 Furthermore, the Supreme Court in Laird refused to authorize plaintiffs' "broad-scale investigation, conducted by themselves as private parties armed with the subpoena power of a federal district court and the power of cross-examination, to probe into the Army's intelligence-gathering activities . . . ." 408 U.S. at 14, 92 S. Ct. at 2326. In Fifth Avenue Peace Parade Committee v. Gray, 480 F.2d 326, 333 (2d Cir. 1973), the United States Court of Appeals for the Second Circuit observed that, in a declaratory judgment action, "the complaint must stand or fall on its own merits and cannot be used as a vehicle for searching out and discovering a right of action." The plaintiffs in this case have admitted to their lack of knowledge whether defendants are even engaged in continuing disruptive activities. *fn11" The complaint, therefore, does not present a justiciable controversy appropriate for resolution by this Court. *fn12"

 Accordingly, the Court will grant defendants' motion to dismiss the complaint for failure to state a claim.


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