The proceeding complained of was a fact-finding, non-adjudicative investigation by an administrative agency. The right of petitioners to counsel on the first interrogation, if that right existed, was not a constitutional right. If, as the uncontradicted facts disclose, petitioners waived the right or privilege of having counsel on that occasion, the source of the right or privilege becomes immaterial.
This is not a case in which petitioners may properly invoke the protections of the Sixth Amendment of the United States Constitution. The Sixth Amendment is specifically limited to "criminal prosecutions." "There is no criminal prosecution here, no accused, not even a hearing, only an investigatory fact-finding proceeding." C.I.R. v. Backer, 178 F. Supp. 256, 257 (M.D. Ga. 1959) citing Torras v. Stradley, 103 F. Supp. 737, 739 (N.D. Ga. 1952). C.I.R. v. Backer, supra, reversed on other grounds, 275 F.2d 141 (5 Cir. 1960). Tax investigations, such as the one conducted here, are authorized by 26 U.S.C. §§ 7601, 7602, and 7605 (similar provisions having been provided in the 1939 Internal Revenue Code). These investigations are of a fact-finding, non-adjudicative nature. In re Albert Lindley Lee Memorial Hospital, 209 F.2d 122, 123 (2 Cir. 1953); United States v. Summe, 208 F. Supp. 925, 926 (E. D. Ky. 1962). They are not judicial proceedings. In re Albert Lindley Lee Memorial Hospital, supra. The petitioner's right to counsel in this case, if it exists at all, is founded upon the Administrative Procedure Act, 5 U.S.C. § 1005(a), and not upon the Sixth Amendment guarantee of the United States Constitution. United States v. Smith, 87 F. Supp. 293, 294 (D. Conn. 1949); Backer v. C.I.R., supra 275 f.2d at 144; In re Neil, 209 F. Supp. 76, 77 (S. D. W. Va. 1962); See also F.C.C. v. Schreiber, 329 F.2d 517, 524 (9 Cir. 1964). In all the cases immediately above cited, the witnesses were under compulsion to appear, and the right to counsel pursuant to the Administrative Procedure Act was sustained. However, in the present case the taxpayer was not under compulsion to appear but rather appeared voluntarily pursuant to " . . . an opportunity to appear for an interview . . ." as set forth in a letter to him from the Intelligence Division, dated March 26, 1963. In this situation, where the taxpayer appears voluntarily, there is a question as to whether there is any right to counsel at all. See F.C.C. v. Schreiber, supra at 535, footnote 32, paragraph 2. Indeed, as to persons compelled to appear, the Supreme Court has not decided the question as to whether the Administrative Procedure Act affords the right to counsel in a fact-finding non-adjudicative investigation. F.C.C. v. Schreiber, supra at 526; United States v. Steel, 238 F. Supp. 575, 577 (S.D.N.Y. 1965). What then of persons who are not compelled but who appear voluntarily? This is a question we need not decide, and we do not do so. Suffice to say that the authorities support the proposition that proceedings such as those in this case are not "criminal prosecutions." Therefore, the petitioners have no claim here upon the protection of the Sixth Amendment to the United States Constitution. In addition, the right to counsel here, if it exists at all, is grounded in the statutory requirements of the Administrative Procedure Act and not in the guarantees of the Sixth Amendment to the United States Constitution.
Petitioners' reliance upon cases concerned with the Sixth Amendment to the United States Constitution is therefore misplaced. See Kohatsu v. United States, 351 F.2d 898 (9 Cir. 1965).
The doctrine of sovereign immunity does not preclude this Court's jurisdiction. The doctrine cannot be successfully claimed here. Jurisdiction has been traditionally and historically conferred in two pertinent types of cases involving the doctrine of sovereign immunity. (1) The courts have entertained suits where the allegation was that a Government official threatens to act, or had acted, in excess of his statutory authority, i.e., in an unconstitutional manner. Work, Secretary of the Interior v. Louisiana, 269 U.S. 250, 254, 70 L. Ed. 259, 46 S. Ct. 92 (1925). (2) The courts have entertained suits where the allegation was that a Government official threatens to act, or had acted, under an authority not validly conferred, i.e., the statute or order which conferred power was unconstitutional. Rickert Rice Mills v. Fontenot, 297 U.S. 110, 113, 80 L. Ed. 513, 56 S. Ct. 374 (1936). The crucial question under the doctrine of sovereign immunity is whether the relief sought, in a suit nominally addressed to a Government official, is in actuality relief against the sovereign. Larson v. Domestic and Foreign Corp., supra at 687; Malone v. Bowdoin, 369 U.S. 643, 648, 8 L. Ed. 2d 168, 82 S. Ct. 980 (1962). If it is relief sought against the sovereign, the suit is barred because the court, in the absence of consent, has no jurisdiction. Larson v. Domestic and Foreign Corp., supra. The two types of cases previously outlined here involved either (1) a situation where a Government official presumed to act within the statutory authority granted but exceeded such authority by acting in an unconstitutional manner, or (2) the power-conferring statute or order was itself unconstitutional. In the present case, petitioners do not allege either of these situations, but rather aver the denial of a fundamental right which, if the claim is valid, goes to the very nature of the tax investigation, without regard to the use of excessive authority or the presence of an unconstitutional statute or order. Here, petitioners do not allege that the Agents exceeded their statutory authority in regard to their authority to merely conduct an investigation, nor do they allege that the statute which conferred that authority was unconstitutional. Petitioners seek the protection of " . . . a basic Constitutional Right . . .",
the guarantee of the right to counsel in a criminal prosecution. In effect, the petitioners concede the lawful authority to conduct the investigation, but allege that, in the process of doing a lawful act, the Agents violated the petitioners' constitutional rights by conducting the investigation when petitioners were without the assistance of counsel. The right to counsel in this type of investigation, if it exists at all, is a statutory right and not a constitutional right. Petitioners have not set forth the unconstitutional exercise of power within the framework of either the power-conferring legislation or the exercise of power pursuant thereto. In the absence of a claim of constitutional or statutory limitation, a court may dismiss a suit if it falls within the doctrine of sovereign immunity ; but this is not such a suit.
Because the mandate of the Sixth Amendment is addressed to all (including Government officials), petitioners' claim here certainly cannot be characterized as wholly insubstantial and frivolous. The doctrine of sovereign immunity should not be invoked here. Despite the fact that petitioners do not allege either of the two situations under which jurisdiction usually arises, petitioners do allege the violation of a constitutional safeguard which, in a proper case, is binding upon all (including Government officials). Alleged unconstitutional conduct by Government officials which goes to the very core of due process should always be the subject of scrutiny by the courts. The Sixth Amendment's guarantee of the right to counsel is within the intendment of the "due process" clause of the Fifth Amendment. Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938); Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964); Escobedo v. Illinois, supra. In rare and special instances, the "due process" clause of the Fifth Amendment is a limitation upon the Federal taxing power itself. See Magnano Co. v. Hamilton, 292 U.S. 40, 44, 78 L. Ed. 1109, 54 S. Ct. 599 (1934).
Although the action of the Agents here complained of is regarded as action of the Government warranting invocation of the Sixth Amendment's right to counsel, the petitioners' motion directed against Government officials should not be barred because of the Government's lack of consent to suit. For this purpose, the proceeding should be regarded as one directed against individuals who, because of their alleged unlawful action, should not be permitted to claim for themselves the benefit of the Government's immunity to suit. United States v. Lee, 106 U.S. 196, 217-220, 27 L. Ed. 171, 1 S. Ct. 240 (1882); Land v. Dollar, 330 U.S. 731, 736, 91 L. Ed. 1209, 67 S. Ct. 1009 (1947); Smith, Jr., et al. v. Katzenbach, et al., supra.
Having noted that this Court has jurisdiction to entertain this suit, and having previously noted that petitioners' allegation of the denial of counsel is not well-founded, the motion to suppress is accordingly denied.