required, much of it irrelevant to the purposes of the Act, is in one sense the factor which makes the Act the subject of such serious criticism by business, the Bar and others. It is true that under the amendments the Attorney General will have the right to waive in certain instances some or all of the requirements of the registration form. However, unless the Attorney General promptly prescribes general regulations under this authority, it will still be up to the regis trant to comply in full or to secure such an exemption on an ad hoc basis. For large concerns with frequent contacts with the Government, such ad hoc arrangements would be extremely burdensome. Particularly if the definition of "political activities" is not narrowed and hence a large group of persons remains subject to the requirement of registration, it would be desirable to permit registration initially on a simpe short-form for persons engaging in activities which are only marginally if at all within the purview of the Act, such as persons appearing openly on behalf of private commercial principals before administrative agencies. The Attorney General could be given the right to require further information if it is felt that such information is necessary.

The burdens imposed by reason of the broad definitions contained in the amendments to the Act would, of course, be imposed on the agency responsible for administration of the Act as well as on members of the Bar and others covered by the Act. The broadened requirements may result in the filing of registration statements by many persons engaged in representation of foreign principals which are carrying on what traditionally have been considered commercial and private activities not related to influencing legislation or engaging in political propaganda or other similar activities. The enforcement of these broad registration requirements, the processing of the registration statements and the policing of the Act in areas completely removed from its legislative purpose would as a practical matter result either in vastly expanded personnel and financial requirements for administration of the Act or greatly weakened results in enforcement of the Act in the areas where vigorous and effective enforcement is most necessary, that is, in the areas of propaganda and lobbying. We believe it would be in the interests not only of the persons representing foreign principals but of effective regulation of the activities at which the Act is really aimed to exempt from the scope of the Act in clear terms those activities which constitute ordinary representation of foreign private principals in commercial non-political activities or at least to provide a short-form registration statement requiring, in the first instance, only the basic information necessary to disclose the fact of representation and the activity engaged in.

D. Recommendations

In the amendments to the Act adopted by the Senate, we approve the deletion of "foreign or mercantile" from the exemption provisions, the addition of the phrase exempting activities "not serving predominantly a foreign interest," the specific exemption for attorneys of record, the exclusion of "political consultants" who only advise their commercial principals and the inclusion of an injunctive remedy. However, we are disturbed at the possible contracting effect upon the exemption provisions of the proposed new definition of "political activities." We also approve the codification of the Attorney General's right to exempt persons from strict compliance with the registration requirements, but believe that it would be highly desirable to provide in the Act a provision for short-form registration statements. We hence urge that the following changes be made in the amendments to the Act adopted by the Senate:

1. We urge that the definition of "political activities" be restricted so as not to apply to the representation of private foreign principals before Government agencies, so long as the matter involved is private and not substantially associated wtih the political or public interests of a foreign country and so long as it is not intended to affect or change United States legislation, even though the activity does involve United States domestic policies. With such a change, registration would still be required for agents who have the proper connection with foreign political interests or who influence high level decision-making in this country.

2. If the first suggestion set forth above is not adopted, we would urge that the attorneys' exemption be broadened to cover any situation where the fact of representation must be disclosed, even though the proceeding is not a formal one, and to cover other persons as well as attorneys engaged in activities on behalf of foreign principals. We would also urge the adoption of amendments which would exempt from the scope of the Act, with greater specificity than in the amendments adopted by the Senate, (i) the normal activities before Government agencies of domestic corporations (and their personnel) owned or controlled by foreign entities, so long as such activities are undertaken by the domestic corporations or their personnel in connection with their usual domestic business or commercial affairs, and (ii) activities on behalf of foreign subsidiaries of a domestic corporation not itself foreign-controlled.

3. In any event, whether or not either of the two suggestions set forth above is adopted, we strongly urge that the amendments be revised to permit persons required to register (because their activities may be deemed "political" under the broad definitions contained in the amendments) to file "short-form" registration statements if they represent private foreign principals in connection with bona fide trade or commerce, with provision for supplemental information to be supplied if required by the Department of Justice. Such short-form registration statements should require disclosure only of the name, address, status and nationality of the agent and foreign principal, a brief description of the nature of the agent's and foreign principal's business or other activities and a general statement of the activity to be engaged in by the agent on behalf of the foreign principal which requires his registration. Such a registration statement would not impose an undue burden on registrants and would in most cases appear to disclose the most essential facts with respect to the activity to be engaged in. If it is deemed that further information must be supplied, the Attorney General would have the right to require compliance with the broad disclosure provisions of the present Act.

May 17, 1965

Respectfully submitted.

SUPREME COURT OF THE UNITED STATES

October Term, 1963

No. 287

VICTOR RABINOWITZ ET AL., PETITIONERS

v.

ROBERT F. KENNEDY, ATTORNEY GENERAL OF THE UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[March 30, 1964]

Mr. JUSTICE GOLDBERG delivered the opinion of the Court.

Petitioners, attorneys engaged in the general practice of law, instituted this declaratory judgment action, 28 U.S.C. § 2201, against respondent, the Attorney General of the United States, in the United States District Court for the District of Columbia. The complaint alleged that petitioners had been:

"retained by the Government of the Republic of Cuba to represent in the United States the Republic of Cuba and its governmental agencies in legal matters, including litigation, involving the mercantile and financial interests of the Republic of Cuba * * *. The retainer does not cover advice or representation involving public relations, propaganda, lobbying, or political or other non-legal matters, nor have the plaintiffs advised, represented, or acted on behalf of the Republic of Cuba in any such matters."

The complaint alleged further that respondent had "demanded that [petitioners] *** register with the Attorney General under the provisions of the Foreign Agents Registration Act of 1938, as amended." The relief sought by petitioners included a "judgment declaring that their activities as legal representatives for the Republic of Cuba do not subject them to the requirements of registration under the Foreign Agents Registration Act of 1938, as amended** *." 52 Stat. 631, as amended, 22 U.S.C. § 611.

19

That Act requires the registration of "any person who acts or agrees to act * * * as *** a public-relations counsel, publicity agent, information-service employee, servant, agent, representative, or attorney for a foreign principal * * *.' Foreign principal includes "a government of a foreign country and a foreign political party," as well as "a partnership, association, corporation, organization, or other combination of individuals organized under the laws of, or having its principal place of business in, a foreign country ***." The Act exempts from registration any "person engaging or agreeing to engage only in private and nonpolitical financial or mercantile activities in furtherance of the bona fide trade or commerce of such foreign principal * * *.”

Respondent moved for judgment on the pleadings. The District Court denied the motion, but at the request of respondent and with the consent of petitioner, the court certified to the Court of Appeals the "controlling question of law, as to whether individuals requested to register under the Foreign Agents Registration Act of 1938, as amended, may have their rights adjudicated by a declaratory judgment suit * * *."

The Court of Appeals for the District of Columbia, noting that petitioners did not challenge the constitutionality of the Foreign Agents Registration Act, held, with one judge dissenting, that the doctrine of sovereign immunity required that the case be dismissed "as an unconsented suit against the United States." 115 U.S. App. D. C. 210, 212, 318 F. 2d 181, 183. We granted certiorari, 375 U.S. 811.

We hold, for the reasons stated below, that the Foreign Agents Registration Act plainly and unquestionably requires petitioners to register. Since we conclude that the Court of Appeals was correct in ordering the case dismissed, but for reasons other than those relied upon in its opinion, we do not pass upon the

reasoning by which that court arrived at its decision, nor do we have occasion to consider the scope of the declaratory judgment remedy or the sovereign immunity doctrine.1

The Foreign Agents Registration Act was first enacted by Congress on June 8, 1938. It required agents of foreign principals to register with the Secretary of State. "[A]gent of a foreign principal" was defined as "any person who acts or engages or agrees to act as a public-relations counsel, publicity agent, or as agent, servant, representative, or attorney for a foreign principal * * *” 52 State 631, 632. [Emphasis added.] Foreign principal was defined as "the government of a foreign country, a political party of a foreign country, a person domiciled abroad, or any foreign business, partnership, association, corporation, or political organization ***" Exempted from the definition of "agent of a foreign principal" was "a person, other than a public-relations counsel, or publicity agent, performing only private, non-political, financial, mercantile, or other activities in furtherance of the bona fide trade or commerce of such foreign principal." [Emphasis added.] 52 State. 631, 632. In 1961, the exemption section was amended to apply to persons "engaging or agreeing to engage only in private and non-political financial or mercantile activities in furtherance of the bona fide trade or commerce of such foreign principal ***." [Emphasis added.] 75 Stat. 784. The Senate and House Reports accompanying this amendment state its purpose as follows: "The so-called commercial exemption has proved to be ambiguous. During hearings held on H.R. 6817 in the 86th Congress, a bill identical to H.R. 470, a representative of the Department of Justice testified that the language contained in the exemption has led to confusion and unnecessarily difficult problems in the administration of the law. Argument has been made that if an agent of a foreign principal meets any one of the above-quoted conditions, as distinguished from meeting several or all of the requirements, it need not register. As rewritten, the section with its proposed changes and sentence structure makes it clear that for an agent to qualify for exemption from the obligation of registering, it must be engaged in activities which meet either of two sets of three requirements. They must be private and nonpolitical and financial, or private and nonpolitical and mercantile. If any one of these characteristics is lacking, the agent cannot qualify for exemption and therefore must register under the act." [Emphasis added.] S. Rep. No. 1061, H.R. Rep. No. 246, 87th Cong., 1st Sess.

Petitioners here are attorneys who have been retained "to represent in the United States the Republic of Cuba and its governmental agencies in legal matters, including litigation * * *.” As an example of their "activities" pursuant to this retainer, petitioners cite their appearance before this Court in the recently decided case of Banco Nacional de Cuba v. Sabbatino, ante, at 398.

Although the work of a lawyer in litigating for a foreign government might be regarded as "private and nonpolitical" activity, it cannot properly be characterized as only "financial or mercantile" activity. It is clear from the statute and its history that "financial or mercantile" activity was intended to describe conduct of the ordinary private commercial character usually associated with those terms. See, e.g., S. Rep. No. 1783, 75th Cong., 2d Sess. Furthermore, although the interest of a government in litigation might be labeled "financial or mercantile," it cannot be deemed only "private and nonpolitical." Since an attorney may not qualify for exemption "if any one of these characteristics is lacking," it would be impossible to conclude, under any construction of the statute, that petitioners are engaging "only in private and nonpolitical financial or mercantile activities."

We conclude, therefore, that petitioners, attorneys representing a foreign government in legal matters including litigation, are not exempt from registering under the Foreign Agents Registration Act.

1 See, e.g., Borchard, Declaratory Judgments (2d ed., 1941); Borchard, Challenging "Penal" Statutes by Declaratory Action, 52 Yale L. J. 445 (1943); Davis, Sovereign Immunity in Suits Against Officers for Relief Other than Damages, 40 Cornell L. Q. 3 (1954); Davis, Suing the Government by Suing an Officer, 29 U. of Chi. L. Rev. 435 (1962); Jaffe, Suits Against the Government and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1 (1963).

2 This section had previously been amended in 1942 to cover any person "engaging or agreeing to engage only in private, nonpolitical, financial, mercantile, or other activities in furtherance of the bona fide trade or commerce of such foreign principal * * *." 56 Stat. 254.

In support of their case, petitioners also claim that if they register they would be required in completing the registration forms to "make public disclosure not only of their relation with their foreign principal, but of numerous private, personal and business affairs unconnected with their representation of the Republic of Cuba." In concluding that petitioners must register, we do not suggest that they may be required to answer all the questions in the registration forms. The Government says that some of the questions are "clearly inapplicable" to petitioners, that others may satisfactorily be answered in conclusory language, and that others, while "framed in general terms" may satisfactorily be answered by disclosing only those facts which "bear a reasonable relationship to the representation of the foreign principal.” Under the rules established by the Department of Justice and printed on the forms themselves:

"If compliance with any requirement of the form appears in any particular case to be inappropriate or unduly burdensome, the Registrant may apply for a complete or partial waiver of the requirement." Compare, 28 CFR § 5.201. Since petitioners have made no attempt to determine which questions must be answered and how much information disclosed, this issue is not ripe for adjudication. See, e.g., Eccles v. Peoples Bank, 333 U.S. 426. See generally, Davis, Ripeness of Governmental Action for Judicial Review, 68 Harv. L. Rev. 1122, 1326 (1955).

For these reasons, petitioners' complaint should be dismissed, and, accordingly, the judgment of the Court of Appeals ordering dismissal of the complaint is affirmed.

It is so ordered.

Mr. Maw. It will be my purpose today briefly to summarize the report and to present specific suggestions to carry out its recommendations.

The Association of the Bar of the City of New York is vitally interested in the Foreign Agents Registration Act and its impact upon members of the bar and their clients, not only in New York City but elsewhere throughout the country. The bar in the city of New York has traditionally been active in international business transactions and represents numerous foreign and domestic firms and individuals engaged in business both here and abroad. The proposed expansion of the coverage of the Foreign Agents Registration Act as contemplated by S. 693 greatly affects persons engaged in international business, including particularly lawyers, accountants, and other professional groups.

At the outset I would like to emphasize that our association is in full agreement with the stated purposes of the Foreign Agents Registration Act. We are in favor of requiring public disclosure of the activities of those who attempt covertly to influence public opinion or makers of basic governmental policy with respect to matters that are clearly political. We also believe that the present act needs amendment to clarify and focus its provisions, both to define the area in which the act was intended to have its primary impact that is, propaganda and lobbying on behalf of foreign political interests and to enable the Department of Justice effectively to enforce the act in those cases where there is a genuine public interest to be served. The bill in the form adopted by the Senate in April of this year contains a number of amendments which in our opinion greatly improve the act and with which we wholeheartedly agree. However, we are concerned with some of the proposed amendments which appear to extend the scope of the act beyond the area of genuine need, and we are especially concerned