Petition — Helms v. Driver
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Supreme Court, U. 8,
ee a ec a ED
IN THE AUG 23 i978 |
j
Supreme Court of the Unite aE a
October TERM, 1978 nse Ft
No. a
° 78-310
RicHarpd HELMS, ET AL.,
Petitioners,
v.
Ropney D. Driver, ET AL.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Of Counsel: Watrer H. FLEeIscHer
CoLE AND Aurrep F. BeL_cuore
Groner, P.C. 1730 K Street, N.W.
Washington, D.C. 20006
Attorneys for Petitioner
Richard Ober
Of Counsel: Cuarctes R. DonNENFELD
Scuwats & 1828 L Street, N.W.
DoNNENFELD Washington, D.C. 20036
Of Counsel: Guy J. Weits
Gunnine, LaFazia © 419 Turks Head Building
& Guys, Inc. Providence, Rhode Island 02903
Attorneys for Petitioner
Richard Helms
[ Additional Counsel Listed Inside Front Cover]
Press or Braon S. ADAMS PaRintine, INc., WASHINGTON, D. C.
IN THE
Supreme Court of the United States
OctToBER TERM, 1978
No. 78-310
RicHarD HELMS, ET AL.,
Petitioners,
%
TV,
Ropney D. Driver, ET AL.,
Respondents.
On page 6 of the Petition for a Writ of Certiorari to
the United States Court of Appeals for the First Cir-
cuit filed by Petitioners Richard Helms, et al., the first
complete sentence (beginning on line 2) should read
as follows:
Moreover, the Committee Reports repeatedly state
that, in addition to suits against persons in their
official capacities, § 1391(e) encompasses those
‘‘which are in essence against the United States’’
and ‘‘nominally brought against the officer in his
individual capacity”’ ‘‘only to circumvent what
remains of the doctrine of sovereign immunity.”’
H. Rep. No. 536, 87th Cong., Ist Sess. 4 (1962).
Respectfully submitted,
Of Counsel: Watrer H. FietscHer
CoLk AND Aurrep F. BeL_cuorr
Groner, P.C. 1730 K Street, N.W.
Washington, D.C. 20006
Attorneys for Petitioner
Richard Ober
Of Counsel:
Scuwats &
DonNENFELD
Of Counsel:
Gunninea, LAF azia
& Guys, Inc.
Of Counsel:
CADWALADER,
WIcKERSHAM
& Tarr
Of Counsel:
Hinckuey, ALEX,
Sauissury &
Parsons
Of Counsel:
Swan, JeNncKEs,
Asquitw & Davis
Of Counsel:
Hiaeins, CAVANAGH
& CoonryY
Of Counsel:
. Breep, Assorr
& Morcan
Cuaries R. DonNENFELD
1828 L Street, N.W.
Washington, D.C. 20036
Guy J. Weis
419 Turks Head Building
Providence, Rhode Island 02903
Attorneys for Petitioner
Richard Helms
Prrer Mecarcrr: Brown
Kart H. Nemser
One Wall Street
New York, New York 10005
Guorce M. Verrer, Jr.
2200 Industrial Bank Building
Providence, Rhode Island 02903
Attorneys for Petitioners
James R. Schlesinger,
Robert E. Cushman, Jr.
Ilanry W. AsquitH
Kpwarp W. Moses
911 Turks Head Building
Providence, Rhode Island 02903
Attorneys for Petitioners
William F. Raborn, Jr., Rufus L.
Taylor, Richard M. Bissell, Jr.,
Cord Meyer, Thomas Karamessines,
James R. Murphy, William J. Hood
JosepH V. CavANAGH
600 Turks Head Building
Providence, Rhode Island 02903
Attorney for Petitioners
Howard J. Osborn, Winton M.
Blount, Elmer T. Klassen,
L. Patrick Gray, Lawrence F.
O’Brien
JosePpH P. Damrey
One Chase Manhattan Plaza
New York, New York 10005
Attorney for Petitioner
Lawrence F. O’Brien
TABLE OF CONTENTS
Page
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Aprenpix A—Opinion and Judgment of the United
States Court of Appeals for the First Cireuit .... la
Appenpix B—Opinion and Order of the United States
District Court for the District of Rhode Island .. 22a
Aprenpix C—Constitutional and Statutory Provisions
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AUTHORITIES CITED
Page
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Dandridge v. Williams, 397 U.S. 471 (1970) ......... 5
Kulko v. Superior Court of California, 434 U.S. 983
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Langnes v. Green, 282 U.S. 531 (1931) ........-...-- 5
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Shaffer v. Heitner, 433 U.S. 186 (1977) ..........--. 8
ii Authorities Cited—Continued
Smith v. Campbell, 450 F.2d 829 (9th Cir. ) st 7
Stafford v. Briggs, petition for cert. filed, 46 U.S.L.
3694 (U.S. April 28, 1978) (Now 71 t45) _— . §
Strunk v. United States, 412 U.S. 434 (EOD sks cone 5
Umited States v. Scophony Corp., 333 U.S. 795 (1948) 7
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MISCELLANEOUS:
Hearings on H.R. 10089 Before The H .
the Judiciary, June 2, 1960 - . a a. er . 6
H.R. Rep. No. 536, 87th Cong., 1st Sess. 0): ae 6,7
S. Rep. No. 1992, 87th Cong., 2d Sess. ( SpGee Bas <ckas 5
Stern, When to Cross-Appeal or Cross-Petition—Cer-
tainty or Confusion?, 87 Harv. L. Rev. 763 (1974) 5
IN THE
Supreme Court of the United States
OctoseR TERM, 1978
No.
RicHARD HELMS, ET AL.,
Petitioners,
V.
Ropney D. DRIVER, ET AL.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
To the Honorable the Chief Justice of the Umted
States and the Associate Justices of the Supreme
Court of the United States:
Petitioners, Richard Helms, James R. Schlesinger,
Robert E. Cushman, Jr., William F. Raborn, Jr.,
Rufus L. Taylor, Richard M. Bissell, Jr., Cord Meyer,
Thomas Karamessines, Richard Ober, William Hood,
James Murphy, Howard J. Osborn, Winton M. Blount,
Elmer T. Klassen, L. Patrick Gray, and Lawrence F.
O’Brien, respectfully pray that a writ of certiorari
issue to review the Judgment and Decision of the
United States Court of Appeals for the First Circuit
entered herein on May 25, 1978, but only if the Court
grants the petition for a writ of certiorari that Re-
spondents Rodney Driver, e¢ al., are expected to file.
2
OPINIONS BELOW
The Opinion of the Court of Appeals (Appendix A,
infra, p. la) is reported at 577 F.2d 147. The Opinion
of the District Court (Appendix B, infra, p. 22a) is
reported at 74 F.R.D. 382.
JURISDICTION
The Judgment of the Court of Appeals was entered
on May 25, 1978 (Appendix A, infra, p. 21a). The
jurisdiction of this Court is invoked pursuant to 28
U.S.C. § 1254(1).
QUESTIONS PRESENTED
1. Whether 28 U.S.C. § 1391(e) grants the United
States District Courts personal jurisdiction over Fed-
eral officials, sued individually for money damages,
who have no sustantial contacts with the State in
which the District Court sits.
2. Whether 28 U.S.C. §1391(e) is a jurisdictional
statute, rather than merely a statute providing
‘venue, in suits brought against Federal officials.
3. Whether, if construed to permit nationwide ju-
risdiction over defendants sued for money damages
who have no substantial contacts with the forum State,
28 U.S.C. § 1391(e) would violate the due process clause
of the Fifth Amendment to the United States Con-
stitution.
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
The provisions of the Fifth Amendment to the
United States Constitution and of the Mandamus and
Venue Act of 1962, as amended, are set forth in Ap-
pendix C, infra, p. 70a.
3
STATEMENT
This conditional cross-petition for a writ of cer-
tiorari is filed for various Defendants below, whom the
Court of Appeals for the First Circuit has held are
not subject to persona! jurisdiction and venue in the
United States District Court for the District of Rhode
Island under 28 U.S.C. § 1391(e).* This suit was insti-
tuted in that District by several individuals, complain-
ing that their international mail had been opened
during the period from 1953 to 1973, in a mail intercep-
tion program operated by the Central Intelligence
Agency. Alleging Federal jurisdiction pursuant to 5
U.S.C. § 702 and 28 U.S.C. §$§ 1331 (a), 1339, 1343, and
1361, Plaintiffs sued approximately 30 individuals
who are, or at various times in the last 20 years were,
officials of the Post Office Department, the Central
Intelligence Agency, the Department of Justice, or
other agencies of the Executive Branch. The essential
claim of Plaintiffs was that the mail interception pro-
gram violated their rights under the First, Fourth,
Fifth, and Ninth Amendments. The suit purported to
be brought against the individuals in their individual,
as well as official or former official, capacities. Plain-
tiffs demand money damages from these Defendants
personally, totalling seve al billion dollars.
Defendants moved to dismiss on the grounds, pri-
marily, of lack of personal jurisdiction, relying upon
their essential lack of any personal contacts with the
1 Richard Helms, James R. Schlesinger, Robert E. Cushman, Jr.,
William F. Raborn, Jr., Rufus L. Taylor, Richard M. Bissell, Jr.,
Cord Meyer, Thomas Karamessines, Richard Ober, William Hood,
James Murphy, Howard J. Osborn, Winton M. Blount, Elmer T.
Klassen, L. Patrick Gray, and Lawrence F. O’Brien.
4
forum State, Rhode Island.’ The District Court denied
Defendants’ motions, on the ground that 28 U.S.C.
§ 1391(e) provided for nationwide jurisdiction, venue,
and service of process over all Federal officials, past
and present, for actions arising out of their Govern-
ment service, including actions brought against them
in their individual capacities. 74 F.R.D. 382 (D.R.I.
1977).
On an interlocutory appeal certified by the District
Court pursuant to 28 U.S.C. § 1292(b), the Court of
Appeals for the First Circuit ruled that, although
§ 1391(e) provides personal jurisdiction over present
Federal officials sued for damages in their individual
capacities, irrespective of their lack of contacts with
the forum State, it does not so provide jurisdiction
over former officials or officials who at the time the
suit was brought were not serving the Government
in the capacity in which they performed the acts on
which their alleged liability is based. In its opinion,
the First Circuit, inter alia, rejected Defendants’ con-
tention that to construe § 1391(e) as subjecting them
to damage suits throughout the nation would render
it unconstitutional.
We are advised that Plaintiffs will likely file a pe-
tition for a writ of certiorari. This conditional cross-
petition is filed on behalf of 16 of those Defendants
who at the time this action was brought no longer were
employed by the Federal Government, or no longer
were employed in the capacity in which they performed
the acts on which the suit was brought.
?One Defendant did not so move, because he fortuitously had
become a resident of Rhode Island. Other Defendants moved to
dismiss on grounds of lack of service of process.
5
REASONS FOR GRANTING THE WRIT
Cross-Petitioners intend to oppose any petition for
a writ of certiorari filed by Plaintiffs Driver, et al.
However, if, but only if, this Court should grant such
a petition, Cross-Petitioners respectfully request that
the Court consider as well the additional issues pre-
sented by this cross-petition. Indeed, the issues here
presented are legal ones so closely related to the ones
presented by Plaintiffs that if certiorari were granted
at Plaintiffs’ behest, they could well be considered
without the necessity of a cross-petition.* Nonetheless,
out of an abundance of caution, this cross-petition is
filed to preserve the rights of these Defendants who pre-
vailed below.
In the circumstances we point out the following rea-
sons why, if a petition of Plaintiffs should be granted,
the additional issues here presented also should be
considered :
1. There is substantial reason to believe that the
Court of Appeals erred in concluding that 28 U.S.C.
§1391(e) applies to suits brought against officials
in their individual capacities to recover damages from
them. For example, the Committee Reports upon the
1962 Bill, which included what is now § 1391(e), em-
phatically state that that provision ‘‘is intended to
facilitate review by the Federal courts of administra-
tive actions’? (S. Rep. No. 1992, 87th Cong., 2d Sess.
2 (1962)). Damage suits such as this one in no
’ Compare Langnes v. Green, 282 U.S. 531, 538-39 (1931) and
Dandridge v. Williams, 397 U.S. 471, 475-76 n. 6 (1970), with
Strunk v. United States, 412 U.S. 434 (1973) ; see generally Stern,
When to Cross-Appeal or Cross-Petition—Certainty or Confusion?,
87 Harv.L.Rev. 763 (1974).
6
realistic sense are ones to ‘‘review . . . administrative
actions.’’ Moreover, the Committee Reports repeatedly
state that, in addition to suits against persons in their
official capacities, § 1391(e) encompasses those ‘‘which
are in essence against the United States’’ and ‘‘nom-
inally brought against the officer in his official capacity”
‘fonly to circumvent what remains of the doctrine of
sovereign immunity.’’ H. Rep. No. 536, 87th Cong., 1st
Sess. 3 (1962). Suits like this, designed to recover
damages out of the officer’s own pocket, are not ‘‘in
essence against the United States” and do not meet
the description set forth in the Committee Reports. In
the Hearings on the Bill that became § 1391(e), its
sponsor, Rep. Hamer Budge, stated ‘‘. . . I have no
intention of bringing tort actions against individual
government employees. All I am seeking to do is to
have the review of their official actions take place in
the United States District Court where the determi-
nation was made.’’ Unpublished Hearings before
House Comm. of the Judiciary on H.R. 10089, June 2,
1960, p. 102.
These are but some of the materials supporting the
view that damages suits aimed at the individual are
not within the ken of § 1391(e). In any event, if it
considers this case on Plaintiffs’ petition, the Court
undoubtedly will review the same statutory provision,
and the same legislative history. Should it undertake to
decide whether § 1391(e) applies to ‘‘former” officials,
the Court seemingly should decide whether it applies to
this kind of suit at all.
2. To reach the issues presented by Plaintiffs’ pe-
tition, the Court also logically should consider whether
§ 1391(e) grants jurisdiction over the person at all, or
instead is simply a venue provision. The statute in
7
which it was adopted was denominated the ‘‘Man-
damus and Venue Act of 1962’’ (emphasis added). The
subsection at issue deliberately was placed by Con-
gress among the venue provisions of the United States
Code. The pertinent Committee Reports state that
‘‘Section 2 [now 28 U.S.C. §1391(e)] is the venue
section of the bill,’’ and repeatedly refer to ‘‘the venue
problem”’ and ‘‘the current state of the law respecting
venue’”’ (H. Rep. No. 536, supra at 2-3). Other courts
have viewed §1391(e) as a venue provision alone.
E.g., Rudick v. Laird, 412 F.2d 16, 20 (2d Cir.), cert.
denied, 396 U.S. 918 (1969); Smith v. Campbell, 450
F.2d 829, 834 (9th Cir. 1971). This related question
is one at least as doubtful, and at least as worthy of
consideration by this Court, as any which Plaintiffs
may raise. Once again, it is a matter of construction
of the same statutory provision, and review of the
same legislative history, based on the same record, as
would be involved should Plaintiffs’ petition be
granted.
3. The Court of Appeals’ holding that § 1391(e)
may constitutionally be applied to provide personal
jurisdiction in damage suits against officials who have
no substantial contacts with the forum also is highly
doubtful. The question was reserved in United States
v. Scophony Corp., 333 U.S. 795, 840 n.13 (1948).
Should the Court grant a petition filed by Plaintiffs, it
should review as well the holding of the Court of
Appeals on the constitutional issue—a holding that
subjects individuals to personal jurisdiction in Fed-
eral courts in circumstances in which such an exercise
by a State court unquestionably would violate due
process of law. E.g., Kulko v. Superior Court of Cals-
8
fornia, 434 U.S. 983 (1978); Shaffer v. Heitner, 433
U.S. 186 (1977).*
CONCLUSION
The petition for a writ of certiorari should be
granted, but only if the Court grants the petition to
be filed by Respondents.
Respectfully submitted,
Of Counsel: Water H. Fetscuer
CoLe AND Aurrep F, Be.cuore
Groner, P.C. 1730 K Street, N.W.
Washington, D.C. 20006
Attorneys for Petitioner
Richard Ober
Of Counsel: CuarLes R. DonnENFELD
Scuwats & 1828 L Street, N.W.
DoNNENFELD Washington, D.C. 20036
Of Counsel: Guy J. Wetts
Gunwninoe, LaF azia 419 Turks Head Building
& Gwys, Inc. Providence, Rhode Island 02903
Attorneys for Petitioner
Richard Helms
*This issue is presented by a petition for a writ of certiorari
now pending before this Court in Stafford v. Briggs, petition for
cert. filed, 46 U.S.L.W. 3694 (U.S. April 28, 1978) (No. 77-1545).
Of Counsel:
CADWALADER,
WICKERSHAM
& Tarr
Of Counsel:
Hinckuiey, ALLEN,
Sauisspury &
Parsons
Of Counsel:
Swan, JENCKES,
Asquitn & Davis
Of Counsel:
Hieorns, CavaANaGH
& Coonry
Of Counsel:
Breep, AsBott
& Morcan
9
Peter Mecarcee Brown
Eart H. Nemser
One Wall Street
New York, New York 10005
Grorce M. Verrer, JR.
2200 Industrial Bank Building
Providence, Rhode Island 02903
Attorneys for Petitioners
James R. Schlesinger,
Robert E. Cushman, Jr.
Harry W. Asquitrn
Epwarp W. Moses
911 Turks Head Building
Providence, Rhode Island 02903
Attorneys for Petitioners
William F. Raborn, Jr., Rufus L.
Taylor, Richard M. Bissell, Jr.,
Cord Meyer, Thomas K aramessines,
James R. Murphy, William J. Hood
JosepH V. CavaANaGH
600 Turks Head Building
Providence, Rhode Island 02903
Attorney for Petitioners
Howard J. Osborn, Winton M.
Blount, Elmer T. Klassen,
L. Patrick Gray, Lawrence F.
O’Brien
JosepH P. Damey
One Chase Manhattan Plaza
New York, New York 10005
Attorney for Petitioner
Lawrence F. O’Brien
APPENDIX
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 77-1482
Ropney D. Driver, et al.,
Appellees,
v.
Ricuarp Hews, et al.,
Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
{Hon. Raymonp J. Pertine, U.S. District Judge]
Before Corrin, Chief Judge
CAMPBELL AND Bowness, Circuit Judges.
Walter H. Fleischer, Donald J. Cohn and Jacquelin A.
Swords, with whom Earl Nemser, Cadwalader, Wicker-
sham & Taft, George M. Vetter, Jr., Hinckley, Allen, Salis-
bury & Parsons, Seymour Glanzer, Kenneth Adams, Joel
Kleinman, Dickstein, Shapiro & Morin, James V. Kearney,
Nancy E. Friedman, Webster & Sheffield, Alan T. Dworkin,
Aisenberg & Dworkin, Joseph V. Cavanagh, Higgins,
Cavanagh & Cooney, Charles R. Donnenfeld, Cameron M.
Blake, Rodney F. Page, Arent, Fox, Kintner, Plotkin @
Kahn, Guy J. Wells, Gunning, LaFazia & Gnys, Inc., Al-
fred F. Belcuore, Cole and Groner, P.C., Harry W. As-
quith, Edward W. Moses, Swan, Kenney, Jenckes ¢ As-
2a
quith, Wallace L. Duncan, Duncan, Brown, Weinberg &
Palmer, Joseph Dailey and Breed, Abbott € Morgan were
on briefs, for appellants.
Melvin L. Wulf, with whom Clark, Wulf & Levine, Burt
Neuborne, Richard W. Zacks, Winograd, Shine & Zacks,
and Joel M. Gora were on brief, for appellees.
Barbara Allen Babcock, Assistant Attorney General,
Lincoln C. Almond, United States Attorney, Robert E.
Kopp and Paul Blankenstein, Attorneys, Appellate Sec-
tion, Civil Division, Department of Justice, on brief for
United States, amicus curiae.
May 25, 1978
Corrin, Chief Judge. Plaintiffs-appellees brought this
action in 1975 in the federal district court for the district
of Rhode Island on behalf of themselves and others simi-
larly situated. Their complaint alleges that the defendants-
appellants’ illegally interfered with their mail, thereby
violating appellees’ rights under the First, Fourth, Fifth,
and Ninth Amendments. The suit seeks damages and dec-
laratory and injunctive relief. Subject matter jurisdiction
was invoked under 28 U.S.C. §§ 1331(a), 1339, 1343, 1361,
and 5 U.S.C. § 702.
Appellants are 25 present or former United States gov-
ernment officials, each sued in his individual and in his
official or former official capacity. One of the named
plaintiffs, Driver, lives in Rhode Island,? but none of the
appellants reside in or have substantial contacts with
Rhode Island, and the complaint does not allege that any
illegal activity occurred in Rhode Island.* Therefore, venue
* Other defendants in the case below are not parties to this appeal.
* The other named plaintiffs are residents of New York, Minne-
sota, Connecticut, and California.
* The illegal interference with appellees’ first-class mail is alleged
to have occurred in New York City.
3a
is not proper under 28 U.S.C. §1391(b), and, since none
of the appellants were served within Rhode Island,* serv-
ice of process was inappropriate under F. R. Civ P. 4(f).
Appellees invoke 28 U.S.C. §1391(e) to support venue
and service of process:°
‘¢A civil action in which each defendant is an of-
ficer 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 sit-
uated, 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 re-
quired by the rules may be made by certified mail be-
yond the territorial limits of the district in which the
action is brought.’’ °
‘The appellants each were served by certified mail outside Rhode
d.
* Appellees also suggested that Rhode Island’s long arm statute
supplied jurisdiction. R.I. Gen. Laws § 9-5-33 (1956). See Driver
v. Helms, 74 F.R.D. 382, 400 n. 23 (D. R.I. 1977). This issue is
not presented by this appeal.
28 U.S.C. § 1391(e) was amended in 1976. The word ‘‘each’’
was changed to ‘‘a’’ in the first sentence, and the following sen-
tence was added to the end of the first paragraph :
‘‘ Additional persons may be joined as parties to any such
action in accordance with the Federal Rules of Civil Pro-
cedure and with such other venue requirements as would be
applicable if the United States or one of its officers, em-
ployees, or agencies were not a party.’’
P.L. 94-574, § 3, 90 Stat. 2721 (Oct. 21, 1976).
4a
Appellants filed motions to dismiss under Federal Rules
of Civil Procedure 12(b)(2) (lack of jurisdiction over the
person), 12(b)(3) (improper venue), and 12(b)(4) (insuf-
ficiency of process). The district court denied these mo-
tions, but certified that the questions involved controlling
issues of law as to which there is substantial ground for
difference of opinion and that an immediate appeal could
materially advance the litigation. Driver v. Helms, 74
F.R.D. 382, 401-02 (D. R.I. 1977). We thus have appellate
jurisdiction under 28 U.S.C. § 1292(b).
Appellants argue that 28 U.S.C. §1391(e), contrary to
the holding of the district court, does not give venue to
the district court in Rhode Island, does not give the court
jurisdiction over the persons of the appellants, and does
not authorize the service of process on these appellants.
They argue that-reliance on § 1391(e) is misplaced because
that section does not apply to former officials, does not
apply to suits against officials for damages in their indi-
vidual capacities, and does not independently supply in
personam jurisdiction.
Tue Former Orricrats
Ordinarily the plain meaning of the language of a stat-
ute is controlling. See Massachusetts Financial Services,
Inc. v. Securities Protector Investor Corp., 545 F.2d 754,
796 (1st Cir. 1976). Section 1391(e) applies, by its terms,
when a ‘‘defendant is an officer or employee of the United
States . . . acting in his official capacity or under color
of legal authority ....’’ (emphasis added) Because the
operative languge is in the present tense, we read the sec-
tion to exclude a defendant who was an officer or employee.
‘Of course, deference to the plain meaning rule should
not be unthinking or blind. We would go beyond the plain
meaning of statutory language when adherence to it would
produce an absurd result or ‘an unreasonable one ‘*plainly
at variance with the policy of the legislation as a
whole.” ’’? Massachusetts Financial Services, supra, 545
5a
2d at 756, ting United States v. American Trucking
piesa Ine, 310 U.S. 534, 543 (1940), quoting Ozawa v.
United States, 260 U.S. 178, 194 (1922); cf. Natural Re-
sources Defense Counsel v. TVA, 459 F.2d 255, aor (2d
Cir. 1972) (eschewing the ‘‘tyranny of literalness ). ai
do not, however, find any indication in the statute itse
or in the legislative history that former officials were meant
to be included. We are not alone in this conclusion. See
Kipperman v. McCone, 422 F. Supp. 860, 876 (N.D. M3
1976); Wu v. Keeney, 384 F. Supp. 1161, 1168 (D. D.C.
1974).
ses that have reached a contrary result have de-
sshatt that excluding former officials would undercut the
policies of § 1391(e). See Driver v. Helms, supra, 74 F.B.D.
at 398-400; United States v. McAmmch, 435 F. Supp. 240,
245 (B.D. N.Y. 1977) ; Lowenstem v. Rooney, 401 F. Supp.
952, 962 (E.D. N.Y. 1975). We do not think it absurd or
plainly at variance with the policies of § 1391(e) to limit
it to those who are government officials at the time the
action is brought.* We are unimpressed by the specter of
government officials resigning their positions simply be-
cause they fear an action might be brought against them.
As the court below noted, resignation would not terminate
their liability. See Driver v. Helms, supra, 74 F.R.D. at
399-400. The most an official could gain would be to avoid
i hen aid to construction of the meaning of words, as
used rine statute, is available, there certainly can be no rule
of law’ which forbids its use, however clear the words may aon
on ‘superficial examination.’ ”’ United States v. Culbert, J tae
L.W. 4259, 4260 n. 4 (U.S. March 28, 1978), quoting Un an
States v. American Trucking Ass’ns, Inc., 310 U.S. 534, 543
(1940).
i i hear-
® We do not focus on a later time, such as the time when a
ing is held or a decision issued, because the statute speaks to the
ability to bring an action. Moreover, if a court were not able to
determine venue at the time an action is brought, judicial processes
could be thrown into chaos by mobile litigants.
6a
venue in the district where a plaintiff lives. A career in
government service is, one would think, a disproportionate
sacrifice to make for so small a gain. Moreover, we are not
persuaded that Congress’ desire ‘‘to provide readily avail-
able, inexpensive judicial remedies for the citizen who is
aggrieved by the workings of government”, H. Rep. No.
536, 87th Cong., Ist Sess. 3 (1961) [hereinafter referred to
as House Report], indicates that Congress meant § 1391 (e)
to provide a net that could draw everyone connected
with a governmental action into litigation in a particular
district. For instance, those who were never government
officials but are defendants in a law suit clearly cannot be
reached by § 1391(e).° In fact there is a clear indication in
the legislative history that Congress did not mean to
reach at least those former officials who have moved away
from Washington.” Therefore, we reverse the district
court as to this point and hold that §$1391(e) does not
apply to those defendants who, at the time this action was
brought, were not serving the government in the capacity
in which they performed the acts ' :
liability is based." on which their alleged
®°That such defendants may exist is indi
amendment. See note 6, supra. r =: neionien hy, the Sa78
7° *<Phis bill is not intended to give
to an action which cannot now . sehr nanan « Pela,
ficial in the U.S. District Court for the District of Columbia.”’
H. Rep. No. 536, 87th Cong., Ist Sess. 2 (1961). Prior to 1962
cag Der bill was passed) former officials who had moved away
me ington would not have been subject to suit in Wash-
™ The act is directed at officials “‘acti
legal authority’. Since official acts death then ean
venue, and since we have concluded that this exposure terminates
when the official leaves office, it would be anomalous to hold that
one of the appellants serving the government in a different ca
city is nonetheless still exposed to national venue and Nathan of
process. As to the act or omission that exposed him to liability,
Ta
PrersonaL Damace AcTIONS
The next issue we must face is whether §1391(e) ap-
plies to actions for damages against officials in their in-
dividual capacities. Section 1391(e) was passed, together
with 28 U.S.C. § 1361, as the Mandamus and Venue Act of
1962. Before 1962 most actions against federal officials
could not be brought outside the District of Columbia.
Higher officials residing in Washington were usually in-
dispensable parties against whom venue could not be se-
cured except in Washington. Furthermore, such actions
were often in the nature of mandamus, and federal district
courts outside the District of Columbia lacked subject mat-
ter jurisdiction over mandamus actions. The crux of ap-
pellants’ argument is that § 1391(e) should be narrowly
construed as a companion to § 1361, designed to combat
the specific, relatively narrow problem that spurred Con-
gress to act. That is, they would have us read §1391(e)
to do no more than supply venue in those suits made pos-
sible by § 1361, ‘‘suits in the nature of mandamus to com-
pel an officer or employee of the United States or any
agency thereof to perform a duty owed to the plaintiff.’’
The Second Circuit has twice followed similar reasoning,
but in cases distinguishable from ours. In Liberation News
Service v. Eastland, 426 F.2d 1379 (2d Cir. 1970), the court
said that §1391(e) was aimed at the mischief posed by the
inability to review government action outside Washington
and that § 1391(e) reached only those who might be subject
to compulsion under § 1361. The holding of the case, how-
ever, was that the section did not apply to legislators.”
The court did not have occasion to decide the kinds of civil
actions that could be brought against someone to whom
it is only fortuitous that he is still in government. We need not now
decide whether someone who has been promoted in the same de-
partment is likewise exempted from the operation of § 1391(e).
12 We do not indicate our views on this holding. See note 17,
infra.
8a
§ 1391(e) did apply. In Natural Resources Defense Coun-
cul v. TVA, supra, 459 F.2d at 255, the court said that
§§ 1391(e) and 1361 must be read together, id. at 258, and
that the literal meaning should not necessarily control, id.
at 257; but the holding was that § 1391(e)’s venue provi-
sions did not apply to the TVA because another statute
controlled venue for actions against the TVA. Id. at 259.
Section 1391(e) states that it applies ‘‘except as other-
wise provided by law.” The court went on to point out
that a suit against the TVA could not have been brought
in Washington before 1962. See House Report, supra, at
2." In this case the action, at least as against current
officials, could have been brought in Washington.
The weakness of the argument, even apart from the fact
that it reflects no clear signal from the legislative history
discussed below, is that we must interpret the United
States Code as it is written. Congress did not limit the
application of § 1391(e) to ‘‘actions in the nature of man-
damus’’. Rather Congress used the words ‘‘Tal civil
action in which each defendant is an officer or employee
of the United States... acting . .. under color of legal
authority.’’ The statute does not, by its terms, limit the
kind of civil action to which it applies. The case at bar is
a civil action. The complaint alleges that the defendant
officers of the United States were acting ‘‘under color of
legal authority”. All elements fit—and we deal with a
siatute speaking in a highly technical field, venue and
jurisdiction, where, if anywhere, precision is required.
The plain language of § 1391(e) covers this case, but
again we would go beyond the plain language if the result
were absurd or plainly at variance with congressional
policies. We conclude, after considering such questions,
as have many other courts, that §1391(e) should cover
damage actions against officers in their individual capaci-
** See note 10, supra.
9a
ies.'* See Briggs v. Goodwin, 569 F.2d 1 (D.C. Cir. 1977);
Pa mr eimaatt, 457 F.2d 240, 241 (5th Cir. 1972) ;
Driver v. Helms, supra; United States v. McAninch, su-
pra; Lowensteim v. Rooney, supra; Patmore v. Carlson,
392 F. Supp. 737, 738 (E.D. Ill. 1975); Ww v. Keeney, 384
F. Supp. 1161 (D. D.C. 1974); Green v. Laird, 357 F.
Supp. 227 (N.D. Ill. 1973) ; Hart & Wechsler, The Federal
Courts and the Federal System 1388 (1973); 2 Moore,
Federal Practice 14.29, 1210 (1977). Cf. Kletschka v.
Driver, 411 F.2d 436, 442 (2d Cir. 1969) (basing venue on
§ 1391(b) but adding that 4 1391(e) ‘‘seems”’’ to apply &
well). But see Kenyatta v. Kelly, 430 F. Supp.. 1328, 1 “
(E.D. Pa. 1977); Davis v. F.D.1.C., 369 F. Supp. 277 (D.
Colo. 1974); Paley v. Wolk, 262 F. Supp. 640 (N.D. Ill.
1965). See ;
islative history of § 1391(e) is at best ambiguou
oe sab gate that the drafters of the legislation
understood that the act might apply to actions such as this
one and were not sufficiently bothered by that possibility
to prevent it. This act originated as H.R. 10089, 86th Cong,,
2d Sess. (1960).** That bill was limited to officers acting
144The Supreme Court has said that § 1391(e) does not apply
to clean poten actions. Schlanger v. Seamans, 401 US. 487, ~
n. 4 (1971), but that decision turned on the special nature 0
habeas corpus actions which though ‘‘technically hea soe
[are] not automatically subject to all the rules oat ef
civil actions.’’ See also the cases cited by the court below. .R.D.
at 391-92.
i i D.C. Cir.
We ht have viewed Relf v. Gasch, 511 F.2d 804 (D.C.
1975), as contrary authority, but in Briggs v. Goodwin, supra,
569 F.2d at 6-7, the same circuit confined Relf’s holding to me
ations where the alleged wrong was not connected with the defen-
dant’s government service.
15 H.R. 10089 read, in pertinent part:
‘*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 judicial district where a plaintiff in the action resides.
10a
in their official capacity, and its autho Represen
Budge, explained that it was intended to meet the ance
problem described above. Hearing Before the Committee
on the Judiciary (Subcommittee No. 4), 86th Cong., 2d Sess.
2-4 (May 26 and June 2, 1960) [hereinafter cited as Hear-
ings].’* The hearings on the bill before a subcommittee of
the Committee on the Judiciary demonstrate that at least
some members of that subcommittee did not want the bill
limited to a narrow purpose. For instance, at one point Mr
Drabkin, the subcommittee’s counsel, stated, ‘‘I think what
this bill 1s concerned with doing is dealing with mandamus
and also dealing with petitions for review which may not
properly be brought now because of some venue defect.”
Congressman Dowdy responded, however, ‘‘I asked to be
sure it was not limited to that.’’ Jd. at 32.
Later in the same hearing, Mr. MacGuin resen-
tative from the Department of Justice said he did not
understand what the bill was trying to do. **In order to
understand that we would have to know how this bill is
intended to affect each particular type of suit that a citizen
may want to bring against a Government official, and the
are many different types.’’ Congressman Dowdy “
sponded, “Maybe we want it to apply to all suits. There is
not any particular one. We want it to apply to an es
Congressman Whitener followed that up by saying, “I did
not understand there was any doubt.” Id. at 53-54. One
of suit hypothesized by Mr. MacGuineas was a pret
against a congressman.” Congressman Whitener indicated
** The unpublished transcripts of these
to us by appellants, and appellees have ee
-“- We have verified the authenticity, accuracy, and availability
of these transcripts through the office of the General Counsel
House of Representatives’ Committee on the Judiciary “
lla
that he felt the bill should cover such a situation, Hearings,
supra at 55, and he compared it to a postal worker slapping
a housewife as he delivered mail. Id. at 58.
The desire to reach a variety of causes of action prompt-
ed the first mention of the ‘‘under color of legal authority”’
phrase. After a discussion whether certain kinds of acts
would constitute official action or not, Mr. Drabkin pro-
posed, ‘‘Suppose in order to take care of a body of law
which seems to say, that when a government official does
something wrong he is acting in his individual capacity,
we added the following language—‘acting in his official
capacity or under color of legal authority.’ That would not
bring in the type of situation in which a postman, after
he had gone home for the night, proceeded to run over
somebody’s child.’’ Jd. at 61-62. This is the first appear-
ance of the ‘‘under color’’ language, and its context sug-
gests that it was understood to exclude only those personal
damage actions arising from purely private wrongs.
The Department of Justice expressed reservations about
the utility of H.R. 10089 because it was limited to *¢ official
actions’, and did not expand subject matter jurisdiction.
Most actions against government officials, such as those
seeking personal damages for acts in excess of official
authority, would not be covered by a bill limited to *‘ official
capacity”. Actions that would be “official”, would be
equivalent to mandamus actions, and so would still be con-
fined to the District of Columbia for lack of subject matter
jurisdiction elsewhere. See Briggs v. Goodwin, supra, 569
F.2d at 4. The new bill, H.R. 12622, 86th Cong., 2d Sess.
(1960), met these objections. Section 1 of the bill added
a new section, now codified as 28 U.S.C. § 1361, extending
that Congress thought it was changing the law not merely with
respect to the executive branch but also concerning itself, its officers
and its employees.’’ Liberation News Service v. Eastland, 426 F.2d
1879, 1384 (2d Cir. 1970). This issue is not presented to us, and
we do not decide it.
12a
mandamus jurisdiction to all district courts.” i
In secti
2 of the bill, § 1391(e), Congress included, inter alia, the
phrase under color of legal authority”. See Briggs v
Goodwin, supra, 569 F.2d at 4-5. oe
This bill was reintroduced in the next Con
1960, 87th Cong., Ist Sess. (1961). The es
Justice, in a letter from then Assistant Attorney General
Byron White suggested more changes. The letter reco
nized that section 2 of the bill, the new § 1391(e) rao
an entirely different subject’? than section 1, the new 28
U.S.C. $1361, and that unless clarified §1391(e) might
apply to ‘‘suits for money judgments against officers.’’
S. Rep. No. 1992, 87th Cong., 2d Sess. (1962), 1962 U.S
Code Cong. & Adm. News 2784, 2789 [hereinafter cited as
Senate Report]. Though acting on other suggesti
from that letter, Congress did nothing to sliminate ae
sonal damage actions. In fact, both the House and Senate
reports state, ‘‘The venue problem also arises in an actio
against a Government official seeking damages from him
for actions which are claimed to be without legal authority
** 28 U.S.C. § 1361 reads:
‘The district courts shall have riginal jurisdictio
action in the nature of elias to compel an a aged
employee of the United States agenc
form a duty owed to the plaintiff.” ad agency Saas
*° For example, the letter suggested jurisdie-
my section should be limited to gta pay rk *‘owed
wd — - The Senate, by amendment adopted this provision,
ouse accepted the amendment. See note 17, su See
generally Briggs v. Goodwin, 569 F.2d 1, 5 n. 39 (D.C. Cir. 1977),
13a
but which were taken by the official in the course of per-
forming his duty.’’ House Report, supra, at 3; Senate Re-
port, supra, 1962 U.S. Cong. & Admin. News at 2786 (em-
phasis added).”
In the face of all of this, appellants argue that § 1391(e)
was meant to do no more than provide venue in cases to
which § 1361 applies, actions in the nature of mandamus
brought outside the District of Columbia. In support of
this argument they point to language in the legislative
history that ‘‘[t]he purpose of this bill is to make it pos-
sible to bring actions against Government officials and
agencies in U.S. district courts outside the District of
Columbia, which, because of certain existing limitations on
jurisdiction and venue, may now be brought only in the
US. District Court for the District of Columbia.’’ House
Report, supra, at 1. Appellants also point to the following
paragraph of the Report:
‘‘By including the officer or employee, both in his
official capacity and acting under color of legal au-
thority, the committee intends to make the proposed
section 1391(e) applicable not only to those cases
where an action may be brought against an officer or
employee in his official capacity. It intends to include
also those cases where the action is nominally brought
against the officer in his individual capacity even
though he was acting within the apparent scope of
his authority 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
" This passage undermines appellants’ argument that the only
damage actions Congress contemplated were actions in the nature
of mandamus against an official to recover money allegedly owed
to the plaintiff by the United States.
l4a
only to circumvent what remains of the doctri
sovereign immunity. The considerations 2 een c
which demand that an action against an official Are
be brought locally rather than in the District of read
bia require similar venue provisions where the action
is based upon the fiction that the officer is acting as
an individual. There is no intention, however, to alter
the venue requirements of Federal law insofar as suit
resulting from the official’s private actions are ry
cerned.’’ Id. at 3-4 ; .
lants). a (emphasis as supplied by appel-
We do not think that these
passages cl
rho that we have reached. Even if we nie to co ae
: ge that the primary purpose of § 1391(e) was to expand
enue in mandamus cases, that would not preclude it from
serving other purposes as well. That it does do so and
was intended to do so is indi ‘lott .
daniaitoall det: 0 1s indicated by the legislative history
Further, unless one were
’ prepared to a
foithar wk was a mistake, we think it pe Aa Ee
er indication that Congress, whatever its i
. . ‘ ts
he — It passed § 1391(e), now understands is ation
pt ne ike ee on The amendment, note 6,
» al n who are not government
to be joined in an action with offi acy
cers when ve
ve officers is asserted under §$1391(e). It waar nt
tle sense to join someone who is not an officer if th
meh gre: to an action in the nature of inline,
ore, the suit Congress was contemplati
plating must be
aimed at acts tha : . 5 aoe
remedies. ’ t can give rise to liability for private
We affirm the district ’ :
applies to personal ty rene Mt, YAMAe)
15a
PERSONAL JURISDICTION
Appellants’ final argument is that § 1391(e)’s service of
process provision facilitates the broadened venue pro-
visions, but only if the district in which the suit is brought
can establish personal jurisdiction by some other mecha-
nism. In the alternative they argue that even if § 1391(e)
broadens personal jurisdiction, it would be unconstitu-
tional to apply it to individuals who lacked the minimum
contacts with the state in which the court sits that are re-
quired by International Shoe Co. v. Washington, 326 U.S.
310 (1945), and its progeny.
Appellants state their argument as follows:
‘‘Nothing in Section 1391 speaks to personal juris-
diction. The statute is entitled ‘venue generally’ and
sets forth in its various sections the rules of venue in
civil actions. The statute specifically authorizes only
a method of service of process, as distinct from a grant
of in personam jurisdiction, for the federal officers or
agencies within its purview. Indeed, the service of
process provision in the statute emphasizes the focus
of the statute on review of agency actions and present
officials since service is to be made ‘to the officer or
agency.’ The statute addresses vnly the mechanics of
service of process and does not address the exercise
of personal jurisdiction. Obviously, it is one thing
for an individual to be served the process extraterri-
torily [sic], but quite another for that individual to be
subject to the personal jurisdiction of a court in com-
pliance with the Constitutional requirements of due
process.’’ *
22'The facts that § 1391(e) was part of ‘‘The Mandamus and
Venue Act’’ and that it is codified in a chapter labelled ‘‘ District
Courts; Venue”’ are factors to consider in determining whether
the statute can be used as a basis of personal jurisdiction. They
do not overcome, however, the plain language of the statute, which
read in the light of the legislative history, see United States v.
l6a
It is true that jurisdiction over the perso i
process are distinguishable, but Seg a
[Slervice of process is the vehicle by which the court ma
obtain jurisdiction.’’ Aro Manufacturing Co. y. Automobile
Body Research Corp., 352 F.2d 400, 402 (1st Cir 1965).
If Congress, by §1391(e), authorized service of process
beyond the geographical limits that F. R. Civ. P. 4(f) would
otherwise impose, and if such service does not violate the
Constitution, then service was properly made in this case
’
and the court properly acquired jurisdicti
sons of the appellants. acq jurisdiction over the per-
Because appellants are being sued i ir indivi
capacities, they must be served te wainite wae on ..
(4) (1), rather than 4(4)(4) or 4(4)(5). That is, a copy
of the summons and complaint must be personally deliv
ered. Rule 4(f), however, limits service of process to the
territory of the state in which the court is sitting. But Rule
4(f) permits statutory exceptions, and Congress has in
some cases, authorized service of process beyond tate
boundaries. See Robertson v. Railroad Labor cock aes
U.S. 619, 622 (1925); 4 Wright & Miller, Federal Precti
and Procedure, § 1125 ( 1969); Hart & Wechsler, supra, at
1106-07. Th ion i
Pe e first question is whether Congress did so in
The second paragraph of § 1391( i
e) provides that ‘‘
summons and complaint . . . shall be served as audina te
Culbert, supra, note 7, as i
t » 48 set out in the text, indi
rage confers personal jurisdiction as well as pn tg Pascal
The. chopler entited Disney ereprate chapter of the coe
=: istrict Courts; iction”’
clusively with subject matter jurisdiction. , gsi
** The distinction is most im i prac-
_ the distin portant, as an issue of
pad Bac cases. A state long arm statute i gata
“ . rial service of process that would reach a defendant
over whom the state could not constitutionally i
exercise personal
17a
the Federal Rules of Civil Procedure except that the de-
livery of the summons 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.” Clearly this provision does more
than describe the mechanics of service of process. It
creates an exception to the general rule by allowing service
of process anywhere in the United States by certified mail.
Not only does our reading of the statute command such
an interpretation, but we are persuaded that this is pre-
cisely what Congress intended. Judge Maris, testifying
before the subcommittee as a representative of the Judicial
Conference, pointed out that the original bill, H.R. 10089,
created a ‘‘problem about the acquisition of jurisdiction in
personam by the Court in the venue’’ created by the bill.
Hearings, supra, at 87. The bill relied on the Federal Rules
of Civil Procedure to provide service of process, but Rule
4 would not permit service of process on the individual
involved in the suit if that individual were outside the
state in which the suit was brought. Judge Maris suggested
that the statute provide for broader service:
‘There are statutes which do, like the Antitrust
Laws, the Sherman Antitrust Act, under which you
can bring a suit against defendants and serve them
anywhere in the United States, and of course under
the Bankruptcy Act you can serve persons anywhere
in the United States.
‘‘Now what you would have to do here it seems to
me would be to provide for the service that we dis-
cussed, namely, service upon the U.S. Attorney, service
by mail upon the Attorney General, and also service
by mail anywhere in the United States upon the officer
or agent being sued.
‘That would take care of it because all that is
necessary is for Congress to authorize service to be
18a
made outside of the District, and it is perfectly valid
to do so.’’ Hearings at 88-89.
Congress, following Judge Maris’ suggestion, provided
nationwide service of process by mail and expected that
broadening service would correspondingly broaden per-
sonal jurisdiction. Congress recognized that it would serve
no purpose to broaden venue without also broadening
service of process. House Report, supra, at 4. See Briggs
v. Goodwin, supra, 569 F.2d at 7-8. Thus, to the same ex-
tent that §1391(e) supplies venue, it supplies the mecha-
nism to secure personal jurisdiction.**
Having concluded that Congress did create nationwide
service of process, we must next decide whether § 1391(e),
so interpreted, is constitutional. Appellants argue, and
we will assume, that they lack ‘‘minimum contacts’’ with
the State of Rhode Island. The minimum contacts test was
developed in cases testing the limits of a state’s jurisdiction
over those not found within its boundaries. The circum-
scription of state court jurisdiction is a product of bound-
aries to states’ sovereignty.** The United States, however,
an See Briggs v. Goodwin, supra, 569 F.2d at 8; Liberation News
Service v. Eastland, 426 F.2d 1379, 1382 (2d Cir. 1970) (dictum) ;
United States v. McAninch, 435 F. Supp. 240, 244 (E.D. N.Y.
1977 ); Driver v. Helms, 74 F.R.D. 382, 389 (D. R.I. 1977) ; Low-
enstein Vv. Rooney, 401 F. Supp. 952 (E.D. N.Y. 1975); Crowley
v. United States, 388 F. Supp. 981, 987 (E.D. Wis. 1975) ; Environ-
mental Defense Fund, Inc. v. Froehlke, 348 F. Supp. 338, 364
(W.D. Mo. 1972), aff'd, 477 F.2d 1033 (8th Cir. 1973) ; English
v. Town of Huntington, 335 F. Supp. 1369, 1873 (E.D. N.Y.
1970) ; Macias v. Finch, 324 F. Supp. 1252, 1255 (N.D. Cal. 1970) ;
Brotherhood of Locomotive Engineers v. Denver & Rio Grande
Western R.R. Co., 290 F. Supp. 612 (D. Colo, 1968), aff’d, 411
F.2d 1115 (10th Cir. 1969). Cf. Ashe v. McN 355 F
279 (Ist Cir. 1965). cere eo
, ** This remains true even after International Shoc Co. v. Wash-
ington, 326 U.S. 310 (1945), and Shaffer v. Heitner, 433 U.S, 186
' (1977). A state boundary is still a significant jurisdictional de-
19a
whose court is here asserting jurisdiction, does not lose its
sovereignty when a state’s border is crossed. The Con-
stitution does not require the federal districts to follow
state boundaries. That decision was made by Congress,
and Congress could change its mind. Whether or not Con-
gress could go so far as to establish only one national
district court, see Briggs v. Goodwin, supra, 569 F.2d at 9,
it is clear that Congress could greatly reduce the number
of federal districts and draw their boundaries without
regard to state boundaries. See id., at 8-10.
Appellants next argue, with some force, that it would be
very unfair and would violate due process to force them,
as individuals, to answer suits in districts with which they
have no connection and, furiher, that answering such suits
places a burden upon them greater than that carried by a
private litigant who would not have to travel to a far-away
court—a court which might be far removed from the place
where the cause of action arose, and which might have been
chosen because the plaintiffs felt the judge would be
friendly to their claims. We acknowledge that these appel-
marcation because if a defendant is found and served within the
state, minimum contacts need not be established, and jurisdiction
may be asserted on the basis of the state’s sovereignty. We see no
reason why the United States does not have the same power over
defendants found within its borders. Even if we were to say that
minimum contacts had to be established, anyone found and served
within the United States would have sufficient contacts with the
United States. See United States v. McAninch, 435 F. Supp. 240,
244 (E.D. N.Y. 1977).
Appellants argue that the two Supreme Court cases cited above
demonstrate that the Court has banished sovereignty as a factor
in determining jurisdiction, substituting a test based on ‘‘[f]air
play and substantial justice [which] are in the main functions of
distance.’’ We can think of no case that has made distance a factor
in determining minimum contacts. The test to determine whether
a defendant may be brought before a state’s courts, say the courts
of Rhode Island, is no different whether that defendant is found
in Connecticut or in Hawaii.
20a
lants may have to answer complaints in a broader range
of judicial districts than would non-governmental defend-
ants. But they are not without protection. A district court
has broad discretionary power ‘‘[f]or the convenience of
parties and witnesses, in the interest of justice, [to] ...
transfer any civil action to any other district . . . where
it might have been brought.’’ 28 U.S.C. §1404(a). We
would expect courts to be sympathetic to motions for
change of venue when defendants would otherwise be sub-
stantially prejudiced and when there is an alternative
venue that would protect the parties’ rights. Furthermore,
we note that officers of the federal government are differ-
ent from private defendants because they can anticipate
that their official acts may affect people in every part of
the United States.
Congress is, of course, limited in the actions it can take
by the Due Process Clause of the Fifth Amendment, but
application of the Clause is not related ‘to state boundaries.
Rather, the requirement is that the nationwide ‘‘service
required by statute must be reasonably calculated to in-
form the defendant of the pendency of the proceedings in
order that he may take advantage of the opportunity to be
heard in his defense.” Mariash v. Morrill, 496 F.2d 1138,
1143 (2d Cir. 1974). Certainly the certified mail require-
ment in § 1391(e) meets that standard. Such service is not
extra-territorial for a court of the United States, there-
fore, the minimum contacts analysis is not relevant. We
conclude that national service of process as provided by
§ 1391(e) is constitutional.** Briggs v. Goodwin, supra, 569
F.2d at 8-10; United States v. McAninch, supra, 435 F.
Supp. at 244; Driver v. Helms, supra, 74 F.B.D. at 391.
Affirmed in part, reversed in part, and remanded.
ein The Supreme Court has apparently not decided this precise
issue since International Shoe. In one case the Court decided not
to address the issue. United States v. Scophony Corp., 333 U.S.
- 795, 840 n. 13 (1948), .
2la
{Caption Omitted in Printing]
JUDGMENT
Entered: May 25, 1978
i al from the
This cause came on to be heard on appe
United States District Court for the District of Rhode
Island, and was argued by counsel.
ideration whereof, It is now here ordered,
Col sbeense aber as follows: The order of the District
Court is affirmed in part and reversed in part and the case
is remanded to the District Court for further pressecings
consistent with the opinion filed this day. ‘The ‘‘former
officials’? are awarded costs from the plaintiffs, appellees.
The plaintiffs, appellees are awarded 80% of their costs
from the remaining appellants.
By the Court:
/s/ Dana H. Gauiup
Clerk
By:
/s/ Francis P. SEiciiano,
Chief Deputy Clerk
22a
APPENDIX B
UNITED STATES DISTRICT COURT
D. RHODE ISLAND
Ropney Drarver, et al.
v.
Ricuarp Hews, et al.
Civ. A. No. 75-224.
April 1, 1977.
OPINION
Petting, Chief Judge.
Plaintiffs are five American citizens who have brought
this action on behalf of themselves and all those similarly
situated against thirty present and former officials. The
amended complaint alleges that the defendants ‘‘engaged
in an extended conspiracy to conduct an illegal and uncon-
stitutional program surreptitiously to intercept, open,
read and photograph tens of thousands of sealed first-class
letters deposited in the United States mails by plaintiffs
and members of their class’’, thereby violating plaintiffs’
rights under the First, Fourth, Fifth, and Ninth Amend-
ments.’ Plaintiffs seek declaratory and injunctive relief to
operate against Defendant Clarence Kelley, Director of
the Federal Bureau of Investigation; damages against each
* Events giving rise to this lawsuit are described in the Report
to the President by the Commission on CIA activities (June 6,
1975) (hereinafter referred to as the ‘‘Rockefeller Report’’). See
also Senate Select Committee to Study Governmental Operations
with respect to Intelligence Activities, Final Report, Book III,
559-679, S.Rep.No.94-755, 94th Cong., 2nd Session (1976) (here-
' inafter referred to as the Final Report of the Select Committee).
23a
of the other defendants, sued in his individual and official,
or former official, capacities; and certain other relief.*
Subject matter jurisdiction is invoked under 28 U.S.C.
§§ 1331(a), 1339, 1343, 1361, and 5 U.S.C. § 702.
After extensive consultation with the parties, the Court
issued an Order setting up a procedure for disposition of
the expected deluge of preliminary motions. This Opinion,
pursuant to that Order, disposes only of the individual
defendants’ motions to dismiss under Federal Rules of
Civil Procedure 12(b)(2) (lack of jurisdiction over the
person), 12(b)(3) (improper venue), and 12(b)(4) (in-
sufficiency of process) ; of plaintiffs’ motion to certify the
class; and of the motions to dismiss Clarence Kelley.
Each defendant against whom damages are sought * has
moved to dismiss for lack of personal jurisdiction and
improper venue. Plaintiffs argue that this Court has juris-
diction over the persons of all defendants under 28 U.S.C.
§1391(e) and Rhode Island’s long arm statute, Section
9-5-33, Rhode Island General Laws (1956), as amended,
and that venue is proper under 28 U.S.C. §1391(b) and
(e).
Personal Jurisdiction and 28 U.S.C. § 1391(e)
Rule 4(f) of the Federal Rules of Civil Procedures pro-
vides for service of a district court’s process anywhere
within the territorial limits of the state in which the dis-
2The United States’ motion to intervene as a party-defendant
was granted on September 26, 1975. See Driver v. Helms, 402 F.
Supp. 683 (1975) for earlier proceedings in this case. Damages
are now sought against the United States directly under 28 U.S.C.
§ 1331(a). The Court will defer ruling on the pending Motion to
Dismiss of the United States and will consider it together with the
Motion to Dismiss of defendant U.S. in Driver v. United States,
No. 76-297.
* Except the United States. See note 2, supra.
24a
trict court is held and, when authorized by a statute of the
United States, beyond the territorial limits of that state.
Each of the defendants was served far outside the terri-
torial limits of Rhode Island; to justify this process, plain-
tiffs contend that 28 U.S.C. §1391(e) (1976) is a statute
authorizing such national service of process in damage
actions against present and former government officials
acting under color of legal authority.
As plaintiffs point out, prior to the passage of § 1391(e)
in 1962, citizens were unable to obtain effective relief for
claims against federal officials arising from violations of
federal law. Rule 4(f), F.R.Civ.P., prevented the federal
courts from exercising personal jurisdiction over non-resi-
dent federal officials. And even if jurisdiction could be
acquired pursuant to state law (long-arm statutes were
just coming into general use at the time), venue in a fed-
eral question action would only lie in the district where
all the defendants resided. Compare 28 U.S.C. §1391(b)
(1962 ed.) (venue where all defendants reside) with 28
U.S.C. §1391(b) (Supp.1975) (adding venue ‘‘in the ju-
dicial district . . . in which the claim arose’’). Thus, in
cases where plaintiff’s claim arose from the joint acts of
federal officials who resided in different districts, citizens
were forced to file separate suits against the defendants
in the districts where they resided. In cases where a su-
perior federal officer residing in Washington, D.C. was an
‘*indispensable’”’ party to an action, citizens were only able
to litigate the claim in the District of Columbia, and were
unable therefore to join a subordinate officer residing else-
where who was equally necessary to the action. See gener-
ally 4 Wright and Miller, Federal Practice and Procedure:
Civil 41107, at 417, (1969 ed., Supp.1976); 2 J. Moore,
Federal Practice § 4.29, at 1209 (2d ed. 1975).
As a result of these obstacles, litigation against federal
efficials for redress of statutory and constitutional rights
- was ‘‘too expensive and inconvenient for many plaintiffs’.
25a
Hart and Wechsler, The Federal Courts and the Federal
System 1386 (1973).
To eliminate at least some of these obstacles and to en-
able citizens to obtain relief against official wrongdoing
effectively, conveniently, efficiently, economically, and
fairly, § 1391(e) was enacted in 1962. As the Senate Re-
port stated, the purpose of the statute was ‘‘to provide
readily available, inexpensive judicial remedies for the
citizen who is aggrieved by the workings of Government’’.
S.Rep.No.1992, 87th Cong., 2d Sess. 3 (1962). Section
1391(e) provides:
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, ex-
cept 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 summons
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
was brought.‘
* Sec. 1391(e) was enacted as part of the Mandamus and Venue
Act of 1962. The legislative history is contained in H.R.Rep.No.
536, 87th Cong., Ist Sess. (1961) [hereinafter H.Rep.] ; S.Rep.No.
1992, 87th Cong., 2d Sess. (1962), reprinted in 1962 U. S. Code
Cong. and Adm. News, pp. 2785-2786 [hereinafter S.Rep.]. The
Act of October 21, 1976, Pub. L. 94-574, § 3, amended § 1391(e),
adding after the last sentence of the first paragraph the following:
Additional persons may be joined as parties to any such action
in accordance with the Federal Rules of Civil Procedure and
26a
The defendants argue that § 1391(e)(1) does not supply
personal jurisdiction, (2) does not apply in actions for
damages, (3) does not apply to officials sued in their ‘‘in-
dividual’’ capacity, and (4) does not apply to former fed-
eral officials. The Court turns to each of these arguments.
1. § 1391(e) supplies personal jurisdiction
This Court is of the firm opinion that §1391(e) is in-
deed a statute authorizing nationwide jurisdiction which
would be otherwise unavailable to a federal court bound
by Rule 4(d). This opinion is shared by the great majority
of courts, and all of the commentators, which have con-
sidered the question. And the legislative history of § 1391
(e), while not a model of clarity, amply supports the
Court’s conclusion.
The House Committee Report accompanying § 1391(e)
states :
In order to give effect to the broadened venue pro-
vision of this bill, it is necessary to modify the service
requirements under the Federal Rules of Civil Pro-
cedure insofar as they apply to actions made possible
by this bill. Rule 4(f) restricts effective service to the
territorial limits of a State in which the district court
is held unless a statute specifically provides for it to
go beyond the territorial limits of that State. Since
this bill is designed to make a Federal official or
with such other venue requirements as would be applicable
if the United States or one of its officers, employees, or agencies
were not a party.
This amendment was intended only to overrule the holdings of
some courts that § 1391 was inapplicable when there were any
non-federal defendants. See 105 Cong.Rec. S11352 (daily ed. July
1, 1976), citing Natural Resources Defense Council v. TVA, 459
F.2d 255, 257 n. 3 (2d Cir. 1972). Having examined the legislative
history of this amendment to § 1391(e), the Court does not believe
that it in any way affects the conclusions here reached.
27a
agency amenable to suit locally, the bill provides that
the delivery of the summons and complaint to the officer
or agency may be made by certified mail outside of
the territorial limits of the district in which the action
is brought.
H.Rep.No.536, 87th Cong., 2d Sess., at 4 (1962). Pro-
fessor Moore agrees that subsection (e) both expands
venue and extends the area in which the district court’s
process will run:
[Sec. 1391(e)] realistically broadens venue in any civil
action (not just mandamus proceedings) where each
defendant is a federal officer, employee or agency and
is sued for acts done in his official capacity or under
color of legal authority; and provides for extraterri-
torial service of process, if necessary, in such an
action. 2 J. Moore, Federal Practice, § 4.29, 1210 (2d
ed. 1975).
Accord, 4 Wright and Miller, Federal Practice and Pro-
cedure, Civil $1107 (1969 ed., Supp. 1975).
The Second Circuit has stated that where §1391(e) is
applicable, it supplies both venue and in personam juris-
diction. Liberation News Service v. Eastland, 426 F.2d
1379 (2d Cir. 1970) (dicta). Accord, Lowenstein v. Rooney,
401 F.Supp. 952, 961-962 (S.D.N.Y. 1975); Crowley v.
United States, 388 F.Supp. 981, 987 (E.D.Wis.1975); En-
vironmental Defense Fund, Inc. v. Froehlke, 348 F.Supp.
338, 364 (W.D.Mo.1972), aff’d on other grounds, 477 F.2d
1033 (8th Cir. 1973); English v. Town of Huntington, 335
F.Supp. 1369, 1373 (E.D.N.Y.1970); Macias v. Finch, 324
F.Supp. 1252, 1254-1255 (N.D. Cal.1970); Brotherhood of
Locomotive Engineers v. Denver and R.G.W.R. Co., 290 F.
Supp. 612, 615-616 (D.Colo.1968), aff’d 411 F.2d 1115 (10th
Cir. 1969); Powelton Civic Home Owners Ass’n v. De-
parement of Housing and Urban Rewenal, 284 F.Supp. 809,
28a
834 (E.D.Pa.1968). See also Relf v. Gasch, 167 U.S.App.
D.C. 238, 511 F.2d 804, 808 (Robb, J., concurring).
Defendants argue that §1391(e) speaks only to service
of process, not to the exercise of personal jurisdiction,
which they contend must be otherwise acquired. Typical
of this line of argument is the following passage from the
brief of Defendants Colby, Schlesinger, Cushman, and
Walters, which the Court finds necessary to quote from
at length:
The distinction between the mechanics of service of
process and whether service is effective to confer
personal jurisdiction is elementary and clear. Plain-
tiffs appear to treat the two together without an ap-
preciation of the fact that two very different concepts
are involved.
‘*Although Rule 4 [of the Federal Rules of
Civil Procedure] is concerned with defining the
various acceptable methods for effecting service
of process, its operation cannot be understood
without an appreciation of the history and cur-
rent status of the law relating to the personal
jurisdiction of the courts. This is true because
underlying the question of service of process is
the preliminary inquiry into whether the court has
the power to summon a defendant before it to
adjudicate a claim against him. * * * Rule 4 does
not speak to this subject, which at present is gov-
erned primarily by the Supreme Court’s interpre-
tation of the Due Process Clause of the Consti-
tution and the network of state and federal sta-
tutory provisions,’”’ 4 Wright and Miller, Federal
Practice and Procedure (1969) at pp. 205-206.
Stated simply, the second paragraph of Section 1391
(e) provides that in cases which fall within its scope,
that is when jurisdiction is already present and venue
29a
is conferred by the first paragraph of Section 1391[e),
the mechanics of service of process shall be ‘‘as pro-
vided by the Federal Rules of Civil Procedure’’ except
those mechanics are modified to the extent that ‘‘de-
livery of the summons and complaint [under Rule
4(d)(5)] may be made by certified mail beyond the
territorial limits of the district in which the action
is brought’’. Such a modification of the method of
service of process under the Federal Rules does not
answer, as plaintiffs would have this Court believe,
the ‘‘preliminary inquiry into whether the Court has
the power to summon a defendant before it to adju-
dicate a claim against him’’. 4 Wright and Miller,
supra, at p. 205.
Not at all dissimilar to this scheme is the operation
of state service of process provisions such as the
Rhode Island rules. Service of process is permitted by
mail beyond the territorial limits of the Rhode Island
courts, R.1.C.P., Rule 4(e), but this alone does not
confer jurisdiction since before a defendant is ame-
nable to such service and thereby subject to the juris-
tion of Rhode Island, he must have the ‘‘necessary
contacts’? with Rhode Island.
By applying to § 1391(e), analysis germane to jurisdic-
tion under Rule 4, F.R.Civ.P. the defendants completely
misperceive the nature of the problem at hand, and rely
on an inapposite line of cases, e.g., Hanson v. Denckla,
357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) ; McGee
v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199,
2 L.Ed.2d 223 (1957); International Shoe Company v.
State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed.
95 (1945). For those cases in which Congress has decided
that the jurisdiction of federal courts shall be coextensive
with the jurisdiction of the states in which they sit (that
is, all cases directly ruled by Rule 4(d)), minimum con-
tacts analysis is indeed in order. State courts may exer-
30a
cise jurisdiction only over defendants within their terri-
tory or over defendants who are deemed present within
the territory by virtue of purposeful activity which con-
stitutes such minimum contacts. International Shoe, supra.
However, Congress may provide for national service of
process, i. e., national exercise of personal jurisdiction by
each of the district courts based on presence of the de-
fendant in the United States, rather than in any particu-
lar state. Robertson v. Railroad Labor Board, 268 U.S.
619, 45 S.Ct. 621, 69 L.Ed. 1119 (1925). See Hart and
Wechsler, supra, at 1106. When Congress does so provide,’
the district court’s service is not constrained by the due
process (International Shoe, Hanson v. Denckla) limits to
which state courts are subject. See Mariash v. Morrill, 496
F.2d 1138, 1142-43 (2d Cir. 1974). Instead, the due process
limitation on national service of process is found by in-
quiring into the fairness of such jurisdiction in the par-
ticular circumstances and facts of the case at hand, an
inquiry mandated by the Fifth Amendment Due Process
Clause. Mariash v. Morrill, supra, at 1142-43; see also
Oxford First Corp. v. PNC Liquidating Corp., 372 F.Supp.
191, 198-205 (E.D.Pa. 1974). Cf. International Shoe, su-
pra, 326 U.S. at 320, 66 S.Ct. 154.
The Court believes that the exercise of national per-
sonal jurisdiction pursuant to §1391(e) here is consistent
with the applicable due process test. In Mariash v. Mor-
rill, supra, the Second Circuit held that Congressionally
authorized national jurisdiction satisfied due process if it
was based on service calculated to inform the defendant
of the proceedings in order that he may take advantage
of the opportunity to be heard. As Chief Judge Kauf-
*For a partial list of other statutes which authorize federal
courts to exercise national in personam jurisdiction, see 2 J. Moore,
Federal Practice par. 4.33 at 1242 (2d ed. 1975) ; id. par. 4.42[1],
at 1293,.8-1293.10,
3la
man noted, speaking for a panel including Associate Jus-
tice Clark, nation wide service of process, when author-
ized by Congress, is not extra-territorial at all. Therefore,
the due process limitation on such process should be pre-
cisely the limitations applicable on a state’s process
within its territorial limits: notice calculated to inform the
defendant of the pendency of the suit. Mullane v. Central
Hanover Bank and Trust, 339 U.S. 306, 70 S.Ct. 652, 94
L.Ed. 865 (1950).* Since it is undisputed that each of the
defendants has been served according to the statute, and
that such notice informed each defendant of the pendency
of this suit so as to enable them to take advantage of the
opportunity to be heard, the Court finds that the service
effected comports with Due Process.
Defendants attempt to buttress their argument that
§1391(e) authorizes service only where im personam ju-
* Extra-territorial service of process must be based on necessary
minimum contacts to satisfy due process. International Shoe Com-
pany v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed.
95 (1945). In Oxford First Corp. v. PNC Liquidating Corp., 372
F.Supp. 191 (E.D.Pa.1974), the court went further, holding that
the due process limits on national service of process should be
governed by a five-part fairness test, incorporating a minimum
contacts test. But Ozford First relied primarily on Leasco Data
Processing Equipment Corp. v. Maxwell, 468 F.2d 1826 (2d Cir.
1972), which had required a showing of minimum contacts only
because it was a true case of extraterritorial service of nationwide
process—service under the Securities Act of 1934 on a foreign citi-
zen living abroad. See the Second Circuit’s explanation of Leasco
in Mariash v. Morrill, 496 F.2d 1138, 1143 n. 9. For that reason,
it was necessary to determine whether those citizens had the neces-
sary ‘‘minimum con ”? with the United States. Thus the Ozford
First court seems to have proceeded on an incorrect premise; as
Chief Judge Kaufman has made clear, Congressionally authorized
nationwide service (as opposed to extraterritorial service) must
meet only the requirements of Mullane v. Central Hanover Bank
and Trust, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), not
those of International Shoe, supra. See Mariash v. Morrill, 496
F.2d 1138, 1143 n. 9.
32a
risdiction is otherwise acquired through minimum contacts
by relying primarily on Schlanger v. Seamans, 401 U.S.
487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971), Strait v. Laird,
406 U.S. 341, 92 S.Ct. 1693, 32 L.Hd.2d 141 (1972), Smith
v. Compbell, 450 F.2d 829 (9th Cir. 1971) and Carney v.
Laird, 326 F.Supp. 741 (D.R.I. 1971), aff’d, 462 F.2d 606
(1st Cir. 1972). The Court finds these cases inapposite.
In Schlanger v. Seamans, supra, the Supreme Court
held that an Arizona federal court was without jurisdic-
tion to entertain a habeas corpus petition of an enlisted
man in the Air Force who, although temporarily in Ari-
zona, was under the custody of officials at Moody Air
Force Base in Georgia.
The Court’s rationale was simply that § 1391(e) did not
apply to habeas corpus actions. The Court qualified its
holding that jurisdiction over respondents in habeas cor-
pus actions was territorial by observing:
Although by 28 U.S.C. § 1391(e) (1964 Ed., Supp. V),
Congress has provided for nationwide service of
process in a ‘‘civil action in which each defendant is
an officer or employee of the United States,’’ the
legislative history of that section is barren of any
indication that Congress extended habeas corpus ju-
risdiction. . . . Though habeas corpus is technically
‘‘civil’’, it is not automatically subject to all the rules
governing ordinary civil actions. (citations omitted)
401 U.S. at 490 n. 4, 91 S.Ct. at 997.
Section 1391(e) applies to actions against government
officers “except as otherwise provided by law”. The Court
found in Schlanger that the habeas corpus statute, 28
U.S.C. § 2241, did indeed provide otherwise. Therefore,
§ 1391(e) did not apply, and a district court’s reach of in
personam jurisdiction in habeas corpus actions was limited
to the traditional territorial jurisdiction of the district
courts.
33a
The other habeas corpus decisions cited by the defend-
ants follow from the rule established in Schlanger, supra,
and establish only the proposition that §1391(e) is una-
vailable to establish personal jurisdiction in habeas corpus
actions. See 4 Wright and Miller, Federal Practice and
Procedure, § 1107, at 89 (Supp.1975). In Strait v. Laird,
supra, the Court held that the territorial jurisdiction of
the district court for habeas corpus actions could be jus-
tified by using the respondent’s minimum contacts in the
district to impute his presence there. The Court did not
find it appropriate to cite or discuss § 1391(e) at all, bas-
ing its decision on its interpretation of 28 U.S.C. § 2241.
In Carney v. Laird, supra, this Court relied on Schlanger,
holding that §1391(e) did not extend the habeas corpus
jurisdiction of the district courts. That opinion did not
consider, much less decide, whether §1391(e) authorized
the exercise of in personam jurisdiction beyond the limits
provided by Rhode Island’s long aim statute in civil ac-
tions other than habeas corpus. Carney v. Laird, supra, at
744.
Smith v. Campbell, supra, cited by many of the defend-
ants, appears to support their contention that § 1391(e)
is unavailable to ground personal jurisdiction in civil ac-
tions." However, Smith too was a habeas corpus action,
relying on the rule of Schlanger v. Seamans. The dicta so
heavily relied on by defendants appears to have exactly
the same meaning as this Court’s observations in Carney
v. Laird, supra. To the extent that the Ninth Circuit meant
to generalize its position to civil actions other than habeas
corpus, this Court is in disagreement, and respectfully
declines to follow.
***Section 1391 may not be utilized to confer jurisdiction, but
can be in order to effectuate jurisdiction once it has attached.’’
450 F.2d at 834.
34a
2. Section 1391(e) applies to damage actions
Defendants make two related claims which bear on the
question whether the liberalized terms for securing per-
sonal jurisdiction under §1391(e) can be invoked in ac-
tions for damages against current federal officials. First,
they argue that 4 1391(e) pertains only to actions in the
nature of mandamus against government employees under
28 U.S.C. § 1361. Second, they contend that § 1391(e) does
not apply to defendants sued in their ‘‘individual’’ ca-
pacities. The Court will consider each of these arguments
in turn.
a. Section 1391(e) applies to damages actions as well
as mandamus actions.
Section 1391(e), by its terms applies to any civil action
in which ‘‘a defendant is an officer or employee of the
United States . . . acting in his official capacity or under
color of legal authority’’. On its face, then, § 1391(e) cov-
ers far more than mandamus actions. However, the Su-
preme Court has held that habeas corpus actions do not
fall within §1391(e), Schlanger v. Seamans, supra, 401
U.S. at 490 n. 4, 91 S.Ct. 995 and this Court must decide
whether the subsection is inapplicable to damage actions
as well.
Defendants rely on the legislative history of § 1391(e)
for their argument that Congress meant to restrict its
application to mandamus actions. There is no doubt that
the legislative history can be read to support such a posi-
tion. However, the Court believes that properly read the
legislative history makes it clear that §1391(e) refers to
damage actions as well as mandamus actions.
At the outset, the Court wishes to emphasize what
should be apparent. If Congress wanted to limit the ap-
plication of §1391(e) to mandamus actions, the statutory
language it chose was extraordinarily ill-fitted to that task.
35a
The subsection applies to ‘‘a civil action in which [each]
defendant is an officer .. .’’, not to ‘‘any action in the
nature of mandamus .. .’’ which was the language Con-
gress used in 28 U.S.C. § 1361, a statute passed together
with §1391(e). Congress has demonstrated its ample
ability to distinguish between civil actions in general and
mandamus actions in particular, and this Court believes
that the legislative history contradicting the plain mean-
ing of the subsection would have to be unusually clear and
persuasive to warrant adoption of a reading which a) is
opposed to the plain meaning of the words of the subsec-
tion, and b) attributes such carelessness to Congress. The
Court therefore turns to the legislative history, and to an
attempt to discern ‘‘the mischief’’ at which $1391(e) was
directed.
The Mandamus and Venue Act of 1962 contained two
‘entirely different subjects’’,® according to then-Deputy
Attorney General Byron R. White, whose letter so stat-
ing to Senator Eastland, Chairman of the Senate Judi-
* There is clearly a contradiction between the recognition by the
Department of Justice that §§ 1361 and 1391(e) covered ‘‘entirely
different subject[s]’’ and Judge Friendly’s admonition that §§ 1361
and 1391(e) must be read together. See Natural Resources Defense
Council v. TVA, 459 F.2d 255, 258 (2d Cir. 1972). Defendants
rely on Judge Friendly’s dictum to argue that § 1391(e) only
authorizes service and jurisdiction in actions made possible by
§ 1361—that is, mandamus actions. As the House Report states,
this bill is not intended to give access to the federal court to
an action which cannot now be brought against a federal official
in the United States District Court for the District of Co-
lumbia.
H.Rep.No.536, 87th Cong., 2d Sess., at 2. However, for reasons
stated below in the text, this Court finds the language of the House
Report refers only to the subject matter jurisdiction conferred in
Section 1 of the bill, which became § 1361. See also Cramton, Non-
statutory Review of Federal Administrative Action, 68 Mich.L.Rev.
387, 453 (1970), and infra n. 10.
36a
ciary Committee, appears in the official legislative history.
See U.S. Code Cong. and Adm. News, 87th Cong., 2nd
Sess. at 2789 (1962). First, in what is now 28 U.S.C.
§ 1361, Congress facilitated review of administrative ac-
tions by abrogating the ancient rule by which only the
district court for the District of Columbia had jurisdiction
to mandamus federal officers. See Liberation News Service
v. Eastland, supra at 1383. As Judge Friendly has noted,
‘*this jurisdictional change . . . became the main subject
of Congressional and executive concern”. Id. Second, in
what became 28 U.S.C. §1391(e), Congress authorized
broadened venue and national service of process in civil
actions against employees of the United States ‘‘acting in
. . . Official capacity or under color of legal authority’’. S
Rep.No.1992, 1962 U.S. Code, and Adm.News, supra, at
2786.
The presence of these two separate subjects accounts
for the difficulties caused by the legislative history, which
makes sense only on the understanding that § 1391(e), but
not § 1361, extends beyond mandamus actions. Both the
House and Senate Reports contain the Soong para-
graph, in identical words:
The venue problem also arises in an action against a
Government official seeking damages from him for
actions which are claimed to be without legal author-
ity but which were taken by the official in the course
of performing his duty. H.Rep. at 3; S.Rep. at 3.
Hart and Wechsler, supra, at 1388, say that ‘‘A literal
reading of the statutory language would make the section
applicable to all types of ‘civil actions’ against federal
officers, and that is precisely how most courts have con-
strued §1391(e).’? Professor Moore agrees:
. [Sec. 1391(e)] realistically broadens venue in any
civil action (not just mandamus proceedings) where
each defendant is a federal officer, employee, or
37a
agency and is sued for acts done in his official capacity
or under color of legal authority; and provides for
extraterritorial service of process, if necessary, in
such an action.
2 Moore, Federal Practice, paragraph 4.29, 1210 (2d
ed. 1971)
As plaintiffs demonstrate, numerous courts have applied
the statute to a variety of settings where the complaint
sought monetary relief for the violation of constitutional
rights. In Ellingburg v. Connett, 457 F.2d 240, 241 (5th
Cir. 1972), the Fifth Circuit held that § 1391(e) applies to a
damage action by a federal prisoner against prison officials
for unconstitutional treatment. See also Patmore v. Carl-
son, 392 F.Supp. 737, 739-740 (E.D.111.1975). In Lowenstein
v. Rooney, 401 F.Supp. 952 (S8.D.N.Y.1975), the court ap-
plied § 1391(e) to a damage claim against present and for-
mer officials for violating plaintiff’s constitutional rights.
In Briggs v. Goodwin, 384 F.Supp. 1228, 1230 (D.D.C.1974),
the court applied § 1391(e) to a damage action arising out
of the unlawful conduct of federal prosecutors in a criminal
case. Wu v. Keeney, 384 F.Supp. 1161 (D.D.C.1974) and
Green v. Laird, 357 F.Supp. 227 (N.D.Il1.1973) also recog-
nized the applicability of § 1391(e) to damage actions.’ See
also Jacoby, The Effect of Recent Changes in the Law of
‘‘Nonstatutory’’ Judicial Review, 53 Georgetown L.J. 19,
¢
® While some of the above-cited cases fail directly to address the
issue, in each of them a close reading makes it clear that the court
of necessity relied on § 1391 (e) to ground at least venue, and
usually jurisdiction as well, in a damage action. This Court rejects
the suggestion of some defendants that this authority i is worthless
by virtue of those courts’ failure to focus in on the problem, at
least where so many courts made the same ‘‘mistake’’ and where
each of the defendants was presumably represented by counsel
from the Department of Justice, who would have been alerted to
§ 1391(e)’s potential for reaching damage actions from the outset.
See fn. 22, infra.
38a
36-37 (§ 1391(e) applicable to damage suits against officers
acting under color of legal authority) ; Cramton, Nonstatu-
tory Review of Federal Administrative Action, 68 Mich.L.
Rev. 387, 455 (1970) (same).
Against this strong authority, defendants make a series
of arguments based primarily on the fact that § 1391(e)
was passed jointly with the Mandamus Act, 28 U.S.C. § 1361.
pon rely on the following language in the legislative his-
ory:
The purpose of this bill, as amended, is to make it pos-
sible to bring actions against Government officials and
agencies in U.S. district courts outside the District of
Columbia, which because of certain existing limitations
on jurisdiction and venue, may now be brought only
in the U.S. District Court for the District of Columbia
... This bill will not give access to the Federal courts
to an action which cannot now be brought against a
Federal official in the U.S. District Court for the Dis-
trict of Columbia. S.Rep. 1992, supra, at 2; 1962 U.S.
Code Cong. and Adm.News, supra, at 2784-85.
Since the present action was not cognizable only in the
District of Columbia prior to the passage of the Mandamus
and Venue Act of 1962, the argument goes, the statute can-
not encompass this claim.
There are a number of crucial errors in this line of rea-
soning.
First, the defendants argue that this action could have
been brought in any district ‘‘where the claim arose’’, and
for that further reason is not an action which could only
have been brought in the District of Columbia before pas-
* The Court notes that Dean Cramton has been publicly recog-
nized by the Senate as the craftsman of the revisions of § 1391(e).
See 105 Cong.Ree. $11532 (daily ed. July 1, 1976). His views are
therefore of considerable weight and importance.
39a
sage of Section 1391(e). However, as plaintiffs observe,
that venue provision did not exist until 1966, when 28
U.S.C. §1391(b) was amended. Moreover §1391(e)(1)
provides venue in the district where one of the de-
fendants resides. If the defendants may reside in more than
one district, then all the defendants need not reside in the
District of Columbia. Thus, subsection (e)(1) contemplates
actions against individuals who do not reside in the District
of Columbia and therefore could not have been sued there
prior to the enactment of § 1391(e).
A close reading of the legislative history convinces the
Court that the language cited by defendants was addressed
not to the entire bill but solely to the mandamus section. In
his letter to Senator Eastland, then-Deputy Attorney Gen-
eral White expressed the concern of the Justice Department
that the act might be construed to extend the mandamus
power to instances where there was no clear legal duty:
Courts interpreting the mandate to require a Federal
officer ‘‘to do his duty’’ might find a much greater
power intended than the existing mandamus power in
the District of Columbia court to which the proposed
statute does not refer explicitly or implicitly. S.Rep.,
supra, at 6; 1962 U.S.Code Cong. and Adm.News,
supra, at 2788.
In response to this concern, the Senate Committee added
clarifying language to § 1361, and inserted in its Report the
above-cited language, limiting the new mandamus subject-
matter jurisdiction of the district courts to the power which
had previously existed in the District of Columbia. This
limitation was not addressed to that part of the bill which
became 28 U.S.C. § 1391(e).
It is noteworthy that the Deputy Attorney General’s let-
ter had gone on to suggest tying section 2 of the bill, (now
§ 1391(e)), to the Administrative Procedure Act, to
«| | | unquestionably eliminate[s] suits for money |
judgements against officers . . .”” S.Rep.1992, supra, at
6; U.S8.Code Cong. and Adm.News, supra, at 2789.
40a
Although Congress adopted White’s other suggesti i
refused to act on this one. While such se ata ad
tion is of course not dispositive, the fact that Congress was
made aware of the construction which 4 1391(e) invited is
telling. The Court finds this additional support for its con-
clusion that the statements in each Report, that the venue
and jurisdictional problem of suing federal officers for dam-
ages would be solved by §1391(e), indeed say what they
seem to say.
In summary, the legislative history clearly states that the
venue provisions were intended to overturn the decisions
by which citizens seeking relief against government officials
were forced to sue in Washington, D.C. by virtue of the
then-operative federal question venue statute (venue was
available only where all defendants resided)" and the in-
dispensable party rule (even where the defendant official
was in plaintiff’s local district, a superior officer in Wash-
ington found indispensable would defeat the action, since
venue would be improper in the home district.) See S.Rep.
supra at 2-3, U.S.Code Cong. and Adm. News, supra at
2786. See also 4 Wright and Miller § 1107, supra at 419-420.
The same history specifically includes damage actions in the
catalogue of ‘‘mischiefs’’ to be remedied. It is therefore not
surprising that defendants have not cited a single case
hs cea that §1391(e) is inapplicable to damage ac-
ons.
™ Since venue in federal question cases at the time § 1391(e
was passed was available only where defendants resided, he —
at 2, the great majority of the defendants here could have been
sued only in Washington, D.C. under that former venue statute.
Therefore, if Congress intended § 1391(e) to apply only to actions
which, at the time of its passage, could be brought in Washington,
ee of the pending motions to dismiss would still have to
*? Defendants do cite authority that § 1391(e) is inapplicable to
damage actions brought against def
2(b), infra . ught aga endants individually. See part
4la
The Court can only conclude, therefore, that § 1391(e)
does indeed apply to damage actions. Whether it applies to
actions seeking damages against officials as individuals, and
where those officials are former employees, remain to be
considered.
b. Section 1391(e) applies to defendants sued in their
‘‘individual’’ capacities for actions accomplished
under color of legal authority.
All the defendants to whom the plaintiffs look to recover
money damages for the violation of their constitutional
rights, are sued in their ‘‘individual’’ capacity, and also in
their ‘‘official’’ or ‘‘former official’ capacity, as the case
may be (depending on whether they are or are not now in
government employ). But it is the ‘‘individual’’ capacity
which allows recovery of money damages. That designation
satisfies the fiction which was first adopted in Ex Parte
Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), in
order to overcome the impediment of sovereign immunity.
Its purpose is to characterize the illegal or unconstitutional
acts of government officials done under color of legal au-
thority (i. e., in the course of employment), as their own
for which they may incur liability. As it was specifically put
in Ex Parte Young:
If the act which the [official] seeks to enforce be a vio-
lation of the federal Constitution, the officer in proceed-
ing under such an enactment comes into conflict with
the superior authority of that Constitution, and he is in
that case stripped of his official or representative char-
acter and is subjected in his person to the consequences
of his individual conduct. 209 U.S. at 159-60, 28 8.Ct.
at 454 (emphasis added).*
18 Though Ex Parte Young was an action to enjoin a state offi-
cial, the fiction has been transported to apply to federal officials,
Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682,
69 S.Ct. 1457, 93 L.Ed. 1628 (1949), and to actions for money
42a
Acknowledgement of the fiction, and its function, is ex-
plicitly contained in § 1391(e) which uses the language ‘‘un-
der color of legal authority’’.**
The House Committee Report explained the significance
of the phrase (H.R.Rep. pp. 3-4) :
By including the officer or employee, both in his official
capacity and acting under color of legal authority, the
committee intends to make the proposed section 1391(e)
applicable not only to those cases where an action may
be brought against an officer or employee in his official
capacity. It intends to include also those cases where
the action is nominally brought against the officer
in his individual capacity even though he was
acting within the apparent scope of his authority and
not as a private citizen. Such actions are also in es-
sence against the United States but are brought against
the officer or employee as an individual only to circum-
vent what remains of the doctrine of sovereign immu-
nity. Considerations of policy which demand that an
action against an official may be brought locally rather
than in the District of Columbia require similar venue
provisions where the action is based upon the fiction
that the officer is acting as an individual. There is no
intention, however, to alter the venue requirements of
Federal law insofar as suits resulting from the official’s
private actions are concerned. Id. at 3-4.
damages. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d
492 (1961) (state officials); Bivens v. Six Unknown Agents, 403
U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (federal officials).
*The phrase was inserted over the objection of the Justice De-
partment, which argued for the statute’s limitation to acts done in
an official capacity. Jacoby, Nonstatutory Judicial Review, 53 Geo.
L.J. 19, 32-33 (1964).
43a
Defendants agree that damages can be awarded against
them only in their individual capacities. However, they con-
tend that § 1391(e) does not authorize jurisdiction or venue
in damage suits against federal officers sued in their indi-
vidual capacities, citing Relf v. Gasch, 167 U.S.App.D.C.
238, 511 F.2d 804, 807 n. 15 (1975) and Paley v. Wolk, 262
F.Sup. 640, 643 (N.D.111.1965), cert. denied, 386 U.S. 963, 87
S.Ct. 1031, 18 L.Ed.2d 112 (1967).
In Relf v. Gasch, supra, plaintiffs sought to mandamus a
district judge in the District of Columbia to prevent a
transfer of a lawsuit from Washington, D.C. to Alabama.
The underlying suit was against federal officials residing in
Washington. The Court of Appeals granted the mandamus,
finding that venue would not exist in Alabama under
§ 1391(e), by holding that § 1391(e) was inapplicable where
damages were sought against defendants as individuals.
The only authority the Court gave for this proposition was
Paley v. Wolk, supra.
In Paley v. Wolk, supra, plaintiff claimed that federal
patent officers were involved in a ‘‘confidence game’’ to
pocket plaintiff’s patent application fees. The court con-
cluded that the action arose out of essentially private acts
for private gain, that the wrongful acts were not done in
the course of the defendant’s duties, and that § 1391(e) did
therefore not apply. 262 F.Supp. at 643.
With due respect, this Court believes that the Relf deci-
sion is insupportable in light of the language of § 1391(e),
the legislative intent discussed supra, and the Paley case.
Paley simply tracks the language of § 1391(e), holding that
the subsection is available only when acts complained of
are performed ‘‘under color of legal authority’’. The acts
complained of in Paley were found not to be performed
‘under color of legal authority’’. In Relf, however, as here,
it is clear that plaintiffs were complaining of precisely such
acts as are covered by the terms of §1391(e). See Hart
and Wechsler, supra, at 1388; S.Rep., supra, at 3. Contrary
44a
to defendants’ contentions and Relf, §1391(e) does not
exclude all damage actions against officers sued individual-
ly. It excludes damage actions against officers sued indi-
vidually when those acts are not accomplished under color
of legal authority—i. e., when the acts complained of are
private acts accomplished for private gain.** This reading
fully conforms to the congressional intention in passing
§1391(e), which was to facilitate suits seeking redress
against the misuse of governmental power.
Under the defendants’ theory, the portions of the Senate
and House reports which specifically place damage actions
within the reach of 4 1391(e) are meaningless.” The only
actions they believe that language contemplates are actions
such as those against tax collectors which are against
the government official in his ‘‘ personal’’ capacity, not
his official capacity . . . since otherwise they would
be barred by the doctrine of sovereign immunity.
® See, e. g., Griffith v. Nizon, 518 F.2d 1195 (2d Cir. 1975),
dismissed for lack of jurisdiction because the acts complained of
were, like those in Paley v. Wolk, supra, private acts done for
private gain. This distinction is made in other areas of the law
relating to public officials. See, e. g., United States v. Ehrlichmar
546 F.2d 910, 921 (D.C.Cir.1976) where the court stated :
There is no violation of Section 242 [42 U.S.C. § 242], how-
ever, if a sheriff and his deputies commit a murder for purely
personal, non-governmental reasons. The state can, and should,
deal with such crime. Section 242 comes into play only if the
object of the murder . . . [arose from some] purpose stemming
from the official position of those committing the homicide.
**‘<The venue problem also arises in an action against a Govern-
ment 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.’’
H.Rep.No.536, 87th Cong., Ist Sess., at 3; S.Rep.No.1992, 87th
Cong., 2nd Sess., at 3.
45a
Reply memorandum of defendants Colby, Schlesinger,
Cushman and Walters, at 10. However, the legislative his-
tory specifically removes actions against tax collectors from
the reach of § 1391(e) :
The committee also approved an amendment to section
2 of the bill providing that the provision with respect
to venue should apply only to the extent that is not
otherwise provided by law. Examples of such proceed-
ings covered by this provision are proceedings with
respect to federal taxes.
S.Rep.No.1992, supra, 4; U.S.Code Cong. and Adm.News,
supra, at 2787. Defendants have not suggested damage
actions other than the clearly-excluded tax refund actions
to which Congress might have been addressing itself.
In essence, defendants attempt to break down the fiction
which authorizes both injunctive relief and damages against
federal officers when such relief would not be available
against the United States. As Defendant Helms puts it:
Plaintiffs would have this Court believe that a suit
against a defendant ‘‘individually’’ is the equivalent
of a suit against that defendant for actions ‘‘under
color of legal authority.’’ This contention defies com-
mon sense and English usage. Plaintiffs themselves
admit that Section 1391(e) covers only suits which
would otherwise be unconsented suits against the sov-
ereign, but which are maintainable against Federal
officials as nominal defendants through a ‘‘fiction’’.
But, a suit against a former officer, seeking damages
from his personal estate, is the very antithesis of a
suit against the Government. Thus Plaintiffs’ own
analysis of Section 1391(e) proves the inapplicability
of the provision here.
To the contrary, permitting damage suits against officers
‘‘individually’’ for harm resulting from actions accom-
46a
plished under color of the government’s legal authority
tracks precisely the methodology adopted jin Ex Parte
Young, supra, and subsequent cases. Such suits enable citi-
zens to remedy harms to them and to deter government
officials in the future from misusing the legal authority
entrusted to them. The legislative history of §1391(e) is
replete with reference to precisely these concerns. The
result is not inequitable. If defendants can establish a good-
faith defense, it will be available to them. However, should
they be unable to establish such a defense, it would be a
serious injustice to throw up hurdles against a lawsuit in
a single, convenient forum which Congress has authorized
as a ‘‘readily available, inexpensive judicial remed[y] for
the citizen who is aggrieved by the workings of govern-
ment.’’ S.Rep.1992, supra, at 3."
3. Section 1391(e) Applies to Former Officials
As a critical portion of their argument to avoid the
Court’s jurisdiction, defendants who were employed by the
17 Defendant Cotter argues that there is no need to look to the
legislative history of § 1391(e) because the statute is clear on its
face. He contends that resort to the legislative history, and an
attempt to construe the subsection in light of Congressional intent,
is particularly inappropriate since the ‘‘literal’’ reading he offers
will, he asserts, leave plaintiff with appropriate forums for this
lawsuit in the Southern District of New York, the site of the mail
openings, and the Eastern District of Virginia, headquarters of the
CIA. Whether or not jurisdiction over all defendants would exist
in those forums now, it is relevant in deciding what Congress in-
tended by passing § 1391(e), that when § 1391(e) was enacted,
this lawsuit could not have been brought in either of them. See
28 U.S.C. § 1391(b) (1962 ed.).
Although courts have disagreed about the proper construction of
§ 1391(e), they have been virtually unanimous in agreeing that the
statute is not clear on its face, and required a resort to legislative
history. See, e. g., Natural Resources Defense Council v. TVA, 459
F.2d 255, 257-59 (2d Cir. 1972) ; Powelton Civil Home Own. Ass’n.
v. Department of Housing and Urban Development, 284 F.Supp.
809, 833 (1968).
47a
United States in the past, but who were no longer employed
by the United States at the time they were served with
process in this suit,’* maintain that §1391(e) does not
apply to former federal officials but only to officials who
were employed by the United States at the time they were
served with process in this suit. The arguments they make
persuaded Judge Renfrew, in a similar case involving
many of the same defendants, to hold that §1391(e) ap-
plied solely to present, not former, officials. Kipperman v.
McCone, 422 F.Supp. 860, 876-77 (N.D.Cal. 1976).
Judge Renfrew began by noting that the plain language
of the statute denotes ‘‘an officer or employee of the United
States or any agency thereof acting in his official capacity
or under color of legal authority.’’ The court then pro-
ceeded to the legislative history which it found decisive,
suggesting ‘‘no intent on the part of Congress to include
former officials among those subject to suit under Section
1391(e)’’. Id. at 876. As Judge Renfrew read the legislative
history, only those individuals subject to mandamus—pres-
ent officials—would fall within the scope of the subsection.
He found it ‘inconceivable that Congress would so sub-
stantially broaden the venue provision applicable to every
individual once employed by the federal government with-
out comment’’. Id., at 877.”
The Kipperman court’s decision regarding the reach of
§ 1391(e) is squarely in conflict with the decision in Lowen-
%® Those defendants are Raborn, Carter, Taylor, White, Bissell,
Karamessines, Angleton, Hood, Rocca, Osborn, Murphy, Day,
O’Brien, Watson, Blount, Klassen, Cotter, Gray, Mitchell, Bundy,
and O’Brien. Defendant Kirkpatrick is a former official but is a
resident of Rhode Island. Defendants Helms, Schlessinger, Colby,
Meyer, Ober, Walters and Kelley are, or were at the time they were
served, employees of the United States.
In Wu v. Keeney, 384 F.Supp. 1161 (D.D.C. 1974), a damage
action where jurisdiction was based on § 1391(e) was dismissed
solely on this ground.
48a
stem v. Rooney, 401 F.Supp. 952 (S.D.N.Y.1975). Lowen-
stein sought declaratory and injunctive relief and damages
from various present and former officials for their alleged
improper and unlawful conduct toward him, consisting of,
inter alia, improper investigations, and a politically moti-
vated IRS investigation. In response to the motions of
various defendants to dismiss because §1391(e) did not
apply to former officials, the court canvassed the legislative
history of § 1391(e), and then stated:
The actions complained of by the plaintiff clearly were
committed ‘‘under color of legal authority’’. To assert
that because the defendants are no longer in govern-
ment service the plaintiff may not utilize section 1391
(e)—a section clearly intended to permit such actions
—would as plaintiff contends, defeat the purposes of
the statute. If the defendants desire to invoke official
immunity, they may do so directly. Lowenstein v.
Rooney, supra, at 962.
This Court is persuaded that the holding of Lowenstein
more fully conforms to the policies behind the adoption of
the broadened venue and service provisions of § 1391(e)
than the holding in Kipperman.
First, the reasoning urged by defendants would permit
an official to defeat an action against him for illegal acts
accomplished under color of legal authority merely by re-
signing his position. See Lowenstein v. Rooney, supra, at
961.” And such reasoning creates its own difficulties with
regard to officials who, while still in government service,
have changed jobs.
Second, it seems clear that Congress intended by § 1391
(e) to facilitate private suits for redress of governmental
action. Yet defendants’ construction would require plain-
tiffs seeking relief to maintain multiple lawsuits in widely
2° Plaintiff points out that defendant Cotter resigned the same
month this lawsuit was filed.
49a
scattered jurisdictions, each involving the same facts and
issues. That result seems at odds with the Congressional
intent in enacting Section 1391(e), ‘‘a plaintiff’s provi-
sion’’, Powelton Civil Home Owners Ass’n. v. Dept. of
Housing and Urban Dev., supra at 833.
The final reason advanced by defendants against reading
§1391(e) as applying to former officials is that it would
unduly burden government service. As the Kipperman
court observed :
The construction urged by plaintiff would potentially
subject a retired government official to suit in any
federal court in the country ... The Court finds it
inconceivable that Congress would so substantially
broaden the venue provision applicable to every indi-
vidual once employed by the federal government with-
out comment. Kipperman v. McCone, supra, at 877.
However, since it is undisputed that Congress subjected
present goverument officials to suit in any federal court
under §1391(e), it is necessary to determine exactly how
much of an added burden the construction proferred by
plaintiffs would place on retired officials. The Court must
ascertain the Congressional intention in § 1391(e). If the
- plaintiff’s construction would entail a significant added
burden on government service, that would be persuasive
reason to conclude that Congress would not have taken
such a step without comment.”
The Court has examined defendants’ arguments and fails
to perceive any significant burden of federal service added
by construing §1391(e) to apply to former officials. Cer-
21For example, Defendant Bundy contends that construing
§ 1391(e) to include former government officials would ‘‘be patently
unfair and would impose an impossible burden on government
service’, Bundy Memorandum at 10. He argues that plaintiff’s
construction would deter able men from entering federal service.
Id. at 13.
50a
tainly personal liability itself is not such an added burden,
since government service is already burdened with per-
sonal liability beyond the reach of official immunity. See,
e. g., Halperin v. Kissinger, 424 F.Supp. 838 (D.D.C. 1976).
Neither Congress nor the courts have found that subjecting
government officials to such liability impedes the proper
functioning of the government. To the extent that such
liability deters wrongful acts, that of course is its purpose.
Nor does the Court believe that able men and women would
be deterred from entering federal service if their liability
were not terminated by their withdrawal from the govern-
ment. Few men or women know how long they will be in
government service when they enter: the interest in cutting
off liability is served by statutes of limitations, which fairly
mitigate such burdens as exist for all officials, in or out of
government.
Nor does the Court find significant added burdens on
federal service in defending such lawsuits. As plaintiff
points out, the principal burden of defending any lawsuit
is the expense of counsel. But it seems to be undisputed
that it is the policy of the Justice Department to defend
lawsuits against present and former officials by citizens
claiming redress for actions accomplished under color of
legal authority. The record here shows that the Justice
Department has retained private counsel to represent each
of the defendants.” Indeed, this palpable manifestation of
22 A press release issued by the Department of Justice on Decem-
ber 12, 1975, and attached to plaintiff’s Memorandum in Opposition
to Defendants’ Motions to Dismiss the Complaint, states :
The Department . . . usually would represent all the present
and former employees for actions they took while federal
officials.
Since the Department has been conducting a criminal investigation
of the mail-opening program, representation of these defendants
would have created a conflict of interest, and the government
decided instead to retain private counsel for each of the defendants
here.
5la
the continuing relationship between the government and
its former officials strengthens plaintiffs’ argument, and
demonstrates the continuing responsibility which the United
States bears for acts committed under color of law by
persons formerly in the service of government. As for other
burdens of defending the lawsuit, apart from counsel and
ultimate liability, it is clear that these are insignificant. By
far the greatest portion of effort required in defending this
lawsuit will not require defendants to travel or undertake
other actions interfering with their ongoing activities.
Since the Court cannot find significant burdens placed
on former employees in defending lawsuits such as these
under government expense, other than those burdens which
employees of the government are all aware they face (i. e.,
liability for wrongful acts accomplished by misuse of official
power), it agrees with the Lowenstein court that the proper
construction of §1391(e) renders it applicable to present
and former officials alike.
Venue under Section 1391(e)
The arguments defendants make concerning § 1391(e)’s
inapplicability to damage actions against former officials
apply to venue as well as to personal jurisdiction. Since
the Court holds that $1391(e) authorizes the exercise of
personal jurisdiction in light of the allegations in the com-
plaint, it necessarily holds that §1391(e) supplies venue
as well.”
*3 Plaiatiffs have also sought to ground jurisdiction on Rhode
Island’s long-arm statute, Section 9-5-33, Rhode Island General
Laws (1956), basing venue on 28 U.S.C. § 1391(b). However, since
the Court has found jurisdiction and venue for all plaintiffs under
28 U.S.C. § 1391(e), and since Rhode Lsland’s long-arm statute
could ground jurisdiction at most for plaintiff Driver, the Court
does not reach these issues.
52a
Specificity of Allegations
Various defendants contend that the complaint fails to
allege specific facts connecting them with Rhode Island.
The case they rely on, Socialist Workers’ Party v. Attorney
General of the United States, 375 F.Supp. 318 (S.D.N.Y.
1974) holds that New York’s long-arm statute requires a
plaintiff suing an out-of-state defendant under a conspiracy
theory to allege ‘‘definite evidentiary facts’’ connecting the
defendant to transactions occurring in New York to subject
him to New York jurisdiction. Jd. at 322.
Since the Court holds that Rhode Island’s long-arm
statute provides no limitation on the court’s exercise of
jurisdiction over defendants sued pursuant to § 1391(e),
the Socialist Workers case is inapposite. Plaintiffs have
pleaded the only forum-related activity which they must
plead to establish personal jurisdiction: activity within the
forum, i. e., the United States.
To the extent that defendants contend that the complaint
fails properly to allege sufficiently specific facts regarding
acts of defendants which have harmed plaintiffs, a differ-
ent question is presented.* The Court has already indi-
cated its intention to entertain motions under Rule 12(b)
(6) at a later date.
Motion to Dismiss of Defendant Kelley
Plaintiffs seek injunction ‘‘enjoining the defendants from
engaging in the activities declared to be illegal and uncon-
* The court in Kipperman v. McCone, 422 F.Supp. 860 (N.D.
Cal.1976) seems to have considered the Rockefeller Report as a
source of ‘‘definite evidentiary fact’’ for the purpose of ruling on
preliminary jurisdictional motions. This court does not decide now
whether or not it may consider the Rockefeller Report of the Select
Committee in ruling on whether or not plaintiffs have sufficiently
stated a claim against particular defendants in order to survive a
Rule 12(b) (6) motion to dismiss.
53a
stitutional’’ against Defendant Clarence Kelley, the Direc-
tor of the Federal Bureau of Investigation, and
A mandatory injunction or writ of mandamus ordering
the defendants to produce before this Court for de-
struction, all files, reports, records, photographs, data
computer tapes and cards, and all other materials de-
rived from defendants’ illegal and unconstitutional ac-
tivities relating to plaintiffs and all other persons simi-
larly situated. (Prayer for Relief C. 2nd Amended
Complaint)
Defendant moves to dismiss on grounds of mootness, claim-
ing that the challenged operation was terminated in 1973.
They rely on an affidavit of Vernon A. Walters and on the
Report to the President by the Commission on CIA Activi-
ties Within the United States (hereinafter ‘‘the Rockefeller
Report’’).
It is clear that the plaintiffs’ claim for mandatory in-
junctive relief, at least, is very much alive, and that De-
fendant Kelley is the only defendant against whom such
relief could be awarded. They contend that copies of their
first-class mail, opened by defendants, remain in FBI files.
If true, that would amount to a continuing, real and sub-
stantial controversy with Defendant Kelley. The action is
therefore not moot. Aetna Life Insurance Co. v. Haworth,
300 U.S. 227, 240-41, 57 S.Ct. 461, 81 L.Ed. 617 (1937).
See also DeFunis v. Odegaard, 416 U.S. 312, 318, 94 8.Ct.
1704, 40 L.Ed.2d 164 (1974). The motion to dismiss of
Defendant Kelley is denied.”
*5 Plaintiff also claims that injunctive relief might well be appro-
priate even if the mail opening program has ended. While injune-
tive relief is normally predicated only on a threat of imminent
irreparable harm, it has been held that in extraordinary cases
egregious past harm, as to which the danger of repetition has not
been removed, and which continues to have serious repercussions
in the community, warrants the grant of injunctive relief. Lank-
ford v. Gelsten, 364 F.2d 197, 204 (4th Cir. 1966). See also Rizzo
54a
Interlocutory Appeal
Finally, it seems apparent that the Court’s resolution of
the difficult jurisdictional questions before it involves a
controlling question of law as to which there is substantial
ground for difference of opinion, and that an immediate
appeal may materially advance the ultimate termination of
the litigation. As the opinion demonstrates, various federal
courts have come out on different sides of nearly every
issue regarding the reach of § 1391(e) faced by this Court.
Furthermore, if the Court’s resolution of these questions
is mistaken, in all likelihood this action would be termi-
nated in this Court. The Court therefore makes the certifi-
cation required by 28 U.S.C. § 1292(b) as to the denial of
the motions to dismiss of all the defendants except for
Clarence Kelley and the United States.
Class Action
Plaintiffs, who seek declaratory and injunctive relief and
money damages, move the Court to certify a class composed
of
[a]ll United States citizens and residents whose first-
class letters, written and sent by or to them, either
from within or destined for the United States, were un-
lawfully opened, read and photographed by employees
of the Central Intelligence Agency, acting in concert
with employees of the United States Post Office De-
partment, the United States Postal Service, the Fed-
eral Bureau of Investigation, the Department of Jus-
tice, and other government agencies resulting in the un-
lawful collection, maintenance and dissemination of
files relating to them.
v. Goode, 423 U.S. 362, 373 n. 8, 96 S.Ct. 598, 46 L.Ed.2d 561
(1976). Since the Court finds the case not moot as to Defendant
Kelley on other grounds, it need not consider whether the very
serious acts complained of here meet the Lankford test.
55a
Defendants oppose class certification on a variety of
grounds. At the threshold, they object to the conclusory
terms in which the class is defined—those whose mail has
been ‘‘unlawfully’’ opened, read, and photographed. In view
of the fact that the same representation can be achieved by
a class composed of ‘‘those whose mail has been opened,
read, and photographed in connection with the East Coast
Mail Intercept Program’’, the Court sustains defendants’
objection ; plaintiffs are directed to modify the definition of
the proposed class accordingly.
In addition to problems raised by defendants, the Court
has its own liminal problems with the class as currently de-
fined. It became clear at the hearing held on this matter that
beneath the surface of the broad class that plaintiffs seek
to represent there exist two well-defined sub-classes. On the
one hand, there are those persons whose mail was, accord-
ing to the Rockefeller Report, opened, photographed or
otherwise tampered with on a purely random basis. This
sub-class apparently numbers in the tens of thousands. See
Rockefeller Report 105. On the other hand, there is a
smaller group, consisting of different individuals over the
years, but averaging about three hundred persons at any
one time, see Rockefeller Report 105. This sub-class is com-
posed of persons on the so-called ‘‘watch-list’’, individuals
of particular interest to one or more of the nation’s intelli-
gence bodies whose mail was the object of special scrutiny.
See id. at 105, 111. The two groups are in markedly different
positions. By definition, the watch-list sub-class had its mail
surveilled for some reason, although what the reason was in
each case remains to be seen. The random subclass, on the
other hand, had its mail inspected for reasons of pure
chance. Whether the different positions of the two groups
will have any legal significance, the Court cannot now say.
It is clear, however, that there are significant practical dif-
ferences between the two groups, in terms of litigating this
case. For example, defendants have already indicated that
they believe that they had probable cause to inspect the
56a
mail of the persons on the watch-list. Proving this claim
could involve extensive discovery by defendants, involving
depositions from each watch-listed class member. It could
also involve the presentation of an individual defense
against each such person. By contrast, the ‘‘probable
cause’’ defense would obviously be unavailable with respect
to persons whose mail was randomly opened. In view of
these differences between the two groups, the Court deems
it appropriate that the class be divided into two sub-classes,
composed of the random group and the watch-list group
respectively.” See Fed.R.Civ.P. 23(c)(4)(B); Eisen v. Car-
lisle & Jacquelin, 417 U.S. 156, 184-85, 94 S.Ct. 2140, 40
L.Ed.2d 732 (1974) (Douglas, J., dissenting in part). Rule
23(c)(4) requires the Court, once such a division has been
made, to construe and apply the remaining provisions of
Rule 23 accordingly. It is to that task that the Court now
turns.
A. The Requirements of Rule 23(a)
Rule 23(a) provides:
(a) Prerequisites to a Class Action. One or more
members of a class may sue or be sued as representa-
tive parties on behalf of all only if (1) the class is so
numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the
class, (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the
class, and (4) the representative parties will fairly and
adequately protect the interests of the class.
Because the decision to create sub classes is made on the
Court’s own motion and only after the hearing on class determi-
nation, the Court has not been informed whether named plaintiffs
fall into the random sub-class, the watch-list sub-class or both. This
information should be furnished to the Court without delay, by
stipulation or otherwise. It will be necessary that at least one
plaintiff be a member of each sub-class before an order of certifi-
cation can issue. See Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 558,
42 L.Ed.2d 532 (1975).
57a
As to the random sub-class, the Court has no difficulty in
finding that the requirements of Rule 23(a) are satisfied.
The class of persons whose mail was randomly opened num-
bers in the tens of thousands, see Rockefeller Report 105.
The claims of plaintiffs (that their mail was randomly
opened in violation of the fourth amendment) as well as the
defense (that the mail intercept program was undertaken
reasonably and in good faith) are typical class wide. The
mail intercept program, as a whole, raises common ques-
tions of fourth amendment law that do not vary perceptibly
according to which random class member raises these ques-
tions. Further, there is no doubt that plaintiffs’ attorneys
from the American Civil Liberties Union are amply quali-
fied to carry this action forward as a class action, thus as-
suring ‘‘adequacy of representation’’ in one sense of that
term, see Cullen v. United States, 372 F.Supp., 441, 447-
48 (N.D.11.1974).
However, ‘‘adequacy of representation’’ also means that
‘‘the interests of the representative party must coincide
with those of the class’’, Mersay v. First Republic Corp.,
43 F.R.D. 465, 469 (S.D.N.Y.1968). It has been suggested
by one of the defendants that this requirement is not met in
the present case because some persons whose mail was mon-
itored might regard the East Coast Mail Intercept Project
as entirely reasonable and in the national interest. This as-
sertion, if true, is irrelevant to the question of whether this
action may be maintained as a class action. See Norwalk
CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 937
(2nd Cir. 1968). If the relief sought in this case would ad-
versely affect tangible interests of some proposed class
members it might be argued that plaintiffs were not ade-
quate representatives of the class. See, e. g., Dierks v.
Thompson, 414 F.2d 453, 456 (1st Cir. 1969); Burns v.
United States Postal Service, 380 F.Supp. 623, 629 (S.D.
N.Y.1974). However, such an argument cannot be based on
mere speculation as to what some class members might re-
gard as sound national policy, and the Court finds that
plaintiffs provide the adequacy of representation for the
58a
interest of the proposed sub-class that is required by Rule
23(a).
The issues posed by the question whether the watch-list
sub-class meets the requirements of Rule 23(a) are some-
what different. There is no problem as to numerosity. Al-
though the total number of persons un the list over a
twenty-year period has not been ascertained, the average
number of persons on the list at any given time was about
300, see Rockefeller Report 106, a number in itself sufficient
to render joinder impracticable. Cf. Cullen v. United States,
372 F.Supp. 441, 447 (joinder of 325 persons clearly imprac-
ticable). As to adequacy of representation, the Court’s
earlier remarks a propos the random sub-class apply to the
watch-list sub-class with equal vigor, and the Court finds
adequacy of representation as to that group.
The more difficult question is whether any of the named
plaintiffs present claims that are typical of the class and
raise issues involving common questions of law or fact.
Basically, defendants contend that the legality of the sur-
veillance of watch-listed persons depends on the particular
facts of each case, as those facts shed light on the reason-
ableness of each intercept. Such individualized determina-
tions, defendants argue, are the very antithesis of the typi-
cality and common questions required by Rule 23(a). This
argument does not really address plaintiffs’ theory of the
case.
In plaintiffs’ view, a warrantless surveillance of any first-
class mail for intelligence purposes is presumptively illegal
under any circumstances. If this view is correct—and now
is not the time to make a judgment on that point, see Yaffe
v. Powers, 454 F.2d 1362, 1366 and n. 2 (ist Cir. 1972);
Fogel v. Wolfgang, 47 F.R.D. 213, 215 n. 4 (S.D.N.Y. 1969)
—then plaintiffs are also correct in asserting that the
myriad targets of the intercept program have a unitary
claim whose validity is dependent upon a single question of
law. Should it become clear that plaintiffs’ view of the law
will not prevail the sub-class can be modified or dismissed.
59a
See Yaffe v. Powers, 454 F.2d at 1367. For the present, the
Court finds that the requirements of typicality and com-
monality, as well as numerosity and adequacy of represen-
tation are present with respect to the watch-list sub-class.
B. The requirements of Rule 23(b)
In addition to the requirements of Rule 23(a), plaintiffs
must satisfy one or more of the requirements of Rule 23(b)
in order to obtain class certification. It is plaintiffs’ posi-
tion that the instant action may be maintained under any of
the following provisions of Rule 23(b):
(b) Class Actions Maintainable. An action may be
maintained as a class action if the prerequisites of sub-
division (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against
individual members of the class would create a risk of
(A) inconsistent or varying adjudications with re-
spect to individual members of the class which would
establish incompatible standards of conduct for the
party pposing the class, or....
(2) the party opposing the class has acted or refused
to act on grounds generally applicable to the class,
thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the
class as a whole; or
(3) the court finds that the questions of law or fact
common to the members of the class predominate over
any questions affecting only individual members, and
that a class action is superior to other available meth-
ods for the fair and efficient adjudication of the con-
troversy. The matters pertinent to the findings include:
(A) the interest of members of the class in individually
controlling the prosecution or defense of separate ac-
tions; (B) the extent and nature of any litigation con-
60a
cerning the controversy already commenced by or
against members of the class; (C) the desirability or
undesirability of concentrating the litigation of the
claims in the particular forum; (D) the difficulties
likely to be encountered in the management of a class
action.
While disputing generally that the requirements of any
portion of Rule 23(b) have been met, defendants urge in
particular that plaintiffs cannot properly bring this action
under Rule 23(b)(2) since, in addition to injunctive relief,
plaintiffs seek money damages in excess of $1 billion and
Rule 23(b) (2), by its terms is applicable only to claims for
‘‘final injunctive or corresponding declaratory relief.’’
Without disputing plaintiffs’ contention that ‘‘incidental’’
monetary relief can be given in conjunction with injunctive
or declaratory relief under Rule 23(b)(2), it seems to the
Court beyond dispute that plaintiffs’ attempts to impose
substantial financial liability on defendants cannot fairly be
characterized as ‘‘incidental.’’ See, e. g., Robertson v. Na-
tional Basketball Association, 389 F.Supp. 867, 900 (8S.D.
N.Y.1975); Advisory Committee’s Notes to Rule 23, 39
F.R.D. 98, 102 (1966).
However, this is not to say that a claim for class-wide
injunctive relief should be denied merely because it is cou-
pled with a claim for a money judgment, however substan-
tial. In order to preserve injunctive relief, the better course,
in this Court’s view, is to certify the declaratory and in-
junctive claims for class-wide relief under Rule 23(b) (2) if
the requirements of that rule and of Rule 23(a) are met and
then consider as a separate matter whether the claims for
money damages can be maintained under Rule 23(b)(1) or
Rule 23(b) (3). See 3B Moore’s Federal Practice {| 23.45[1]
at 708-09.
In the present case, it is clear that if plaintiffs prevail on
the merits and satisfy the other requirements for declara-
tory and injunctive relief, such relief can be appropriately
6la
granted on a class-wide basis, both with respect to the
watch-list sub-class and the random sub-class. As to the
random sub-class, such relief, if it is to be granted to any
member of the group, should be granted to all, since the
very definition of the sub-class belies any individual dif-
ferences among its members and defendants’ decision to
institute random mail surveillance was based on the com-
mon factor of the destination of the mail surveilled rather
than upon any particularizing characteristics of individual
addresses.
As to the watch-list sub-class, defendants claim to have
acted on the basis that surveillance of persons in that
group was reasonably justified. Should that assumption
prove erroneous in toto, class-wide relief will be appropri-
ate. Should the assumption be upheld in its entirety, defend-
ants will be entitled to a judgment in their favor running
against the sub-class as a whole. If the validity of defend-
ants’ ‘‘reasonableness’’ standard must be tested on a case-
by-case basis, the sub-class can be dismissed as improvi-
dently certified. See, e. g. City of Philadelphia v. Emhart
Corp., 50 F.R.D. 232, 235 (E.D.Pa.1970). At this juncture,
the common thread of ‘‘reasonableness,’’ generally appli-
cable to the entire sub-class, is sufficient to permit certifica-
tion of the watch-list sub-class under Rule 23(b)(2) for
purposes of seeking declaratory and injunctive relief.”
It remains to be determined whether plaintiffs’ claims
for money damages are amenable to class treatment. More
precisely, the Court must consider whether plaintiffs can
maintain a class action on the issue of liability for money
** Defendants have argued that appropriate injunctive relief
may be framed in this case without certifying a class. See, e. g.,
District of Columbia Podiatry Society v. District of Columbia, 65
F.R.D. 113 (D.D.C.1974). This Court, however, will follow what
it regards as the better rule, that, at least in civil rights cases,
certification for purposes of injunctive relief is appropriate
wherever the requirements of Rule 23 have been met. See, e. g.,
Fujishima v. Board of Education, 460 F.2d 1355, 1360 (7th Cir.
1972).
62a
damages, for the Court rejects at the outset plaintiffs’ con-
tention that the actual assessment of damages to individual
class members can be tried on a class-wide basis. As defend-
ants accurately point out, the gravamen of plaintiffs’ dam-
ages claim is that the privacy of persons whose mail was
monitored has been violated. How much compensation, if
any, such persons are entitled to is necessarily a matter
that the jury must assess on a case by case basis, assessing
the harm done in each case. Plaintiffs’ suggestion that a dol-
lar amount can be arbitrarily assigned as compensation for
each letter opened or photographed cannot be accepted.
Dellums v. Powell, No. 1022-71 (D.D.C.), appeal pending, a
ease cited by plaintiffs in which class-wide damages for
constitutional violations were awarded, did not involved the
uniquely subjective claims of privacy that are implicated
when, as here, a fourth amendment violation is claimed.
In deciding the question of whether a class action on the
issue of liability can be maintained by either of the sub-
classes, a threshold problem arises that is not present if the
claims for relief were limited to declaratory and injunctive
relief.
The problem, although identified by defendants as re-
lated to the question of whether plaintiffs’ claims are
typical of those of the class sought to be represented, might
also be described as one of standing. To the extent that
plaintiffs seek class-wide declaratory and injunctive relief,
there can be little doubt as to their standing. Plaintiffs
allege that they and all other class members have been
the victims of a government program that has violated
their constitutional and statutory rights and seek a declara-
tion that the program was illegal, an injunction against its
continuance, and a mandatory order that the files kept as a
result of the program be destroyed. Insofar as this relief
can be obtained from the present governmental officials who
are parties to this suit, it is clear that plaintiffs have
standing to seek this relief or behalf of the class. The
harm that the named plaintiffs allege is the same as that
63a
of the two sub-classes generally: it is the threatened con-
tinuation of the program anc the continued existence in
government files of the information gleaned by the pro-
gram.
The claims on liability fur money damages stand on a
somewhat different footing.” Plaintiffs seek money dam-
ages on behalf of the class from each of the officials respon-
sible for the mail intercept program throughout the twenty
year period of its existence even though their own indi-
vidual mail was only allegedly tampered with during a
part of that period. The question is thus raised as to how
plaintiff Driver, for example, whose mail was allegedly
opened in 1965 and 1969, can have standing to seek dam-
ages from defendant Schlesinger, for example, whose in-
volvement in the intercept program, by plaintiffs’ own
allegations, did not begin until after 1970; or against de-
fendant Bissell, whose tenure with the CIA extended from
1959 only until 1962. Courts have resolved this question in
various ways, some holding that class representation is not
possible under such circumstances, see, e. g., Weiner v.
Bank of King of Prussia, 358 F.Supp. 684 (.D.Pa.1973) ;
see also La Mar v. H & B Novelty & Loan Co., 489 F.2d
461 (9th Cir. 1973) (lack of typicality). On the other hand,
at least one court has held that a class action is maintain-
able even where plaintiffs would be unable in their own
right to bring an action against all of the defendants. Haas
v. Pittsburgh National Bank, 60 F.R.D. 604, 611-614 (W.D.
Pa.1973).
This Court need not attempt to resolve these conflicting
positions, since it appears that the rule that one or more of
78 It is not clear from plaintiffs’ complaint whether they seek an
injunction against former CIA, FBI, and post office personnel or
a declaration that these former officials’ conduct was illegal. If
such relief is indeed sought, it raises the same standing problems
as does the claim for monetary relief and the Court’s discussion
of that point applies equally to claims for declaratory and injune-
tive relief against former officials.
64a
the named plaintiffs must individually have a cause of
action against each named defendant in order for a class
action to be maintained does not apply to ‘‘situations in
which all injuries are the result of a conspiracy’’ or to ‘‘in-
stances in which all defendants are juridically related in a
manner that suggests a single resolution of the dispute
would be expeditious.’’ La Mar, 489 F.2d at 466.
In the Court’s opinion, plaintiffs’ complaint fits both
branches of the La Mar exception. Plaintiffs’ complaint
alleges a massive and concerted program of covert mail
intercepts over a twenty-year period, the maintenance of
on-going files based on information gleaned from the inter-
cepts, and a conspiracy to conceal the existence of the
entire operation. The officials and former officials named
are, moreover, juridically related in that they are all past
and present federal officials whose duties included over-
sight either of foreign or domestic intelligence gathering
or the proper delivery of the U. S. Mail. These considera-
tions fit the present complaint easily within the La Mar
exception. See also Washington v. Lee, 263 F.Supp. 327,
330-31 (M.D.Ala.1966) (plaintiffs segregated by race in one
county jail can represent class of similarly situated persons
in all county jails throughout state). Accordingly, the Court
holds that named plaintiffs who are members of the two
sub-classes have standing to raise the claims of the mem-
bers of their respective sub-class against former officials
whose tenure does not correspond to the dates of the indi-
vidual mail openings alleged by any of the named plaintiffs.
The Court now turns to the question of whether a class-
wide claim that defendants’ conduct has rendered them
liable in damages fits either of the two remaining sections
of Rule 23(b) suggested by plaintiffs.
It seems clear that Rule 23(b)(1)(A) cannot apply to the
liability claim. Assuming that Rule 23(b)(1)(A) is applic-
able to claims for damages, a question not free from doubt,
see, e. g., Kristiansen v. John Mullens & Sons, Inc., 59
65a
F.R.D. 99, 105 and n. 6 (E.D.N.Y.1973) ; Ratner v. Chem-
wal Bank New York Trust Co., 54 F.R.D. 412, 415 and n. 5
(S.D.N.Y.1972) ; but see Berman v. Natragansett Racing
Association, 48 F.R.D., 333, 337 (D.R.1.1969) (by implica-
tion) the rule is inapposite to the present facts. The plain-
tiffs argue that Rule 23(b)(1)(A) certification is necessary
to establish compatible ‘‘standards of conduct for the party
opposing the class.’’ However, the Court’s decision to cer-
tify the sub-classes under Rule 23(b)(2) for class-wide in-
junctive relief has accomplished this for it will necessarily
mean that a class-wide adjudication will be forthcoming
(unless the class is de-certified) that will establish a stand-
ard of conduct to be observed by defendants in the future
and will preclude any need for the establishment of such a
Psd by means of a damages action under Rule 23(b)
There remains Rule 23(b)(3). In order for plaintiffs to
maintain a class action on the issue of liability on behalf
of either sub-class, the Court must find that common ques-
tions of law and fact predominate over individual questions
and that ‘‘a class action is superior to other available
methods for the fair adjudication of the controversy.’’
Rule 23(b) (3).
Insofar as plaintiffs seek a class-wide adjudication of
defendants’ liability on behalf of the random sub-class,
there is little doubt that such treatment is warranted. The
Court has already determined to make a class-wide adjudi-
cation of the legality of the intercept program under Rule
23(b) (2). Adjudication of the issue of liability will add
only the element of any good faith or other defense that
defendants choose to raise. Since the random sub-class
members are completely fungible, having been selected by
chance and the accident that they all corresponded with
persons in the Soviet Union, it cannot be said that the
validity of any defenses raised will vary from individual
to individual, or that any individual class member will have
any special interest in controlling his or her individual
66a
litigation. Judicial economy, the prevention of multiple
lawsuits, the absence of any substantial difficulty in con-
centrating this litigation in this forum—all of these factors
lend additional support to the Court’s conclusion that de-
fendants’ liability to the random sub-class should be adjudi-
cated as a class action.
Application of the Rule 23(b)(3) criteria to the watch-
list sub-class leads to a quite different conclusion. Defend-
ants have made it clear that they plan to defend against
liability for the mail surveillance of watch-listed persons
on the grounds that they reasonably believed that each such
surveillance was proper. When the Court considers the
extensive pre-trial discovery and trial testimony that such
a defense will entail, it must conclude that the question of
the manageability of such a class action raised by defend-
ants is no mere spectre, and poses serious problems that
render class action certification of the watch-list sub-class
on the question of defendants’ liability inappropriate at
this time.”
C. Notice
Because the liability issue in this case will proceed as a
Rule 23(b)(3) class action on behalf of the sub-class of
persons whose mail was randomly photographed, opened,
or inspected in connection with the East Coast Mail Inter-
cept Program, notice to members of the sub-class is re-
2° Two reasons dictate a different result concerning certification
under Rule 23(b)(3) of a class action on behalf of the watch-list
subclass with respect to the issue of liability than was reached with
respect to certification under Rule 23(b)(2) for the claims for
declaratory and injunctive relief. First, the ‘‘good-faith’’ defense,
with its concomitant problems is obviously not available insofar as
the relief sought is declaratory and injunctive. Second, and con-
‘*the existence of ‘predominating’ questions and the avail-
ability of other methods of resolution which might be superior to a
class action are not criteria of a subdivision (b)(2) class, but . . .
of a (b)(3) class... .’’ Yaffe v. Powers, 454 F.2d 1362, 1366
(1st Cir, 1972).
67a
quired by Rule 23(c)(2). This notice must include indi-
vidual notice to sub-class members if the addresses of the
individuals are available through reasonable effort. Eisen
v. Carlisle & Jacquelin, 417 U.S. 156, 173, 94 S.Ct. 2140,
40 L.Ed.2d 732 (1974). Whether the addresses are avail-
able in the present case can only be determined after dis-
covery proceedings, and the Court will enter an appropriate
order regarding notice at that time. It should be noted that
whatever notice is ordered must be at plaintiffs’ expense.
Id. at 178-179, 94 S.Ct. 2140. Plaintiffs’ contention that the
government should bear the cost of notice in this case can-
not be sustained under Eisen. While the Eisen Court left
open the possibility that defendants may be made to bear
the cost of notice where there exists a fiduciary relationship
between plaintiff and defendants, plaintiffs have not estab-
lished that such a relationship exists between plaintiffs and
defendants in the present case.
One final comment is in order. Defendants, citing Berlin
Democratic Club v. Rumsfeld, 410 F.Supp. 144 (D.D.C.
1976), argue that maintenance of a class action in this case
will lead to endless procedural battles over discovery and
impermissible inquiries into the nature and scope of intelli-
gence activity. The latter objection, whatever its validity in
other cases, is inapplicable to the present case, where the
East Coast Mail Intercept Program is already a matter of
detailed public knowledge due to the publication of the
Rockefeller Report and the Report of the Select Committee.
The existence of those reports should also preclude many
objections to discovery that might otherwise be made. In
any case, plaintiffs here have raised a class-wide claim for
injunctive and declaratory relief that they seek to certify
under Rule 23(b)(2) as well as claims for class-wide dam-
ages under Rule 23(b)(3). While considerations of undue
publicity might conceivably have some bearing on the de-
termination the Court must make under Rule 23(b)(3) as
to whether a class action is superior to other modes of
adjudication, no such determination is authorized under
68a
Rule 23(b)(2). Since the same information will undoubt-
edly be sought in discovery whether the relief sought is
injunctive and declaratory only or is coupled with claims
for money damages, defendants’ objections on grounds of
undue publicity must be rejected.
To summarize, the Court finds that plaintiffs’ proposed
class of all United States citizens whose mail was unlaw-
fully opened, read, and photographed must be amended
to avoid the conclusory term ‘‘unlawfully,’’ that the class
must be divided into sub-classes composed of those persons
whose mail was opened, read, and photographed randomly
and those persons whose mail was opened, read, and pho-
tographed based on their presence on the watch-list, that
at least one named plaintiff must be a member of each
sub-class, that a class action may be certified as to both
sub-classes under Rule 23(b)(2) for purposes of adjudi-
cating the claims for injunctive and declaratory relief, that
a class action on behalf of the random sub-class may be
coli’ under Rule 23(b)(3) for purposes of adjudicating
the claim that defendants are liable in damages to the
members of that sub-class, that class certification of the
liability claims of the watch-list sub-class is inappropriate
at this time, and that individual notice of the class action
on the issue of liability must be sent at plaintiffs’ expense
to all members of the random sub-class whose addresses
are obtainable through reasonable effort.
Counsel will prepare an order in accordance with this
opinion.
- a2 .
ORDER
[Caption Omitted in Printing]
This matter having come before the Court (1) on the
various motions of the defendants excepting Clarence M.
Kelley and the United States to dismiss under Federal
Rules of Civil Procedure 12(b) (2), 12(b)(3) and 12(b) (4);
and (2) on the motion of defendant Clarence M. Kelley to
dismiss under Federal Rules of Civil Procedure 12(b) (6)
69a
(on grounds of mootness) ; and pursuant to the Opinion of
this Court dated April 1, 1977, in regard to these motions,
it is hereby
ORDERED
(1) That the Motions of each and every Defendant, other
than Clarence Kelley and the United States of America, to
dismiss the Amended Complaint pursuant to Rules 12(b)
(2), 12 (b)(3), and 12 (b)(4) of the Federal Rules of Civil
Procedure for lack of jurisdiction over the person, im-
proper venue and insufficiency of process be, and each of
said Motions hereby is, denied.
(2) The Court being of the opinion that this Order, de-
nying the Motions of all Defendants, other than Clarence
Kelley and the United States of America, to dismiss the
Amended Complaint pursuant to Rules 12(b)(2), 12(b) (3),
and 12(b)(4) of the Federal Rules of Civil Procedure, in-
volves a controlling question of law concerning the inter-
pretation and application of 28 U.S.C. § 1391(e) as to which
there is substantial ground for difference of opinion, and
that an immediate appeal from this Order may materially
advance the ultimate termination of this litigation, it is
hereby ordered, pursuant to 28 U.S.C. § 1292(b), that each
Defendant, other than Clarence M. Kelley and the United
States of America, be and hereby is granted the opportu-
nity to apply to the United States Court of Appeals for the
First Circuit within ten (10) days from the entry of this
ve for permission to appeal to said Court from this
r.
( 3) That the Motion of Defendant Clarence Kelley to dis-
miss the Amended Complaint under Federal Rules of Civil
Procedure 12(b)(6), on the ground that, as to him, it is
moot, be and hereby is denied.
/s/ Katuizen M. Powers
Enter: Deputy Clerk
/s/ Raymonp J. Perrine
Chief Judge
October 4, 1977
70a
APPENDIX C
Constitutional and Statutory Provisions Involved
Constitution: Fifth Amendment
The Fifth Amendment to the United States Constitution
reads as follows:
‘*No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment 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 com-
pelled in any criminal case to be a witness against him-
self, nor be deprived of life, liberty, or property, with-
out due process of law; nor shall private property be
taken for public use, without just compensation.”’
Statute: 28 U.S.C. § 1391(e)
Tla
(b) By adding at the end of the table of sections for
chapter 85 of title 28 of the United States Code the
following :
‘1361. Action to compel an officer of the United States
to perform his duty.’ —
Sec. 2. Section 1391 of title 28 of the United States
Code is amended by adding at the end thereof the fol-
lowing new subsection:
‘(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 summons and
complaint to the officer or agency as required by the
Section 1391(e) was enacted with 28 U.S.C. § 1361 as the
Mandamus and Venue Act of 1962, Pub. L. No. 87-748, 76
Stat. 744 (1962). The Act reads as follows:
rules may be made by certified mail beyond the terri-
“Be it enacted by the Senate and House of Repre- Rico ggg ea: ; Tyokae
sentatives of the United States of America in Congress deat: of the district in which the action is
assembled, That chapter 85 of title 28 of the United
States Code is amended—
(a) By adding at the end thereof the following new
section :
As a result of a 1976 amendment to Section 1391(e), the
statute, as now codified, includes the following sentence
after the last sentence of the first paragraph:
‘* Additional persons may be joined as parties to any
‘$1361. Action to compel an officer of the United
States to perform his duty
‘The district courts shall have original jurisdiction
of any action in the nature of mandamus to compel an
officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.’
such action in accordance with the Federal Rules of
Civil Procedure and with such other venue require-
ments as would be applicable if the United States or
one of its officers, employees, or agencies were not a
party.”’
72a
In addition, the 1976 amendment changed the word ‘‘each’’
in the first paragraph to ‘‘a’’. Act of Oct. 21, 1976, $3,
Pub. L. No. 94-574, 90 Stat. 2721.
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.