Drinan v. Nixon, 364 F. Supp. 853 (D. Mass. 1973)

US District Court for the District of Massachusetts - 364 F. Supp. 853 (D. Mass. 1973)
May 8, 1973

364 F. Supp. 853 (1973)

Robert F. DRINAN et al., Plaintiffs,
Richard M. NIXON, President of the United States, et al., Defendants.

Civ. A. 73-1424-T.

United States District Court, D. Massachusetts.

May 8, 1973.

William A. Brown, Asst. U. S. Atty., for defendants.

Peter Weiss, Center for Constitutional Rights, New York City, Allan Rosenberg, Putnam, Bell & Russell, Boston, Mass., for plaintiffs.


TAURO, District Judge.

Plaintiffs' complaint seeks declaratory judgment as to the legality of alleged military activity by United States forces in Cambodia.

Plaintiffs were permitted to appear ex parte for the purpose of urging the issuance of a show cause order, the effect of which would be to shorten the period of time (60 days) within which the defendant officers of the United States are required to serve their answer under Fed.R.Civ.Pro. 12(a).

Plaintiffs' complaint requests only declaratory relief. Although plaintiffs seek issuance of a show cause order, plaintiffs' counsel was specific in his assertion to the court that injunctive relief is not sought.

It is clear that show cause orders, which effectively shorten the period available for filing of responsive pleadings, are a usual and proper vehicle in actions seeking injunctive relief. Exigencies of time have been consistently recognized as a sufficient basis for accelerating the procedural calendar of cases in which injunctive, as opposed to declaratory, relief is sought. See, e. g., Studebaker Corp. v. Gittlin, 360 F.2d 692 (2d Cir. 1966). See also 5 Wright & Miller, Federal Practice and Procedure ยง 1346 (1969).

*854 Rule 12(a) is clear in its provision that "the United States or an officer or agency thereof" shall have 60 days in which to serve an answer to a complaint. Plaintiffs offer no authority for their proposition that in a case such as this, in which only declaratory as opposed to injunctive relief is sought, the court has power to shorten the period in which a defendant may file an answer. Rule 57 does authorize the court to order a speedy hearing of an action for declaratory relief and to advance it on the calandar for that purpose. See, e. g., Temp-Resisto Corp. v. Glatt, 18 F.R.D. 148 (D.N.J.1955). Implicit in such provision, however, is the assumption that prior to such order for a speedy hearing, the matter in issue will have been joined by the filing of a responsive pleading.

Plaintiffs' request for a show cause order is, therefore, denied without prejudice. Plaintiffs are given leave to renew this request, or to file a motion seeking an abridgment of the permissible period available to defendants under Rule 12(a), together with a memorandum of supporting authority.