# Petition — Helms v. Driver > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1584%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 439 U.S. 1114 ## Text 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 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