Petition — Helms v. Driver

Supreme Couw, U.S ~

LED

IN THE AUG 23 1978

Supreme Court of the United Stutes, ROBAK, JR., CLERK

Octosrr TeRM, 1978

No. 78..... 78 -3 i 1

>

Ropney D. Driver, et al.,

Petitioners,

—V.—

Ricuarp Hetas, eft al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Mervin L. WvuLF

CLrark WuLF & LEVINE

113 University Place

New York, N. Y. 10003

Burt NEUBORNE

40 Washington Square So.

New York, N. Y. 10012

RicHarpD W. Zacks

WrnocraD, Sune & Zacks

2220 Hospital Trust Bldg.

Providence, R. I. 02903

Bruce J. ENNIS

American Civil Liberties

Union Foundation

22 Kast 40th St.

New York, N. Y. 10016

Attorneys for Petitioners

ee ere

oe

Table of Contents

Opinions Below

Jurisdiction

Question Presented

Statute Involved

Statement of The Case

Conclusion

Appendix

Decision of the Court of

Appeals

Decision of the District

Court

Page

Oo NN - wWw-

10

la

2la

ak

Table of Contents

Adams Dairy Co. v. National Dairy

Products Corp., 293 F. Supp

1135 (W.D. Mo. 1968) jA25

Bivens v. Six Unknown Agents

ZO2 U.S. 388 (1971) Pee es

Eastland Construction Co. v.

Keasbey and Mattison Co.,

358 Ftd 77? (ven Gan. Been)... ..s

Farmers Elevator Mutual Ins. Co.

v. Carl J. Austed & Sons, Inc.,

343 F.2d 7 (8th Cir. 1965) '

Goodwin v. Briggs, et al.,

.2a I one Cir. 1977),

petition for cert. filed,

46 U.S.L.W. 3634 (U.S. March

31, 1978) (No. 77-1401) ee

Great American Ins. Co. v. Louis

Lesser Enterprises, inc., 353

F.2d 997 CSch Cir. 1965) ‘ae a

L'Heureux v. Central American

Airways Flying Service, 209

F.Supp. ak oF Md. 1962) ae

Lowenstein v. Rooney,

. Supp. .D.N.Y. 1975)

Snyder v. Eastern Auto Distributors

oT ‘ t

ES |

r. p

cert. denied, 384 U.S. 987 (197 )...10

Sa8.

Table of Authorities Cont.

Page

| United States v. McAninch,

upp. 240 (E.D.N.Y.

1975) TEC Rg Me 8

Wu v. Keene

~ 384 upp. 1161 (D.D.C.,

1974) 8

In The

Supreme Court of the United States

‘October Term, 1978

No. 78 -

Rodney D. Driver, et al.,

Petitioners,

vs.

Richard Helms, et al.,

Respondents.

Petition For a Writ of Certiorari

to the United States Court

of Appeals for the First Circuit

Petitioners pray that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals

for the First Circuit entered in this

case on May 25, 1978.

Opinions Below

The opinion of the United States

Court of Appeals for the First Circuit is

unreported. It is set out in the Appendix,

infra, pp. la-20a. The opinion of the

United States District Court for the Dis-

oS

trict of Rhode Island is reported at 74

F.R.D. 382, and is set out in the Appen-

dix, infra, pp. 2la- 69a

Jurisdiction

The judgment of the Court of Appeals

was entered on May 25, 1978. The juris-

diction of this Court is EvOReS under

28 U.S.C. §1254(1).

Question Presented

‘Whether, in a suit for money damages

for injuries caused by constitutional

torts committed during the course of the

defendants' federal employment, 28 U.S.C.

§1391(e) grants a federal district court

personal jurisdiction over the two follow-

ing classes of defendants even though they

are served outside the State, and were

never physically present within the State,

in which the district court sits:

1. defendants no longer employed by

the United States;

2. defendants who are still employed

by the United States, but who are not

"serving the government in the capacity

in which they performed the acts on which

their alleged liability is based."

Statute Involved

Title 28 U.S.C. §139l(e):

(e) A civil action in which a

defendant is an officer or en-

ployee of the United States or

any agency therof acting in

his official capacity or under

~

color of legal authority, or

an agency of the United States,

or 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 plain-

tiff resides if no real property

is involved in the’action. Addi-

tional persons may be joined as

parties to any such action in

accordance with the Federal Rules

of Civil Procedure and 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.

The summons and complaint

in such an action shall be ser-

ved 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

is brought.

Statement of the Case

This class-action suit 1/ for damages

was filed by petitioners in 1975 in the

1/ The district court certified the suit

as a class-action under Rule 23(b) (3),

F.R.Civ. P., App., infra, p.68a.

oh=

federal district court for Rhode Island.

The damages sought were the result of

injuries inflicted by a secret CIA Project

entitled HTLINGUAL, carried on from 1953 to

1973, in which theCIA, without warrants

ever being issued or applied for, secretly

opened, read and circulated approximately

215,000 pieces of incoming and outgoing

first-class mail. 2/

The twenty-five defendants in the suit

are present or former high-ranking officials

of the CIA, the Post Office Department,

and other agencies of the United States

who were responsible for, participated in,

or concealed the mail-opening program. 3/

With the exception of one of the defendants

who lives in Rhode Island and was personally

served there, the other defendants were

served outside the State. The defendants

in government service were served by certi-

fied mail; those no longer in government

service were served personally. 4/

2/ HTLINGUAL is fully described in the

Final Report of the Select Committee to

Study Governmental Operations with Respect

to Intelligence Activities, United States

Senate, Book III, pp. 559 et seq.

3/ The current directors of the CIA and the

FBI are named as defendants for purposes

of injunctive relief concerning disposition

of the records of the mail-opening project.

The records include copies of all the let-

ters which were opened.

4/ The Court of Appeals' statement that all

defendants were served by certified mail

(App., infra, p. 2a, n. 4) is incorrect.

=

All the defendants, save the Rhode

lsland resident, filed motions to dismiss

under Rules 12(b)(2), 12(b)(3) and 12(b)

(4), F.R.Civ.P., alleging that they had been

served outside the state of Rhode Island

and thet, indeed, most of them had never

been in the State. The plaintiffs conceded

the truth of the allegations, since they

believed that §139l(e) allowed effective

extraterritorial service of process against

present and former government officials sued

for constitutional torts committed during

the course of their employment.

The district court denied the motions

to dismiss, agreeing with plaintiffs'

interpretation of the extraterritorial

reach of §1391{e), both as to defendants in

government employment at the time they were

served with the summons and complaint in

this suit, and as to defendants no longer

in government employment when served with

process.

The district court certified the ques-

tion to the First Circuit under 28 U.S.C

§1292(b). The Circuit Court took jurisdic-

tion and held that §139l(e) supplies venue

and empowers the district court to exercise

personal jurisdiction only against officials

who, at the time process is served’ upon

them, are "serving the government in the

capacity in which they performed the acts

on which their alleged liability is based."

Reasons For Granting The Writ

Certiorari should be granted in this

case because the First Circuit has decided

an important question of federal law which

has not been, but should be, settled by

this Court. There is also a conflict

Bre

between two Courts of Appeals.

Specifically, the issue raised is the

ability of citizens, who are victims of

constitutional torts committed by federal

employees, to secure effective judicial

relief. A construction of 28 U.S.C. §1391(e)

which empowers the district courts where

plaintiffs reside to exercise jurisdiction

over defendants who reside beyond the

courts' territorial boundaries, serves

that important goal.

Bivens v. Six Unknown Agents, 403

U.S. 388 (1971), allows suits for damages

by private citizens whose constitutional

rights are violated by federal officials.

As the Court recognized, such tortious vio-

lations possess ''a far greater capacity

for harm than an individual trespasser

exercising no authority other than his own."

403 U.S. at 392. The importance of effec-

tive relief is, of course, equally great.

One problem to be overcome in many

such cases is the distance between the

tortfeasors and their victims. Very often,

a potential defendant works in the District

of Columbia, or in a regional office, both

of which will be some distance from the

place where their victims live. Section

1391(e), as the court below correctly held

to a limited extent, was adopted, at the

very least, so that private citizens could

conveniently bring suit in the district of

their residence against distant officials.

A second practical problem to be overcome

in some cases - the case at bar being one

example - is that because of the passage

of time between commission of the tort and

its discovery, some tortfeasors have left

government employment.

ate

As to the second problem, the court

below held that §1391(e) empowered the fed-

eral courts to exercise personal jurisdic-

tion, in actions for money damages over

federal officials, no matter where they

reside, only if, at the time process is

served upon them, they are still in govern-

ment employment and, furthermore, are

"serving the government in the capacity in

which they performed the acts on which their

alleged liability is based." App., infra,

p. 6a. That holding eviscerates §1391(e) by

requiring private citizens seeking redress

for violation of their constitutional

rights to sue some wrongdoers in their

places of residence, rather than in the

jurisdiction where the plaintiff resides.

Given the expense of litigation in general,

to require plaintiffs to bring suit at a

distance from their residence means that

suit will often not be brought at all. To

that extent, a very effective remedy to

vindicate constititutional rights is lost,

as is the effect that such suits for dam-

ages have in deterring the commission of

other constitutional violations. See Bivens

v. Six Unknown Agents, supra at 411 (Burger,

Ch. J., dissenting).

. The Circuit Court's node ebet §1391(e)

oes not grant in personam jurisdiction

even over government officials unless they

are serving in the same capacity as they

were in at the time of the alleged commis-

sion of the tort, is an extremely grudging

interpretation of the statute which has no

support in the cases or the legislative

history. Since ype + eagle employees are pro-

moted through the ranks in the normal course

of ther careers, the court's limitation on

thelanguage of §1391(e) threatens its

«Qe

usefulness in a significant way. If the

statute has extraterritorial effect at all

in constitutional tort cases against

government officials, as the Circuit held,

there is no logic to support a distinction

between allowing service on defendants

who remain in the same post throughout

their careers, and forbidding service on

those who have been promoted, a distinction

which the Circuit explicitly left open.

App. infra, p. 6a n.11. The district court's

thoughtful opinion did not even hint at

such a distinction, and there ought to be

none. The Court of Appeals for the District

of Columbia, construing the same statute,

imposed no such limit upon the application

of §1391(e) to defendants in government

ye we Goodwin v. Briggs, et al., 549

F.2d 1 (D.C. Cir. 1977), peticion for cert.

filed, 46 U.S.L.W. 3634 Rinse March 31,

1978) (No. 77-1401). To that extent, there

is a split in the Circuits since the District

of Columbia Circuit allows effective ser-

vice yes present employees under §1391l(e),

regardless of whether the defendant is ser-

ving in the "same capacity" as at the time

of the commission of the tort.

The district court's view that §1391(e)

applies across the board to former officials

was the correct interpretation. Other courts

have come to the same conclusion. 5/ As

5/ United States v. McAninch, 435 F. Supp.

240 (E.D.N.Y. 1977), and Lowenstein v. Rooney,

401 F.Supp. 952 (E.D.N.Y. I975). In the only

contrary opinion, Wu. v. Keeney, 384 F.Supp.

1161 <D.D.C. 1974), the court did not have

the benefit of any briefing on the point.

ae

the district court below saw it, the ques-

tion was to "ascertain the Congressional

intention in §139l(e). If the plaintiffs'

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." 74 F.R.D. at 395; App.

infra,p.49a.After examing defendants'

alleged burdens, the district court found

that there were none of any significance.

Ibid. It did not see personal liability

For damages as such an added burden on

government service, since Bivens already

imposes such a burden. Nor did the court

think that defense of such cases by former

officials was a burden since, as in the

case at bar, "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." Ibid. 6/

The First Circuit decision on the

per was based only on the absence of

egislative history one way or another,

and on its view that the use of the present

tense in §1391(e) meant that the defendants

must be in ogee ony employment at the time

suit was filed. That too is a very grudging

reading of the statute. The statute's liberal

purpose is best served by reading it to

mean that it applies if the defendandants

in government service at the time the con-

stitutional violation occurred. For example,

6/ In the case at bar, the Justice Depart-

ment retained private counsel to represent

each of the defendants.

-10-

in Farmers Elevator Mutual Ins. Co. v.

Cari J. Austed & Sons, Inc. , 343 F. 2d 7,

t ¥ the “doing business"

requisite of §1391(c) was held to relate

to the time when the cause of action arose.

This construction was reaffirmed in Great

American Ins. Co. v. Louis Lesser Enter-

rises, Inc., 353 F.2d 997, LOOL (8th Cir.

i905). A similar conclusion was reached in

der v. Eastern Auto Distributors, Inc.

.2d 552 (4th Cir. 1966), cert. denied,

384 U.S. 987; in L'Heureux v. Central Amer-

ican Airways Flying Service, oe 209

upp. and in Nel-

son Vv. Victory Electric ‘Works, ‘Inc., 210

F. Supp. 954 (1962). Similarly, the pro-

vision in the Clayton Act referring to

the place where a defendant "transacts

business" was held to relate to the time

when the cause of action arose. Eastland

Construction Company v. Keasbey & Mattison

Co., 358 80 (th Cir 1965).

Similarly, see Adams Dairy Co. v. National

Dairy Products Corp 293 F.Supp. 1135

A decision concerning the interpre-

tation of §1391(e) is an important question

of public law, because if the construction of

the First Circuit is Upheld, many consti-

tutional violations will go unredressed.

Conclusion

For the reasons set forth above, a

petition for certiorari should be granted.

wht.

Respectfully submitted,

Melvin L. Wulf

Clark Wulf & Levine

113 University Place

New York, N.Y. 10003

Burt Neuborne

40 Washington Square S.

New York, New York 10012

Richard W. Zacks

Winograd, Shine & Zacks

2220 Hospital Trust Bldg.

Providence, R.I. 02903

Bruce J. Ennis

American Civil Liberties

Union Foundation

22 East 40th St.

New York, New York 10016

Attorneys for Petitioners

August 1978

ae 5% hele

a ate ire

pce

; :

cal

1a

United States Court of Appeals

For the First Circuit

No. 77-1482

RODNEY D. DRIVER, et al,

APPELLEES,

. v.

RICHARD HELMS, et al,

APPELLANTS.

APPEAL FROM THE UNITED STATES DISTRICT COUBT

FOR THE DISTRICT OF RHODE ISLAND

{Hon. Raymonp J. Perrine, U.S. District Judge]

Before Corrin, Chief Judge

CAMPBELL AND Bowngs, Circuit Judges.

Walter H. Fleischer, Donald J. Cohn and Jacquelin A. Swords,

with whom Earl Nemser, Cadwalader, Wickersham & Taft, George

M. Vetter, Jr., Hinckley, Allen, Salisbury & Parson, Seymour

Glanzer, Kenneth Adams, Joel Kleinman, Dickstein, 8. &

Morin, James V. Kearney, Nancy E. Friedman, Webster oe

has, ‘pin, T. See See ¢ gr Jooeph "A wey

ooney, Charles R. Donnenf lameron

Rodney F. Page, Arent, Fox, Kintener, Plotkin & Kahn,

Gay Wells, Wolle Gunaten LaPacia & Gnys, Inc., Alfred F. Beleuore,

Cole and Groner, P.C., Harry W. Asquith, Edward W. Moses, Swan,

Kenney, Jenckes & Asquith, Wallace L. Duncan, Duncan, Brown,

Weinberg & Palmer, Joseph Dailey and Breed, Abbott e Morgan

were on briefs, for appellants.

Melvin L. Wulf, with whom Clark, Wulf & Levine, Burt New-

borne, 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 Atto , Robert E. Kopp and Paul Blank-

enstein, Attorneys, A Civil Division, Department

of Justice, on brief for United States, amicus curiae.

2a

2 DRIVER Vv. HELMS

May 25, 1978

Corrix, 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 vio-

lating appellees’ rights under the First, Fourth, Fifth, and

Ninth Amendments. The suit seeks damages and declara-

tory and injunctive relief. Subject matter jurisdiction was

invoked under 28 U.S.C. §§ 1331(a), 1339, 1343, 1361, and

5 US.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 is not

proper under 28 U.S.C. § 1391(b), and, since none of the

appellants were served within Rhode Island,‘ service 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

es a defendants in the case below are not parties to this

ap

2The other named plaintiffs are residents of New York, Minne-

sota, Connecticut, and California.

3The illegal interference with appellees’ first-class mail is

alleged to have occurred in New York City.

*The appellants each were served by certified mail outside

Rhode Island.

5 Appellees also suggested that Rhode Island’s 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.

3a

OPINION OF THE COURT 3

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 suimmons 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

beyond the territorial limits of the district in which the

action is brought.’”

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

*28 U.S.C. § 1391(e) was amended in 1976. The word ‘‘each’’

4a

4 DRIVER UV. HELMS

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 OFFICIALS

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,

756 (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 language 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 F.2d at 756,

quoting United States v. American Trucking Ass’ns, Inc.,

310 U.S. 534, 543 (1940), quoting Ozawa v. United States,

260 U.S. 178, 194 (1922); cf. Natural Resources Defense

Counsel v. TVA, 459 F.2d 255, 257 (2d Cir. 1972) (es-

chewing the ‘‘tyranny of literalness’’).” We do not, however,

find any indication in the statute itself or in the legislative

TT When aid to construction of the meaning of words, as

used in the statute, is available, there certainly can be no ‘rule

of law’ which forbids its use, however clear the words may appear

on ‘superficial examination.’’’ United States v. Culbert, 46

U.S.L.W. 4259, 4260 n. 4 (U.S. March 28, 1978), quoting United

‘ae v. American Trucking Ass’ns, Inc., 310 U.S. 584, 543-44

5a

OPINION OF THE COURT 5

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. Cal. 1976); Wu v.

Keeney, 384 F. Supp. 1161, 1168 (D. D.C. 1974).

The cases that have reached a contrary result have de-

cided that excluding former officials would undercut the

policies of § 1391(e). See Driver v. Helms, supra, 74 F.R.D.

at 398-400; United States v. McAninch, 435 F. Supp. 240,

245 (E.D. N.Y. 1977) ; Lowenstein 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

venue in the district where a plainitiff 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

® We do not focus on a later time, such as the time when a hear-

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

6 DRIVER V. HELMS

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 on which their alleged liability

is based.™

PrrsonaL DamacsE 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

*That such defendants may exist is indicated by the 1976

amendment. See note 6, sepra. .

10 **This bill is not intended to give access to the Federal courts

to an action which cannot now be brought against a Federal of-

ficial in the U.S. District Court for the District of Columbia.’’

H. Rep. No. 536, 87th Cong., 1st Sess. 2 (1961). Prior to 1962

(when the bill was passed) former officials who had moved away

from Washington would not have been subject to suit in Wash-

ington.

11 The act is directed at officials ‘‘acting . . . under color of

legal authority’’. Since official acts expose the officer to expanded

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 capa-

city is nonetheless still exposed to national venue and service of

process. As to the act or omission that exposed him to liability,

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).

7a

OPINION OF THE COURT 7

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

compel 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 4 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-

ver, 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 |

§ 1391(e) did apply. In Natural Resources Defense Coun-

cil 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, td.

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

12°We do not indicate our views on this holding. See note 17,

infra.

8a

& DRIVER V. HELMS

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

mandamus’’. Rather Congress used the words ‘‘[a] 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

statute 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-

ties.“ See Briggs v. Goodwin, 569 F.2d 1 (D.C. Cir. 1977) ;

Ellingburg v. Connett, 457 F.2d 240, 241 (5th Cir. 1972);

3 See note 10, supra.

144The Supreme Court has said that § 1391(e) does not apply

to habeas corpus actions, Schlanger v. Seamans, 401 U.S. 487, 490

n. 4 (1971), but that decision turned on the special nature of

habeas corpus actions which though ‘‘technically ‘civil,’ .. .

[are] not automatically subject to all the rules governing ordinary

civil actions.’’ See also the cases cited by the court below. 74 F.R.D.

at 391-92.

We might have viewed Relf v. Gasch, 511 F.2d 804 (D.C. Cir.

1975), as contrary authority, but in Briggs v. Goodwin, supra,

569 F.2d at 6-7, the same circuit confined Relf’s holding to situ-

ations where the alleged wrong was not connected with the defen-

dant’s government service.

9a

OPINION OF THE COURT 9

Driver v. Helms, supra; United States v. McAninch, su-

pra; Lowenstein v. Rooney, supra; Patmore v. Carlson,

392 F. Supp. 737, 738 (E.D. Til. 1975); Wu 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 J 4.29, 1210 (1977). Cf: Kletschka v. Driver, 411

F.2d 436, 442 (2d Cir. 1969) (basing venue on § 1391(b)

but adding that § 1391(e) ‘‘seems’’ to apply as well). But

see Kenyatta v. Kelly, 430 F. Supp. 1328, 1330 (E.D. Pa.

1977) ; Davis v. F.D.I.C., 369 F. Supp. 277 (D. Colo. 1974) ;

Paley v. Wolk, 262 F. Supp. 640 (N.D. Ill. 1965).

The legislative history of 4 1391(e) is at best ambiguous,

but there are indications 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

in their official capacity, and its author, Representative

Budge, explained that it was intended to meet the narrow

problem described above. Hearing Before the Committee

on the Judiciary (Subcommittee No. 4), 86th C ng., 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 subecommittee’s counsel, stated, ‘‘I think what

15 7.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 bronght in

any judicial district where a plaintiff in the action resides.’’

16 The unpublished transcrints of these hearings were submitted

to us by appellants, and appellees have not disputed their authen-

ticity. We have verified the authenticity, accuracy, and avail-

ability of these transcripts through the office of the General Counsel

to the House of Representatives’ Committee on the Judiciary.

10a

10 DRIVER UV, HELMS

this bill is 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. MacGuineas, a represen-

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 there

are many different types.’’ Congressman Dowdy responded,

‘*Maybe we want it to apply to all suits. There is not any

particular one. We want it to apply to any one.’’-Congress-

man Whitener followed that up by saying, ‘‘I did not

understand there was any doubt.’’ Id. at 53-54. One type of

suit hypothesized by Mr. MacGuineas was a slander suit

against a congressman.'? Congressman Whitener indicated

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. Jd. at 58.

The desire to reach a variety of causes of action prompted

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

17The Second Circuit has held that § 1391(e) does not apply

to legislators, but the holding was based in part on not finding any

“‘word in the five year gestation period of § 1391(e) to suggest

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 1379, 1384 (2d Cir. 1970). This issue is not presented

to us, and we do not decide it.

lla

OPINION OF THE COURT 11

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.’’ Id. 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

confined 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 mandamus jurisdiction to all district courts.”

In section 2 of the bill, § 1891(e), Congress included, inter

alia, the phrase ‘‘under color of legal authority’’. See

Briggs v. Goodwin, supra, 569 F.2d at 4-5.

This bill was reintroduced in the next Congress as

H.R. 1960, 87th Cong., 1st Sess. (1961). The Department

of Justice, in a letter from then Assistant Attorney General

Byron White suggested more changes. The letter recog-

nized that section 2 of the bill, the new § 1391(e) ‘‘covers

an entirely different subject’’ than section 1, the new 28

U.S.C. § 1361, and that unless clarified § 1391(e) might

18 28 U.S.C. § 1361 reads :

‘‘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.’’

12a

12 DRIVER UV, HELMS

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 suggestions

from that letter,2® Congress did nothing to eliminate per-

sonal damage actions. In fact, both the House and Senate

reports state, ‘‘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 authority

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 ail 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

7? At minimum this letter demonstrates that Congress was on

notice that personal damage actions against government officials

were possible, contrary to appellants’ argument that due to broad

immunity under the doctrine of Barr v. Mateo, 360 U.S. 564 (1959),

and because Bivens v. Siz Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), was not yet decided,

Congress would not have been thinking of such actions.

20 For example, the letter suggested that the mandamus juris-

diction section should be limited to actions to compel a duty

“‘owed the plaintiff’’. The Senate, by amendment adopted this

provision, and the House accepted the amendment. See note 17,

supra. See generally Briggs vy. Goodwin, 569 F.2d 1, 5 n. 39

(D.C. Cir. 1977).

21 This passage undermines appellants’ argument that the only

damage actions (‘ongress contemplated were actions in the nature

of mandamus against an official to recover money allegedly owed

to the plaintiff by the United States.

13a

OPINION OF THE COURT 13

jurisdiction and venue, may now be brought only in the

U.S. 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

only to circumvent what remains of the doctrine of

sovereign immunity. The considerations of policy

which demand that an action against an official may

be brought locally rather than in the District of Colum-

bia require similar venue provisions wtere the action

is based upon the fiction that ihe 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 con-

’ eerned.’’ Id. at 3-4 (emphasis as supplied by appel-

lants).

We do not think that these passages clearly exclude the

result that we have reached. Even if we were to acknowl-

edge that the primary purpose of § 1391(e) was to expand

venue 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 indicated by the legislative history

described above.

l4a

14 DRIVER V. HELMS

Further, unless one were prepared to argue that the 1976

amendment was a mistake, we think it must be taken as a

further indication that Congress, whatever its intent at

the time it passed § 1391(e), now understands the section

to reach personal damage actions. The amendment, note 6,

supra, allows defendants who are not government officers

to be joined in an action with officers when venue as to

the officers is asserted under § 1391(e). It would make

little sense to join someone who is not an officer if the

suit were limited to an action in the nature of mandamus.

Therefore, the suit Congress was contemplating must be

aimed at acts that can give rise to liability for private

remedies.

We affirm the district court’s holding that 4 1391(e)

applies to personal damage actions.

PERSONAL J URISDICTION

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 unconstitutional

to apply it to individuals who lacked the minimum contacts

with the state in which the court sits that are required 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

of agencies within its purview. Indeed, the service of

process provision in the statute emphasizes the focus

15a

OPINION OF THE COURT 15

of the statute on review of agency actions and present

officials since service is to be made ‘to the officer or

agency.’ The statate addresses only 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, ’’2?

It is true that jurisdiction over the person and service of

process are distinguishable, but they are closely related.”

‘*[S]ervice of process is the vehicle by which the court may

obtain jurisdiction.’’ Aro Manufacturing Co. v. 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 jurisdiction over the

persons of the appellants.

Because appellants are being sued in their individual

capacities, they must be served as required by F. R. Civ. P.

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 histor, see United States v.

Culbert, , note 7, as set out in the text, indicates that the

statute confers personal jurisdiction as well as venue. Moreover,

there is not an obviously more appropriate chapter of the code.

The chapter entitled ‘‘ District ; Jurisdiction’’ deals ex-

clusively with subject matter jurisdiction.

The distinction is most important, as an issue of federal

practice, in diversity cases. A state long arm statute might authorize

extraterritorial service of process that would reach a defendant

over whom the state could not constitutionally exercise personal

jurisdiction. |

16a

16 DRIVER V. HELMS

4(d)(1), rather than 4(d)(4) or 4(d)(5). That is, a copy

of the summons and complaint must be personally delivered.

Rule 4(f), however, limits service of process to the terri-

tory 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 state bounda-

ries. See Robertson v. Railroad Labor Board, 268 U.S.

619, 622 (1925); 4 Wright & Miller, Federal Practice and

Procedure, § 1125 (1969) ; Hart & Wechsler, supra, at 1106-

07. The first question is whether Congress did so in this

case.

The second paragraph of § 1391(e) provides that ‘‘ [t]he

summons and complaint . . . shall be served as provided by

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 in-

volved 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:

17a

OPINION OF THE COURT 17

‘‘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 upor 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

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 personal

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. Good-

win, supra, 569 F.2d at 7-8. Thus, to the same extent that

§ 1391(e) supplies venue, it supplies the mechanism to

secure personal jurisdiction.”

* 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 v. 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, 1373 (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. McNamara, 355 F.2d 277,

279 (1st Cir. 1965).

18a

18 DRIVER V. HELMS

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 circumscrip-

tion of state court jurisdiction is a product of boundaries

to states’ sovereignty.> The United States, however, 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.

25 This remains true even after International Shoe 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-

mareation 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 ‘‘[fJair

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.

19a

OPINION OF THE COURT 19

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, further, 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 f riendly

to their claims. We acknowledge that these appellants may

have to answer complaints in a broader range of judicial

districts than would non-governmental defendants. 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 substantially preju-

diced and when there is an alternative venue that would

protect the parties’ rights. Furthermore, we note that

officers of the federal government are different from pri-

vate defendants because they can anticipate that their offi-

cial 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 inform

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 requirement in

§ 1391(e) meets that standard. Such service is not extra-

20a .

20 DRIVER VU. HELMS

territorial for a court of the United States; therefore, the

minimum contacts analysis is not relevant. We conclude

that national service of process as provided by § 1391(e)

is constitutional.2® 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.R.D. at 391.

Affirmed in part, reversed in part, and remanded,

26 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).

Adm. Office, U. 8. Courts — Bianchard Press, Inc., Boston, Mase.

21a

Ropney Driver et al.

v,

RicHarp Hexams et al.

Civ. A. No. 75-224.

UNITED STATES DISTRICT COURT,

D. RHODE ISLAND. -

April 1, 1977.

Opinion

Perrine, 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 unconsti-

tutional program surreptitiously to intercept, open, read

and photograph tens of thousands of sealed first-class let-

ters deposited in the United States mails by plaintiffs and

members of their class”, thereby violating plaintiffs’ rights -

under the First, Fourth, Fifth, and Ninth Amendments.!

Plaintiffs seek declaratory and injunctive relief to operate

against Defendant Clarence Kelley, Director of the Federal

Bureau of Investigation; damages against each of the other

1. Events giving rise to this lawsuit are des-ribed in the Report

to the President by the Commission on CIA activities (Tune 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 IIT, 559-679,

S.Rep.No.94-755, 94th Cong., 2nd Session (1976) (hereinafter re-

ferred to as the Final Report of the Select Committee).

22a

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 de-

fendants’ 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) (insufficiency 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 im-

proper 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-

trict court is held and, when authorized by a statute of the

2. The 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 er with the

an to Dismiss of defendant U.S. in Driver v. Unsted States, No.

3. Except the United States. See note 2, supra.

23a

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 federal

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 judicial dis-

trict .. . 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 superior 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 there-

fore to join a subordinate officer residing elsewhere who

was equally necessary to the action. See generally 4

Wright and Miller, Federal Practice and Procedure: Civil

§ 1107, 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

officials for redress of statutory and constitutional rights

24a

war, “too expensive and inconvenient for many plaintiffs”.

Hart and Wechsler, The Federal Courts and the Federal

System 1386 (1973).

To eliminate at least some of these obstacles and to

enable citizens to obtain relief against official wrongdoing

effectively, conveniently, efficiently, economically, and

fairly, § 1391(e) was enacted in 1962. As the Senate

Report 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, 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 rules may be made by certified mail beyond

the territorial limits of the district in which the

action was brought. 4

4. Sec. 1391 Ce) 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. 1); S.Rep.No.1992,

87th Cong., 2d Sess. (1962), reprinted in 1962 U. S$. Code Cong. and

Adm. News, pp. 2785-2786 [hereinafter S. i

The Act o ober 21, 1976, Pub.L. 94-574, § 3, amended § 1391

(e), adding after the last sentence of the first paragraph the follow-

ing:

25a

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

“individual” capacity, and (4) does not apply to former

federal officials. The Court turns to each of these argu-

ments.

1. $1391(e) supplies personal jurisdiction

[1] This Court is of the firm opinion that § 1391(e) is

indeed 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 major-

ity of courts, and all of the commentators, which have

considered the question. And the legislative history of

§1391(¢), 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

provision of this bill, it is necessary to modify the

service requirements under the Federal Rules of

Civil Procedure insofar as they apply to actions

made possible by this bill. Rule 4(f) restricts effec-

tive service to the territorial limits of a State in

Additional persons may be joined as parties to any such action

in accordance with the F Rules of Civil Procedure and

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), cit-

ing Natural Resources Defense Council v. TVA, 459 F 2d 255, 257

n. 3 (2d Cir. 1972). Having examined the legislative | story of this

amendment to § 1391(e), the Court does not believe that it in any

way affects the conclusions here reached.

26a

which the district court is held unless a statute

specifically provides for it to go beyond the ter-

ritorial limits of that State. Since this bill is

designed to make a Federal official or 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 of al

capacity or under color of legal authority; aud pro-

vides for extraterritorial 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); Environmental 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, 1873 (E.D.N.Y. 1970);

Macias v. Finch, 324 F.Supp. 1252, 1254-1255 (N.D. Cal.

27a

1970); Brotherhood of Locomotive Engineers v. Denver

and R.G.W.R. Co., 290 F.Supp. 612, 615-616 (D.Colo.

1968), af’d 411 F.2d 1115 (10th Cir. 1969); Powelton

Civic Ilome Owners Ass’n v. Department of Housing and

Urban Renewal, 284 F.Supp. 809, 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.

Plaintiffs appear to treat the two together without

an appreciation 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 current status of the

law relating to the personal jurisdiction of the courts.

This is true because underlying the question of serv-

ice of process is the preliminary inquiry into whether

the court has the power to summon a defendant hefore

it to adjudicate a claim against him. * * * Rule 4 does

not speak to this subject, which at present is

governed primarily by the Supreme Court’s interpre-

tation of the Due Process Clause of the Constitution

and the network of state and federal statutory pro-

visions.” 4 Wright and Miller, Federal Practice and

Procedure (1969) at pp. 205-206.

28a

Stated simply, the second paragraph of Section 1391(e) pro-

vides that in cases which fali within its scope, that is when

jurisdiction is already present and venue is conferred by

the first paragraph of Section 1391(e), the mechanics of

service of process shall be “as provided by the Federal Rules

of Civil Procedure” except those mechanics are modified to

the extent that “delivery 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 plain-

tiffs would have this Court believe, the “preliminary inquiry

into whether the Court has the power to summon a defend-

ant before it to adjudicate a claim against him”. 4. Wright

and Miller, supra, at p. 205.

Not at all dissimilar 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.LC.P., Rule 4(e), but this alone does

not confer jurisdiction since before a defendant is

amenable to such service and thereby subject to the

jurisdiction of Rhode Island, he must have the “nec-

essary contacts” with Rhode Island.

[2] By applying to § 1391(e), analysis germaine to juris-

diction 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. 228, 2 L.Ed.2d 1283 (1958) ; McGee v. Interna-

tional Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223

(1957) ; International Shoe Company v. State of Washing-

ton. 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1954). For

29a

those cases in which Congress has decided that the jurisdic-

tion of federal courts shall be coextensive with the jurisdic-

tion of the states in which they sit (that is, all cases directly

ruled by Rule 4(d)), minimum contacts analysis is indeed

in order. State courts may exercise jurisdiction only over

defendants within their territory or over defendants who

are deemed present within the territory by virtue of purpo-

seful activity which constitutes such minimum contacts.

International Shoe, supra.

[3] 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 defand-

ant in the United States, rather than in any particular 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 (Inter-

national 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 inquiring into the

fairness of such jurisdiction in the particular 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 Liqui-

dating Corp., 372 F. Supp. 191, 198-205 (E.D.Pa. 1974). Cf.

International Shoe, supra, 326 U.S. at 320, 66 S.Ct. 154.

[4, 5] The Court believes that the exercise of national

personal jurisdiction pursuant to § 1391(e) here is con-

sistent with the applicable due process test. In Mariash v.

5. For a partial list of other statutes which authorized federal

courts to exercise national in personam jurisdiction, see 2 J. Moore,

Federal Practice par. 433 at 1242 (2d ed. 1975); id. par. 4.42(i),

at 1293.8-1293.10.

30a

Morrill, swpra, 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 Kaufman noted,

speaking for a panel including Associate Justice Clark,

nationwide service of process, when authorized by Congress,

is not extra-territorial at all. Therefore, the due process

limitation on such process should be precisely the limita-

tions applicable on a state’s process within its territorial

limits: notice calculated to inform the defendant of the pen-

dency 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

Po Extre-territocial service of process must be beeed on secee-

ry minimum contacts to satisfy due process. International Shoe

Company. Site of f Washi om, 326 US. 310, 66 S.Ct. 154, 90

1945). inO irst Corp. v. PNC Corp.,

372 F.S 191 (ED P2974), the court wtb my

that the te process limits on national service of process should be

governed by a five- fairness test, incorporating a minimum con-

tacts test. But Osford Firat sled. prinar on Leasco Data

Processing Equipment ow Me 2d 1326 (2d Cir.

a

boats ich had requi showing of minimum contacts onl

because it was a true case of extra-territorial service of

Bring ahvosl. Sov the Reomsd Chesite deabaaiion att

i See the Second Circuit’s explanation of oo te

Moriah v. Morrill, 6 F20 1138, 118 Ce For that reason, it

was necessary to determine whether those citizens had the necessary

“minimum contacts” with the United States. Thus the Oxford First

court seams 4) have procentid on an incite premlenr no Chist

> phar song eprom gen authorized nation-

requirements Mullone v. Central Hancver Bonk aud Trust,

339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), not those of Inter-

me he supra. See Moriash v. Morrill, 496 F.2d 1138, 1143

n.

3la

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 in personam juris-

diction is otherwise acquired through minimum contacts by

relying primarily on Schlanger v. Seamans, 401 U.S. 487,

91 §.Ct. 995, 28 L.Ed.2d 251 (1971), Strait v. Laird, 406

U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972), Smith v.

Campbell, 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 jurisdiction to

entertain a habeas corpus petition of an enlisted man in the

Air Force who, although temporarily in Arizona, 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 corpus

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 leg-

islative history of that section is barren of any indi-

cation that Congress extended habeas corpus juris-

diction. . . . 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,

32a

§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.

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 unavail-

able to establish personal jurisdiction in habeas corpus

actions. See 4 Wright and Miller, Federal Practice and

Procedure, § 1107, at 89 (Supp. 1975). In Stratt v. Laird,

supra, the Court held that the territorial jurisdiction of

the district court for habeas corpus actions could be justi-

fied 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, basing

its decision on its interpretation of 28 U.S.C. §2241. In

Carney v. Laird, swpra, 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 im personam jurisdiction beyond the limits

provided by Rhode Island’s long-arm statute in civil actions

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

actions.’ However, Smith too was a habeas corpus action,

relying on the rule of Schlanger v. Semans. 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

7. “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.

33a

to generalize its position to civil actions other than habeas

corpus, this Court is in disagreement, and respectfully

declines to follow.

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 actions

for damages against current federal officiuls. First, they

argue that § 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” capaci-

ties. The Court will consider each of these arguments in

turn.

a. Section 1391(e) applies to damages actions as

well as mandamus actions.

[6] 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) covers

far more than mandamus actions. However, the Supreme

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 sub-

section 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.

34a

At the outset, the Court wishes to emphasize what should

be apparent. If Congress wanted to limit the application

of §1391(e) to mandamus actions, the statutory language

it chose was extraordinary ill-fitted to that task. The sub-

section applies to “a eivil action in which [each] defend-

ant is an officer... .”, not to “any action in the nature of

- mandamus...” which was the language Congress used in

28 U.S.C. § 1361, a statute passed together with § 1391(e).

Congress has demonstrated its amplé ability to distin-

guish between civil actions in general and mandamus

actions in particular, and this Court believes that the

legislative history contradicting the plain meaning of the

subsection would have to be unusually clear and persua-

sive to warrant adoption of a reading which a) is opposed

to the plain meaning of the words of the subsection, and

h) attributes such carelessness to Congress, The Court

therefore turns to the legislative history, and to an attempt

to discern “the mischief” at which §1391(¢) was directed,

The Mandamus and Venue Act of 1962 contained two

“entirely different subjects”," accordingly to then-Deputy

8. There is clearly a contradiction between the recognition by the

rtment of Justice that §§ 1361 and 1391(€) covered “entirely

different subject([s]" and Judge Friendly’s admonition that i 1361

and 1391(¢) must be read her, See Natural Resources Defense

Council vy, 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 § 1561—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 Distriet Court for the District of

Columbia,

H.Rep.No.536, 87th Cong, 2d Sess, at 2. However, for reasons

stated below in the text, thie Court finds the lanquage of the House

Report refers only to the subject matter juried conferred in

Section 1 of the bill, which beeame § 1361, Sve aleo Cramton, Non-

statutory Review of Federal Administrative Action, 68 Mich.L. Rev.

387, 453 (1970), and infra nw, 10.

35a

Attorney General Byron R. White, whose letter so stating

to Senator Eastland, Chairman of the Senate Judiciary

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 actions 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 vy. Eastland,

supra at 1383. As Judge Friendly has noted “this jurisdic-

tional change ... became the main subject of Congressional

and executive concern”. Jd, Second, in whit became 28

U.S.C, §1391(¢), Congress authorized broadened venue

and national service of process in civil actions »eainst

employees of the United States “acting in. . . official

capacity or under color of legal authority”. S.Rep. No,

1992, 1962 U.S, Code Cong. 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 Seny.ie Reports contain the following para-

graph, in identical words:

36a

officers, and that is precisely how most courts have con-

strued §1391(e)”. Professor Moore agrees:

. . » [See. 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 pro-

vides 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 Cireuit held that 4 1391(¢) 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 (B.D.111.1975). In Lowenstein

v. Rooney, 401 F.Supp. 952 (8.D.N.Y.1975), the court ap-

plied § 1391(¢) to a damage claim against present and for-

mer officials for violating plaintiff's constitutional rights,

In Brigga v. Goodwin, 384 F Supp. 1228, 1230 (D.D.C.1974),

the court applied 4 1391(¢) 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.111.1973) also recog-

nized the applicability of 41391(¢) to damage actions.’

37a

See also Jacoby, The Effect of Recent Changes in the Law

of “Non-statutory” Judicial Review, 53 Georgetown L.J. 19,

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 serics

of arguments based primarily on the fact that § 1391(¢)

was passed jointly with the Mandamus Act, 28 U.S.C. §

1361, They rely on the following language in the legislative

history :

The Ene of this bill, as amended, is to make it

possible to bring actions against Government officials

and agencies in U.S, district courts outside the Dis-

trict of Columbia, which because of cortain existing

limitations on jurisdiction and venue, may now be

brought only in the U.S. District Court for the Dis-

trict 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, 8.Rep.1902, evpra, 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.

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 § 1591(e)'s

= a for reaching damage actions from the outset, See (n. 22,

nfra,

10, The Court notes that Dean Cramton has been publicly recog:

nized by the Senate as the crafteman of the revisions of § 1391(e).

See 105 Cong.Ree, S11532 (daily ed. July 1, 1976), His views

are therefore of considerable weight and importance,

38a

There are a number of crucial errors in this line of

reasoning. |

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-

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 defendants

resides. If the defendants may reside in more than one

district, then all the defendants need not reside in the Dis-

trict 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 Depart-

ment that the act might be construed to extend the manda-

mus power to instances where there was no clear legal duty.

Courts interpreting the mandate to require a Fed-

eral 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 implic-

itly. 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 41361, and inserted in its Report

the above-cited language, limiting the new mandamus sub-

39a

ject-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

letter 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

judgments against officers .. .” S. Rep 1992, supra,

at 6; U.S. Code Cong. and Adm. News, supra, at

2789.

Although Congress adopted White’s other suggestions it

refused to act on this one. While such Congressional inac-

tion is of course not dispositive, the fact that Congress was

made aware of the construction which § 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

damages 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 deci-

sions by which citizens seeking relief against government

officials were forced to sue in Washington, D.C. by virtue

of the the then-operative federal question venue statute

(venue was available only where all defendants resided) ™

and the indispensable party rule (even where the defendant

official was in plaintiff’s local district, a superior officer in

11. Stace vanes Se Sites iguetion, canes 0 the’ tas § S201 ¢<)

wna geneed ‘ene sapisle ont bare, Colette seeties, see su

of the defendants here could have been sued

t in Weshingtas jori

ois in —- re ie at feriaes ene cietein. There

for Congres iended §1391(0) 0 a wo action which,

at the time of its

many of the pending Se Gianias weed atl bane Wor Ganlel

40a

Washington 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 there-

fore not surprising that defendants have not cited a single

case which holds that § 1391(e) is inapplicable to damage

actions.”

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(¢) applies to defendants sued in

their “individual” capacities for actions, accom-

plished under color of legal authority.

[7] All the defendants to whom the plaintiffs look to

recover money damages for the violation of their constitu-

tional 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 designa-

tion satisfies the fiction which was first adopted in Ez 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

Pe, : Defendants do cite that § 1391(e) is

actions brought agains defestants tntviduslle, See

part 2(b og

4la

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

violation of the federal Constitution, the officer in

proceeding under such an enactment comes into con-

flict with the superior authority of that Constitution,

and he is in that case stripped of his official or repre-

sentative character and is subjected in his person to

the consequences of his individual conduct. 209 U.S.

at 159-60, 28 S.Ct. at 454 (emphasis added)."’

Acknowledgement of the fiction, and its function, is

explicitly contained in §1391(e) which uses the language

“ander 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 pro-

posed 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 individ-

ual 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

13. Though Ex Parte Young was an action to enjoin a state

official, Cin Sates Nan Dean Seencperted fp 8 apply y to federal officia's,

Larson v. Domestic and F: Commerce Corp., 337 U.S. 682 19

S.Ct. 1457, 93 L.Ed. 1628 ( ), and to actions for dar ges.

Monroe v. P. , 365 U.S. (67, 1 Sch 73, 5 L.Ed.2d 492 (1961

state officials) ; ” Bivens v. Sis Unknown Agents, 403 U.S. 388, 91

.Ct. 1999, 29 L.Ed.2d 619 (1971) (federal officials).

14. The was inserted over the objection of the Justice De-

partment, argued for the statute’s limitation to acts done in an

official . Jacoby, Nonstatutory Judicial Review, 53 Geo.L.J.

9, 32-33 (1 4):

42a

United States but are brought against the officer or

employee as an individual only to circumvent what

remains of the doctrine of sovereign immunity.

Considerations of policy which demand that an

action against an official may he brought locally

rather than in the District of Columbia require siii-

lar 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 result-

ing from the official’s private actions are concerned.

Id. at 3—4.

Defendants agree that damages can be awarded against

them only in their individual capacities. However, they

contend that § 1391(e) does not authorize jurisdiction or

venue in damage suits against federal officers sued in their

individual 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.Supp. 640, 643 (N.D.1I1.1965), cert. denied, 386 U.S. 963,

87 S.Ct. 1031, 18 L.Ed.2d 112 (1967).

In Relf v. Gasch, supra, plaintiffs songht 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 man-

damus, 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 individ-

uals. The only authority the Court gave for this proposi-

tion was Paley v. Wolk, supra.

In Paley v. Wolk, supra, plaintiff claimed that federal

patent officers were involved in a “eonfidenee game” to poe-

ket plaintiff's patent application fees. The court concluded

that the action arose out of essentially private acts for

43a

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 4 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

“ander 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

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 indivi-

dually 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.

15. See, e.g., Griffith v. Nixon, 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 toon

oone officials. See, ¢.g., United States v. Ehrlichman 546 F.2d 910,

1 (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 haggis for “ig

personal, non-governmental reasons. state can, a

should, deal with such crime. Section 242 comes into play

only if the object of the murder .. . [arose from some] pur-

reg ener from the official position of those committing

44a

Under the defendants’ theory, the portions of the Senate

and House reports which specifically place damage actions

within the reach of § 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 immu-

nity.

,

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 sec-

tion 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

proceedings covered by this provision are proceed-

ings 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 avail-

able against the United States. As Defendant Helms puts

it:

16. “The venue also arises in an action against a Gov-

ernment official ing damages from him for actions which are

claimed to be without authority but which were taken by the

orming his duty.”

H.Rep.No.536, 87th Cong., Ist Sess., at 3; S.Rep.No.1992, 87th

Cong., 2nd Sess., at 3.

45a

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

common sense and English usage. Plaintiffs them-

selves admit that Section 1391(e) covers only suits

which would otherwise be unconsented suits against

the sovereign, but which are maintainable against

Federal officials as nominal defendants through a

“fiction”. But, a suit against a former officer, seek-

ing 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-

plished under color of the government’s legal authority

tracks precisely the methodology adopted in Ez Parte

Young, supra, and subsequent cases. Such suits enable

citizens 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 government”

S.Rep.1992, supra, at 3.” |

17. Defendant Cotter that there is no need to look to the

ee ee 1391(e) because the statute is clear

e : the legislative history, and an sttempt to

46a

3. Section 1391(e) Applies to Former Officials

[8] As a critical portion of their argument to avoid the

Court’s jurisdiction, defendants who were employed by the

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) applied

solely to present, not former, officials. Kipperman v. Mc

Cone, 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-

larly ina iate since the “literal” reading he offers will, he as-

serts, leave plaintiff with appropriate forums for this lawsuit in the

Southern District of New York, the site of the mail Sg edhe

Eastern District of Virginia, headquarters of the CIA. or

not jurisdiction over all defendants would exist in those forums now,

it is relevant in deciding what Congress intended by passing § 1391

(e), that when § 1391(e) was enacted, this lawsuit could not have

= hy asl of them. i Tonia vgs § 1391(b) (1962 FP

though courts have disagreed about proper construction o

§ 1391(e), they have been virtually unanimous in ing that the

statute is not clear on its face, and required a resort to legislative his-

tory. See e.g., Natural Resources Defense Council v. TVA, 459

= 255, 257-59 { _ Cir. righ Se age <e Home yg sad

v. Department o i 4 : .

809, 833 (1968), — we

18. Those defendants are Raborn, Carter, Taylor, White, Bissell,

Karamessines, Angleton, Hood, Rocca, Osborn ee Day,

‘but is a

O’Brien, Watson, Blount, Klassen, Cotter, Gray, Mitchell

and O’Brien. Defendant Kirkpatrick is a former official but

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.

47a

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 legisla-

tive history, only those individuals subject to mandamus—

present officials—would fall within the scope of the sub-

section. He found it “incoaceivable that Congress would so

substantially broaden the venue provision applicable to

every individual once employed by the federal government

without comment”. Id., at 877.9

The Kipperman court’s decision regarding the reach of

§ 1391(e) is squarely in conflict with the decision in Lowen-

stein 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 4 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

government service the plaintiff may not utilize sec-

tion 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 Lowenstem

more fully conforms to the policies behind the adoption of

19. In Wu v. Keeney, 384 F.Supp. 1161 (D.D.C. 1974), a dam-

age action where where jurisdiction was based on § 1391( (e) was

solely on this ground.

48a

the broadened venue and service provisions of §1391(¢)

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’ wider color of legal authority merely by

resigning his position, See Lowenstein vy, Rooney, supra,

at 961.7 And such reasoning creates its own difieulties with

regard to officiala 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’ construetion would require plain-

tiffs seeking relief to maintain multiple lawsuits in widely

seattered jurisdictions, each involving the same facts and

issues. That result seems at odds with the Congressional

intent in enacting Section 1391(¢), “a plaintiff's provision”,

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 NKipperman

court ohserved:

The construction urged by piaintiff would potentially

subject a retired government official to suit in any

federal court in the country... The Court finds it

inconevivable that Congress would so substantially

broaden the venue provision applicable to every in-

dividual once employed by the federal government

— comment, Kipperman vy, MeCone, supra, at

S77.

However, since it is undisputed that Congress subjected

present govermnent officials to suit in any federal court

20. Plaintiff points out that defendant Cotter resigned the same

month this lawsuit was filed,

49a

/

under §1591(«), it is necessary to determine e .ctl, how

much of an added burden the construction proferred by

plaintiffs would place on retired officials, The Court must

ascertain the Congressional intention in §1991(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

hy construing §1391(e) to apply to former officials, Cer-

tainly personal liability itself is not such an added burden,

since governnent service is already burdened with personal

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

liahility deters wrongful acts, that of course is its purpoee.

Nor does the Court believe that able men and women would

he deterred from entering federal service if their liability

were not terminated hy 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 eutting

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

21, For 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 serv-

ice”, Lundy Memorandum at 10. He argues that plaintiff's con-

meg would deter able men from entering federal service, Id,

at 15,

50a

points out, the prineipal burden of defending any lawsuit is

the expense of counsel, But it seems to be undisputed that

it is the policy of the . ustice Department to defend lawsuits

against present and ‘ormer officials by citizens claiming

rodress for actions accomplished under color of legal

authority, The record here shows that the Justice Depart-

ment has retained private counsel to represent each of the

defendants.” Indeed, this palpable manifestation of the

coutinuing 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 per-

sons 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 avtions 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.,

liahility for wrongful acts accomplished by misuse of offi-

cial power), it agrees with the Lowenstein court that the

proper construction of §1391(e) renders it applicable to

present and former officials alike,

22. A press release issued by the Department of Justice on

December 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 investivation

of the mail-onpening program, representation of these defendants

would have created a conflict of interest, end the government decided

instead to retain private counsel for each of the defendants here.

5la

Venue under Section 1391(e)

[9] The arguments defendants make concerning $1391

(¢)'s inapplicability to damage actions against former offi-

cials 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

complaint, it necessarily holds that §1391(e) supplies

venue as well,”

Specificity of Allegations

[10] 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 (S8.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. 7d, at 322.

Since the Court holds that Rhode Island’s long-arm stat-

ute provides no limitation on the court's exercise of juris-

diction 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

*orum, i, e., the United States.

To the extent that defendants contend that the complaint

fails properly to allege sufficiently specific facts regarding

23. Plaintiffs have also sought to os gorigion on Rhode

sland’s lon yon statute, Section 33, Rhode Island General

ws jMNine df venue on 28 U.S.C, § 1391(b). However, since

‘and jurisdiction and venue for all plaintiffs under

AY od i 191(e), and since Rhode Island's long-arm statute

on at most for plaintiff Driver, the Court

these issues.

I

Law

the Cou

2 U

could

does not

52a

acts of defendants which have harmed plaintiffs, a different

question is presented.* The Court has already indicated

its intention to entertain motions under Rule 12(b)(6) ata

later date.

Motion to Dismiss of Defendant Kelley

[11] Plaintiffs seek injunction “enjoining the defend-

ants from engaging in the activities declared to be illegal

and unconstitutional” against Defendafit Clarence Kelley,

the Director of the Federal Bureau of Investigation, and

A mandatory injunction or writ of mandamus order-

ing the defendants to produce before this Court for

destruction, all files, reports, records, photographs,

data computer tapes and cards, and all other mate-

rials derived from defendants’ illegal and unconsti-

tutional activities relating to plaintiffs and all other

persons similarly situated. (Prayer -for Relief C.

2nd Amended Complaint)

Defendant moves to dismiss on grounds of mootness,

claiming 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

Activities 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

24. The court in Kipperman v. McCome, 422 F.Supp. 860

(N.D.Cal.1976) seems to have considered the Rockefeller 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

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 DeF unis v. Odegaard, 416 U.S. 312, 318, 94 S.Ct. 1704,

40 L.Ed.2d 164 (1974). The motion to dismiss of Defend-

ant Kelley is denied.”

Interlocutory Appeal

[12] Finally, it seems apparent that the Court’s resolu-

tion of the difficult jurisdictional questions before it in-

volves 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

terminated in this Court. The Court therefore makes the

certification 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.

25. Plaintiff also claims that injunctive relief might well be appro-

priate even if the mail opening program has ended. While injunctive

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, war-

rants the grant of injunctive relief. Lankford v. Gelsten, 364 F.2d

197, 204 (4th Cir. 1966). See also Rizzo v. Goode, 423 U.S. 362,

373 n. 8, 96 S.Ct. 598, 46 L.Ed2d 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.

54a

Class Action

[13] Plaintiffs, who seek declaratory and injunctive re-

lief 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 unlawfully opened, read and photographed by

employees of the Central Intelligence Agency, acting

in concert with employees of the United States Post

Office Department, the United States Postal Service,

the Federal Bureau of Investigation, the Depart-

ment of Justice, and other government agencies re-

sulting in the unlawful collection, maintenance and

dissemination of files relating to them.

Defendants oppose class certification on @ 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 defend-

ants’ objection; plaintiffs are directed to modify the defi-

nition of the proposed class accordingly.

[14] In addition to problems raised by defendants, the

Court has its own liminal problems with the class as cur-

rently defined. 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, according to the Rockefeller Report, opened, pho-

tographed 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 composed of persons on the so-called “watch-list”, indi-

viduals of particular interest to one or more of the nation’s

intelligence 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 sub-class, on the other had, had its mail inspected

for reasons of pure chance. Whether the different posi-

tions of the two groups will have any legal significance, the

Court cannot now say. It is clear, however, that there are

significant practical differences 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 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 unavail-

able 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.

26. Because the decision to create sub classes is made on the

Court’s own motion and only after the hearing on class determination,

the Court has not been informed whether named plaintiffs fall into the

random sub-class, the watch-list sub-class or both. This information

56a

23(c)(4)(B); Eisen v, Carlisle d 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: 4

(a) Prerequisites to a Class Action. One or more

members of a class may sue or be sued as representa-

tive parties on hehalf of all only if (1) the class is so

numerous that joinder of all members is impracti-

cable, (2) there are questions of law or fact common

. to the class, (3) the claims or defenses of the repre-

sentative 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.

[15] As to the random sub-class, the Court has no diffi-

culty in finding that the requirements of Rule 23(a) are

satisfied. The class of persons whose mail was randomly

opened numbers 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 com-

mon questions of fourth amendment law that do not vary

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 certification can issue. See

tio75) Towa, 419 U.S. 393, 403, 95 S.Ct. 553, 42 L.Ed.2d 532

57a

perceptibly according to which random class member raises

these questions. Further, there is no doubt that plaintiffs’

attorneys from the American Civil Liberties Union are am-

ply qualified to carry this action forward as a class action,

thus assuring “adequacy of representation” in one sense of

that term, see Cullen v. United States, 372 F.Supp., 441, 447-

48 (N.D.711.1974).

[16] However, “adequacy of representation” also means

that “the interests of the representative party must coin-

cide with those of the class”, Wersay v. First Republic

Corp., 43 F.R.D. 465, 469 (S.D.N.Y.1968). It has been sug-

gested by one of the defendants that this requirement is not

met in the present case because some persons whose mail

was monitored might regard the East Coast Mail Intercept

Project as entirely reasonable and in the national interest.

This assertion, 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 adversely affect tangible interests of some pro-

posed class members it might be argued that plaintiffs were

not adequate 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

regard as sound national policy, and the Court finds that

plaintiffs provide the adequacy of representation for the

interest of the proposed sub-class that is required hy Rule

23(a).

[17] The issues posed hy the question whether the

watch-list sub-class mects the requirements of Rule 23(a)

are somewhat different. There is no problem as to numeros-

58a

ity. Although the total number of persons on the list over

a twenty-year period has not heen 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-

eality 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.2nd 1362, 1366 and n. 2 (1st Cir.

1972); Fogel v. Wolfgang, 47 F.R.D. 213, 215 n. 4 (S.D.N.Y.

1969)—than 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 beeome clear that plaintiffs’ view of the law

will not prevail the sub-class ean be modified or dismissed.

See Yaffe v. Powers, 454 F.2d at 1367. For the present,

the Court finds that the requirements of typicality and com-

59a

monality, as well as numerosity and adequacy of repre-

sentation are present with respect to the watch-list sub-

class.

B. The requirements of Rule 23(b)

[18] 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 plain-

tiffs’ position 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 subdivision (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 opposing the class, or...

(2) the party opposing the class has acted or re-

fused to act on grounds generally applicable to the

class, thereby making appropriate final injunctive

relief or corresponding declaratory relief with re-

spect 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 predomi-

nate over any questions affecting only individual

members, and that a class action is superior to other

available methods for the fair and efficient adjudica-

tion of the controversy. The matters pertinent to

the findings include: (A) the interest of members of

the class in individually controlling the prosecution

or defense of separate actions; (B) the extent and

nature of any litigation concerning the controversy

60a

already commenced by or against members of the

class; (C) the desirability or undesirability of con-

eentrating the litigation of the claims in the particn-

lar forum; (D) the difficulties likely to be encoun-

tered 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(h)(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 (S.D.

N.Y.1975); Advisory Committee’s Notes to Rule 23, 39

F.R.D. 98, 102 (1966).

[19] However, this is not to say that a claim for class-

wide injunctive relief should be denied merely because it is

coupled with a claim for a money judgment, however sub-

stantial. In order to preserve injunctive relief, the better

course, in this Court’s view, is to certify the declaratory and

injunctive 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 J 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 decla-

Gla

ratory and injunctive relief, such relief can be appropriately

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 differences

among its members and defendants’ decision to institute

random mail surveillance was based on the common 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 appropriate.

Should the assumption be upheld in its entirety, defendants

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 improvid-

ently 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 certifi-

cation of the watch-list sub-class under Rule 23(b)(2) for

purposes of seeking declaratory and injunctive relief.”

[20] It remains to be determined whether plaintiffs’

claims for money damages are amenable to class treatment.

27. Defendants have argued that appropriate injunctive relief

may be framed in this case without certifying a class. See e. a., Dis-

trict 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, certi-

fication for purposes of iniunctive relief is appropriate wherever the

requirements of Rule 23 have been met. See. ¢. @.. Fujishima v.

Board of Education, 460 F.2d 1355, 1360 (7th Cir. 1972).

re se

G2a

More precisely, the Court must consider whether plaintiffs

can maintain a class action on the issue of liability for

money damages, for the Court rejects at the outset plain-

tiffs’ contention that the actual assessment of damages to

individual class members can be tried on a class-wide basis.

As defendants accurately point out, the gravamen of plain-

tiffs’ damages claim is that the privacy of persons whose

mail was monitored has been viclated. How much com-

pensation, 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’ sugges-

tion that a dollar, amount can be arbitrarily assigned as

compensation for each letter opened or photographed can-

not be accepted. Dellums v. Powell, No. 1022-71 (D.D.C.),

appeal pending, a case cited by plantiffs in which classwide

damages for constitutional violations were awarded, did

not involve 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 related

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 declaration that the pro-

gram was illegal, an injunction against its continuance, and

63a

a mandatory order that the files kept as a result of the

program be destroyed. ‘Tnsofar 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 on behalf of the class. The harm that the

named plaintiffs allege is the same as that of the two sub-

classes generally: it is the threatened continuation of the

program and the continued existence in government files of

the information gleaned by the program.

The claims on liability for 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 indivi-

dual mail was only allegedly tampered with during a part

of that period. The question is thus raised as to how plain-

tiff Driver, for example, whose mail -vas allegedly onened in

1965 and 1969, can have standing to seek damages from

defendant Schlesinger, for example, whose involvement in

the intercept program, by plaintiffs’ own allegations, did

not begin until after 1970; or against defendant 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 (E.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

28. It is not clear from plaintiffs’ complaint whether they seek an

injunction avainst 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 yest to claims for declaratory and injunctive relief against

former ials.

G4a

has heid that a class action is maintainable even where

plaintiffs would he unable in their own right to bring an

action against all of the defendants, Haas v, Pittsburgh

National Dank, 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

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

“instances in which all defendants are juridically related in

a manner that suggests a single resolution of the dispute

would be expeditious.” La Jar, 489 F.2d at 466.

[21] In the Court’s opinion, plaintiffs’ complaint fits

hoth branches of the La Mar exception. Plaintiffs’ complaint

alleges a massive and concerted program of covert mail

intercepts over a twenty-vear period, the maintenance of

on-going files based on information gleaned from the inter-

eepts, 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 considerations

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 hy race in one county jail

can represent class of similarly situated persons in all

county jails throughout state). Accordingly, the Court

hoids that named plaintiffs who are members of the two

sub-classes have standing to raise the claims of the members

of their respective sub-class against former officials whose

tenure does not correspond to the dates of the individual

mail openings alleged by any of the named plaintiffs.

65a

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 scems clear that Rule 23(b)(1)(A) cannot apply to the

liability claim. Assuming that Rule 23(b)(1)(A) is appli-

cable to claims for damages, a question not free from doubt,

see, e.g., Kristiansen v. John Mullens & Sons, Inc., 59 F.R.D.

99, 105 and n. 6 (E.D.N.Y. 1973) ; Ratner v. Chemical Bank

New York Trust Co., 54 F.R.D. 412, 415 and n. 5 (S.D.NLY.

1972) ; but see Berman y. Narragansett Racing Association,

48 F.R.D. 333, 337 (D.R.1.1969) (by implication) the rule is

inapposite to the present facts. The plaintiffs 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 certify the sub-

classes under Rule 23(b)(2) for class-wide injunctive 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 standard of con-

duct to he observed by defendants in the future and will pre-

clude any need for the establishment of such a standard by

means of a damages action under Rule 23(b)(1)(A).

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 questions

of Jaw 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).

[22] 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-

66a

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 valid-

ity of any defenses raised will vary from individual to indi-

vidual, or that any individual class member will have any

special interest in controlling his or her individual litiga-

tion. Judicial economy, the prevention of multiple lawsuits,

the absence of any substantial difficulty in concentrating this

litigation in this forum—all of these factors lend additional

support to the Court’s conclusion that defendants’ liability

to the random sub-class should be adjudicated as a class

action.

[23] Application of the Rule 23(b)(3) criteria to the

watch-list sub-class leads to a quite different conclusion.

Defendants 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 con-

siders 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 defendants is no mere spectre, and poses serious prob-

lems that render class action certification of the watch-list

sub-class on the question of defendants’ liability inappro-

priate at this time.”

29. Two reasons dictate a different result concerning certification

under Rule 23(b)(3) of a class action an 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,

67a

C. Notice

[24] 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-clas« is re-

quired by Rule 23(¢c)(2). This notice must include individ-

ual 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 available

in the present case can only be determined after discovery

proceedings, and the Court will enter an appropriate order

regarding notice at that time. It should be noted that

whatever notice is ordered must he 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 hear

the cost of notice where there exists a fiduciary relationship

between plaintiff and defendants, plaintiffs have not estab-

lished that such a relationship exists hetween plaintiffs and

defendants in the present case.

[25] One final comment is ia 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 dis-

with its concomitant problems is obviously not available insofar as

the relief sought is declaratory and injunctive. Second, and controi-

ling, “the existence of ‘predominating’ questions and the availability

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).

68a

covery and impermissible inquiries into the nature and

scope of intelligence activity. The latter objection, what-

ever its validity in other cases, is inapplicable to the pres-

ent 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 damages under Rule 23(b)(3).

While considerations of undue publicity might conceivably

have sonie bearing on the determination the Court must

make under Rule 23(b)(3) as to whether a class action

is superior to other modes of adjudication, no such deter-

mination is authorized under Rule 23(b)(2). Since the

same information will undoubtedly 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 photo-

graphed 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 adjudicating

the claims for injunctive and declaratory relief, that a class

69a

action on behalf of the random sub-class may be certified

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 mem-

bers of the random sub-class whose addresses are obtain-

able through reasonable effort.

Counsel will prepare an order in accordance with this

opinion.