Petition — Stafford v. Briggs
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* Supreme Court, U. S.
FILED
| APR 28 1978
MICHAEL RODAK, JR. CLERK
IN THE ee
Supreme Court of the United States
October Term, 1977
No. B22 15 4 6
Wiiuiam H. Starrorp, Jr., Stuart
J. Carrouts and CLaupe MeEapow,
Petitioners
v.
JoHN BriGGs, ET AL.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
Peter Mecarcee Brown
Eart H. NeMsER
Attorneys for Petitioners
One Wall Street
New York, New York 10005
Of Counsel:
CaDWALADER, WICKERSHAM & Tart
Ropert L. Situs
TABLE OF CONTENTS
PAGE
I eee ili
EE LL aM OP TEE OI 1
Jurisdiction asisiebedibenianvaiiecandaneiaietipdibaaseiiNiianctelaaeasiede 2
I a i cioeetcelniaineianesineliie 2
Statute and Constitutional Provisions Involved ........ 2
IT SE BARE A Aas Oe Se SO Mee 3
Reasons for Granting the Writ —........0.0..0...2.-. 5
The Court of Appeals has Decided an Important
Federal Jurisdictional Question Which Should be
Settled by This Court Without Delay — 0... 5
The Court of Appeals has Decided an Important
Federal Jurisdictional Question in Conflict With
Decisions of the Courts of Appeals for the Second
EE Re IE eticcssttrnsenicnieie’ estndenbnniitintenemenon 9
The Court of Appeals has Decided an Important
Constitutional Issue Which Should be Settled by
IID. seitsithasnlishcicnatbicnnnnnensainietititaiansdstnipecieninintins 13
I titi icierticndaitiaaichls eth haliaaiibdabineeietae 16
ii
PAGE
Appendices:
Appendix A: Opinion of the Court of Appeals ...... la
Appendix B: ee and Order of the District
III ici napaietaealhd ahaa i dchdamiehiatiilaiiaebbieeegichinitddandenmniadiinenn 20a
Appendix C: Corrective Order and Order of Final
Judgment of the District Court ........................----..-. 25a
Appendix D: Judgment of the Court of Appeals. 28a
Appendix E: Order Denying Rehearing .................. 29a
Appendix F: Order Denying Rehearing En Banc .. 30a
Appendix G: Order Extending Time to Petition
for Certiorari dla
Appendix H: Opinion in Bertoli v. S.B.C., 77 Civ.
ETS) ee eae 32a
Appendix I: Opinion in Sigler v. Levan, No.
77-CA-35 (W.D. Tex. 3/22/78) .....................-.-..-.. 37a
Appendix J: List of Lawsuits Involving Issue of
Personal Jurisdiction under 28 U.S.C. §1391(e) . 50a
Appendix K: Federal Statutes Providing for
Nationwide Service of Process ....................-...-..-. 5la
iil
Table of Authorities
Cases:
PAGE
Barr v. Mateo, 360 U.S. 561 (1959) 00... eeeeeeeeeeeeeeees 5,8
Berlin Democratic Club v. Brown, No. 310-74 (D.D.C.) 50a
Bertoli v. SEC, 77 Civ. 1250 (S.D.N.Y. 11/4/77) ........ 10,
32a, 50a
Bivens vy. Six Unknown Agents, 403 U.S. 388 (1971) . 7,8
Blair v. Baumgardner, Civil Action No, 77-C-390 (E.D.
TI cracesccnneesntsictenidienianhiesinnitbantineiliippinatininsttnainessetatyesinen 50a
Black Panther Party v. Levi, Civil hotles No. 76-2205
SE SSE Ne ET ET Le aa AO AO OA en 50a
Braden y. 30th Judcial Circuit Court, 410 U.S. 484
RRR eee eee See Fe 10
Brigas v. Goodwin, 569 F.2d.1 (D.C, Cir, 1977) —......passim
Clackamas County v. McNay, 219 F.2d 479 (D.C. Cir.
1954), vacated as moot, 349 U.S. 909 (1954) ......0..... 6
Clavir vy. United States, 76 Civ. 1071 (S.D.N.Y.) . 50a
Driver v. Helms, 74 F.R.D. 382 (D.R.1. seca t eal
SO Tee CNR GD | csiecinesscersnsnciensetinientnens 13, 50a
Economou v. Butz, 5385 F.2d 688 (2d Cir. 1976) cert.
granted Dkt. No. 76-709 (1977) ................--scesseeeeeeseeees
First Nat'l Bank v. Comptroller, 252 U.S. 504 (1919) 52a
a |
Grove Press, Inc. v. C.1.A., 76 Civ. 5509 (S.D.NLY.) ... = 18
Guilday v. Dept. of Justice, Civil Action No. 4578
EE, HUMIRA: siniecghiss asnccasiinenbantinnbeeenshietiemntinsstilonaidstnbiiaitleeeicanttbiiede 50a
Halkin v. Helms, Civil No, 75-1773 (D.D.C.) .............. 13, 50a
Horman vy. Kissinger, Civil Action No. 77-1748
SSUTITEITSID’. cscashaglnebecea is tonibialeiasbeeleseboeneiaaieibidieensentinissabaitiianndbididns 50a
International Shoe Co. v. Washington, 326 U.S. 310
SER Enger ore ene een SEE Oe A ee ee 13
Kendall vy. United States, 37 U.S. (12 Pet.) 524 (1838) 6
Kipperman v. McCone, 427 F. Supp. 860 (N.D. Cal.
1976) ........ allan lilioaaiiaadiilanihtictlasatteias Mamma lictasudidititheatabsinsigatin 10, 13
Lamont v. Haig, No, 75-2006 (D.C. Cir.) -..........-..20........ 50a
LaRouche v. Kelly, 75 Civ. 1071 (S.D.NLY.) 0000000000... 50a
iv
PAGE
Larson v. Domestic and Foreign Commerce Corp., 337
UB, GOB CIOIDD onenececcccenenctcssenesesninncinmnacsmninneninntisennmen 6
Liberation News Service v. Eastland, 426 F.2d 1379
+ oe 3 ee ee ae 11
Marsh vy. Kitchen, 480 F.2d 1270 (2d Cir. 1973) ............ 10
Martinez v. Seaton, 285 F.2d 587 (10th Cir. 1961) ........ 7,12
Mason v. Clayton, Civil Action No. 77-0995 (D.D.C.) 4
McCarthy v. Jonnard, Civil Action No, 77-695-A (E.D.
Ve.) a.ccccoccvssesesssastisssnientsiisieniaeiasaiiactaienananiaiasnna S0a
Misko v. United States, Civil No. 77-875 (D.D.C.) ...... 50a
Moriash vy. Morrill, 496 F.2d 1138 (2d Cir, 1974) ........ 15
Nat'l Lawyers Guild vy. Attorney General, 77 Civ. 999
ft EiN & & peeenemnnan cmvewnde ne Sa CS Oa
Natural Resources Defense Council vy. TVA, 459 F.2d
> fe 5 ane re ee 11,12
Nesbitt Fruit Prods., Inc. v. Wallace, 17 F. Supp. 141
CEB. Towa, BEGBD ccccsinsscnsessabeaesaeeneene 12
Oxford First Corp. v. PNC Liquidating Corp., 372
06 UD! UM 8 Sl eee 1
Petrol Shipping Corp. v. Kingdom of Greece, 360 F.2d
103 (2d Cir.) cert. denied 384 U.S. 931 (1966) 0000. =
Pennoyer v. Neff, 9 U.S. 7111 (1877) 20000... eecceecccee 15
Powers v. Mitchell, 463 F.2d 212 (9th Cir. 1977) 00.0... 11
Rimar vy. McCowan, 374 F. Supp. 1179 (E.D. Mich.
)) | NN a eee NE CRA EI ie a ye 12
Roberts v. United States, 176 U.S. 221 (1900) 000000000... 6
Robertson v. Railway Labor Bd., 268 U.S. 619 (1925) 9, 14
Schlanger v. Seamans, 401 U.S. 487 (1971) oo... 10, 11
Shaffer v. Heitner, 433 U.S. 186 (1977) oc. 15, 52a
Sigler v. Levan, No. 77-CA-35 (W.D. Tex 3/22/78)....11, 37a
Smith v. Campbell, 450 F.2d 829 (9th Cir. 1971) ......... 10
Strait v. Laird, 406 U.S. 341 (1972) 0... idle 7,10
alti lee OS
v
PAGE
Todd vy. Brown, Civil Action No. 77-185-TUC-MAR
ERE tS a 50a
United States ex rel Rudick v. Laird, 412 F.2d 16 (2d
Cir.) cert. denied 396 U.S. 918 (1969) _..00.. 9,10
United States v. Scophony Corp., 333 U.S. 795 (1948) 13
Wheeldin v. Wheeler, 373 U.S. 643 (1963) 200-000... 5
Constitutional Provisions, Statutes and Rules:
LEE LE Rn 14
ae 4
a * re 3, 13, 14,15
ES 4
I III, WIS... sesnerincsnnsusetusasndeinenive 4
i) TA 4
EL ELLE 52a
ELS EGE Te 5la
EE EEE 52a
EES IE IS OE Sla
ERE EE CE 53a
EE a 52a
a ithichaataiadiesihilidastiinmnaaiees 52a
EE ES 4
a RODS. ane RRP 4
I dla
I eae 4
ERS SET Ee Ce cr 2
EL EER ED 12
ES Ce passim
EE 52a
EISELE 5la
Ee 4
EEE LEE SE OE 5la
EE Za
EEE 5la
Ee 4
vl
PAGE
I a nssedpinimnninassmmsenssebabinenmenton 4
I a aa ieeerliiaerinceempenidaemmnipaetiie 10
eee ae eC dla
EET Ee ee ee a 5la
a eencenmnbanailtinnn 53a
TTL ee ee 53a
eee ne 5
SS EE EE ee ree ae aoe 52a
ETE Ee AS Oa j2a
Ee Sen ena 52a
Pub. L. No. 94-574 § 2, 90 Stat. 2721 .............................. 2
8 ES a a nee ec 8
EE I ELIS A SE ace ee 8
Gg FEET PO Ga SES I AO 11
ie ER, Re nh SO BOOP 11
Legislative Materials:
H. R. Rep. No. 536, 87th Cong. Ist Sess. -....0........ 6,8
S. Rep. No. 1992, 87th Cong., 2d Sess, -.......................... 6,8
Treatises:
P. Bator, et al., Hart and Weehsler’s The Federal
Courts and The Federal System (2d ed. 1973) —..... 8, 14
C. Wright and A. Miller, Federal Practice and Pro-
cedure (1969) SEES EPS Oe nee See 11
IN THE
Supreme Court of the United States
October Term, 1977
No.
fe
WituumM H. Strarrorp, Jr., Sruart
J. CarroutH and CLaupe Meapow,
Petitioners,
?.
Joun Briaos, FT AL.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
Petitioners pray that a writ of certiorari issue to review
the judgment of the United States Court of Appeals for the
District of Columbia Cireuit.
Opinions Below
The opinion of the court of appeals (App. A, pp. la-19a)
is reported at 569 F.2d 1. The memorandum opinion and
order of the district court (App. B, pp. 20a-24a) is
reported at 384 F.Supp. 1228. A corrective order of the
district court and order of final judgment (App. C, pp. 25a-
27a) are unreported.
Jurisdiction
The judgment of the court of appeals (App. D, p. 28a)
was entered on September 21, 1977. A timely petition for
rehearing with a suggestion for rehearing en banc was
denied on December 1, 1977 (Apps. E and F, pp. 29a-30a).
On February 23, 1978 petitioners’ time to file this petition
was extended until April 30, 1978 (App. G, p. 3la). The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1354(1).
Questions Presented
1. Whether Section 2 of the Mandamus and Venue Act
of 1962 grants the United States district courts nationwide
personal jurisdiction over federal officials sued for dam-
ages in their private individual capacities for acts allegedly
performed under color of law.
2. Whether such a grant of personal jurisdiction violates
the due process clause of the fifth amendment.
Statute and Constitutional Provisions Involved
The statute involved is Section 2 of the Mandamus and
Venue Act of 1962, 28 U.S.C. § 1391(e) :'
“A civil action in which each defendant is an officer
or employee of the United States or any agency
thereof acting in his official capacity or under color
of legal authority, or an agency of the United States,
may, except as otherwise provided by law, be
brought in any judicial district in which: (1) a
1. The statute was amended by Act of Oct. 21, 1976, Pub. L. No.
94-574 §2, 90 Stat. 2721-2722. amendment does not bear on the
questions presented.
3
defendant in the action resides, or (2) the cause of
action arose, or (3) any real property involved in the
action is situated, or (4) the plaintiff resides if no
real property is involved in the action.
The summons and complaint in such an action
shall be served as provided by the Federal Rules of
Civil Procedure except that the delivery of the sum-
mons and complaint to the officer or ageney as
required by the rules may be made by certified mail
beyond the territorial limits of the district in which
the action is brought.”
The constitutional provision involved is the fifth amend-
ment:
“No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a present-
ment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public
danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor
shall private property be taken for public use, with-
out just compensation.”
Statement
Respondents, individuals who were subpoened to testify
before a grand jury in the Northern District of Florida in
July, 1972, brought this suit seeking damages for alleged
violations of their constitutional rights. Six of the Respon-
dents were indicted by that grand jury.
Petitioners, all residents of Florida, are William H.
Stafford, Jr., then United States Attorney for the Northern
District of Florida (now United States District Judge for
4
the Northern District of Florida), Stuart J. Carrouth, then
Assistant United States Attorney for the Northern District
of Florida (now in private law practice in Florida), and
Claude Meadow, a Special Agent for the Federal Bureau
of Investigation assigned to duty in Florida.
Respondents claim that petitioners, while participating
in the grand jury proceeding, knew of false testimony given
before the District Judge in Florida by defendant below
Guy Goodwin, an attorney with the Department of Justice.
Mr. Goodwin is alleged to have falsely testified that there
were no government informants among the grand jury
witnesses who were represented by counsel. Respondents’
complaint alleges, inter alia, that petitioners violated
respondents’ first, fourth, fifth, sixth, eighth, and ninth
amendment rights by permitting such false testimony;
that the grand jury would not have indicted the six
respondents if it knew of the false testimony; and that the
concealed presence of a government informant in the “de-
fense camp” deprived respondents of sixth amendment
rights. Respondents each seek $100,000 punitive and
$50,000 compensatory damages from petitioners in their
private individual capacities. Jurisdiction was based upon
298 U.S.C. §§ 1331, 1332, 1343, 1651, 2201 and 2202. Respon-
dents served their summons and complaint upon petitioners
by certified mail in Florida.
The district court granted petitioners’ motion to dismiss
the complaint for want of personal jurisdiction, improper
venue and insufficiency of service of process. The court of
appeals reversed and denied petitioners’ motion for rehear-
ing. It held that petitioners were subject to personal juris-
diction in the district court, notwithstanding their lack of
“presence” in or “minimum contacts” with the District of
Columbia, merely because petitioners were served with
process in the manner specified in Title 28, Section 1391(e).
5
Reasons for Granting the Writ
The Court of Appeals has Decided an Important
Federal Jurisdictional Question Which Should be
Settled sy This Court Without Delay
The court of appeals held that Title 28, Section 1391(e)
provides more than a mechanism for service of process; it
subjects federal officials sued in their private individual
capacities for damages alleged to arise from official con-
duct to unlimited nationwi rsonal jurisdiction, not-
withstanding the absence of any nexus between the official
or the alleged wrong and the chosen forum. This is the
most radical departure to date from the standards govern-
ing personal jurisdiction established by Congress and this
Court. See infra at 14, n. 9.
The impact of this decision is heightened when viewed
against developments, subsequent to the enactment of See-
tion 1391(e), which have increased the number and broad-
ened the scope of damage suits against federal officials in
their private individual capacities.
When the Mandamus and Venue Act of 1962 was enacted,
such suits were not brought in the federal courts for two
reasons. First, federal officials were held absolately im-
mune from suit in personal damage actions grounded in
their official conduct. EF.g., Barr v. Matteo, 360 U.S. 564
(1959). Second, there was then no federal analogue to 42
U.S.C. § 1985, which imposes damage liability upon those
who, under coior of state law, deprive persons of federal
rights. Thus, in 1963 this Court said in Wheeldin v.
Wheeler, 373 U.S. 647:
“When it comes to suits for damages for abuse of
power, federal officials are usually governed by local
law.*** Federal law, however, supplies the defense,
6
if the conduct complained of was done pursuant to a
federally imposed duty*** or immunity from suit.
*** Congress could, of course, provide otherwise, but
it has not done so. Over the years Congress has
considered the problem of state civil and criminal
actions against federal officials many times. *** But
no general statute making federal officers liable for
acts committed ‘under color,’ but in violation, of
their federal authority has been passed.” Zd. at 652.
At that time suits in the federal courts were brought
against federal officials in their official capacities or, in a
limited category of cases where the relief sought was in
essence against the United States, nominally in their per-
sonal capacities for actions taken under color of law. As
the House Judiciary Committee Report on the Mandamus
and Venue Act of 1962 explained, the latter category
comprised :
“eases where the action is nominally brought against
the officer in his individual capacity even though he
was acting within the apparent scope of his author-
itv and not as a private citizen. Such actions are
also in essence against the United States but are
brought against the officer or employee as individual
only to circumvent what remains of the doctrine of
sovereign immunity.” H.R. Rep. No. 536, 87th
Cong., Ist Sess. at 4. See S. Rep. No. 1992, 87th
Cong., 2d Sess., at 3 (hereinafter “H. R. Rep.” and
“S. Rep.”). [Emphasis added. ]
See also Larson vy. Domestic and Foreign Commerce Corp.,
337 U.S. 682 (1949). While some of these cases sought dam-
ages, any award would be paid from the United States
Treasury.2. These are the suits for money judgments—
2. E.g., Roberts v. United States, 176 U.S. 221 (1900); Kendall
v. United States, 37 U.S. (12 Pet.) 524 (1838); Clackamas County v.
McKay, 219 F.2d 479 (D.C. Cir. 1954), vacated as moot, 349 U.S.
909 (1955).
7
“nominally” against the individual and “in essence against
the United States”—which were considered by Congress
when it enacted Section 1391(e).
After the enactment of Section 1391(e), this Court held
in Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), that
violations of the fourth amendment give rise to damage
actions against federal officials in their private individual
capacities. Furthermore, the absolute immunity doctrine
has been eroded in the lower federal courts. See, e.g.,
Economou v. Butz, 535 F.2d 688 (2 Cir. 1976), cert. granted,
Dkt. No. 76-709. These developments set the framework
for the suit below.
The court of appeals’ holding that Section 1391(e) applies
to suits against federal officials in their private individual
capacities cannot be squared with the fact that when Con-
gress enacted the statute, these developments had not yet
oceurred and this type of suit could not then be maintained
in the federal courts.
There is nothing unusual about subjecting federal offi-
cials to nationwide personal jurisdiction in the suits
described in the House and Senate Committee Reports.
Nationwide jurisdiction over officials sued in their official
capacities ordinarily exists by reason of nationwide “official
presence” through the “hierarchy of command” and has
nothing to do with the Mandamus and Venue Act of 1962.
F.g., Strait v. Laird, 406 U.S. 341, 345 (1972). Section
1391 (e) merely provides a mechanism for service of process,
otherwise unavailable, to effect such personal jurisdiction.
E.q., Martinez v. Seaton, 285 F.2d 587, 589 (10 Cir. 1961).
If Section 1391(e}, by its own force, confers nationwide
jurisdiction over officials sued for damages in their private
individual capacities, the consequences for federal officials
are extreme. Federal officials, unlike others, will be forced
to defend their personal assets in jurisdictions with which
— ee _eO
8
they have no contact and far from their homes. Opening
so wide a door to federal litigation against officials in incon-
venient forums by anyone who feels aggrieved by official
conduct is readily subject to abuse. Indeed, since Bivens
a rash of such actions has arisen in which personal
jurisdiction is sought to be predicated solely upon the
service provision in Section 1391(e). See infra at 12-13;
see also P. Bator, et al., Hart and Wechsler’s The Federal
Courts And The Federal System (2d ed.) (Supp. 1977) at
227.
The difficulties faced by officials performing their duties
under the threat that they may be foreed to bear the burden
of defending their actions in court have long been recog-
nized. Barr v. Matteo, supra at 571. These burdens can be
devastating where the official must personally defend him-
self in distant forums.
The Committee Reports accompanying Section 1391(e)
stated that in actions covered by this statute:
“The government official is defended by the Depart-
ment of Justice whether the action is brought in the
District of Gelumbia or in any other district. U.S.
Attorneys are present in every judicial district.
Requiring the government to defend Government
officials and agencies in places other than Washing-
ton would not appear to be a burdensome imposi-
tion.” H.R. Rep. at 3; S. Rep. at 3.
But when an official is sued for damages in his private
individual capacity, and not nominally, this is not the case.
Only in limited instances can the Department of Justice
represent the official or retain private counsel on his he-
half. 28 C.F.R. §§ 15.2, 15.3. Otherwise, the burden of
defense far from home is more than a federal employee
can fairly be expected to withstand. There is no indication
that Congress intended the choice of public service as a
eareer to exact such a cost.
9
In Robertson v. Railway Labor Board, 268 U.S. 619, 624,
627 (1925), this Court cautioned that exceptions to the gen-
eral rules of personal jurisdiction must be clearly expressed
by Congress and are not lightly to be assumed.’ Neither the
language nor the history of Sectien 1391(e) contains an
expression of congressional intent that this statute have
the far-reaching consequences permitted by the court below.
The Court of Appeals has Decided an Important
Federal Jurisdictional Question in Conflict With Deci-
sions of the Courts of Appeals for the Second and
Ninth Circuits
The decision below conflicts with prior decisions of the
courts of appeals for the Second and Ninth Circuits which
held that (1) the service of process provision in Section
1391(e) cannot, standing alone, supply personal jurisdic-
tion over federal officials not otherwise amenable to suit;
and (2) Section 1391(e) is limited to suits which, prior to
its enactment, could have been brought only in the District
of Columbia.
1. In United States ex rel. Rudick v. Laird, 412 F.2d 16
(2 Cir.), cert. denied, 396 U.S. 918 (1969), a habeas corpus
ease, the court held that Section 1391(e) “is a venue pro-
vision as its title clearly specifies,” id. at 20, and accord-
ingly, its service of process provision could not, standing
alone, provide personal jurisdiction for fundamental rea-
sons. Judge Moore explained:
“The concepts of personal jurisdiction and venue are
closely related but nonetheless distinct. * * * Thus
3. In Robertson this Court interpreted a statute itti it i
: n Re s . permitting suit in
any District Court of the United States” as meaning on court
having personal jurisdiction under general rules then prevailing.
10
venue deals with the question of which court, or
courts, of those which possess adequate personal
* * * jurisdiction, may hear the specific matter in
question. In short, jurisdiction must first be found
over * * * the persons involved in the cause before
the question of venue can properly be reached.
Therefore, in relation to Section 1391(e), that pro-
vision ean be said to authorize suit in the Sonthern
District of New York in the instant case if, but only
if, the jurisdiction—persona! and subject matter—
otherwise exists.” Jd. at 20.
Rudick was cited by this Court to support its holding in
Schlanger v. Seamans, 401 U.S. 487, 491 (1971).*
In Marsh v. Kitchen, 480 F.2d 1270 (2 Cir. 1973), the
Second Circuit examined sua sponte whether any federal
statute or rule conferred personal jurisdiction in a case
similar to this. It said:
“We have not found any federal statute or pro-
cedural rule which, either expressly or upon proper
interpretation, authorizes extraterritorial service of
process under the circumstances of this case.” Jd.
at 1273 n. 8.
In Smith v. Campbell, 450 F.2d 829 (9 Cir. 1971), the Ninth
Cireuit held that “Section 1391 may not be utilized to
confer jurisdiction, but can be in order to effectuate juris-
4. The Rudick holding is not limited to habeas corpus cases on the
theory that 28 U.S.C. § 2241(a) is an exception to Section 1391(e).
The habeas corpus statute empowers a court to issue the writ within
its “jurisdiction,” that is, against officials with requisite “presence.”
Strait v. Laird, supra at 345 n.2; Braden v. 30th Judicial Circuit
Court, 410 U.S. 484, 495 (1973). Rudick has been followed in the
district courts in cases not involving habeas corpus. £.g., Bertoli v.
The Securities and Exchange Commission, 77 Civ. 1450 (S.D.N.Y.
1/4/77). (App. H. p. 32a-36a); Kipperman v. McCone, 422 F. Supp.
860, 871 (N.D. Cal. 1976).
11
diction once it has attached.” Jd. at 834. Powers v.
Mitchell, 463 F.2d 212 (9 Cir. 1972), similarly held that
Section 1391(e), which also “extends jurisdiction to
‘agencies,’ does not allow a federal court to extend its juris-
diction to a local federal agency such as a selective service
board which is not within the court’s territorial jurisdic-
tion.” Jd. at 213.
Under the principles established in the Second and Ninth
Cireuits, Section 1391(e) cannot vest a court in the District
of Columbia with personal jurisdiction over petitioners
here, who were federal officials stationed in Florida and
who were not in any sense “present” in the District of
Columbia. Section 1391(e) provides only for the manner
of service; it is not an independent basis for personal
jurisdiction.‘
2. In Natural Resources Defense Council v. TVA, 459
F.2d 255 (2 Cir. 1972), the Second Cireuit reviewed the
legislative history of Section 1391(e), and held that it was
inapplicable to a suit against the TVA and its officers. The
court determined that Congress intended Section 1391(e)
to apply to suits which could have been brought “with
assurance only in the District of Columbia.’* Id. at 259.
Accord, Liberation News Service v. Eastland, 426 F.2d
1379, 1383-84 (2 Cir. 1970); Sigler v. Levan, No. 77-CA-35
5. Similarly, local statutes governing the manner of service do not
provide independent bases for personal jurisdiction. Compare D.C.
Code § 13-431 with D.C. Code § 13-423, where Congress recognized
this fundamental distinction. See Petrol Shipping Corp. v. Kingdom
of Greece, 360 F.2d 103, 109 (2 Cir.). cert. denied, 384 U.S. 931
(1966); 4 C. Wright & A. Miller, Federal Practice and Procedure
at 205-206 (1969).
6. Indeed, the one time this Court discussed Section 1291(e), it
said: “That section was enacted to broaden venue of civil actions which
could previously have been brought only in the District of Columbia.
See H.R. Rep. No. 536, 87th Cong., Ist Sess. 1; S. Rep. No. 1992,
87th Cong., 2d Sess., 2.” Schlanger v. Seamans, supra, at 490 n. 4.
12
(W.D. Tex. 3/22/78) (App. I, pp. 37a-49a); Rimar v.
McCowan, 374 F. Supp. 1179 (E.D. Mich. 1974).
In the TVA case, Judge Friendly observed that Section
1391(e) cannot be treated simply
“as a text to be parsed with such aid as the dictionary
and grammar afford and without adequately con-
sidering the history of the statute and the evil it was
designed to cure.” 459 F.2d at 257.
Because of an historical anomaly, the District Court for
the District of Columbia was the only federal district court
with jurisdiction to issue writs of mandamus. This,
coupled with the requirement that department heads, often
indispensible parties in mandamus actions, be served at the
seat of government, limited venue to the District of Colum-
bia. The Mandamus and Venue Act of 1962 contained two
sections. Section 1, now codified as 28 U.S.C. § 1361, cured
the first problem by granting all district courts jurisdiction
to issue writs in the nature of mandamus. Section 2, now
Section 1391(e), permitted service of process outside the
District of Columbia upon officials who were previously
amenable to service only in the District of Columbia. /[d. at
258 n.6. Tt is submitted that Section 1391(e) was intended
to do no more.
The rule in the District of Columbia Circuit now conflicts
with the Second Cireuit rule because, prior to the enact-
ment of Section 1391(e), petitioners could have been sued
in their private individual capacities wherever they could
be found. They were not amenable to suit only in the District
of Columbia. Compare Nesbitt Fruit Products, Ine. v.
Wallace, 17 F. Supp. 141, 148 (S.D. Towa 1936) with Mar-
tinez y. Seaton, swpra at 589.
3. There are at least 17 suits in which the questions pre-
sented here are now being litigated.’ Among these cases
7. App. J, p. 50a.
13
is Driver v. Helms, 74 F.R.D. 382 (D.R.1. 1977), now sub
judice in the First Cireuit (No. 77-1482).2 Resolution of
these issues now will aid the proper administration of
justice.
The Court of Appeals has Decided an Important
Constitutional Issue Which Should be Settled by
This Court
The court of appeals held its interpretation of Section
1391(e) was not precluded by the due process clause of the
fifth amendment, postulating that there are no limits upou
the power of Congress under article LLI to define the juris-
dictional reach of the federal courts. We submit that this
article III power is limited by “traditional notions of fair
play and substantial justice” similar to the limitations im-
posed by the due process clause of the fourteenth amend-
ment upon the exercise of personal jurisdiction by the state
courts. E.g., International Shoe Co. v. Washington, 326
U.S. 310 (1945).
This issue, reserved in United States v. Scophony Corp.,
333 U.S. 795, 804 n.13, 818 (1948), has not been presented
since International Shoe because, putting aside Section
1391(e), no federal law provides for personal jurisdiction
in cireumstances repugnant to fair play and substantial jus-
tice. As the court below observed (App. A, p. 17a, n.73),
Congress has indeed provided for nationwide service of
process in “a few clearly expressed and carefully guarded
8. The appellants in Driver include 25 federal officials of high
office. The facts in Driver graphically illustrate the vexatious con-
sequences of the decision below. Most of the defendants there were
simultaneously sued in their private capacities in New York, San
Francisco, Providence and the District of Columbia based, in part,
upon the same allegations of unlawful mail opening. Grove Press,
Inc. v. C.1.A. 76 Civ. 5509 (S.D.N.Y.); Kipperman v. McCone, supra;
Driver v. Helms, _supra: Halkin v. Helms, Civil No. 75-1773
(D.D.C.). The Kipperman, Driver and Halkin cases were brought
as class actions.
14
exceptions to the general rule of jurisdiction personam.”
Robertson v. Railway Labor Bd., supra at 624. However,
each such statute is carefully guarded by a protective
mechanism, such as a restricted venue provision limiting
available forums, which insures fairness to the defendants.’
The court of appeals reached its decision by theorizing
that Congress could have created only one federal court,
which as a practical necessity would have required nation-
wide service “clearly consonant with the Constitution.”
App. A, p. 16a. See also Hart & Wechsler’s The Federal
Courts and The Federal System, supra at 1106 et seq. This
theory is flawed because it fails to recognize that while Con-
gress’ power to create inferior federal courts under article
III may be permissive—‘“such inferior Courts as the Con-
gress may . . . establish,” the mandate of fifth amendment
due process is absolute and limits the exercise of congres-
sional power.’ The question is not what Congress might
have done in 1789, but whether it can now enact a statute
repugnant to contemporary notions of fair play and sub-
stantial justice.
Rather than coming to grips with this issue, the court
below merely begged the question. Since congressional
power is limited by the due process clause, Congress could
establish the single court hypothesized only if unlimited
nationwide jurisdiction is constitutional. The claim that
such a court might exist merely restates, but does not
resolve, the issue presented.
The court of appeals rejected what it termed “apodicti-
cal” assertions of the Third and Fifth Circuits that personal
9. App. K, p. 5la sets forth the federal “nationwide service”
statutes and indicates the manner in which they are restricted so as
not to offend traditional notions of fair play and substantial justice.
10. For example, surely Congress could not justify the creation
of standards of amenability to suit based on race by exercising its
“plenary power” under article III.
15
jurisdiction in the federal courts is governed by a “fairness
standard.” App. A, p. 17a-18a n. 74. It distinguished
the fairness limitations on state long-arm jurisdiction be-
cause such jurisdiction reaches beyond state territorial
limits. In the federal sphere, it deemed “fairness consid-
erations” inapplicable because jurisdiction does not reach
beyond the territory of the United States. Accord, Moriash
v. Morrill, 496 F.2d 1138 (2 Cir. 1974), decided before
Shaffer v. Heitner, 433 U.S. 186 (1977). Compare Oxford
First Corp. v. PNC Liquidating Corp., 372 F.Supp. 191
(i3.D. Pa. 1974).
By rejecting fairness considerations because the peti-
tioners were summoned within the United States, the court
of appeals failed to recognize that Shaffer v. Heitner
completely repudiated the rigid jurisdictional underpinning
—territorial sovereignty—of Pennoyer v. Neff, 95 U.S. 714
(1877). Shaffer recognized that “the theory that territorial
power is both essential to and sufficient for jurisdiction has
been undermined. ...” 433 U.S. at 221. There, this Court
held that although a court may have the necessary terri-
torial power, the exercise of that power must be limited by
traditional notions of fair play and substantial justice.
The rationale of Shaffer should be applicable to questions
of federal as well as state in personam jurisdiction.
The decision below might have been correct under the
theory of Pennoyer; however, it cannot withstand analysis
under Shaffer. Shaffer recognized fair play as the crucial
element in the due process equation, sufficient to outweigh
antiquated notions of the supremacy of territorial power.
Congress surely has territorial power over petitioners.
However, only this Court can authoritatively decide
whether the exercise of that power, as enunciated by the
court of appeals’ construction of Section 1391(e), is sub-
ject to fifth amendment due process limitations and whether
these limitations require that fair play and substantial
justice be afforded to petitioners.
16
Conclusion
The petition for a writ of certiorari should be granted.
Dated: April 30, 1978
Respectfully submitted,
Peter Mecarcert Brown
Kart H. Nemser
Attorneys for Petitioners
One Wall Street
New York, New York 10005
Of Counsel:
CapwaLabEeR, WicKERSHAM & TarT
Rosert L. Sriis
la
APPENDIX A
Joun Bricas et av., Appellants,
v.
Guy Goopwiy, [INpIVIDUALLY AND AS ATTORNEY FOR THE
DrPARTMENT OF JUSTICE, ET AL. [ STAFFORD, ET AL. |
No. 75-1578.
UNITED STATES COURT OF APPEALS
District of Columbia Circuit.
Argued April 15, 1976.
Decided Sept. 21, 1977.
As amended Dee. 1, 1977.
Rehearing Denied Dee. 1, 1977.
Appeal from the United States District Court for the
District of Columbia (D.C. Civil Action No. 74-803).
Doris Peterson, New York City, with whom Nancy
Stearns, Morton Stavis, New York City, and Philip J.
Hirschkop, Alexandria, Va., were on the brief, for
appellants.
R. John Seibert, Atty., Dept. of Justice, Washington,
D. C., with whom Robert L. Keuch and Benjamin C. Flan-
nagan, IV, Attys., Dept. of Justice, Washington, D. C., were
on the brief, for appellees. George W. Calhoun, Atty.,
Dept. of Justice, Washington, D. C., also entered an appear-
ance for appellees.
Before McGowan, Rostyson and Wiikey, Cireuit Judges.
Opinion for the Court filed by Sporrswoop W. Rorrnson,
III, Cireuit Judge.
2a
Srorrswoop W. Rosryson, ITI Cireuit Judge:
During the summer of 1972, Guy Goodwin, an attorney i»
the Department of Justice, together with United States
Attorney William H. Stafford, Jr.' and Assistant United
States Attorney Stuart J. Carrouth for the Northern Dis-
trict of Florida, conducted therein grand jury proceedings
at which appellants,? among others, were subpoenaed to
appear. On motion by newly-retained counsel for appel-
lants,’ the District Judge responsible for those proceedings
called Goodwin to the witness stand and inquired as to
whether any of the “witnesses represented by counsel
[were]agents or informants” of the Government.* Good-
win’s sworn answer—‘“[n]o, Your Honor’’—is alleged to
have been a knowing falsehood,® and its consequences to
1. Now United States District Judge for the Northern District of
Florida.
2. Appellants were all members of the Vietnam Veterans Against
the War/Winter Soldier Organization. Compare Brief for Appel-
lees at 3 n. 1 with appellant’s complaint J] 4-7, Appellants’ Appendix
(App.) 6-7.
3. According to the complaint, J§ 10-12, App. 8-9, some of the
subpoenas wm fe dnwd on the td succeeding day, and most of
them compelled appearance at the same time; the witnesses summoned
were as far away as Texas; and “[n]early all of the lawyers met their
clients for the first time” only days before they were to appear.
Cf. App. 20.
4. App. 27.
5. The transcript indicates, App. 20-23, that a list of the witnesses
represented by counsel was read to the three prosecutors in open court
and, on the following day, Goodwin was sworn, asked by the judge
only the above question and excused without examination by any of
the counsel. App. 27.
6. Complaint 17-18, App. 10. One of the witnesses is alleged
to have been a paid informant and to have given to the Government
information secured in the course of meetings with appellants and
their counsel. Complaint {{{ 26-30, App. 12-13.
3a
have been violative of various of appellants’ constitutional
rights.’
For redress of those consequences, appellants sued the
three prosecutors and Claude Meadow, an agent of the
Federal Bureau of Investigation,’ “individually and in
their official capacities’”® in the District Court here. Each
appellant sought a declaratory judgment, $50,000 in com-
pensatory damages and a punitive award of $100,000."
Goodwin, whose official residence was then in the District
of Columbia,'' was served personally and the others, each
of whom resided in Florida, were served by certified mail.’
The Florida defendants seasonably requested transfer of
the litigation to the Northern District of Florida’ or,
alternatively, dismissal for improper venue and _ insuffi-
ciency of process.'* The District Court denied the former
7. Complaint J 3, App. 6. Several violations of criminal statutes
are also asserted and appellants, invoking 42 U.S.C. § 1985 (1970),
charge that these violations were the result of a conspiracy to violate
their civil rights. Complaint § 34, App. 15.
8. Meadow was the alleged conduit between the informant and the
other appellees. Complaint § 27, App. 12.
9. Complaint J 7, App. 7.
10. Complaint, App. 16.
11. The District Court so found. Briggs v. Goodwin, D.D.C.,
384 F.Supp. 1228 (memorandum and order Nov. 20, 1974), App. 38.
Wee do not contest that finding. See Brief for Appellees at
,4n. 2.
12. See notes 54-75 infra and accompanying text.
13. See 28 U.S.C. § 1404/a) (1970).
14. At the same time, Goodwin moved for dismissal on grounds
of immunity both as a prosecutor and as a witness, but his motion
was denied. See riggs v. Goodwin, supra note 11, (memorandum
and order Nov. 20, 1974), App. 35-37, aff’d,—U.S.App.D.C.—, 569
F.2d 1 (1977). Goodwin is not a party to this appeal.
4a
motion but granted the latter,'® and the question on appeal
is whether this action may be entertained in the District of
Columbia. We hold that it may.
15. The court rejected the motion to transfer on the grounds that
venue in the District of Columbia was proper, adverting to “well
established law that a = choice of venue is given prefer-
ence... .” Briggs v. Goodwin, supra note 11, (memorandum and
order Nov. 20, 1974) (unreported), App. 38. On March 4, 1975,
the court, repudiating that premise, issued the following additional
order:
Upon consideration of the Alternative Motion of Defen-
dants Stafford, Carrouth and Meadow to Dismiss this Action
as to them for Lack of Jurisdiction over their Persons,
Improper Venue, Insufficiency of Process and Insufficiency of
Service of Process, the memoranda of points and authorities
in support thereof and in opposition thereto, it appearing to
the Court that service of process upon said defendants was
made by certified mail; that the Complaint fails to allege the
defendants transacted any business in the District of Columbia
or caused tortious injury to plaintiffs in the District of Colum-
bia by an act or omission therein as required by District of
Columbia Code § 13-423(a); that the action against said
defendants could not have been b t in this Court prior to
the enactment of 28 U.S.C. §$1391(e) and is not one in
« essence against the United States as required by § 1391(e);
and that by reason thereof the Court lacks venue and im per-
sonam jurisdiction with respect to defendants Stafford, Car-
routh and Meadow, service of process on them was insufficient,
and the action as to these defendants should be dismissed, it is,
therefore, by the Court this 4th day of March 1975:
ORDERED that the Alternative Motion of Defendants
Stafford, Carrouth and Meadow to dismiss this action be, and
and the same hereby is, granted; and it is further
ORDERED that this action be, and the same hereby is,
dismissed as to defendants William H. Stafford, Jr., Stuart J.
Carrouth, and Claude Meadow.
Briggs v. Goodwin, supra note 11, (order Mar. 4, 1975) (unre-
ported), App. 39-40.
Whatever the merits of the venue determination, one must wonder
why the District Court did not hold the motion for transfer in abey-
ance until it had decided whether the litigation could continue in the
District. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-467, 82
S.Ct. 913, 915-916, 8 L.Ed.2d 39, 42 (1962) (transfer may be
effected even absent personal jurisdiction over all parties in the trans-
feror court, and in most cases is preferable to dismissal if the defect
in venue can thereby be cured).
5a
I
The propriety of venue in the District of Columbia is
measured by 28 U.S.C. § 1391(e),'® which in pertinent part
provides :
A civil action in which a defendant is an officer or
employee of the United States or any agency thereof
acting in his official capacity or under color of legal
authority, ... may, except as otherwise provided by
law, be brought in any judicial district in which (1)
a defendant in the action resides ....
The summons and complaint in such an action
shall he served as provided by the Federal Rules of
Civil Procedure except that the delivery of the sum-
mons and complaint to the officer or agency as
required by the rules may be made by certified mail
beyond the territorial limits of the district in which
the action is brought.
This litigation, against four federal officials, was com-
menced in the district wherein one of them officially
resided.’ The complaint alleges constitutional depreda-
tions wrought by activities “in [their] official capacity or
under color of legal authority.”'* The suit thus fits within
the ostensible coverage of Section 1391(e). Appellees sug-
gest a gloss upon the statutory language, however, except-
ing from its purview any case in which a money judgment
may be returned against a federal officer, and to this sug-
gestion the District Court apparently acceded.'® Our exam-
16. 28 U.S.C. § 1391(e) (1970), as amended by Act of Oct. 21,
1976, Pub.L. No. 94-574 § 2, 90 Stat. 2721-2722. The 1976 amend-
ment does not bear on the questions in this case.
17. See note 11 supra.
18. See text supra following note 16.
19. Briggs v. Goodwin, supra note 11, (order of March 4, 1975),
reproduced at note 15 supra.
6a
ination of the genealogy of the “Congressional English””°
just set forth leads us to decline appellees’ invitation.
The progenitor of Section 1391(e) was H.R. 10089,” a
bill “[t]o permit a civil action . . . against an officer of the
United States in his official capacity ... in any judicial dis-
trict . . . where a plaintiff in the action resides.” Asked
for comments on the bill, the Department of Justice
expressed reservations about its utility.2> It explained that
most suits against public officials, such as those seeking
“damages from him personally for actions taken ostensibly
in the course of his official duty but which the plaintiff
claims are in excess of his official authority,” were “against
[him] in his individual capacity,”** and therefore outside
the scope of the proposed legislation. On the other hand,
the Department continued, any litigation “against a Gov-
ernment official . . . in his official capacity would be the
equivalent of a writ of mandamus” which, by virtue of a
historical anomaly, no federal court outside the District of
20. See Henderson v. Flemming, 283 F.2d 882, 885 (Sth Cir.
1960).
21. H.R. 10089, 86th Cong., 2d Sess. (1960).
22. H.R. 10089, 86th Cong., 2d Sess. (preamble) (1960) (em-
phasis added). This bill was in all pertinent respects identical to H.R.
10892, 85th Cong., 2d Sess. (1958), upon which no action was taken
beyond referreal to committee. H.R. 10089 1. re that the follow-
ing language be codified as 28 U.S.C. § 1391(e):
A civil action in which each defendant is an officer of the
United States in his official capacity, a person acting under him,
or an agency of the United States, may be brought in any judi-
cial district where a plaintiff in the action resides.
23. H.R. Rep. No. 1936, 86th Cong., 2d Sess. 6 (1960) (letter of
Deputy Attorney General Lawrence Walsh).
24. Id.
25. Id.
7a
Columbia could then issue.*° Since H.R. 10089 would have
conferred no mandamus jurisdiction and would not have
applied to actions against officials “individually,” the
Department doubted whether its enactment “would serve
any useful purpose.””’
H.R. 12622°8 was drafted to meet these and other”? criti-
cisms. Its first section extended mandamus jurisdiction to
all of the federal district courts.°° Its second section broad-
ened the prior venue proposal to include suits directed at a
federal official’s activity whether characterized as occurring
“in his official capacity” or “under color of legal author-
ity.”*! The purpose of the new bill was “to provide readily
available, inexpensive judicial remedies for the citizen who
is aggrieved by the workings of Government,” but who
would previously have been compelled*’ to sue in the Dis-
26. Compare M’Intire v. Wood, 11 U.S. (7 Cranch.) 504, 3 L.Ed.
420 (1813), with Kendall v. United States ex rel. Stokes, 37 U.S.
(12 Pet.) 524, 9 L.Ed. 1181 (1838).
27. H.R. Rep. No. 1936, supra note 23, at 6.
28. H.R. 12622, 86th Cong., 2d Sess. § 2 (1960), in id. at 9.
29. The Judcial Conference of the United States proposed addi-
tions that subsequently were adopted as 28 U.S.C. §§ 1391(e) (1),
(2), (3) (1970). Jd. at 5 (letter of Warren Olney, III, Director,
Administrative Office of the United States Courts). Appellants rely
only on subsection (e)(1), quoted in text following note 15 supra.
30. This grant was the prototype for what is now 28 U.S.C.
§ 1361 (1970), enacted along with § 1391(e).
31. H.R. 12622, supra note 28, set forth in H.R. Rep.No.1936,
supra note 23, at 9.
32. H.R.Rep.No.1936, supra note 23, at 3.
33. The House Report on H.R. 12622 focused on the time and
expense involved in traveling to the District of Columbia to institute
suit against officials or agencies located there, and the possibility that
litigation commenced against agents in the field might be dismissed
for want of venue over an indispensable superior located in Washing-
ton. H.R.Rep.No.1936, supra note 23, at 2-3.
Sa
trict of Columbia by the pre-existing venue provisions,
which were deemed “contrary to the sound and equitable
administration of justice.”** And the House Report specif-
ically noted that “(t]he venue problem also arises in an
action against a Government official seeking damages from
him for actions which are claimed to be without legal
authority but which were taken by the official in the course
of performing his duty.”*
The House passed H.R. 12622°° but the Senate adjourned
before any action was taken on it. So, in the next Con-
gress, it was reintroduced as H.R. 1960,” comments were
again solicited, and again the Department of Justice asked
that portions of the bill be “clarified.”“* Some proffered
clarifications were adopied,*® but notably the Department’s
suggestion that the venue provision be changed to “elimi-
nate[] suits for money judgments against officers” was not.
34. Id. at 3.
35. ld.
36. 106 Cong.Rec. 18405 (1960). Cf. H.R.Rep. No.536, 87th
Cong., Ist Sess. 1 (1961).
37. H.R. 1960, 87th Cong., Ist Sess. (1961), 107 Cong.Rec.
12157 (1961); H.R.Rep.No.536, supra note 36, at 5-6. See id. at 1
(“{a]n identical bill, H.R. 12622, passed the House in the closing
days of the 86th Congress but was not acted upon by the Senate”).
38. S.Rep.No.1992, 87th Cong., 2d Sess. 6 (1962) (letter of
Assistant Attorney General (now Justice) Byron R. White). U.S.
Code Cong. & Admin.News 1962, p. 2784.
39. Compare id. at 1 with id. at 6-7. The Senate passed the bill
as amended without revealing debate. 108 Cong.Rec. 18783-18784
(1962). The House passed the Senate version with one change, also
responsive to the Justice Department’s suggestions, 108 Cong.Rec.
20093-20094 (1962), and the Senate acquiesced. Jd. at 20079. Cf.
Peoples v. United States Dep't of Agriculture, 138 U.S.App.D.C. 291,
295 n. 9, 427 F.2d 561, 565 n. 9 (1970) (noting the importance of the
selective adoption of the Department’s proposed revisions).
40. S.Rep.No.1992, supra note 38, at 6, U.S. Code Cong. &
Admin. News 1962, p. 2789.
9a
Rather, both the House and Senate committees rejoined
with the observation that the “venue problem” which the
bill sought to rectify was as troublesome in damage suits
against officials as in other sorts of civil litigation.”
This colloquy between the Department of Justice and
the legislative draftsmen demonstrates the legislature’s
comprehension and resolution of the issue before us. The
conscious addition by Congress of language designed to ex-
tend Section 1391(e) to suits for damages against federal
officials acting under color of legal authority, coupled with
its adherence to that language despite highly respectable
protest,*? manifests beyond peradventure an intent to
broaden venue in just such suits. Our duty is to harken
to the will of Congress as expressed, and the statutory man-
date is clear.
We realize, of course, that other courts have entertained
divergent views on the relation of Section 1391(e) to
damage actions against federal officials.** We acknowledge
41. Id. at 3; H.R.Rep.No. 536, supra note 36, at 3.
42. See note 39 supra.
43. The Fifth Circuit, in Ellingburg v. Connett, 457 F.2d 240,
241 (Sth Cir. 1972), held that “Section 1391(e)(4) . . . may be a
basis for venue” in a civil rights action “for damages and injunctive
relief against officers . . . of the Uni cd States,” and remanded for a
determination as to whether the factual predicate—the plaintiff’s resi-
dence in the district—could be satisfied. The dissent apparently
agreed that an action for damages might normally be brought pur-
suant to its provisions, but regarded the damage claim there advanced
asasham. /d. at 242. See Driver v. Helms, 74 F.R.D. 382 (D.R.1.
1977). The District Court in this circuit has reached a similar result
in a case involving alleged injury “as a result of defendants’ fraudu-
lent and defamatory statements, made in the course of their official
duties,” so long as federal employment continued to the time the
action was filed. Ii’« v. Keeney, 384 F.Supp. 1161, 1168 (D.D.C.
1974). Cf. Benson v. United States, 421 F.2d 515, 517 (9th Cir.),
cert. denied, 398 U.S. 943, 90 S.Ct. 1861, 26 L.Ed.2d 279 (1970)
(semble) ; Thompson v. Kleppe. 424 F.Supp. 1263, 1266 (D.Haw.
1976) (semble). See also Kletschka v. Driver, 411 F.2d 436, 442 (2:1
10a
also that in Relf v. Gasch** we spoke to the subject in a
manner that, in retrospect, seems susceptible of conflict-
ing interpretation, but Relf does not clash with the result
reached here. That case involved the propriety of a trans-
fer of litigation to another district “for the convenience of
parties ... [and] in the interest of justice,’ and the com-
plaint hinted that some defendants might be subject to
liability not only for activities under color of legal au-
thority but also for others of a purely personal character.
Cir. 1969) (dicta); Rabiolo v. Weinstein, 357 F.2d 167, 168 (7th Cir.
1966) (dicta). On the other hand, Paley v. Wolk, 262 F.Supp. 640,
642-643 (N.D.II1.1965), cert. denied, 386 U.S. 963, 87 S. Ct. 1031, 18
L.Ed.2d 112 (1967) found § 1391(e) unavailable to a plaintiff appar-
ently alleging that certain employees of the Patent Office had taken
money from him on false pretenses, since “the action would be against
the defendants personally rather than in their official capacities,” as
did Davis v. Federal Deposit Ins. Co., 369 F.Supp. 277, (D.Colo.
1974), where damages were sought from an FDIC employee on
grounds his negligence had facilitated the collapse of a national bank.
Compare with these cases Griffith v. Nixon, 518 F.2d 1195, 1196 (2d
Cir.), cert. denied, 423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d 369
(1975), and Green v. Laird, 357 F.Supp. 227, 230 (N.D.111.1973),
each seemingly concluding that venue under § 1391(e) was proper
but that that section did not affect service requirements, which were
deemed unmet, a matter discussed infra at note 58. Perhaps Paley
and Davis may be reconciled with Hu and Ellingburg, for con the
reports in the former cases it is unclear whether the injurious action
was alleged to have been taken under color of legal authority, and for
aught that appears the courts may implicitly have found the activity
to a been purely personal. Cf. Griffith v. Nixon, supra, 518 F.2d
at '
44. 167 U.S.App.D.C. 238, 511 F.2d 804 (1975).
45. 28 U.S.C. § 1404(a) (1970).
46. 167 U.S.App.D.C. at 240, 511 F.2d at 806. The plaintiffs in
Relf, all minors, alleged that they were sterilized without their con-
sent or the consent of their parents. They sued the United States—
under the Federal Tort Claims Act, 28 U.S.C. § 1346(a) et seg.
(1970)—and a group of individual defendants, all of whom were at
one time federal officers or employees. Jd. To be sure, eaci of the
nine counts of the plaintiffs’ complaint ceremoniously asserted that
the individual defendants had acted within the scope of their offices
lla
Those possibilities could not have been explored in the
transferee district, for neither Section 1391(e) nor any
other provision gave venue there,’ and as a prerequisite to
transfer “[vjenue must be proper in the transferee dis-
trict’* for every defendant and on ever claim for relief.”
Moreover, a transfer is conditioned as well on the amena-
bility of all defendants “to the process of the federal court
in the transferee district at the time the action was origin-
ally filed” and, apart from the inefficacy of process avail-
able in that district for any defendant sued only in a pure-
ly personal role,*' the fact that some defendants had left
federal service prior to institution of suit “increase[d] the
likelihood” that they were not subject to process emanating
from the transferee court..? Consequently we remanded
the case in order that the District Court might, by allowing
amendments to the complaint, be afforded a reasonable op-
and yments. But there were allegations readable as charges of
mi unconnected with official duty or authority, and these left
us unsure whether the plaintiffs really intended that the alleged
wrongdoers’ status as government officials should figure operatively
in all s their counts. 167 U.S.App.D.C. at 240-241, 511 F.2d at
806-807.
47. Id. at 241 & n. 15, 511 F.2d at 807 & n. 15, citing Paley v.
Wolk, supra note 43, 262 F.Supp. at 642-643, in which federal
employees were being sued for receiving money under false pretenses,
but the receipt was apparently “unrelated” to their official duties.
48. Relf v. Gasch, supra note 44, 167 U.S.App. D.C. at 241, 511
F.2d at 807 ( footnote omitted).
49. Id. at 241 n. 12, 511 F.2d at 807 n. 12. "
50. Jd. at 241, 511 F.2d at 807 (footnote omitted).
51. We noted in addition that the transferee state’s long-arm stat-
ute would not reach such defendants. 167 U.S.App.D.C. at 242 n. 18,
511 F.2d at 808 n. 18.
52. Id. at 242,511 F.2d at 808. This was the ground for the con-
curring opinion, which deemed § 1391(e) otherwise available. Jd. Cf.
Kipperman v. McCone, 422 F.Supp. 860, 876-877 N.D. Cal. 1976);
Wu v. Keeney, supra note 43, 384 F.Supp. at 1168.
12a
portunity to decide these weighty questions bearing on its
power to transfer. Clearly, our presumption in Re/f—that
action brought against persons who just happen to be, or
to have been, federal officials are not within the ambit of
Section 1391(e)—is by no means incompatible with our
present holding that venue for damage actions against
those who inflict injury under color of legal authority is
governed by that section.
To the extent, then, that the District Court held that Sec-
tion 1391(e) furnishes no basis for venue here, it was in
error. That does not end the matter, however, for the or-
der appealed from is predicated also upon insufficient ser-
vice of process upon appellees.*’ To that issue we now
turn.
IT
As we noted at the outset,‘ the Federal Rules of Civil
Procedure govern service of process in cases laying venue
under Section 1391(e), “except that the delivery of the
summons and complaint to the officer or agency . . . may be
made by certified mail beyond the territorial limits of the
district in which the action is brought.”°5 Appellees were
served in just that manner which, they assert, was improper
either because Congress did not intend the exception to
apply to suits such as this one, or because such service is
constitutionally deficient.
As for the first contention, the House Report on See-
tion 1391(e) correctly noted that its expansion of venue
would be of little avail unless coupled with a modification
53. Briggs v. Goodwin, supra note 11, (order of May 4, 1975),
set out at note 15 supra.
54. See text supra at note 16.
55. 28 U.S.C. § 1391(e) (1970).
13a
of service demands then levied by the Civil Rules.*° Thus,
while the amended section retains the rules intact for ser-
vice within the forum district it empowers the district
courts to make valid service outside the district whenever
venue lies by virtue of Section 1391(e).°’ It also authorizes
service by certified mail in such situations whenever service
ean be effected only beyond the boundaries of the forum
district.* Nowhere is there any intimation that these
56. H.R.Rep.No.536, supra note 36, at 4.
57. See text supra following note 16 and note 58 infra.
58. See text following note 16 supra. As the House Report put
it “[s]ince this bill is designed to make a federal official amenable to
suit locally, the bill provides that [service on the official] may be made
by certified mail outside of the territorial limits of the district in which
the action was brought. In all other respects, the summons and com-
plaint is to be served as provided by the Federal Rules... .” H.R.
Rep. No. 536, supra note 36, at 4 (emphasis added). Appellees read
the Report’s assertion that “where an action is only nominally brought
against an official . . . service may be had in the manner provided by
rule 4(d)(5),” id., to imply a “negative corollary” that the service
provision of § 1391(e) applies only to that situation. Brief for Ap-
pellees at 27-28. This inference is negated by the very next sentence
in the House Report, which clearly contemplates that the “exception to
the territorial limitation on service provided in this bill” is “equally
applicable” to cases other than those within the compass of Rule
4(d)(5), such as, presumably, this one. H.R. Rep. No. 536, supra
note 36, at 4. *Thus § 1391(e) invokes the clauses in Fed.R.Civ.P.
4(f) (specifying the “Territorial limit on effective service”) and
Rule 4(d)(7) (service upon an individual defendant) providing for
statutory exceptions to their dictates.
Appellants also urge that if service is made under Rule 4(d) (5) it
is per se insufficient to bring an officiai’s pocketbook into jeopardy.
That Rule’s only peculiarity is its direction that service be made not
only upon the officer, but upon the United States as well. Appellants
here apparently did serve the United States; yet if service upon the
appellees was affected agreeably with § 1391(c), it is hard to see how
the additional service might redound to their injury. To the extent
that Griffith v. Nixon, supra note 43, 518 F.2d at 1196, and Green v.
Laird, 357 F.Supp. 227, 230 (N.D. Ill. 1973), suggest that service
on the United States renders ineffective otherwise proper service on
a federal officer, we refuse to follow them. Moreover, Relf v. Gasch,
l4a
changes were to affect some cases controlled by Section
1391(e) and not others,®® and indeed any exception would
be difficult to justify. That venue exists in a particular dis-
trict would hardly console a plaintiff unable to serve offi-
cials who, though responsible for his plight, had withdrawn
beyond the limits of effective service. And Congress must
not have been content to rely simply on state long-arm
statutes,” for it chose to supplement them in the category
of eases encompassed by Section 1391(e) by providing ex-
traterritorial service of its own device.*' We find the ser-
vice effected here to be fully within the ambit of congres-
sional contemplation.
Nor do we perceive any constitutional problem in
the statute as applied to this case. Appellees pitch their
supra note 44, 167 U.S. App. D.C. at 242 n. 18, 511 F.2d at 808 n.
18, in no way conflicts with our interpretation. As we noted earlier,
see notes 44-52 supra and accompanying text, our concern in Relf
was that § 1391(e)—and Rule 4(d)(5)—did not extend to claims
against officials sued as individuals, as opposed to claims deriving from
action taken under color of legal authority.
59. See note 58 supra.
60. The District Court apparently gauged its jurisdiction by the
local long-arm statute, D.C. Code § 13-423(a) (1973), and found it
wanting. See note 15 supra. Precisely what measurement it under-
took is unclear. If it assumed that its only vehicle for obtaining
service was via that statute, it was, as indicated above, in error. If
its reference was for the purpose of determining whether appellees
had sufficient contacts with the forum to permit it constitutionally
to exercise jurisdiction over theni—the more likely possibility—it was
similarly incorrect. See text and notes at notes 62-75 infra.
61. See H.R.Rep.No.536, supra note 36, at 4.
62. Appellees do not assert that service via certified mail is any
less valid than personal service. Therefore, we do not pass on the
question but merely note that the weight of authority might sustain
the use of certified mail service in in personam actions such as this.
re Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091
(1927), with Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72
L.Ed. 446 (1908). See also McGee v. International Life Ins. Co.,
15a
constitutional argument on their supposed lack of minimum
contacts with the District of Columbia, resting on cases“
holding “that the Due Process Clause of the Fourteenth
Amendment places some limit on the power of state courts
to enter binding judgments against persons not served with
process within their boundaries.”®© To the extent that this
position presupposes that Congress’ constitutional authority
to provide for the sound operation of the federal judicial
system® is limited by the same constraints that apply to
extraterritorial service by state tribunals, it builds on
355 U.S. 220, 221, 78 S.Ct. 199, 200, 2 L.Ed.2d 223, 225 (1950);
Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 318-319,
70 S.Ct. 652, 656-660, 94 L.Ed. 865, 875-876 (1957). See generally
Fox, Motorists’ Service of Process Acts, 33 F.R.D. 151 (1963);
Wilson, Service of Process, 39 U.Cinn.L.Rev. 487, 488-489 (1970);
Note, Service of Process by Mail, 74 Mich.L.Rev. 381, 382 (1975)
(“Service by mail without a return-receipt requirement complies with
. . » due process”).
63. Appellants, who pleaded, inter alia, a conspiracy between
appellees and Goodwin, see note 7 supra, take the position that dis-
covery would reveal that appellees did have substantial contacts with
the District of Columbia, Brief for Appellants at 10 and footnote, but
that they were prevented from conducting discovery during the
pendency of appellees’ motion to dismiss. Jd. at 6. Since we do
not accept appellees’ lack-of-contacts contention, we need not pass on
this question.
64. Hansen v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d
1283 (1958) ; International Shoe Co. v. Washington, 326 U.S. 310,
66 S.Ct. 154, 9OL.Ed. 95 (1945).
65. McGee v. International Life Ins. Co., supra note 62, 355 U.S.
at 222, 78 S.Ct. at 200, 2 L.Ed.2d at 225. Cf. Hansen v. Denckla,
supra note 64, 357 U.S. at 253, 78 S.Ct. at 1240, 2 L.Ed.2d at 1298
(“it is essential [to state court or diversity jurisdiction] in each case
that there be some act by which the defendant purposefully avails
itself of the privilege of conducting activities wihtin the forum State,
thus invoking the benefits and protection of its laws’’).
66. See Hanna v. Plumer, 380 U.S. 460, 472, 85 S.Ct. 1136, 1144,
14 L.Ed.2d 8, 17 (1965).
l6a
sandy soil indeed. Whether or not Article LII® mandated
creation of any inferior federal courts at all, it is a matter
of general agreement that the discretion of Congress “as to
the number, the character, | and] the territorial limits” of the
inferior federal courts is not limited by the Constitution.”
Congress might have established oniy one such court, or a
mere handful; in that event, nationwide service would
have been a practical necessity clearly consonant with the
Constitution.”! That it was considered expedient to estab-
67. U.S.Const. art. III §1 provides that “[t]he judicial Power
of the United States, shall be vested in one supreme Court and in
such inferior Courts as the Congress may from time to time ordain
and establish.”
68. Compare Cary v. Curtis, 44 U.S. (3 How.) 236, 245, 11 L.Ed.
576, 581 (1845), with Martin v. Hunter's Lessee, 14 US. (1
Wheat.) 304, 330-331, 4 L.Ed. 97, 104 (1816). Compare J. Goebel,
History of the Supreme Court of the United States, Antecedents and
Beginnings to 1801, 246-247 (1971), with 1 Records of the Federal
Convention of 1787, 124-127 (M. Ferrand ed. 1966). See also War-
ren, New Light on the History of the Federal Judiciary Act of 1789,
37 Harv.L.Rev. 49, 65-67 (1923).
69. United States v. Union Pac. R. R. Co., 98 U.S. (8 Otto)
569, 602-603, 25 L.Ed. 143, 150 (1878). Accord, Lockerty v. Phil-
lips, 319 U.S. 182, 187, 63 S.Ct. 1019, 1022, 87 L.Ed. 1339, 1342-
1343 (1943); Cary v. Curtis, supra note 68, 44 U.S. at 245, 11 L.Ed.
at 581. Cf. J. Goebel, supra note 68, at 247; 1 The Records of the
Federal Convention of 1787, supra note 68, at 125.
70. See, ¢.q., Mariin v. Hunter's Lessee, supra note 68, 14 U.S.
at 331, 4 L.Ed. at 104. The early drafts of what became Article ITI
provided for “one or more” inferior federal courts, but that provision
was stricken without apparent explanation. 1 Records of the Federal
Convention of 1787, supra note 68, at 116. See J. Goebel, supra
nite 68, at 210 n. 68. Indeed, The Federalist No. 81 (A. Hamilton)
344 (p. Ford ed. 1898) proposed that Congress “divide the United
States into four or five or half a dozen districts; and to institute a
federal court in each district, in lieu of one in every state.”
71. See, e.g.,Mississippi Publishing Corp. v. Murphree, 326 U.S.
438, 442, 66 S.Ct. 242, 245. 90 L.Ed. 185, 190 (1946); Robertson v.
Railroad Labor Bd., 268 U.S. 619, 622, 45 S.Ct. 621, 622, 69 L.Ed.
1119, 1121, (1925); United States v. Union Pac. R. R. Co., supra
17a
lish federal judicial districts in harmony with state bound-
aries’? did not alter the scope of legislative discretion in
this regard, and in fact Congress has, on occasion, pro-
vided for nationwide service.’”*> While several cases have
asserted apodictically that service outside a federal judicial
district is governed by the same sort of “fairness standard”
as is extraterritorial service by state courts,’* this imputes
note 69, 98 U.S. at 604, 25 L.Ed. at 151 (“[t] is .. . nothing in
the Constitution which forbids Congress to ext that, as to a class
of cases or a case of special character, a... court... in which
the suit may be brought, shall, by process served anywhere in the
United States, have the power to bring before it all the parties neces-
sary to its decision”); Toland v. Sprague, 37 U.S. (12 Pet.) 300,
328, 9 L.Ed. 1093, 1105 (1838).
72. The Judiciary Act of 1789, 1 Stat. 73 (1789), divided the
United States into districts along state lines, except for establishment
of districts in the Maine and Kentucky territories. ‘This decision
appears to have been motivated in part by the very spectre of nation-
wide service and the attendant inconvenience it might have caused.
See J. Goebel, supra note 68, at 226, 460, 473; Warren, supra note
68, at 72. Thus, “a precedent was established, which is still unbroken
{with but one exception, see Act of Feb. 13, 1801, ch. 4, §§ 4, 21, 2
Stat. 89, 96, repealed Act of Mar. 8, 1802, ch. 8, §1, 2 Stat. 132}
against the overlapping of state lines in the boundaries of federal
judicial districts.” P. Bator, P. Mishkin, D. Shapiro & H. Wechsler,
The Federal Courts and the Federal System 33 (2d ed. 1973).
73. See, e.g., the instances cited in Robertson v. Railway Labor
Bd., supra note 71, 268 U.S. at 624-625, 45 S.Ct. at 623-624, 69 L.Ed.
at 1122; Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508, 512 (2d
Cir. 1960); 4 C. Wright & A. Miller, Federal Practice and Procedure
pe at 522-528 (1968); Comment, 7 Rut.Cam.L.J. 158, 162 n. 7
(1975).
74. E.q., Fraley v. Chesapeake & O. Ry., 397 F.2d 1, 3 (3d Cir.
1968) ; Lone Star Package Co. v. Baltimore & O. R. R., 212 F.2d
147, 155 (Sth Cir. 1954). Fraley relies on Lone Star, which in turn
relies on United States v. Scophony Corp., 333 U.S. 795, 818, 68
S.Ct. 855, 866, 92 L.Ed. 1091, 1106 (1948), applying the “fairness
considerations” of /nternational Shoe Co. v. Washington, supra note
64, to a determination as to whether a British corporation could be
subjected to suit in the United States. Whether an alien is amenable
to suit in this country is, as Professor Rheinstein has noted, a ques-
18a
a constitutional magic to lines that Congress can at any
time redraw. As tradition alone’* works no such necro-
mancy, we must reject appellees’ constitutional argument
as well.
‘ Ii
We are requested by appellees at least to temper our view |
of the involved statute by its purportedly pernicious reper-
cussions. Our answer must naturally be that it was for
Congress alone to weigh those repercussions. Congress
may not have anticipated that the flow of litigation of the
sort at bar would rise from trickle to floodtide;’* still we
may not distort the statute to mollify its operation. If, as
appellees melodramatically contend, application of Section
1391(e) as written “would subvert the orderly administra-
tion of the criminal justice system,’”’ it is Congress that
should be alerted, for we are not at liberty to act on its
stead.
To sum up, Sectiou 1391(e)(1), providing as it does for
venue in actions for redress of injuries inflicted by federal
officials under color of legal authority, supports cognizance
tion s to that presented when a state court attempts to exer-
cise jurisdiction over someone not found in that state, and quite a
different matter from applying such a test to a sovereign state’s power
to formulate jurisdictional tenets within its territorial limits. Rhein-
stein, The Constitutional Bases of Jurisdiction, 22 U.Chi. L.Rev. 775,
786-787, 796 (1955). Cf. Shaffer v. Heitner, 433 U.S. 186, 197-198,
97 S.Ct. 2569, 2576-2577, 53 L.Ed.2d 683 (1977).
75. See note 72 supra.
76. It has been noted that between 1961 and 1970 the number of
civil rights actions filed in federal courts increased 1346%—from 296
“ 3). H. Friendly, Federal Jurisdiction—A General View 16
77. Brief for Appellees at 26.
19a
of this litigation in the District of Columbia. That section
also sanctions the use of certified mail for extraterritorial
service in this action, and as so applied is constitutional.
These conclusions require us to reverse the District Court’s
dismissal of appellants’ action against Messrs. Stafford,
Carrouth and Meadow, and to remand the case for further
proceedings.
20a
APPENDIX B
JouN Briccs et al., Plaintiffs,
v.
Guy Goopwin, Individually and as Attorney fer the Depart-
ment of Justice, Division of Internal Security, et al.,
Defendants.
Civ. A. No. 74-803.
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA.
Nov. 20, 1974.
° ° e
MEMORANDUM AND ORDER
Ausrey K, Rosinson, Jr., District Judge.
In this civil action, Plaintiffs seek declaratory relief and
damages for alleged violatious of their constitutional rights
which arose from the criminal case of United States v.
Briggs, G.C.R. 1353 (the “Gainesville 8” case) in which
eight of the Plaintiffs herein were acquitted of conspiracy.
The Defendants Guy Goodwin, William H. Stafford, Jr. and
Stuart J. Carrouth are attorneys with the Department of
Justice and were respousible for conducting the investiga-
tion, the grand jury proceedings and the prosecution of
that case. Defendant Claude Meadow is a special agent of
the Federal Bureau of Investigation and was also involved
in the investigation.
After the Plaintiffs served a notice to take the deposition
of Defendant Guy Goodwin, remaining Defendants moved
for a transfer of venue and for a stay of the deposition
2la
pending a ruling on their motion for transfer. In the alter-
native, Defendants Stafford, Carrouth and Meadow moved
to dismiss and for a stay of Defendant Goodwin’s deposi-
tion pending the filing of and a determination on a Motion
to Dismiss as to Defendant Goodwin on the grounds of
immunity. On July 19, 1974, this Court ordered that the
deposition of Defendant Goodwin be stayed pending a
determination on the question of his immunity from prose-
eution, without prejudice to the pending motions of the
other Defendants.
The Court finds that the Motion to Dismiss filed by
Defendant Guy Goodwin and the Motion to Transfer this
ease to the Northern District of Florida filed by Defendants
Stafford, Carrouth and Meadows are both ripe for deter-
mination. For reasons explained hereinafter, both Motions
must be denied.
In their Complaint, Plaintiffs have alleged that Defend-
ant Goodwin violated their constitutional rights by com-
mitting perjury when questioned under oath by a United
States District Judge concerning the presence of govern-
ment informants in the “defense camp”. Relying upon two
recent eases from the Third Cireuit and several earlier
eases from the Second and District of Columbia Circuits,
Defendant Goodwin moves to dismiss the Complaint as to
him. He contends that as a special attorney of the United
States Department of Justice and federal prosecutor, he
is absolutely immune from any damage claim based upon
his alleged misconduct while acting in his official capacity.
Plaintiffs oppose this Motion and contend that the doc-
trine is inapplicable on the grounds that the alleged mis-
conduet in this ease is heyond the scope of any official duty
and is in violation of federal law. Plaintiffs rely upon
recent cases from the Fourth, Sixth and Seventh Circuits
which reject absolute immnnity and adopt a qualified
22a
immnuity for prosecutors. They contend that the recent
ease of Apton v. Wilson, 165 U.S.App.D.C. —, 506 F.2d
83 (1974), No. 73-1614, decided August 16, 1974, indicates
a trend in this Cireuit toward adopting this developing
analytical view of the doctrine.
After careful analysis of the numerous cases cited
by counsel in this action, the Court concludes that Defend-
ant Goodwin’s Motion to Dismiss for failure to state a
claim upon which relief can be granted based upon absolute
prosecutorial immunity must be denied at this juncture.
As the cases indicate, the doctrine of immunity for quasi-
judicial officers like prosecutors derives from the fact that
in the course of performing their official duties, they often
exercise a discretion similar to that exercised by judges.
The Courts have reasoned that to ensure vigorous and
effective enforcement of the laws, prosecutors should be
protected from possible vindictive lawsuits arising from
their activities in performing that function. This need for
freedom from procedural constraints in performing their
discretionary functions and the built-in safeguards within
the judicial process to check misconduct are together con-
sidered justification for extending the judicial immunity
doctrine to prosecutors.
However, several recent cases indicate that this “quasi-
judicial” immunity is not absolute. Scheuer v. Rhodes,
416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Apton,
supra, Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965) ;
Lewis v. Brautigam, 227 F.2d 124 (5th Cir. 1955); Hilliard
v. Williams, 465 F.2d 1212 (6th Cir. 1972), cert. denied, 409
U.S. 1029, 93 S.Ct. 146, 34 L.Ed.2d 322 (1972). These cases
indicate a growing trend toward determining the applica-
bility of quasi-judicial immunity by analyzing ‘le nature
of the activity being performed. Where performing func-
23a
tions closely aligned with the judicial process such as pre-
senting evidence to the grand jury or prosecuting at trial,
prosecutors still enjoy absolute immunity. But as the
nature of the activity moves further from the judicial
process, the Courts have held that immunity becomes less
functional and is therefore not absolute.
The Defendants reasonably rely upon Cooper »v.
O’Connor, 69 App.D.C. 100, 99 F.2d 135 (1938) and Laugh-
lin v. Garnett, 78 U.S.App.D.C. 194, 138 F.2d 931 (1943) as
authority for their contention that this jurisdiction foliows
the theory of absolute immunity. However, the Court
reads the more recent case of Apton, supra, which inter-
prets Scheuer, supra, as indicating a trend in this Cireuit
to adopt an analytical approach to and a more restrictive
application of the doctrine of quasi-judicial immunity.
Although these recent cases are factually distinguishable
from the ease at hand, the reasoning of the opinions indi-
eates to this Court that assertions of quasi-judicial immu-
nity cannot be rigidly aecepted on their face, but rather an
analysis of the activity being performed at the time the
alleged misconduct occurred is required to determine the
applicability of the doctrine.
Where, as in this case, a prosecutor is alleged to
have committed perjury, an activity beyond the scope of his
authority, in clear violation of law and far removed from
the discretionary areas of the judicial process traditionally
protected by the quasi-judicial immunity doctrine, the
Court concludes that this doctrine is not applicable.
Therefore, Defendant Goodwin’s Motion to Dismiss on
these grounds must be denied.
Tn addition, the Court concludes that the Motion
to Transfer this action in accordance with 28 U.S.C. § 1404
24a
and § 1406 filed by Defendants Stafford, Carrouth and
Meadows must also be denied. Title 28 U.S.C. §1391
(e)(1) provides that proper venue lies where a Defendant
in the action resides. Since Defendant Goodwin’s Motion
to Dismiss has been denied, and he remains in this ¢ ction,
the Court finds venue proper in this District. It is well
established law that a plaintiff’s choice of venue is given
preference and the burden of establishing that an action
should be transferred is on the moving party. 1 Moore’s
Federal Practice § 1.145[5]. The Court finds that Defend-
ants here have failed to meet that burden, and thus their
Motion to Transfer to the Northern District of Florida
must he denied.
Upon the above considerations, it is by the Court this
20th day of November, 1974;
Ordered, that Defendant Guy Goodwin’s Motion to Dis-
miss this action be and hereby is denied; and it is
Further ordered, that the Motion to Transfer filed by
Defendants Stafford, Carrouth and Meadows, be and
hereby is denied.
@ a e
25a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FoR THE District or CoLUMBIA
CIVIL ACTION No. 74-803
—_— ee ee
Joun K. BricGs, eT AL.,
Plaintiff s,
v.
Guy Goopwin, ET AL.,
Defendants.
——
ORDER
Upon consideration of the Alternative Motion of Defend-
ants Stafford, Carrouth and Meadow to Dismiss this Action
as to them for Lack of Jurisdiction over their Persons,
Improper Venue, Insufficiency of Process and Insufficiency
of Service of Process, the memoranda of points and author-
ities in support thereof and in opposition thereto, it appear-
ing to the Court that service of process upon said defend-
ants was made by certified mail; that the Complaint fails to
allege the defendants transacted any business in the District
of Columbia or caused tortious injury to plaintiffs in the
Distriet of Columbia by an act or omission therein as
required by District of Columbia Code § 13-423(a) ; that the
action against said defendants could not have been brought
in this Court prior to the enactment of 28 U.S.C. § 1391(e)
and is not one in essence against the United States as
26a ts
required by § 1391(e) ; and that by reason thereof the Court
lacks venue and in personam jurisdiction with respect to
defendants Stafford, Carrouth and Meadow, service of
process on them was insufficient, and the action as to these
defendants should be dismissed, it is, therefore, by the
Court this 4th day of March 1975:
OrpereD that the Alternative Motion of Defendants Staf-,
ford, Carrouth and Meadow to dismiss this action be, and
the same hereby is, granted; and it is farther
Orperep that this action be, and the same hereby is, dis.
missed as to defendants William H. Stafford, J Ir, Stuart J.
Carrouth, and Claude Meadow.
-
qe
Dated: March 4, 1975
<= =
Avusree E. Rosrson, Jr.
s/
United States District Judge
27a
IN THE UNITED STATES DISTRICT COURT
FOR THE Districr or CoLUMBIA
Civil Action No. 74-803
no
Joun Brices, et al.,
‘ Plaintiff s,
= v.
Gey Goopwix, individually and as Attorney for the
Department of Justice, Division of Internal Security, et al.,
Defendants.
ORDER OF FINAL JUDGMENT AS TO DEFENDANTS
STAFFORD, CARROUTH AND MEADOW
On the prior Order of this Court entered March 4, 1975
dismissing this action as to defendants William H. Stafford,
Jr., Stuart J. Carrouth and Claude Meadow, it appearing
to the Court that there is no just reason for delay in the
entry of final judgment on said Order, and the Court
expressly so determines, it is, therefore, by the Court,
pursuant to Rule 54(b) of the Federal Rules of Civil Pro-
cedure, this 4th day of April, 1975:
Orperep that final judgment be, and the same hereby is,
entered on said Order of March 4, 1975 dismissing this
action as to defendants William H. Stafford, Jr., Stuart J.
Carrouth and Claude Meadow.
/s/ Avsrey E. Rosrnson, Jr.
United States District Judge
28a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE District or CotumMer Circuit
a
September Term, 19
No. 75-1578—Civil 74-803
a
of JouHN BriGGs, ET AL.,
- Appellants,
Vv.
Guy Goopwix, Individually and as Attorney for the
Department of Justice, er at. [Starrorp, er Au. |
oO
APPEAL FROM the United States District Court for the
District of Columbia.
—_—_—_—_—_—EE ee
Berore: McGowan, Ropinson and Wiikey, Cireuit Judges
JUDGMENT
THIS REVUE came on to be heard on the record on appeal
from the United States District Court for the District of
Columbia, and was argued by counsel.
ON CONSIDERATION THEREOF It is ordered and adjudged
by this Court that the judgment 000.00... of the District
Court appealed from this cause is hereby reversed and the
case is remanded to the District Court for further proceed-
ings in accordance with the opinion of this Court filed
herein this date.
Per Curiam
For the Court:
Grorce A. FisHer
George A. Fisher, Clerk
Date: September 19, 1977
Opinion for the Court filed by Cireuit Judge Robinson
UNITED STATES COURT OF APPEALS
FOR THE District or CotumBia Circuit
Filed Sep 21 1977
Georce A. Fisuer, Clerk
29a
APPENDIX E
UNITED STATES COURT OF APPEALS
FoR THE District or CoLumpra CiRcUIT
No. 75-1578
Civil Action #74-803
ee
Joun Bricas, et al.,
Appellants, _
Vv.
Guy Goopwin, Individually and as Attorney for the
Department of Justice, et al.
$$
BeroreE: MeGowan, Robinson and Wilkey, Circuit
Judges
ORDER
Upon consideration of the petition for rehearing filed by
appellees Guy Goodwin, et al, and it appearing that appel-
lees filed a motion to lodge documents in connection with the
petition for rehearing, it is
Orperep by the Court that appellees’ motion to lodge
documents is granted and the Clerk is directed to lodge said
documents, and it is
FurruHer Orperen by the Court that appellee’s petition for
rehearing is denied.
Per Curiam
For the Court:
Gerorce A. Fisuer, Clerk
%
30a
APPENDIX F
UNITED STATES COURT OF APPEALS
FOR THE District or CoLtumBIA CIRCUIT
No. 75-1578
Civil Action #74-803
ee
Joun Bricas, et al.,
Appellants,
v.
Guy Goopwrn, Individually and as Attorney for the
Department of Justice, et al.
Berore: Bazelon, Chief Judge; Wright, McGowan,
Tamm, Leventhal, Robinson, MacKinnon,
Robb and Wilkey, Circuit Judges
ORDER
The suggestion for rehearing en banc filed by appellees
Guy Goodwin, et al, having been transmitted to the full
Court and no Judge having requested a vote with respect
thereto, it is
Orverep by the Court en banc that appellees’ aforesaid
suggestion for rehearing en banc is denied.
Per Curiam
For the Court:
Grorce A. Fisner, Clerk
3la
APPENDIX G
SUPREME COURT OF THE UNITED STATES
No. A-699
i
WituiaM H., Starrorp, JR., ET AL.,
Petitioners,
v.
JoHN Briacas, ET AL.
rn >
ORDER EXTENDING TIME TO FILE PETITION FOR
WRIT OF CERTIORARI -
Upon Consimweration of the application of counsel for
petitioner(s),
Ir Is Orperep that the time for filing a petition for writ
of certiorari in the above-entitled cause be, and the same
is hereby, extended to and including April 30, 1978.
Tue Curer Justice
Chief Justice of the United States
Dated this 23rd day of February, 1978
32a
APPENDIX H
UNITED STATES DISTRICT COURT
SoutrHern District or New York
77 Civ. 1450
OO
Ricwarp Berrtout,
Plaintiff,
—against—
Tar Securities anD ExcHANGE
Commission, et al.,
Defendants.
OO ae
MEMORANDUM AND ORDER
OWEN, District Judge
Before me are three motions. The first is by defendants
to dismiss plaintiff’s complaint seeking declaratory and
injunctive relief, as well as damages, as a result of allegedly
illegal searches and seizures conducted at various offices in
New York and New Jersey in violation of plaintiff’s fourth
amendment rights. The second and third motions are cross
motions having to do with discovery, pro and con.
Turning to the first motion and the declaratory relief
sought in this case—that any use in connection with a civil
or criminal investigation or prosecution of information
garnered or materials seized from the various locations in
New Jersey and New York in alleged violation of plaintiff’s
fourth amendment rights is illegal—it is essentially equiv-
alent to the injunctive relief sought, that is, a prohibition
33a
against the use of any such information or materials. A
grant of declaratory or injunctive relief would in these cir-
cumstances have substantially the same effect as an order
pursuant to Fed. R. Crim. P. 41(e) for the return of the
seized property, which T am denying in a separate memo-
randum and order because of a related criminal indictment
against plaintiff pending in the District of New Jersey.
Tt would be a manifest abuse of discretion for this court
to exercise jurisdiction over the requests for injunctive and
declaratory relief where, as here, to do so would necessarily
be to interfere with criminal proceedings pending in an-
other federal judicial district. See Smith v. Katzenbach,
351 F.2d 810, 816 (D.C. Cir. 1965). Accordingly, defend-
ants’ motion to dismiss plaintiff’s first two prayers for
relief, denominated XIII(a) & (b) in the complaint, is
granted.
Plaintiff’s allegation of $2,000,000 damages is based on
the theory of Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971).' The named defendants move
to dismiss it on the ground that the complaint fails to state
a claim upon which relief may be granted, and defendants
Johnathan L. Goldstein, the United States Attorney for the
District of New Jersey at the time the complaint was filed,
and Charles J. Walsh, an employee of the United States
Attorney for the District of New Jersey, claim in addition
that the court lacks personal jurisdiction over them for
purposes of the Bivens claim because they were not served
1. Plaintiff maintains that the facts pleaded in the complaint also
state a claim for relief under 42 U.S.C. §§ 1985(3) & 1986. There
is no merit to this claim. At the minimum, there must be an allega-
tion, which is lacking here, of some “class-based, invidiously discrim-
inatory animus behind the conspirators’ action.” Griffin v. Breck-
enridge, 403 U.S. 88, 102 (1971) (footnote omitted). In addition,
these sections of Title 42 are inapplicable to federal officials acting
under color of federal law. Williams v. Halperin, 360 F. Supp.
554, 556 (S.D.N.Y. 1973).
34a
within the state and the complaint fails to state facts upon
which the court could assert long-arm jurisdiction over
them pursuant to Fed. R. Civ. P. 4(e) and N.Y.C.P.L.R.
§ 302(a)(2).
The vice of plaintiff’s complaint with respect to the
Bivens cause of action against the eight named defendants
associated with the SEC is that the complaint merely iden-
tifies them as “officials and employees of the SEC,” and
thereafter never refers to any of them again by name.
Instead, plaintiff refers throughout to the “defendants” and
the “defendants acting individually and/or in concert”.
With plaintiff alleging numerous illegal searches and
seizures at various locations over a period of more than
nine months, this tvpe of pleading is obviously unfair and
insufficient. It is impossible for any of the named defend-
ants to know from the complaint exactly what he is being
made to answer for, and where and when the actions com-
plained of against him were taken.
In order to withstand a motion to dismiss a Bivens-based
claim must assert as to each defendant—named or unnamed
—his personal participation in the conduct complained of,
see, e.g., Buck v. The Board of Elections, 536 F.2d 522, 524
(2d Cir. 1976), and just as in the case of a civil rights
complaint brought under 42 U.S.C. $1983 against a state
official, liability may not be predicated merely upon the
doctrine of respondent superior. E.g., Black v. United
States, 534 F.2d 524, 527-28 (2d Cir. 1976); Morpurgo v.
Board of Higher Education, 423 F. Supp. 704, 713-14
(S.D.N.Y. 1976). .
Plaintiff’s conclusory allegations of conspiracies to
deprive him of his fourth amendment rights, lodged against
these defendants without the pleading of overt acts com-
mitted by them in furtherance of the conspiracy, are also
insufficient to state a claim for relief. See Jacobson v.
35a
Organized Crime and Racketeering Section of the United
States Department of Justice, 544 F.2d 637, 639 (2d Cir.
1976), cert. denied, 45 U.S.L.W. 3666 (U.S. Apr. 5, 1977) ;
Powell vy. Workmen’s Compensation Board, 327 F.2d 131,
137 (2d Cir. 1601).
Against these standards it is plain that plaintiff has
failed to state a Bivens claim upon which relief may be
granted against the eight defendants assertedly associated
with SEC.
Of course, the foregoing applies equally well to defend-
ants Goldstein and Walsh. In addition, the allegations
made specifically against them on information and belief,
see J[11 and 53 of the complaint, suffer from the same
infirmity previously discussed—lack of specificity.
Lastly, plaintiff relies on 28 U.S.C. §1391(e) as con-
ferring personal jurisdiction on this court over defendants
Goldstein and Walsh. This section, however, only controls
venue once personal jurisdiction and jurisdiction over the
subject matter are independently established. United
States ex rel. Rudick vy. Laird, 412 F.2d 16, 20 (2d Cir.),
cert. denied, 396 U.S. 918 (1969). Since defendants Gold-
stein and Walsh were not served in the Southern District
of New York and the conclusory allegations of conspiracy
or agency are insufficient to confer long-arm jurisdiction
over them under N.Y.C.P.L.R. § 302, see Lehigh Valley
Industries, Inc. v. Birenbaum, 527 F.2d 87, 89&n.1, 93-94
(2d Cir. 1975), this court must dismiss the Bivens claim
against them on the additional ground of lack of personal
jurisdiction.
Plaintiff has recently apprised the court in an unverified
letter of the names of several of the persons alleged by
him to have actually committed the searches and seizures
complained of. Accordingly, plaintiff will be given leave
to replead against those whom he can properly charge by
36a
name, and plaintiff will also be afforded discovery to the
extent necessary to learn who else, if anyone, was on the
premises allegedly controlled by him and in violation of his
fourth amendment rights.
However, since a substantial criminal prosecution is
facing plaintiff in the District of New Jersey, and since
many, including potentially dispositive threshhold issnes
in the Bivens action will no doubt be determined in the New
Jersey prosecution, this court will defer further proceed-
ings in the instant case until after the pending ‘criminal
charges in the District of New Jersey have been resolved,
both in the interest of judicial economy, see United States
v. American Radiator & Standard Sanitary Corp., 388 F.2d
201, 204 (3d Cir. 1967), cert. denied, 390 U.S. 922 (1968),
and also to protect the government from having to comply
with discovery demands of plaintiff in a civil suit as an ex-
pedient to circumvent the more restrictive diservery appli-
cable rules in criminal cases, e.g., Campbell vy. Eastland,
307 F.2d 478, 487 (Sth Cir. 1962), cert. denied, 371 US.
955 (1963). See United States v. Kordel, 397 U.S. 1, 12
n.27 (1970). Thus, plaintiff’s motion for an order com-
pelling defendants to answer his interrogatories is also
denied, without prejudice.
In sum, plaintiff’s claims for declaratory and injunctive
relief are dismissed, the Bivens claim against all ten named
defendants is dismissed without prejudice and with leave
to replead, provided, however, that further proceedings,
including repleading pursuant to leave, are deferred pend-
ing the outcome of plaintiff’s trial on criminal charges in
the District of New Jersey.
Submit order on notice.
November 4, 1977.
R. Owen
United States District Judge
37a
APPENDIX I
IN THE UNITED STATES DISTRICT COURT
For tHe Western District or TExas
Ext Paso Division
No. EP-77-CA-35
ee
Itsk M. Siater, et al,
Plaintiffs,
v.
Masor Generar C. J. Levan, et al,
Defendants.
OE. ae
MEMORANDUM OPINION AND ORDER
Plaintiffs have filed the instant Complaint alleging that
the Defendants, individually and acting in combination,
conspiracy and concert of action, either murdered Ralph
J. Sigler or placed him in a position of extreme danger
and failed to protect him, in violation of the Fifth Amend-
ment to the Constitution of the United States of America,
and that the Defendants, individually and acting in com-
bination, conspiracy and concert of action, did, in violation
of the Fourth Amendment to the Constitution of the
United States of America, unlawfully seize the papers,
personal property, and memorabilia of Ralph J. Sigler.
Plaintiffs allege that the Defendants, in committing such
actions, were acting in their official capacity or under the
color of legal authority.
388
I.
Plaintiffs’ Complaint asserts that this Court has venue
of this action under 28 U.S.C. §$1391(b) and (e). Those
provisions are:
“(b) A civil action wherein jurisdiction is not
founded solely on diversity of citizenship may be
brought only in the judicial district where all
defendants reside, or in which the claim arose,
except as otherwise provided by law.
(e) A civil action in which each defendant is an
officer or employee of the United States or any
agency thereof acting in his official. capacity or
under color of legal authority, or an agency of the
United States, may, except as otherwise provided
by law, be brought in any judicial district in which:
(1) a defendant in the action resides, or (2) the
cause of action arose, or (3) any real property
involved in the action is situated, or (4) the plaintiff
resides if no real property is involved in the action.
“The summons and complaint in such an action
shall be served as provided by the Federal Rules of
Civil Procedure except that the delivery of the sum-
mons and complaint to the officer or agency as
required by the Rules may be made by certified mail
beyond the territorial limits of the district in which
the action is brought.” 28 U.S.C. § 1391.
Defendant, Mayor Genera C. J. Levan, has moved the
Court to dismiss Plaintiffs’ claim against Levan asserting,
among other things, that Section 1391 does not authorize
maintenance of this suit in the Western District of Texas.
Levan contends specifically that Plaintiffs’ asserted basis
for venue, Section 1391(4) does not apply to a suit against
an individual officer of the United States when that suit
39a
requests relief in the form of money damages for defend-
ant’s individual action.
II.
Plaintiffs’ claim can be summarized as a claim for relief
based on two separate theories. First, Plaintiffs claim
monetary damages resulting from the death of Ralph J.
Sigler because of Defendants’ alleged violation of Ralph J.
Sigler’s rights under the Fifth Amendment to the Constitu-
tion of the United States of America. Second, Plaintiffs
seek to recover Ralph J. Sigler’s papers, chattels, and
memorabilia allegedly wrongfully taken from Ralph J.
Sigler in violation of his rights under the Fourth Amend-
ment to the Constitution of the United States of America.
Plaintiffs’ first claim is for monetary relief and their second
claim is in the form of a request for a mandatory injune-
tion.
Ti.
Defendant Levan contends that 28 U.S.C. §1391(e) is
inapplicable to an action against a Government official for
monetary damages. Defendant argues that, although the
literal reading of the statute provides venue in a district
where the plaintiffs reside, that provision cannot be read
literally, but must be read in conjunction with 28 U.S.C.
§ 1361, providing the District Court of the United States
with jurisdiction over mandamus proceedings against a
Government official.
Plaintiffs respond with the contention that Section
1391(e)(4) provides a basis for venue as it makes no dis-
tinction between actions in the nature of injunction and
mandamus on one hand and actions for monetary damages
on the other hand.
40a
IV.
In support of his argument that Section 1391(e) is in-
applicable to Plaintiffs’ cause of action seeking monetary
relief, Defendant relies most heavily on the case of Natural
Resources Defense Counsel, Inc. v. Tennessee Valley Au-
thority, 459 F.2d 255 (2nd Cir. 1972). In Natural Resources,
plaintiff, a New York resident, sued a defendant whose resi-
dence was established by federal statute in Alabama. Plain-
tiff sought to maintain venue in New York, (plaintiff’s
residence), under 28 U.S.C. § 1391(3) (4). Defendant moved
to dismiss the claim for lack of proper venue, contending
that Section 1391(e) was not intended to apply to an action
against a locally hased federal business corporation such as
the TVA, but only to actions against federal officers or
agencies which, prior to ena¢tment of Section 1391(e) could
have been brought only at the seat of federal government,
in the district court for the District of Columbia.
Tn ruling that Section 1391(e) did not provide a basis for
venue of plantiff’s claim, Chief Judge Friendly made a
searching analvsis of the history and purpose behind that
section. Section 1391(b) was only a part of the Congres-
sional enactment of Public Law No. 87-748, 87th Congress
(1961). The companion statute is codified as 28 U.S.C.
§ 1361, which gives the United States District Court original
jurisdiction of actions in the nature of mandamus to compel
an officer or employee of the United States or any agency
of the United States to perform a duty owed to the plain-
tiff. The Judicial Subcommittee to which the original bill
was referred reported as follows:
“The purpose of this bill is to make it possible to
bring actions against Government officials and agen-
cies in the United States District Courts outside the
4la
District of Columbia, on jurisdiction and venue, may
now be brought only in the U.S. District Court of the
District of Columbia.” H.R. Rep. No. 536, 87th Con-
gress, First Session, page 1.
The need for such legislation arose from the decision in
McIntire v. Wood, 11 U.S. (7 Cranch) 504, 3 L.Ed. 420
(1813), denying to the lower federal courts mandamus
jurisdiction over federal officers, with the exception of man-
damus actions maintained in the District of Columbia.
Kendall v. United States ex. rel. Stokes, 37 U.S. (12 Pet.)
524, 9 L.ied. 1181 (1838). In addition to the unavailability
of the federal district court for mandamus actions, injunc-
tions were permissible only when the superior officer in
Washington was not an indispensable party, as he was the
individual who would be required to take the action re-
quested by the injunction. Williams v. Fanihings, 332 U.S.
490, 493, 68 S.Ct. 188, 189, 92 L.Ed. 95 (1947).
The decision in Natural Resources was based ou the opin-
ion of the United States Court of Appeals for the Second
Cireuit that the specific purpose of Section 1391(e) was to
broaden the venue of civil actions which should have pre-
viously been brought only in the Distriet of Columbia. Jd.
at 259. The Court coneluded that, since the TVA could,
prior to the enactment of Section 1391(e), be sued outside
the District of Columbia, Section 1391(e) was inapplicable
to an action against the TVA. The TVA had always been
subject to suit, with the same venue limitations as other
corporations in any district in which it did business. Jd. at
259.
Defendant Levan concludes, therefore, that an action
against a federal employee in his individual capacity, seek-
ing the remedy of monetary damages, is not governed by
Section 1391(e), as it is not the type of action which could
42a
previously have been brought only in the District of
Columbia.
V.
Plaintiffs contend that the law in Fifth Cireuit, as evi-
denced by Ellinburg v. Connet, 457 F.2d 240 (5th Cir.
1972), dictates that Section 1391(e)(4) provides venue in
the district of plaintiff’s residence for a cause of action
against a federal employee in his individual capacity, seek-
ing monetary relief.
In Ellinburg, petitioner was a prisoner at Texarkana,
Texas, within the Eastern District of Texas. Petitioner
filed a petition for mandamus against several prison offi-
cials residing in Texarkana, requesting that the Court
order the defendant (1) to remove detainers against the
petitioner, (2) to drop the practice of opening Petitioner’s
mail, (3) to grant petitioner the “minimum custody” status,
(4) to stop spying on the prisoners, and (5) to refrain from
serving unequal portions of food to different prisoners.
The trial court dismissed the petition, saying that it was
a habeas corpus petition which must be brought in the dis-
trict where the prison was located.
The United States Court of Appeals for the Fifth Cireuit
concluded that the district court was erroneous in charac-
terizing the petition as a habeas corpus petition, holding
that it was a petition in the nature of mandamus. The
Court then looked to each of the specific venue alternatives
under Section 1391(e). Subsection 1 thereof provides that
the action may be brought in a district where a defendant
resides. None of the defendants resided within the
Northern District; therefore, venue was not proper under
Subsection 1.
Subsection 2 provides that venue is properly laid where
a cause of action arises. Plaintiff’s complaint did not state
ea L ina
43a,
Sia
that any cause of action arose within the Eastern District
of Texas; therefore, venue under Subsection 2 was not
proper.
Subsection 3 provides venue only in a case where real
property is involved. The Court concluded that Subsection
3 was inapplicable.
Subsection 4, providing venue in the place of plaintiff’s
residence, gave rise to the Fifth Circuit’s surmise that
venue may properly have been laid in the Northern District
of Texas. The Court noted that, although petitioner was
incarcerated in Texarkana, within the Eastern District of
Texas, the record did not adequately show whether peti-
tioner may actually have been a resident of the Northern
District of Texas. The Court remanded the case to the
trial court for a determination of whether plaintiff was a
resident of the Northern District.
The opinion in Elliwburg is lacking in analysis of the
purposes and history of Section 1591(e). The Court did
not differentiate between a claim for monetary damages
and a request for mandamus. It is clear from a reading of
the Ellinburg opinion that plaintiff’s original petition con-
tained requests for mandamus and injunctive relief. If
monetary damages were requested, that request was clearly
incidental to plaintiff’s primary remedial request.
The main thrust of the Ellinburg opinion was that the
trial court failed to consider all possibilities for appro-
priate venue, and should have been more deliberate in
broadly construing the pro se complaint of the petitioner.
Plaintiffs cite several district court eases in support of
the proposition that Section 1391(e)(4) provides venue in
the district of plaintiff’s residence in a suit requesting
monetary relief.
Lowenstein v. Rooney, 401 F.Supp. 952 (E.D.N.Y. 1975)
was an action against government officials in Washington,
44a
alleging that those officials took action in Washington, D.C.,
to conspire against the plaintiff and cause him to lose a
Congressional election. Plaintiff’s complaint sought
declaratory and injunctive relief as well as damages.
In determining that venue was properly laid in New
York, the district of plaintiff’s residence, the Court cited
legislative history to the effect that Section 1391(e) (4)
applied to an action where the defendant was allegedly
“acting within the apparent scope of his anthority and not
as a private citizen.” H.R. 1960, 87th Congress, First
Session (1961) ; 7d. at 962. The Court, however, undertook
no analysis of the history or purpose of Section 1391(e),
nor did it address the legislative history providing that the
purpose of that section was to broaden the venue provision
of those actions which previously could have been brouglit
only in the District of Columbia.
The Lowessieim opinion is directly at odds with the
opinion in Natural Resources, and does not attempt to dis-
tinguish Natural Resources or to be compatible with
Natural Resources, although the Court rendering the
Lowenstein decision is within the Second Judicial Cireuit,
the Cireuit which rendered the Natural Resources opinion.
Plaintiffs also rely on Briggs v. Goodwin, 384 F.Supp.
1228 (D.D.C. 1974) and Wu v. Kenny, 384 F.Supp. 1161
(D.D.C. 1974). In Briggs plaintiff brought a suit against
four government attorneys who had been in charge of a
former criminal prosecution against the plaintiffs where
plaintiffs had been acquitted. On a motion by the defend-
ants to transfer the case from Washington, D.C. to North
Carolina,: the Court ruled that Section 1391(e) provided
venue, as it was the place of residence of one of the defend-
ants. There was no discussion of the legislative history of
Section 1391(e). Additionally, the Court was not con-
Pe en ee eee ee
45a
cerned, as is the Court in the instant case, with the subsec-
tion of Section 1391(e) dealing with venue in the place of
Plaintiffs’ residence. There was no discussion of the relief
requested, and whether that relief was monetary or in the
form of injunctive or mandatory relief. The Court merely
concluded that the burden rested upon the Defendants to
show reason why there should be a transfer, and that
Defendants had failed to meet that burden. Jd. at 1230.
In Wu the plaintiff sued the defendants for statements
allegedly made by defendants, which statements lead to
the denial of plaintiff’s application for a grant from the
National Endowment for Humanities. The summons and
complaint were served upon the defendants in the manner
provided in Section 1391(e), that is, by certified mail
heyond the territorial limits of the district in which the
action was brought. The Court rejected the defendants’
contention that Section 1391(e) was inapplicable in a tort
action for damages, and concluded that Section 1391(e) was
applicable, since such actions were “probably not specifi-
eally contemplated by Congress,” but appeared to fall
within the literal bounds of Section 1391(e). Jd. at 1168.
The continuing authority of Briggs and Ww is question-
able in light of dicta from the United States Court of
Appeals for the District of Columbia in Relf v. Gasch, 511
F.2d 804 (D.C. Cir. 1975), stating that Section 1391(e)
applies only if a claim is stated against a federal officer in
his official capacity; in actions involving a federal officer
individually, the rule is not available. Jd. at S08, n. 18.
VI.
The Court finds the decisions in cases limiting the appli-
eability of Section 1391(e) to be the better-reasoned
authority. These decisions thoroughly consider the legis-
lative history of the statutes, analyze the historical inability
46a
to proceed against government officials acting in their offi-
cial capacity, and analyze the distinctions between the
nature of the relief requested by Plaintiffs attempting to
lay venue under Section 1391(e). See Quinata v. Kelly.
430 F.Supp. 1328 (E.D.Pa. 1977); Rimar v. McCowan, 374
F.Supp. 1179 (.D.Mich. 1974); Davis vy. Federal Deposit
Insurance Corp., 369 F.Supp. 277 (D.C.Colo. 1974); and
Holicky v. Selective Service Local Board No, 3, 328 F.Supp.
1373 (D.C.Colo. 1971).
VII.
In Plaintiffs’ claim for deprivation of Fifth Amendment
rights, seeking monetary relief from the Defendants, all
acts alleged to have been committed by the Defendants
occurred outside the Western District of Texas. Plaintiffs
do not claim that a cause of action arose, with respect to
that cause of action, within the Western District of Texas.
The allegations of Plaintiffs’ Complaint are that Mr. Sigler
reported, as ordered by the Defendants, to Ft. Meade,
Maryland where he was subjected by the Defendants to
extensive questioning and various types of threats and
intimidations, the intent and effect of which was to force
Mr. Sigler to end his own life.
Plaintiffs’ asserted basis for jurisdiction is 28 U.S.C.
$1331(a), giving this Court jurisdiction over a cause of
action arising under the Constitution of the United States
of America. In such an action, when jurisdiction is not
founded solely on diversity of citizenship, the appropriate
venue is where all defendants reside, or where the claim
arose, except as otherwise provided by law. Where Court
to construe Section 1391(e), applying to actions against an
officer of the United States, as allowing an action for mone-
tary damages to be brought in the district of Plaintiffs’
residence, the Court would be allowing Section 1391(e) to
47a
expand the venue provision stated in Section 1391(b). In
view of the legislative history of Section 1391(e), the Court
concludes that it was not the intent of Congress to broaden
venue in actions which could previously have been brought
in any district wherein the claim arose.
Prior to the enactment of Section 1391(e), the Plaintiffs
in this type of cause would not have been deprived of a
forum at the place where the claim arose, as they would
have been if the actions were one in the nature of man-
damus or injunction. The Court concludes that it was not
the intent of Congress to broaden venue provisions for an
action requesting monetary damages, as such actions were
not the evils at which Section 1391(e) was aimed.
An additional policy reason for refusing to allow a forum
in the district of Plaintiffs’ residence is the necessity of
having government officials present in the places where
they conduct their day-to-day activities. It is entirely
proper to require a government official to be present at
Court sessions and appear for Court proceedings in a dis-
trict in which that official may have conducted illegal ac-
tivity. However, to require a government official to be sub-
ject to suit at any point where a plaintiff may happen to
reside, merely because that official may have conducted
some activity in the Government’s Capital, would be an
undue burden on those persons who are responsible for
Government operations.
The Court concludes, therefore, that the Western Dis-
trict of Texas is an improper place for the hearing of
Plaintiff’s claim against the Defendants for violation of
Plaintiffs’ Fifth Amendment rights claiming monetary
damages from the Defendants.
48a
VIII.
Defendant Levan does not consent the venue of Plain-
tiffs’ claim for alleged deprivation of Fourth Amendment
rights, which claim seeks relief in the nature of an injunc-
tion against the Defendants. That action is properly main-
tainable in the Western District of Texas, as it is the type
of action at which Section 1391(e) was aimed.
IX.
The Western District of Texas is an appropriate venue
for the maintenance of Plaintiffs’ claim for violation of
Ralph J. Sigler’s Fourth Amendment rights, but is an im-
proper venue for Plaintiffs’ claim of Fifth Amendment
violations.
Under the provisions of 28 U.S.C. § 1406(a), the Court,
if it be in the interest of justice, may transfer a case to
any district or division in which it could have been brought.
The allegations of Plaintiffs’ Complaint are to the effect
that the wrongful death of Ralph J. Sigler occurred at Ft.
Meade, Maryland, and that the Defendants’ actions leading
to Sigler’s death were committed at Ft. Meade, Maryland.
The Court will, therefore, transfer Plaintiffs’ cause of ac-
tion for violations of Fifth Amendment rights to the dis-
trict court of Maryland.
Defendant Levan is the only one of the Defendants who
has moved for dismissal for inappropriate venue. The par-
ties have not briefed the question of transfer of the case
against all Defendants.
The parties have not addressed the question of whether
the Court should transfer the entire case, including the
Fourth Amendment claim, in the interest of justice and for
the convenience of parties and witnesses, pursuant to 28
49a
U.S.C. §1404(a). Under that section, the case may be
transferred to any other district or division where it might
have been brought. The parties have not briefed the ques-
tion of whether Plaintiffs’ claim of seeking the return of
allegedly illegally seized documents might also have been
brought in the district court in Maryland.
The Court, therefore, will withhold the transfer of the
Fifth Amendment claim against Defendant Levan to the
district court of Maryland, will withhold a determination of
whether to transfer the Fifth Amendment claim against the
other Defendants and will withhold a determination of
whether to transfer the Fourth Amendment claim, pending
receipt, from all parties in this cause, of briefs pertaining
to whether the entire action pending in the Western Dis-
trict of Texas should be transferred to the distriet court in
Maryland.
X.
Iv Is TaHererore Orverep that all parties in this cause
file wich the Court, within twenty (20) days of this date,
briefs addressing the issue of whether the Court should, in
addition to transferring Plaintiffs’ Fifth Amendment claim
against Defendant Levan to the district court of Mary-
land, also transfer Plaintiffs’ Fourth Amendment claim and
Fifth Amendment claim against the other Defendants to
the district court of Maryland, pursuant to 28 U.S.C.
§ 1404(a). '
March 22, 1978
WiuiaM S§. Sessions
William S. Sessions
United States District Judge
50a
APPENDIX J
Pending cases of which petitioners are aware in which
the questions presented are being or have recently been
litigated.
1. Blair v. Baumgardner, Civil Action No. 77-C-390
(E.D. Wise.)
2. Halkin v. Helms, Civil Action No. 75-1773 (D.D.C.)
3. The Black Panther Party v. Levi, Civil Action No,
76-2205 (D.D.C.)
4. Sigler v. LeVan, Civil Action No. EP77-CA 35 (W.D.
Tex.)
5. Driver v. Helms, No. 77-1482 (1st Cir.)
6. Todd v. Brown, Civil Action No. 77-185-TUC-MAR
(D. Ariz.)
7. Lamont v. Haig, No. 75-2006 (D.C. Cir.)
8. Guilday v. Department of Justice, Civil Action No.
4578 (D. Del.)
9. MeCarthy v. Jonnard, Civil Action No. 77-695-A
(E.D. Va.)
10. Misko v. United States, Civil No. 77-875 (D.D.C.)
11. Berlin Democratic Club v. Brown, No. 310-74
(D.D.C.)
12. Horman v. Kissinger, Civil Action No. 77-1748
(D.D.C.)
13. Mason v. Clayton, Civil Action No. 77-0995 (D.D.C.) -
14. Bertoli v. SEC, 77 Civ. 1450 (S.D.N.Y.)
15. National Lawyers Guild v. Attorney General, 77
Civ. 999 (S.D.N.Y.)
16. LaRouche v. Kelley, 75 Civ. 6010 (S.D.N.Y.)
17. Clavir v. United States, 76 Civ. 1071 (S.D.N.Y.)
5la
APPENDIX K
THE FEDERAL STATUTES CONTAINING
PROVISIONS FOR NATIONWIDE SERVICE
OF PROCESS
1. Actions under the Federal Interpleader Act, 28
U.S.C. §§ 1335, 1397, 2361: The res is within the forum
and is the subject matter of the litigation. It provides a
fair basis for summoning the claimants into the forum to
determine their respective rights thereto. See Shaffer v.
Heitner, supra, at pp. 208-09, and n. 37.
2. Actions seeking to assert rights in property where
the defendant cannot be served within the state or does not
voluntarily appear, 28 U.S.C. § 1655: See paragraph 1
above.
3. Process against the corporation in a shareholder’s
action, 28 U.S.C. § 1695: The corporation in a derivative
suit is a nominal party defendant and is the real party,
in interest on the plaintiff side. The nominal plaintiff
has on behalf of the corporation selected the forum pre-
sumably having the best reach for the real defendants in
mind.
4. Injunction actions by the United States under Sec-
tion 5 of the Sherman Act and Section 15 of the Clayton
Act, 15 U.S.C. §§ 5, 25: In antitrust conspiracy cases addi-
tional defendants may be summoned whether or not they
reside in the district but only when the court finds “that the
ends of justice require” [emphasis ours] that they be
brought in. In these cases the out-of-state defendant must
be added because it is claimed that he acted in combination
with the in-state defendant or defendants already before
the court. The combination in vioiation of the antitrust
d2a
laws must, at least at one end, have been committed in the
forum state pursuant to the agreement of the out-of-state
defendant.
5. Actions against corporations under the antitrust
laws, 15 U.S.C. § 22: This statute specificially limits the
districts in which suit ean be brought to the district whereof
the corporation is an inhabitant, may be found or transacts
business. In any such instance the demands of due process
are met since the corporate defendant would have “mini-
mum contacts” with each such district.
6. Actions in which a receiver is appointed and the land
or other property of a fixed character, the subject of the
action, lies within different districts, process may issue and
be executed in any such district, 28 U.S.C. § 1692: See para-
graph 1 above.
7. In certain actions wider the interstate commerce
laws pursuant to 28 U.S.C. § 2321 and 49 U.S.C. §§ 20, 23,
43: Section 2321 of Title 28 applies only to actions brought
by the United States (28 U.S.C. § 2322) to enforce Inter-
state Commerce Commission orders and permits process
of district courts to run nationwide. ICC orders support
a nationwide structure of operations adequate to meet the
International Shoe test. ICC regulated carriers operate
under licenses which may be properly made conditional
upon a submission to nationwide jurisdiction. Shaffer v.
Heitner, supra at 216.
8. Actions by a naiional banking association under the
provisions of chapter 2 of Title 12, to enjoin the Comp-
troller of Currency, or any receiver acting under his direc-
tion, First National Bank of Caton v. Comptroller of the
Currency, 252 U.S. 504 (1919); 28 U.S.C. § 1394: Sueh
actions are brought to enjoin a banking official of the
53a
United States with nationwide responsibilities and, by
reason thereof, such official is “present” in the district of
any bank subject to the exercise of his regulatory authority.
9. Actions against officers of the United States, 28
U.S.C. §1391(e): This, of course, is the subject of this
petition.
10. Actions brought in the name of the United States
on bonds of contractors for public buildings or works, 40
U.S.C. § 270(b): Such suits on construction contract bonds
are authorized in the district in which the contract was to
be performed and executed. One who bonds such a contract
would certainly have the necessary “minimum contacts”
with the jurisdicion where the contract is to be performed.
ll. Actions brought under the Securities Act of 1933
and the Securities Exchange Act of 1934, 15 U.S.C.
§§ 77v(a), 78aa: These statutes specifically limit the dis-
tricts in which suit can be brought to the districts where
the defendant is found, or is an inhabitant, or transacts
business, or where an offer or sale of securities took place,
if the defendant participated therein. In any such instance
the demands i due process are met since the defendant
would have “minimum contacts” with each such district.
12. Actions under the Investment Company Act of 1940,
15 U.S.C. § 80a-43: This statute specifically limits the dis-
trict in which suit can be brought to the district where the
defendant is an inhabitant or transacts business. The
demands of due process are met since the defendant would
have “minimum contacts” with such districts.
13. Actions under the Public Utility Holding Company
Act of 1935, 15 U.S.C. §79y: See paragraph 12 above.
14. Actions against the Secretary of Health, Education
and Welfare to review benefits wnder the Social Security
Act, 42 U.S.C. § 405(g): See paragraph 8 above. In addi-
tion, such an action is “nominally” against the Secretary,
and “in essence” against the United States.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.