Petition — Stafford v. Briggs

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*~ Supreme Court, U. S.

FILED

| APR 28 1978

MICHAEL RODAK, jr., CLERK

IN THE

Supreme Court of the United States

October Term, 1977

No. E215 4 6

Witu1amM H. Starrorp, Jr., Stuart

J. CarroutH and CiaupE Meapow,

Petitioners

Vv.

JOHN BRIGGS, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

PETER MeEGARGEE Brown

Eart H. NEMSER

Attorneys for Petitioners

One Wall Street

New York, New York 10005

Of Cownsel:

CapDWALADER, WICKERSHAM & TAFT

Rosert L. SiLys

LLL ti

TABLE OF CONTENTS

IEA LLL A

i scansudanumsndeoveneuene

Neen sc seneennecescsinusonoses

Statute and Constitutional Provisions Involved ........

a neauumgounonnoumnes

Reasons for Granting the Wit ......................ccccccsseeee-

The Court of Appeals has Decided an Important

Federal Jurisdictional Question Which Should be

Settled by This Court Without Delay -................

The Court of Appeals has Decided an Important

Federal Jurisdictional Question in Conflict With

Decisions of the Courts of Appeals for the Second

and Ninth Circuits ..... ala laticnal nispenncaneseones

The Court of Appeals has Decided an Important

Constitutional Issue Which Should be Settled by

This Court .. Si ieteritiidietiedieantinadenebniannenannewneccsonbee

Conclusion .

PAGE

Appendices:

Appendix A: Opinion of the Court of Appeals ...... la

Appendix B: Opinion and Order of the District

Court kasha dihshekdihdiesaieslaanaaii tesla aoaldonseitiibiaoubaadetns 20a

Appendix C: Corrective Order and Order of Final

Judgment of the District Court ...................-....-------- 25a

Appendix D: Judgment of the Court of Appeals.. 28a

Appendix E: Order Denying Rehearing .................. 29a

Appendix F: Order Denying Rehearing En Banc .. 30a

Appendix G: Order Extending Time to Petition

for Certiorari dla

Appendix H: Opinion in Bertoli v. S.E.C., 77 Civ.

ER 8 Aap Fe Sy 5 Se ene eee 32a

Appendix I: Opinion in Sigler v. Levan, No.

77-CA-35 (W.D. Tex. 3/22/78) ~--0..--..-..-c-c.osn--on-e0 37a

Appendix J: List of Lawsuits Involving Issue of

Personal Jurisdiction under 28 U.S.C. §1391(e) .. 50a

Appendix K: Federal Statutes Providing for

Nationwide Service of Process ..............22.....-::--+-+++ dla

ill

Table of Authorities

Cases:

PAGE

Barr v. Mateo, 360 U.S. 561 (1959) ..................-.--s-essns-oes 5,8

Berlin Democratic Club v. Brown, No. 310-74 (D.D.C.) 50a

Bertoli v. SEC, 77 Civ. 1250 (S.D.N.Y. 11/4/77) ........ 10,

32a, 50a

Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) .. 7,8

Blair v. Baumgardner, Civil Action No. 77-C-390 (E.D.

SOT NE. sacuissvsinaamcendoons eipeipeonnnsnetaiseaaptbasiandhtapeaieicandsitanmioseneeasianes 50a

Black Panther Party v. Levi, Civil Action No. 76-2205

(2 «Eg SA Rel sees een Oi A eR Pe OE 50a

Braden v. 30th Judcial Circuit Court, 410 U.S. 484

RIE gS RINT MG int ender a eas ST EO IND eC OSENON ER De 10

Briggs v. Goodwin, 569 F.2d 1 (D.C. Cir. 1977) ......passim

Clackamas County v. McKay, 219 F.2d 479 (D.C. Cir.

1954), vacated as moot, 349 U.S. 909 (1954) -...0.... 6

Clavir v. United States, 76 Civ. 1071 (S.D.N.Y.) ........... 50a

Driver v. Helms, 74 F.R.D. 382 (D.R.I. 1977), appeal

nme TEAR CIE CUR) cnsissssceetccscsenccicencsmincremenses 13, 50a

Economou v. Butz, 5385 F.2d 688 (2d Cir. 1976) cert.

UGE TURK, TG, TUT CIE Den ccesensiscescscntierenntntincssis 7

First Nat'l Bank v. Comptroller, 252 U.S. 504 (1919) 52a

Grove Press, Inc. v. C.1.A., 76 Civ. 5509 (S.D.N-Y.) .. 13

Guilday v. Dept. of Justice, ( Civil Action No. 4578

7% & Ep eeee een m 50a

Halkin vy. Helms, Civil No. 75-1773 (D.D.C.) .............. 13, 50a

Horman v. Kissinger, Civil Action No. 77-1748

al <sicceaeialclasertvach tieshc:hsinelanisateeissrenialdebisesbabbls tance 50a

International Shoe Co. v. Washington, 326 U.S. 310

ENITTTE aici eis ais ttiesteacliseaenipesiepualaetNabbeaniiieieigintitalabetastcanans 13

Kendall yv. United States, 37 U.S. (12 Pet.) 524 (1838) 6

Kipperman v. McCone, 427 F. Supp. 860 (N.D. Cal.

gE ne TER LR 1 ee a 10, 13

Lamont v. Haig, No. 75-2006 (D.C. Cir.) -..........2..20......-- 50a

LaRouche v. Kelly, 75 Civ. 1071 (S.D.NLY.) oc... 50a

PAGE

Larson v. Domestic and Foreign Commerce Corp., 337

is... Ff). | ee 6

Liberation News Service v. Eastland, 426 F.2d 1379

(28 Cir. T9008) Wn cee 11

Marsh v. Kitchen, 480 F.2d 1270 (2d Cir. 1973) ............ 10

Martinez v. Seaton, 285 F.2d 587 (10th Cir. 1961) ........ 7,12

Mason v. Clayton, Civil Action No. 77-0995 (D.D.C.) 50a

McCarthy v. Jonnard, Civil Action No. 77-695-A (E.D.

Tannen nicesswsvienttonsiceshenesecuncnen f... 50a

Misko v. United States, Civil No. 77-875 (D.D.C.) ........ 50a

Moriash vy. Morrill, 496 F.2d 1138 (2d Cir, 1974) ........ 15

Nat'l Lawyers Guild v. Attorney General, 77 Civ. 999

(SRI) cacecxnencexsescimsussecsiissuunseenensensinneieneeiala enna 50a

Natural Resources Defense Council v. TV A, 459 F.2d

255 (Dd Cin. Y9GT) encenncesssiensscescaeneeeeee 11.

Nesbitt Fruit Prods., Inc. v. Wallace, 17 F. Supp. 141

(SD. Terman TSG) ancccecnesienscsss'ssnrsnscisnniennnneneee 12

Oxford First Corp. v. PNC Liquidating Corp., 372

F. Supp. 191 (B.D. Pa. 1996) ........cueeee ee 15

Petrol Shipping Corp. v. Kingdom of Greece, 360 F.2d

103 (2d Cir.) cert. denied 384 U.S. 931 (1966) .......... 11

Pennoyer v. Neff, 95 U.S. 7111 (1877) «2.2.0.2... 15

Powers v. Mitchell, 463 F.2d 212 (9th Cir. 1977) .......... 11

Rimar v. McCowan, 374 F. Supp. 1179 (E.D. Mich.

1k } eM nein ro 12

Roberts v. United States, 176 U.S. 221 (1900)... 6

Robertson v. Railway Labor Bd., 268 U.S. 619 (1925) 9, 14

Schlanger v. Seamans, 401 U.S. 487 (1971) 2... 10, 11

Shaffer v. Heitner, 433 U.S. 186 (1977) -o.cccce ccc eee 15, 52a

Sigler v. Levan, No. 77-CA-35 (W.D. Tex 3/22/78)....11, 37a

Smith v. Campbell, 450 F.2d 829 (9th Cir. 1971) 0000... 10

Strait v. Laird, 406 U.S. 341 (1972) 2... ceeeceeteee cece 7,10

PAGE

Todd v. Brown, Civil Action No. 77-185-TUC-MAR

Nee os soensecetinaanisasnionanis 50a

United States ex rel Rudick v. Laird, 412 F.2d 16 (2d

Cir.) cert. denied 396 U.S. 918 (1969)... 9, 10

United States v. Scophony Corp., 333 U.S. 795 (1948) 138

Wheeldin v. Wheeler, 373 U.S. 648 (19638)... 5

Constitutional Provisions, Statutes and Rules:

a ciiruaesbiaapesnniationsobereinuns 14

ane ce INUIIIIOIIN BW sci cccnencciconcesonadvensersonsisnsncncsesen +

en i MUNI oo vsc seawesseisninsnsdesassenscaes 3, 13, 14,15

5 a ae 4

U.S. Comst., amendment VIUT ................0....cccccrccccasceeseesse. 4

as I oi sceesnteesonniencensbevnsan 4

as aciemnenso ennai 52a

TERA eae dla

OETA TR a RE SS 52a

su auiniesbhesionbulline dla

Nee eduisisasandpnarenentaes 53a

SER 52a

I cssienannspicbannau 52a

EEE ee Se ee oe 4

28 U.S.C. $1332 ae cia oe re a +

EES SRT RE I RE ET dla

alsin icidunnsbevenaene 4

ic casuaviideensbenaisnanstines 2

a sileiatsemnarebanennniis 12

a cesssaetesvadanaensmndanehani passim

I SS 52a

a saisanensnannsabinaechinnenionen dla

es sniersesbananeboentnisiunomens 4

a cs svascspsesimaninannnasneomanenn 5la

a EE 52a

28 U.S.C. § 1696 ........... ha ... Ola

28 U.S.C. § 2201 4

PAGE

BUN. Se IE oi uhiltsis ninctcicdcccnnsiacaedanaliesinaennhennncateboiianin 4

le a Noa cccasncapaneinieitentoreaensaomnnnsinilonetin 10

ee oo al anid haa Sec ancepeabivarennermieciinniamies d2a

I cae lise macendenineneippernean dla

SI I iach satan dchiveisaiirmeloniscaneinpsericianceltentisaicicniteauinbelens 58a

eT ii cana esebadeosceiaeaenenarniedidebenren 53a

ee ha pti peicciescestvenanenipitantionsi on =” 5

Oe re FE ecccdtinchctretnnnncsnneons PRA ERA ST d2a

Pes I I oss centscsacecdss ln a octensascaestaanacehasiesineaihandeacimseh cieiainnaton 52a

eA uv cetelascctaerssashcntkpepi-acennneteitelonnctincnorsshaesecsbiocglaseatnts 52a

Pub. L. No. 94-574 § 2, 90 Stat. 2721 we 2

SC a auiclasieoeabaubiaks S

AR i I el ch are ache ion, deena 8

i III esc vadcseeriestebataceasbnernnssodevenisennemnnhndinnsas 11

a __ ARERR RO RPI ares DUCE RE OE EET SR 11

Legislative Materials:

H. R. Rep. No. 586, 87th Cong. Ist Sess. -......0.....0.2.......- 6,8

S. Rep. No. 1992, 87th Cong., 2d Sess, ....................c.c0000 6,8

Treatises:

P. Bator, et al., Hart and Wechsler’s The Federal

Courts and The Federal System (2d ed. 1978) ....... 8, 14

C. Wright and A. Miller, Federal Practice and Pro-

II TIE ecthncistanietasabeckpccemskinitnnnaionanebtecrineinadibtiee 11

IN THE

Supreme Couwt of the United States

October Term, 1977

Wim H. Srarrorp, Jr., Stuart

J. CarroutH and CLaupe Mrapow,

Petitioners,

UV.

JoHN Bris, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petitioners pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the

District of Columbia Circuit.

Opinions Below

The opinion of the court of appeals (App. A, pp. la-19a)

is reported at 569 F.2d 1. The memorandum opinion and

order of the district court (App. B, pp. 20a-24a) is

reported at 384 F.Supp. 1228. <A corrective order of the

district court and order of final judgment (App. C, pp. 25a-

27a) are unreported.

Jurisdiction

The judgment of the court of appeals (App. D, p. 28a)

was entered on September 21, 1977. A timely petition for

rehearing with a suggestion for rehearing en banc was

denied on December 1, 1977 (Apps. E and F, pp. 29a-30a).

On February 23, 1978 petitioners’ time to file this petition

was extended until Apr?! 30, 1978 (App. G, p. 3la). The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1354(1).

Questions Presented

1. Whether Section 2 of the Mandamus and Venue Act

of 1962 grants the United States district courts nationwide

personal jurisdiction over federal officials sued for dam-

ages in their private individual capacities for acts allegedly

performed under color of law.

2. Whether such a grant of personal jurisdiction violates

the due process clause of the fifth amendment.

Statute and Constitutional Provisions Involved

The statute involved is Section 2 of the Mandamus and

Venue Act of 1962, 28 U.S.C. §1391(e) :!

“A civil action in which each defendant is an officer

or employee of the United States or any agency

thereof acting in his official capacity or under color

of legal authority, or an agency of the United States,

may, except as otherwise provided by law, be

brought in any judicial district in which: (1) a

1. The statute was amended by Act of Oct. 21, 1976, Pub. L. No.

94-574 §2, 90 Stat. 2721-2722. The amendment does not bear on the

questions presented.

defendant in the action resides, or (2) the cause of

action arose, or (3) any real property involved in the

action is situated, or (4) the plaintiff resides if no

real property is involved in the action.

The summons and complaint in such an action

shall be served as provided by the Federal Rules of

Civil Procedure except that the delivery of the sum-

mons and complaint to the officer or agency as

required by the rules may be made by certified mail

beyond the territorial limits of the district in which

the action is brought.”

The constitutional provision involved is the fifth amend-

ment:

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia,

when in actual service in time of War or public

danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor

shall private property be taken for public use, with-

out just compensation.”

Statement

Respondents, individuals who were subpoened to testify

before a grand jury in the Northern District of Florida in

July, 1972, brought this suit seeking damages for alleged

violations of their constitutional rights. Six of the Respon-

dents were indicted by that grand jury.

Petitioners, all residents of Florida, are William H.

Stafford, Jr., then United States Attorney for the Northern

District of Florida (now United States District Judge for

the Northern Distric+ of Florida), Stuart J. Carrouth, then

Assistant United Siates Attorney for the Northern District

of Florida (now in private law practice in Florida), and

Claude Meadow, a Special Agent for the Federal Bureau

of Investigation assigned to duty in Florida. .

Respondents claim that petitioners, while participating

in the grand jury proceeding, knew of false testimony given

before the District Judge in Florida by defendant below

Guy Goodwin, an attorney with the Department of Justice.

Mr. Goodwin is alleged to have falsely testified that there

were no government informants among the grand jury

witnesses who were represented by counsel. Respondents’

complaint alleges, inter alia, that petitioners violated

respondents’ first, fourth, fifth, sixth, eighth, and ninth

amendment rights by permitting such false testimony;

that the grand jury would not have indicted the six

respondents if it knew of the false testimony; and that the

concealed presence of a government informant in the “de-

fense camp” deprived respondents of sixth amendment

rights. Respondents each seek $100,000 punitive and

$50,000 compensatory damages from petitioners in their

private individual capacities. Jurisdiction was based upon

28 U.S.C. §§ 1331, 1332, 1343, 1651, 2201 and 2202. Respon-

dents served their summons and complaint upon petitioners

by certified mail in Florida.

The district court granted petitioners’ motion to dismiss

the complaint for want of personal jurisdiction, improper

venue and insufficiency of service of process. The court of

appeals reversed and denied petitioners’ motion for rehear-

ing. It held that petitioners were subject to personal juris-

diction in the district court, notwithstanding their lack of

“presence” in or “minimum contacts” with the District of

Columbia, merely because petitioners were served with

process in the manner specified in Title 28, Section 1391(e).

Reasons for Granting the Writ

The Court of Appeals has Decided an Important

Federal Jurisdictional Question Which Should be

Settied by This Court Without Delay

The court of appeals held that Title 28, Section 1391(e)

provides more than a mechanism for service of process; it

subjects federal officials sued in their private individual

capacities for damages alleged to arise from official con-

duct to unlimited nationwide personal jurisdiction, not-

withstanding the absence of any nexus between the official

or the alleged wrong and the chosen forum. This is the

most radical departure to date from the standards govern-

ing personal jurisdiction established by Congress and this

Court. See infra at 14, n. 9. |

The impact of this decision is heightened when viewed

against developments, subsequent to the enactment of See-

tion 1391(e), which hr~e increased the number and broad-

ened the scope of damage suits against federal officials in

their private individual capacities.

When the Mandamus and Venue Act of 1962 was enacted,

such suits were not brought in the federal courts for two

reasons. First, federal officials were held absolutely im-

mune from suit in personal damage actions grounded in

their official conduct. E.g., Barr v. Matteo, 360 U.S. 564

(1959). Second, there was then no federal analogue to 42

U.S.C. § 1983, which imposes damage liability upon those

who, under color of state law, deprive persons of federal

rights. Thus, in 1963 this Court said in Wheeldin v.

Wheeler, 373 U.S. 647:

“When it comes to suits for damages for abuse of

power, federal officials are usually governed by local

law.*** Federal law, however, supplies the defense,

if the conduct complained of was done pursuant to a

federally imposed duty*** or immunity from suit.

*** Congress could, of course, provide otherwise, but

it has not done so. Over the years Congress has

considered the problem of state civil and criminal

actions against federal officials many times. *** But

no general statute making federal officers liable for

acts committed ‘under color,’ but in violation, of

their federal authority has been passed.” 7d. at 652.

At that time suits in the federal courts were brought

against federal officials in their official capacities or, in a

limited category of cases where the relief sought was in

essence against the United States, nominally in their per-

sonal capacities for actions taken under color of law. As

the House Judiciary Committee Report on the Mandamus

and Venue Act of 1962 explained, the latter category

comprised :

“eases where the action is nominally brought against

the officer in his individual capacity even though he

was acting within the apparent scope of his author-

ity and not as a private citizen. Such actions are

also in essence against the United States but are

brought against the officer or employee as individual

only to circumvent what remains of the doctrine of

sovereign immunity.” H.R. Rep. No. 536, 87th

Cong., Ist Sess. at 4. See S. Rep. No. 1992, 87th

Cong., 2d Sess., at 3 (hereinafter “H. R. Rep.” and

“S. Rep.”). [Emphasis added. ]

See also Larson v. Domestic and Foreign Commerce Corp.,

337 U.S. 682 (1949). While some of these cases sought dam-

ages, any award would be paid from the United States

Treasury.2 These are the suits for money judgments—

2. E.g., Roberts v. United States, 176 U.S. 221 (1900); Kendall

v. United States, 37 U.S. (12 Pet.) 524 (1838); Clackamas County v.

McKay, 219 F.2d 479 (D.C. Cir. 1954), vacated as moot, 349 U.S.

909 (1955).

“nominally” against the individual and “in essence against

the United States’—which were considered by Congress

~ when it enacted Section 1391(e).

After the enactment of Section 1391(e), this Court held

in Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), that

violations of the fourth amendment give rise to damage

actions against federal officials in their private individual

capacities. Furthermore, the absolute immunity doctrine

has been eroded in the lower federal courts. See, e.9.,

Economou v. Butz, 535 F.2d 688 (2 Cir. 1976), cert. granted,

Dkt. No. 76-709. These developments set the framework

for the suit below.

The court of appeals’ holding that Section 1391(e) applies

to suits against federal officials in their private individual

capacities cannot be squared with the fact that when Con-

gress enacted the statute, these developments had not yet

occurred and this type of suit could not then be maintained

in the federal courts.

There is nothing unusual about subjecting federal offi-

cials to nationwide personal jurisdiction in the suits

described in the House and Senate Committee Reports.

Nationwide jurisdiction over officials sued in their official

capacities ordinarily exists by reason of nationwide “official

presence” through the “hierarchy of command” and has

nothing to do with the Mandamus and Venue Act of 1962.

E.g., Strait v. Laird, 406 U.S. 341, 345 (1972). Section

1391(e) merely provides a mechanism for service of process,

otherwise unavailable, to effect such personal jurisdiction.

E.q., Martinez v. Seaton, 285 F.2d 587, 589 (10 Cir. 1961).

If Section 1391(e), by its own force, confers nationwide

Jurisdiction over officials sued for damages in their private

individual capacities, the consequences for federal officials

are extreme. Federal officials, unlike others, will be forced

to defend their personal assets in jurisdictions with which

they have uo contact and far from their homes. Opening

so wide « door to federal litigation against officials in incon-

venient forums by anyone who feels aggrieved by official

conduct is readily subject to abuse. Indeed, since Bivens

a rash of such actions has arisen in which personal

jurisdiction is sought to be predicated solely upon the

service provision in Section 1391(e). See infra at 12-13;

see also P. Bator, et al., Hart and Wechsler’s The Federal

Courts And The Federal System (2d ed.) (Supp. 1977) at

227.

The difficulties faced by officials performing their duties

under the threat that they may be forced to bear the burden

of defending their actions in court have long been recog-

nized. Barr v. Matteo, supra at 571. These burdens can be

devastating where the official must personally defend him-

elf in distant forums.

The Committee Reports accompanying Section 1391(e)

stated that in actions covered by this statute:

“The government official is defended by the Depart-

ment of Justice whether the action is brought in the

District of Columbia or in any other district. U.S.

Attorneys are present in every judicial district.

Requiring the government to defend Government

officials and agencies in places other than Washing-

ton would not appear to be a burdensome imposi-

tion.” H.R. Rep. at 3; S. Rep. at 3.

But when an official is sued for damages in his ~private

individual capacity, and not nominally, this is not the case.

Only in limited instances can the Department of Justice

represent the official or retain private counsel on his be-

half, 28 C.F.R. §§ 15.2, 15.3. Otherwise, the ‘burden of

defense far from home is more than a federal employee

can fairly be expected to withstand. There is no indication

that Congress intended the choice of public service as a

eareer to exact such a cost.

In Robertson v. Railway Labor Board, 268 U.S. 619, 624,

627 (1925), this Court cautioned that exceptions to the gen-

eral rules of personal jurisdiction must be clearly expressed

by Congress and are not lightly to be assumed.’ Neither the

language nor the history of Section 1391(e) contains an

expression of congressional intent that this statute have

the far-reaching consequences permitted by the court below.

The Court of Appeals has Decided an Important

Federal Jurisdictional Question in Conflict With Deci-

sions of the Courts of Appeals for the Second and

Ninth Circuits

The deeision below conflicts with prior decisions of the

courts of appeals for the Second and Ninth Cireuits which

held that (1) the service of process provision in Section

1391(e) cannot, standing alone, supply personal jurisdic-

tion over federal officials not otherwise amenable to suit;

and (2) Seetion 1391(e) is limited to suits which, prior to

its enactment, could have been brought only in the District

of Columbia.

1. In United States ex rel. Rudick v. Laird, 412 F.2d 16

(2 Cir.), cert. denied, 396 U.S. 918 (1969), a habeas corpus

case, the court held that Section 1391(e) “is a venue pro-

vision as its title clearly specifies,” id. at 20, and accord-

ingly, its service of process provision could not, standing

alone, provide personal jurisdiction for fundamental rea-

sons. Judge Moore explained:

“The concepts of personal jurisdiction and venue are

closely related but nonetheless distinct. * * * Thus

3. In Robertson this Court interpreted a statute itti it i

7 n Lee ‘ i _ permitting suit in

any District Court of the United States” as meaning any court

having personal jurisdiction under general rules then prevailing.

venue deals with the question of which court, or

courts, of those which possess adequate personal

* * * jurisdiction, may hear the specific matter in

question. In short, jurisdiction must first be found

over * * * the persons involved in the cause before

the question of venue can properly be reached.

Therefore, in relation to Section 1391(e), that pro-

vision ean be said to authorize suit in the Southern

District of New York in the instant case if, but only

if, the jurisdiction—personal and subject matter—

otherwise exists.” Jd. at 20.

Rudick was cited by this Court to support its holding in

Schlanger v. Seamans, 401 U.S. 487, 491 (1971).*

In Marsh v. Kitchen, 480 F.2d 1270 (2 Cir. 1973), the

Second Circuit examined sua sponte whether any federal

statute or rule conferred personal jurisdiction in a case

similar to this. It said:

“We have not found any federal statute or pro-

cedural rule which, either expressly or upon proper

interpretation, authorizes extraterritorial service of

process under the circumstances of this case.” Jd.

at 1273 n. 8.

In Smith v. Campbell, 450 F.2d 829 (9 Cir. 1971), the Ninth

Cireuit held that “Section 1391 may not be utilized to

confer jurisdiction, but can be in order to effectuate juris-

4. The Rudick holding is not limited to habeas corpus cases on the

theory that 28 U.S.C. § 2241(a) is an exception to Section 1391(e).

The habeas corpus statute empowers a court to issue the writ within

its “jurisdiction,” that is, against officials with requisite “presence.”

Strait v. Laird, supra at 345 n.2; Braden v. 30th Judicial Circuit

Court, 410 U.S. 484, 495 (1973). Rudick has been followed in the

district courts in cases not involving habeas corpus. £.g., Bertoli v.

The Securities and Exchange Commission, 77 Civ. 1450 (S.D.N.Y.

1/4/77). (App. H. p. 32a-36a); Kipperman v. McCone, 422 F. Supp.

860, 871 (N.D. Cal. 1976).

diction once it has attached.” Jd. at 834. Powers v.

Mitchell, 463 F.2d 212 (9 Cir. 1972), similarly held that

Section 1391(e), which also “extends jurisdiction to

‘agencies,’ does not allow a federal court to extend its juris-

diction to a local federal agency such as a selective service

board which is not within the court’s territorial jurisdic-

tion.” Id. at 213.

Under the principles established in the Second and Ninth

Circuits, Section 1391(e) cannot vest a court in the District

of Columbia with personal jurisdiction over petitioners

here, who were federal officials stationed in Florida and

who were not in any sense “present” in the District of

Columbia. Section 1391(e) provides only for the manner

of service; it is not an independent basis for personal

jurisdiction.®

2. In Natural Resources Defense Council v. TVA, 459

F.2d 255 (2 Cir. 1972), the Second Circuit reviewed the

legislative history of Section 1391(e), and held that it was

inapplicable to a suit against the TVA and its officers. The

court determined that Congress intended Section 1391(e)

to apply to suits which could have been brought “with

assurance only in the District of Columbia.’® Td. at 259.

Accord, Liberation News Service v. Eastland, 426 F.2d

1379, 1383-84 (2 Cir. 1970); Sigler v. Levan, No. T7-CA-35

5. Similarly, local statutes governing the manner of service do not

provide independent bases for personal jurisdiction. Compare D.C.

Code § 13-431 with D.C. Code § 13-423, where Congress recognized

this fundamental distinction. See Petrol Shipping Corp. v. Kingdom

of Greece, 360 F.2d 103, 109 (2 Cir.). cert. denied, 384 U.S. 931

(1966); 4 C. Wright & A. Miller, Federal Practice and Procedure

at 205-206 (1969).

6. Indeed, the one time this Court discussed Section 1391(e), it

said: “That section was enacted to broaden venue of civil actions which

could previously have been brought only in the District of Columbia.

See H.R. Rep. No. 536, 87th Cong., Ist Sess. 1; S. Rep. No. 1992,

87th Cong., 2d Sess., 2.” Schlanger v. Seamans, supra, at 490 n. 4.

(W.D. Tex. 3/22/78) (App. I, pp. 37a-49a); Rimar v.

McCowan, 374 F. Supp. 1179 (E.D. Mich. 1974).

In the TVA case, Judge Friendly observed that Section

1391(e) cannot be treated simply

“as a text to be parsed with such aid as the dictionary

and grammar afford and without adequately con-

sidering the history of the statute and the evil it was

designed to cure.” 459 F.2d at 257.

Because of an historical anomaly, the District Court for

the District of Columbia was the only federal district court

with jurisdiction to issue writs of mandamus. This,

coupled with the requirement that department heads, often

indispensible parties in mandamus actions, be served at the

seat of government, limited venue to the District of Colum-

bia. The Mandamus and Venue Act of 1962 contained two

sections. Section 1, now codified as 28 U.S.C. § 1361, cured

the first problem by granting all district courts jurisdiction

to issue writs in the nature of mandamus. Section 2, now

Section 1391(e), permitted service of process outside the

District of Columbia upon officials who were previously

amenable to service only in the District of Columbia. [d. at

258 n.6. It is submitted that Section 1391(e) was intended

to do no more.

The rule in the District of Columbia Cireuit now conflicts

with the Second Circuit rule because, prior to the enact-

ment of Section 1391(e), petitioners could have been sued

in their private individual capacities wherever they could

be found. They were not amenable to suit only in the District

of Columbia. Compare Nesbitt Fruit Products, Inc. v.

Wallace, 17 F. Supp. 141, 148 (8.D. Towa 1936) with Mar-

tinez v. Seaton, swpra at 589.

3. There are at least 17 suits in which the questions pre-

sented here are now being litigated.’ Among these cases

7. App. J, p. 50a.

is Driver v. Helms, 74 F.R.D. 382 (D.R.I. 1977), now sub

judice in the First Circuit (No. 77-1482).8 Resolution of

these issues now will aid the proper administration of

justice.

The Court of Appeals has Decided an Important

Constitutional Issue Which Should be Settled by

This Court

The court of appeals held its interpretation of Section

1391(e) was not precluded by the due process clause of the

fifth amendment, postulating that there are no limits upou

the power of Congress under article LII to define the juris-

dictional reach of the federal courts. We submit that this

article III power is limited by “traditional notions of fair

play and substantial justice” similar to the limitations im-

posed by the due process clause of the fourteenth amend-

ment upon the exercise of personal jurisdiction by the state

courts. E.g., International Shoe Co. v. Washington, 326

USS. 310 (1945).

This issue, reserved in United States v. Scophony Corp.,

333 U.S. 795, 804 n.18, 818 (1948), has not been presented

since International Shoe because, putting aside Section

1391(e), no federal law provides for personal jurisdiction

in circumstances repugnant to fair play and substantial jus-

tice. As the court below observed (App. A, p. 17a, n.73),

Congress has indeed provided for nationwide service of

process in “a few clearly expressed and carefully guarded

8. The appellants in Driver include 25 federal officials of high

office. The facts in Driver graphically illustrate the vexatious con-

sequences of the decision below. Most of the defendants there were

simultaneously sued in their private capacities in New York, San

Francisco, Providence and the District of Columbia based, in part,

upon the same allegations of unlawful mail opening. Grove Press,

Inc. v. C.I.A. 76 Civ. 5509 (S.D.N.Y.); Kipperman v. McCone, supra;

Driver v. Helms, supra: Halkin v. Helms, Civil No. 75-1773

(D.D.C.). The Kipperman, Driver and Halkin cases were brought

as class actions.

exceptions to the general rule of jurisdiction im personam.”

Robertson v. Railway Labor Bd., supra at 624. However,

each such statute is carefully guarded by a protective

mechanism, such as a restricted venue provision limiting

available forums, which insures fairness to the defendants.’

The court of appeals reached its decision by theorizing

that Congress could have created only one federal court,

which as a practical necessity would have required nation-

wide service “clearly consonant with the Constitution.”

App. A, p. 16a. See also Hart &€ Wechsler’s The Federal

Courts and The Federal System, supra at 1106 et seq. This

theory is flawed because it fails to recognize that while Con-

gress’ power to create inferior federal courts under article

III may be permissive—“such inferior Courts as the Con-

gress may .. . establish,” the mandate of fifth amendment

due process is absolute and limits the exercise of congres-

sional power.” The question is not what Congress might

have done in 1789, but whether it can now enact a statute

repugnant to contemporary notions of fair play and sub-

stantial justice.

Rather than coming to grips with this issue, the court

below merely begged the question. Since congressional

power is limited by the due process clause, Congress could

establish the single court hypothesized only if unlimited

nationwide jurisdiction is constitutional. The claim that

such a court might exist merely restates, but does not

resolve, the issue presented.

The court of appeals rejected what it termed “apodicti-

eal” assertions of the Third and Fifth Circuits that personal

9, App. K, p. 5la sets forth the federal “nationwide service”

statutes and indicates the manner in which they are restricted so as

not to offend traditional notions of fair play and substantial justice.

10. For example, surely Congress could not justify the creation

of standards of amenability to suit based on race by exercising its

“plenary power” under article ITI.

;

jurisdiction in the federal courts is governed by a “fairness

standard.” App. A, p. 17a-18a n. 74. It distinguished

the fairness limitations on state long-arm jurisdiction be-

cause such jurisdiction reaches beyond state territorial

limits. In the federal sphere, it deemed “fairness consid-

erations” inapplicable because jurisdiction does not reach

beyond the territory of the United States. Accord, Moriash

v. Morrill, 496 F.2d 1138 (2 Cir. 1974), decided before

Shaffer v. Heitner, 433 U.S. 186 (1977). Compare Oxford

First Corp. v. PNC Liquidating Corp., 372 F.Supp. 191

(1i.D. Pa. 1974).

By rejecting fairness considerations because the peti-

tioners were summoned within the United States, the court

of appeals failed to recognize that Shaffer v. Heitner

completely repudiated the rigid jurisdictional underpinning

—territorial sovereignty—of Pennoyer v. Neff, 95 U.S. 714

(1877). Shaffer recognized that “the theory that territorial

power is both essential to and sufficient for jurisdiction has

been undermined... .” 433 U.S. at 221. There, this Court

held that although a court may have the necessary terri-

torial power, the exercise of that power must be limited by

traditional notions of fair play and substantial justice.

The rationale of Shaffer should be applicable to questions

of federal as well as state in personam jurisdiction.

The decision below might have been correct under the

theory of Pennoyer; however, it cannot withstand analysis

under Shaffer. Shaffer recognized fair play as the crucial

element in the due process equation, sufficient to outweigh

antiquated notions of the supremacy of territorial power.

Congress surely has territorial power over petitioners.

However, only this Court can authoritatively decide

whether the exercise of that power, as enunciated by the

court of appeals’ construction of Section 1391(e), is sub-

ject to fifth amendment due process limitations and whether

these limitations require that fair play and substantial

justice be afforded to petitioners.

Conclusion

The petition for a writ of certiorari should be granted.

Dated: April 30, 1978

Respectfully submitted,

Pretrer MEGARGEE Brown

Kart H. NEMSER

Attorneys for Petitioners

One Wall Street

New York, New York 10005

Of Counsel:

CapWALADER, WICKERSHAM & Tart

Rosert L. Sis

APPENDIX A

JouNn Bricas Et AL., Appellants,

Guy Goopwin, INDIVIDUALLY AND AS ATTORNEY FOR THE

DEPARTMENT OF JUSTICE, ET AL. [STAFFORD, ET AL. |]

No. 75-1578.

UNITED STATES COURT OF APPEALS

District of Columbia Circuit.

Argued April 15, 1976.

Decided Sept. 21, 1977.

As amended Dee. 1, 1977.

Rehearing Denied Dee. 1, 1977.

Appeal from the United States District Court for the

District of Columbia (D.C. Civil Action No. 74-803).

Doris Peterson, New York City, with whom Nancy

Stearns, Morton Stavis, New York City, and Philip J.

Hirschkop, Alexandria, Va., were on the brief, for

appellants.

R. John Seibert, Atty., Dept. of Justice, Washington,

D. C., with whom Robert L. Keuch and Benjamin C. Flan-

nagan, IV, Attys., Dept. of Justice, Washington, D. C., were

on the brief, for appellees. George W. Calhoun, Atty.,

Dept. of Justice, Washington, D. C., also entered an appear-

ance for apnellees.

Before McGowan, Rosrnson and WiLkey, Circuit Judges.

Opinion for the Court filed by Sporrswoop W. Rosrnson,

III, Cireuit Judge.

Srorrswoop W. Rosrnson, III Cireuit Judge:

During the summer of 1972, Guy Goodwin, an attorney in

the Department of Justice, together with United States

Attorney William H. Stafford, Jr.’ and Assistant United

States Attorney Stuart J. Carrouth for the Northern Dis-

trict of Florida, conducted therein grand jury proceedings

at which appellants,? among others, were subpoenaed to

appear. On motion by newly-retained counsel for appel-

lants,’ the District Judge responsible for those proceedings

called Goodwin to the witness stand and inquired as to

whether any of the “witnesses represented by counsel

[wereJagents or informants” of the Government.* Good-

win’s sworn answer—‘[njo, Your Honor’’—is alleged to

have been a knowing falsehood,*® and its consequences to

1. Now United States District Judge for the Northern District of

Florida.

2. Appellants were all members of the Vietnam Veterans Against

the War/Winter Soldier Organization. Compare Brief for Appel-

lees at 3 n. 1 with appellant’s complaint {{] 4-7, Appellants’ Appendix

(App.) 6-7.

3. According to the complaint, f[] 10-12, App. 8-9, some of the

subpoenas were returnable on the third succeeding day, and most of

them compelled appearance at the same time; the witnesses summoned

were as far away as Texas; and “[nJearly all of the lawyers met their

clients for the first time” only days before they were to appear.

Cf. App. 20.

4. App. 27.

5. The transcript indicates, App. 20-23, that a list of the witnesses

represented by counsel was read to the three prosecutors in open court

and, on the following day, Goodwin was sworn, asked by the judge

only the above question and excused without examination by any of

the counsel. App. 27.

6. Complaint 17-18, App. 10. One of the witnesses is alleged

to have been a paid informant and to have given to the Government

information secured in the course of meetings with appellants and

their counsel. Complaint ff] 26-30, App. 12-13.

have been violative of various of appellants’ constitutional

rights.’

For redress of those consequences, appellants sued the

three prosecutors and Claude Meadow, an agent of the

Federal Bureau of Investigation,’ “individually and in

their official capacities’”® in the District Court here. Each

appellant sought a declaratory judgment, $50,000 in com-

pensatory damages and a punitive award of $100,000.!°

Goodwin, whose official residence was then in the District

of Columbia,'' was served personally and the others, each

of whom resided in Florida, were served by certified mail.'?

The Florida defendants seasonably requested transfer of

the litigation to the Northern District of Florida’ or,

alternatively, dismissal for improper venue and _ insuffi-

‘ciency of process.'* The District Court denied the former

7. Complaint 3, App. 6. Several violations of criminal statutes

are also asserted and appellants, invoking 42 U.S.C. § 1985 (1970),

charge that these violations were the result of a conspiracy to violate

their civil rights. Complaint f 34, App. 15.

8. Meadow was the alleged conduit between the informant and the

other appellees. Complaint J 27, App. 12.

9. Complaint J 7, App. 7.

10. Complaint, App. 16.

11. The District Court so found. Briggs v. Goodwin, D.D.C.,

384 F.Supp. 1228 (memorandum and order Nov. 20, 1974), App. 38.

yey do not contest that finding. See Brief for Appellees at

,4n. 2.

12. See notes 54-75 infra and accompanying text.

13. See 2¢ U.S.C. § 1404(a) (1970).

14. At the same time, Goodwin moved for dismissal on grounds

of immunity both as a prosecutor and as a witness, but his motion

was denied. See ee v. Goodwin, supra note 11, (memorandum

and order Nov. 20, 1974), App. 35-37, aff'd,—U.S.App.D.C.—, 569

F.2d 1 (1977). Goodwin is not a party to this appeal.

motion but granted the latter,'5 and the question on appeal

is whether this action may be entertained in the District of

Columbia. We hold that it may.

15. The court rejected the motion to transfer on the grounds that

venue in the District of Columbia was proper, adverting to “well

established law that a plaintiff's choice of venue is given prefer-

ence... .” Briggs v. Goodwin, supra note 11, (memorandum and

order Nov. 20, 1974) (unreported), App. 38. On March 4, 1975,

the court, repudiating that premise, issued the following additional

order:

Upon consideration of the Alternative Motion of Defen-

dants Stafford, Carrouth and Meadow to Dismiss this Action

as to them for Lack of Jurisdiction over their Persons,

Improper Venue, Insufficiency of Process and Insufficiency of

Service of Process, the memoranda of points and authorities

in support thereof and in opposition thereto, it appearing to

the Court that service of process upon said defendants was

made by certified mail; that the Complaint fails to allege the

defendants transacted any business in the District of Columbia

or caused tortious injury to plaintiffs in the District of Colum-

bia by an act or omission therein as required by District of

Columbia Code § 13-423(a); that the action against said

defendants could not have been brought in this Court prior to

the enactment of 28 U.S.C. §1391(e) and is not one in

essence against the United States as required by § 1391(e);

and that by reason thereof the Court lacks venue and in per-

sonam jurisdiction with respect to defendants Stafford, Car-

routh and Meadow, service of process on them was insufficient,

and the action as to these defendants should be dismissed, it is,

therefore, by the Court this 4th day of March 1975:

ORDERED that the Alternative Motion of Defendants

Stafford, Carrouth and Meadow to dismiss this action be, and

and the same hereby is, granted; and it is further

ORDERED that this action be, and the same hereby is,

dismissed as to defendants William H. Stafford, Jr., Stuart J.

Carrouth, and Claude Meadow.

Briggs v. Goodwin, supra note 11, (order Mar. 4, 1975) (unre-

ported), App. 39-40.

Whatever the merits of the venue determination, one must wonder

why the District Court did not hold the motion for transfer in abey-

ance until it had decided whether the litigation could continue in the

District. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-467, 82

S.Ct. 913, 915-916, 8 L.Ed.2d 39, 42 (1962) (transfer may be

effected even absent personal jurisdiction over all parties in the trans-

feror court, and in most cases is preferable to dismissal if the defect

in venue can thereby be cured).

The propriety of venue in the District of Columbia is

measured by 28 U.S.C. § 1391(e),'° which in pertinent part

provides:

A civil action in which a defendant is an officer or

employee of the United States or any agency thereof

acting in his official capacity or under color of legal

authority, ... may, except as otherwise provided by

law, be brought in any judicial district in which (1)

a defendant in the action resides ....

The summons and complaint in such an action

shall be served as provided by the Federal Rules of

Civil Procedure except that the delivery of the sum-

mons and complaint to the officer or agency as

required by the rules may be made by certified mail

beyond the territorial limits of the district in which

the action is brought.

This litigation, against four federal officials, was com-

menced in the district wherein one of them officially

resided.” The complaint alleges constitutional depreda-

tions wrought by activities “in [their] official capacity or

under color of legal authority.”'® The suit thus fits within

the ostensible coverage of Section 1391(e). Appellees sug-

gest a gloss upon the statutory language, however, except-

ing from its purview any case in which a money judgment

may be returned against a federal officer, and to this sug-

gestion the District Court apparently acceded.'? Our exam-

16. 28 U.S.C. § 1391(e) (1970), as amended by Act of Oct. 21,

1976, Pub.L. No. 94-574 § 2, 90 Stat. 2721-2722. The 1976 amend-

ment does not bear on the questions in this case.

17. See note 11 supra.

18. See text supra following note 16.

19. Briggs v. Goodwin, supra note 11, (order of March 4, 1975),

reprocuced at note 15 supra.

ination of the genealogy of the “Congressional English””°

just set forth leads us to decline appellees’ invitation.

The progenitor of Section 1391(e) was H.R. 10089,” a

bill “[t]o permit a civil action . . . against an officer of the

United States in his official capacity ... in any judicial dis-

trict .. . where a plaintiff in the action resides.” Asked

for comments on the bill, the Department of Justice

expressed reservations about its utility.> It explained that

most suits against public officials, such as those seeking

“damages from him personally for actions taken ostensibly

in the course of his official duty but which the plaintiff

claims are in excess of his official authority,” were “against

[him] in his individual capacity,” and therefore outside

the scope of the proposed legislation. On the other hand,

the Department continued, any litigation “against a Gov-

ernment official . . . in his official capacity would be the

equivalent of a writ of mandamus” which, by virtue of a

historical anomaly, no federal court outside the District of

20. See Henderson v. Flemming, 283 F.2d 882, 885 (Sth Cir.

1960).

21. H.R. 10089, 86th Cong., 2d Sess. (1960).

22. H.R. 10089, 86th Cong., 2d Sess. (preamble) (1960) (em-

phasis added). This bill was in all pertinent respects identical to H.R.

10892, 85th Cong., 2d Sess. (1958), upon which no action was taken

beyond referreal to committee. H.R. 10089 proposed that the follow-

ing language be codified as 28 U.S.C. § 1391 (e):

A civil action in which each defendant is an officer of the

United States in his official capacity, a person acting under him,

or an agency of the United States, may be brought in any judi-

cial district where a plaintiff in the action resides.

23. H.R. Rep. No. 1936, 86th Cong., 2d Sess. 6 (1960) (letter of

Deputy Attorney General Lawrence Wai-h). ‘

24. Id.

25. Id.

Columbia could then issue.” Since H.R. 10089 would have

conferred no mandamus jurisdiction and would not have

applied to actions against officials “individually,” the

Department doubted whether its enactment “would serve

any useful purpose.”’ |

H.R. 12622*8 was drafted to meet these and other?? criti-

cisms. Its first section extended mandamus jurisdiction to

all of the federal district courts.*° Its second section broad-

ened the prior venue proposal to include suits directed at a

federal official’s activity whether characterized as occurring

“in his official capacity” or “under color of legal author-

ity.“ The purpose of the new bill was “to provide readily

available, inexpensive judicial remedies for the citizen who

is aggrieved by the workings of Government, but who

would previously have been compelled* to sue in the Dis-

26. Compare M’/ntire v. Wood, 11 U.S. (7 Cranch.) 504, 3 L.Ed.

420 (1813), with Kendall v. United States ex rel. Stokes, 37 U.S.

(12 Pet.) 524, 9 L.Ed. 1181 (1838).

27. H.R. Rep. No. 1936, supra note 23, at 6.

28. H.R. 12622, 86th Cong., 2d Sess. § 2 (1960), in id. at 9.

29. The Judcial Conference of the United States proposed addi-

tions that subsequently were adopted as 28 U.S.C. §§ 1391(e) (1),

(2), (3) (1970). Id. at 5 (letter of Warren Olney, III, Director,

Administrative Office of the United States Courts). Appellants rely

only on subsection (e) (1), quoted in text following note 15 supra.

30. This grant was the prototype for what is now 28 U.S.C.

§ 1361 (1970), enacted along with § 1391(e).

31. H.R. 12622, supra note 28, set forth in H.R. Rep.No.1936,

supra note 23, at 9.

32. H.R.Rep.No.1936, supra note 23, at 3.

33. The House Report on H.R. 12622 focused on the time and

expense involved in traveling to the District of Columbia to institute

suit against officials or agencies located there, and the possibility that

litigation commenced against agents in the field might be dismissed

for want of venue over an indispensable superior located in Washing-

ton. H.R.Rep.No.1936, supra note 23, at 2-3.

trict of Columbia by the pre-existing venue provisions,

which were deemed “contrary to the sound and equitable

administration of justice.”** And the House Report specif-

ically noted that “(t]he venue problem also arises in an

action against a Government official seeking damages from

him for actions which are claimed to be without legal

authority but which were taken by the official in the course

of performing his duty.”*

The House passed H.R. 12622°° but the Senate adjourned

before any action was taken on it. So, in the next Con-

gress, it was reintroduced as H.R. 1960,°7 comments were

again solicited, and again the Department of Justice asked

that portions of the bill be “clarified.”** Some proffered

clarifications were adopted,*? but notably the Department’s

suggestion that the venue provision be changed to “elimi-

nate[] suits for money judgments against officers’*° was not.

34. Id. at 3.

35. Id.

36. 106 Cong.Rec. 18405 (1960). Cf. H.R.Rep. No.536, 87th

Cong., Ist Sess. 1 (1961).

37. H.R. 1960, 87th Cong., Ist Sess. (1961), 107 Cong.Rec.

12157 (1961); H.R.Rep.No.536, supra note 36, at 5-6. See id. at 1

(“[a]n identical bill, H.R. 12622, passed the House in the closing

days of the 86th Congress but was not acted upon by the Senate’).

38. S.Rep.No.1992, 87th Cong., 2d Sess. 6 (1962) (letter of

Assistant Attorney General (now Justice) Byron R. White), U.S.

Code Cong. & Admin.News 1962, p. 2784.

39. Compare id. at 1 with id. at 6-7. The Senate passed the bill

as amended without revealing debate. 108 Cong.Rec. 18783-18784

(1962). The House passed the Senate version with one change, also

responsive to the Justice Department’s suggestions, 108 Cong.Rec.

20093-20094 (1962), and the Senate acquiesced. Jd. at 20079. Cf.

Peoples v. United States Dep’t of Agriculture, 138 U.S.App.D.C. 291,

295 n. 9, 427 F.2d 561, 565 n. 9 (1970) (noting tiie importance of the

selective adoption of the Department’s proposed revisions).

40. S.Rep.No.1992, supra note 38, at 6, U.S. Code Cong. &

Admin.News 1962, p. 2789.

Rather, both the House and Senate committees rejoined

with the observation that the “venue problem” which the

bill sought to rectify was as troublesome in damage suits

_ against officials as in other sorts of civil litigation.”

This colloquy between the Department of Justice and

the legislative draftsmen demonstrates the legislature’s

comprehension and resolution of the issue before us. The

conscious addition by Congress of language designed to ex-

tend Section 1391(e) to suits for damages against federal

officials acting under color of legal authority, coupled with

its adherence to that language despite highly respectable

protest,*? manifests beyond peradventure an intent to

broaden venue in just such suits. Our duty is to harken

to the will of Congress as expressed, and the statutory man-

date is clear.

We realize, of course, that other courts have entertained

divergent views on the relation of Section 1391(e) to

damage actions against federal officials.** We acknowledge

41. Id. at 3; H.R.Rep.No. 536, supra note 36, at 3.

42. See note 39 supra.

43. The Fifth Circuit, in Ellingburg v. Connett, 457 F.2d 240,

241 (Sth Cir. 1972), held that “Section 1391(e)(4) . .. may be a

basis for venue” in a civil rights action “for damages and injunctive

relief against officers . . . of the United States,” and remanded for a

determination as to whether the factual predicate—the plaintiff’s resi-

dence in the district—could be satisfied. The dissent apparently

agreed that an action for damages might normally be brought pur-

suant to its provisions, but regarded the damage claim there advanced

asasham. Id. at 242. See Driver v. Helms, 74 F.R.D. 382 (D.R.I.

1977). The District Court in this circuit has reached a similar result

in a case involving alleged injury “as a result of defendants’ fraudu-

lent and defamatory statements, made in the course of their official

duties,” so long as federal employment continued to the time the

action was filed. Wu v. Keeney, 384 F.Supp. 1161, 1168 (D.D.C.

1974). Cf. Benson v. United States, 421 F.2d 515, 517 (9th Cir.),

cert. denied, 398 U.S. 943, 90 S.Ct. 1861, 26 L.Ed.2d 279 (1970)

(semble) ; Thompson v. Kleppe, 424 F.Supp. 1263, 1266 (D.Haw.

1976) (semble). See also Kletschka v. Driver, 411 F.2d 436, 442 (2d

10a

also that in Relf v. Gasch** we spoke to the subject in a

manner that, in retrospect, seems susceptible of conflict-

ing interpretation, but Rel7 does not clash with the result

reached here. That case involved the propriety of a trans-

fer of litigation to another district “for the convenience of

parties ... [and] in the interest of justice,’*’ and the com-

plaint hinted that some defendants might be subject to

liability not only for activities under color of legal au-

thority but also for others of a purely personal character.“

Cir. 1969) (dicta); Rabiolo v. Weinstein, 357 F.2d 167, 168 (7th Cir.

1966) (dicta). On the other hand, Paley v. Wolk, 262 F.Supp. 640,

642-643 (N.D.I1.1965), cert. denied, 386 U.S. 963, 87 S. Ct. 1031, 18

L.Ed.2d 112 (1967) found § 1391(e) unavailable to a plaintiff appar-

ently alleging that certain employees of the Patent Office had taken

money from him on false pretenses, since “the action would be against

the defendants personally rather than in their official capacities,” as

did Davis v. Federal Deposit Ins. Co., 369 F.Supp. 277, 279 (D.Colo.

1974), where damages were sought from an FDIC employee on

grounds his negligence had facilitated the collapse of a national bank.

Compare with these cases Griffith v. Nixon, 518 F.2d 1195, 1196 (2d

Cir.), cert. denied, 423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d 369

(1975), and Green v. Laird, 357 F.Supp. 227, 230 (N.D.II1.1973),

each seemingly concluding that venue under § 1391(e) was proper

but that that section did not affect service requirements, which were

deemed unmet, a matter discussed infra at note 58. Perhaps Paley

and Davis may be reconciled with !’u and Ellingburg, for from the

reports in the former cases it is unclear whether the injurious action

was alleged to have been taken under color of legal authority, and for

aught that appears the courts may implicitly have found the activity

to po been purely personal. Cf. Griffith v. Nixon, supra, 518 F.2d

at 1196.

44. 167 U.S.App.D.C. 238, 511 F.2d 804 (1975).

45. 28U.S.C. § 1404(a) (1970).

46. 167 U.S.App.D.C. at 240, 511 F.2d at 806. The plaintiffs in

Relf, all minors, alleged that they were sterilized without their con-

sent or the consent of their parents. They sued the United States—

under the Federal Tort Claims Act, 28 U.S.C. §1346(a) et seq.

(1970)—and a group of individual defendants, all of whom were at

one time federal officers or employees. Jd. To be sure, eacin of the

nine counts of the plaintiffs’ complaint ceremoniously asserted that

the individual defendants had acted within the scope of their offices

lla

Those possibilities could not have been explored in the

transferee district, for neither Section 1391(e) nor any

other provision gave venue there,” and as a prerequisite to

transfer “[vJenue must be proper in the transferee dis-

trict’’** for every defendant and on ever claim for relief.*

Moreover, a transfer is conditioned as well on the amena-

bility of all defendants “to the process of the federal court

in the transferee district at the time the action was origin-

ally filed”®® and, apart from the inefficacy of process avail-

able in that district for any defendant sued only in a pure-

ly personal role,*! the fact that some defendants had left

federal service prior to institution of suit “increase[d] the

likelihood” that they were not subject to process emanating

from the transferee court.*? Consequently we remanded

the case in order that the District Court might, by allowing

amendments to the complaint, be afforded a reasonable op-

and employments. But there were allegations readable as charges of

misconduct unconnected with official duty or authority, and these left

us unsure whether the plaintiffs really intended that the alleged

wrongdoers’ status as government officials should figure operatively

in all of their counts. 167 U.S.App.D.C. at 240-241, 511 F.2d at

806-807.

47. Id. at 241 & n. 15, 511 F.2d at 807 & n. 15, citing Paley v.

Wolk, supra note 43, 262 F.Supp. at 642-643, in which federal

employees were being sued for receiving money under false pretenses,

but the receipt was apparently “unrelated” to their official duties.

48. Relf v. Casch, supra note 44, 167 U.S.App. D.C. at 241, 511

F.2d at 807 ( footnote omitted).

49. Id. at 241 n. 12, 511 F.2d at 807 n, 12. .

50. Jd. at 241, 511 F.2d at 807 (footnote omitted).

51. We noted in addition that the transferee state’s long-arm stat-

ute would not reach such defendants. 167 U.S.App.D.C. at 242 n. 18,

511 F.2d at 808 n. 18.

52. Id. at 242, 511 F.2d at 808. This was the ground for the con-

curring opinion, which deemed § 1391(e) otherwise available. Jd. Cf.

Kipperman v».McCone, 422 F.Supp. 860, 876-877 N.D. Cal. 1976);

Wu v. Keeney, supra note 43, 384 F.Supp. at 1168.

12a

portunity to decide these weighty questions bearing on its

power to transfer. Clearly, our presumption in Relf—that

action brought against persons who just happen to be, or

to have been, federal officials are not within the ambit of

Section 1391(e)—is by no means incompatible with our

present holding that venue for damage actions against

those who inflict injury under color of legal authority is

governed by that section.

To the extent, then, that the District Court held that Sec-

tion 1391(e) furnishes no basis for venue here, it was in

error. That does not end the matter, however, for the or-

der appealed from is predicated also upon insufficient ser-

vice of process upon appellees.*> To that issue we now

turn.

As we noted at the outset,** the Federal Rules of Civil

Procedure govern service of process in cases laying venue

under Section 1391(e), “except that the delivery of the

summons and complaint to the officer or agency ... may be

made by certified mail beyond the territorial limits of the

district in which the action is brought.”55 Appellees were

served in just that manner which, they assert, was improper

either because Congress did not intend the exception to

apply to suits such as this one, or because such service is

constitutionally deficient.

As for the first contention, the House Report on Sec-

tion 1391(e) correctly noted that its expansion of venue

would be of little avail unless coupled with a modification

53. Briggs v. Goodwin, supra note 11, (order of May 4, 1975),

set out at note 15 supra.

54. See text supra at note 16.

55. 28 U.S.C. § 1391(e) (1970).

13a

of service demands then levied by the Civil Rules. Thus,

while the amended section retains the rules intact for ser-

vice within the forum district it empowers the district

courts to make valid service outside the district whenever

venue lies by virtue of Section 1391(e).°” It also authorizes

service by certified mail in such situations whenever service

ean be effected only beyond the boundaries of the forum

district.** Nowhere is there any intimation that these

56. H.R.Rep.No.536, supra note 36, at 4.

57. See text supra following note 16 and note 58 infra.

58. See text following note 16 supra. As the House Report put

it “‘[s]ince this bill is designed to make a federal official amenable to

suit locally, the bill provides that [service on the official] may be made

by certified mail outside of the territorial limits of the district in which

the action was brought. In all other respects, the summons and com-

plaint is to be served as provided by the Federal Rules... .” H.R.

Rep. No. 536, supra note 36, at 4 (emphasis added). Appellees read

the Report’s assertion that “where an action is only nominally brought

against an official . . . service may be had in the manner provided by

rule 4(d)(5),” id., to imply a “negative corollary” that the service

provision of § 1391(e) applies only to that situation. Brief for Ap-

pellees at 27-28. This inference is negated by the very next sentence

in the House Report, which clearly contemplates that the “exception to

the territorial limitation on service provided in this bill” is “equally

applicable” to cases other than those within the compass of Rule

4(d)(5), such as, presumably, this one. H.R. Rep. No. 536, supra

note 36, at 4. Thus $ 1391(e) invokes the clauses in Fed.R.Civ.P.

4(f) (specifying the “Territorial Limit on effective service’) and

Rule 4(d)(7) (service upon an individual defendant) providing for

statutory exceptions to their dictates.

Appellants also urge that if service is made under Rule 4(d) (5) it

is per se insufficient to bring an official’s pocketbook into jeopardy.

That Rule’s only peculiarity is its direction that service be made not

only upon the officer, but upon the United States as well. Appellants

here apparently did serve the United States; yet if service upon the

appellees was affected agreeably with § 1391(c), it is hard to see how

the additional service might redound to their injury. To the extent

that Griffith v. Nixon, supra note 43, 518 F.2d at 1196, and Green v.

Laird, 357 F.Supp. 227, 230 (N.D. Ill. 1973), suggest that service

on the United States renders ineffective otherwise proper service on

a federal officer, we refuse to follow them. Moreover, Relf v. Gasch,

14a

changes were to affect some cases controlled by Section

1391(e) and not others,®? and indeed any exception would

be difficult to justify. That venue exists in a particular dis-

trict would hardly console a plaintiff unable to serve offi-

cials who, though responsible for his plight, had withdrawn

beyond the limits of effective service. And Congress must

not have been content to rely simply on state long-arm

statutes, for it chose to supplement them in the category

of cases encompassed by Section 1391(e) by providing ex-

traterritorial service of its own device.®' We find the ser-

vice effected here to be fully within the ambit of congres-

sional contemplation.

Nor do we perceive any constitutional problem in

the statute as applied to this case. Appellees pitch their

supra note 44, 167 U.S. App. D.C. at 242 n. 18, 511 F.2d at 808 n.

18, in no way conflicts with our interpretation. As we noted earlier,

see notes 44-52 supra and accompanying text, our concern in Relf

was that § 1391(e)—and Rule 4(d)(5)—did not extend to claims

against officials sued as individuals, as opposed to claims deriving from

action taken under color of legal authority.

59. See note 58 supra.

60. The District Court apparently gauged its jurisdiction by the

local long-arm statute, D.C. Code § 13-423(a) (1973), and found it

wanting. See note 15 supra. Precisely what measurement it under-

took is unclear. If it assumed that its only vehicle for obtaining

service was via that statute, it was, as indicated above, in error. If

its reference was for the purpose of determining whether appellees

had sufficient contacts with the forum to permit it constitutionally

to exercise jurisdiction over them—the more likely possibiljty—it was

similarly incorrect. See text and notes at notes 62-75 infra.

61. See H.R.Rep.No.536, supra note 36, at 4.

62. Appellees do not assert that service via certified mail is any

less valid than personal service. Therefore, we do not pass on the

question but merely note that the weight of authority might sustain

the use of certified mail service in in personam actions such as this.

Compare Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091

(1927), with Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72

L.Ed. 446 (1908). See also McGee v. International Life Ins. Co.,

15a

constitutiona) argument on their supposed lack of minimum

contacts with the District of Columbia,® resting on cases

holding “that the Due Process Clause of the Fourteenth

Amendment places some limit on the power of state courts

to enter binding judgments against persons not served with

process within their boundaries.”© To the extent that this

position presupposes that Congress’ constitutional authority

to provide for the sound operation of the federal judicial

system® is limited by the same constraints that apply to

extraterritorial service by state tribunals, it builds on

355 U.S. 220, 221, 78 S.Ct. 199, 200, 2 L.Ed.2d 223, 225 (1950);

Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 318-319,

70 S.Ct. 652, 656-660, 94 L.Ed. 865, 875-876 (1957). See generally

Fox, Motorists’ Service of Process Acts, 33 F.R.D. 151 (1963);

Wilson, Service of Process, 39 U.Cinn.L.Rev. 487, 488-489 (1970);

Note, Service of Process by Mail, 74 Mich.L.Rev. 381, 382 (1975)

(“Service by mail without a return-receipt requirement complies with

. . . due process”).

63. Appellants, who pleaded, inter alia, a conspiracy between

appellees and Goodwin, see note 7 supra, take the position that dis-

covery would reveal that appellees did have substantial contacts with

the District of Columbia, Brief for Appellants at 10 and footnote, but

that they were prevented from conducting discovery during the

pendency of appellees’ motion to dismiss. Jd. at 6. Since we do

not accept appellees’ lack-of-contacts contention, we need not pass on

this question.

64. Hansen v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d

1283 (1958) ; International Shoe Co. v. Washington, 326 U.S. 310,

66 S.Ct. 154, 90L.Ed. 95 (1945).

65. McGee v. International Life Ins. Co., supra note 62, 355 U.S.

at 222, 78 S.Ct. at 200, 2 L.Ed.2d at 225. Cf. Hansen v. Denckla,

supra note 64, 357 U.S. at 253, 78 S.Ct. at 1240, 2 L.Ed.2d at 1298

(“it is essential [to state court or diversity jurisdiction] in each case

that there be some act by which the defendant purposefully avails

itself of the privilege of conducting activities wihtin the forum State,

thus invoking the benefits and protection of its laws”).

66. See Hanna v. Plumer, 380 U.S. 460, 472, 85 S.Ct. 1136, 1144,

14 L.Ed.2d 8, 17 (1965).

l6a

sandy soil indeed. Whether or not Article III mandated

creation of any inferior federal courts at all,® it is a matter

of general agreement that the discretion of Congress “as to

the number, the character, [and] the territorial limits” of the

inferior federal courts is not limited by the Constitution.”

Congress might have established only one such court, or a

mere handful; in that event, nationwide service would

have been a practical necessity clearly consonant with the

Constitution.”! That it was considered expedient to estab-

67. U.S.Const. art. III §1 provides that “[t]he judicial Power

of the United States, shall be vested in one supreme Court and in

such inferior Courts as the Congress may from time to time erdain

and establish.”

68. Compare Cary v. Curtis, 44 U.S. (3 How.) 236, 245, 11 L.Ed.

576, 581 (1845), with Martin v. Hunter's Lessee, 14 U.S. (1

Wheat.) 304, 330-331, 4 L.Ed. 97, 104 (1816). Compare J. Goebel,

History of the Supreme Court of the United States, Antecedents and

Beginnings to 1801, 246-247 (1971), with 1 Records of the Federal

Convention of 1787, 124-127 (M. Ferrand ed. 1966). See also War-

ren, New Light on the History of the Federal Judiciary Act of 1789,

37 Harv.L.Rev. 49, 65-67 (1923).

69. United States v. Union Pac. R. R. Co., 98 U.S. (8 Otto)

569, 602-603, 25 L.Ed. 143, 150 (1878). Accord, Lockerty v. Phil-

lips, 319 U.S. 182, 187, 63 S.Ct. 1019, 1022, 87 L.Ed. 1339, 1342-

1343 (1943); Cary v. Curtis, supra note 68, 44 U.S. at 245, 11 L.Ed.

at 581. Cf. J. Goebel, supra note 68, at 247; 1 The Records of the

Federal Convention of 1787, supra note 68, at 125.

70. See, ¢.g., Martin v. Hunter’s Lessee, supra note 68, 14 U.S.

at 331, 4 L.Ed. at 104. The early drafts of what became Article III

provided for “one or more” inferior federal courts, but that provision

was stricken without apparent explanation. 1 Records of the Federal

Convention of 1787, supra note 68, at 116. See J. Goebel, supra

note 68, at 210 n. 68. Indeed, The Federalist No. 81 (A. Hamilton)

544 ( p. Ford ed. 1898) proposed that Congress “divide the United

States into four or five or half a dozen districts; and to institute a

federal court in each district, in lieu of one in every state.”

71. See, e.g.,Mississippi Publishing Corp. v. Murphree, 326 U.S.

438, 442, 66 S.Ct. 242, 245. 90 L.Ed. 185, 190 (1946); Robertson v.

Railroad Labor Bd., 268 U.S. 619, 622, 45 S.Ct. 621, 622, 69 L.Ed.

1119, 1121, (1925); United States v. Union Pac. R. R. Co., supra

17a

lish federal judicial districts in harmony with state bound-

aries”? did not alter the scope of lc zislative discretion in

this regard, and in fact Congress has, on occasion, pro-

vided for nationwide service.”> While several cases have

asserted apodictically that service outside a federal judicial

district is governed by the same sort of “fairness standard”

as is extraterritorial service by state courts,’* this imputes

note 69, 98 U.S. at 604, 25 L.Ed. at 151 (“‘[t]here is . . . nothing in

the Constitution which forbids Congress to exact that, as to a class

of cases or a case of special character, a... court... in which

the suit may be brought, shall, by process served anywhere in the

United States, have the power to bring before it all the parties neces-

sary to its decision”); Toland v. Sprague, 37 U.S. (12 Pet.) 300,

328, 9 L.Ed. 1093, 1105 (1838).

72. The Judiciary Act of 1789, 1 Stat. 73 (1789), divided the

Jnited States into districts along state lines, except for establishment

of districts in the Maine and Kentucky territories. ‘This decision

appears to have been motivated in part by the very spectre of nation-

wide service and the attendant inconvenience it might have caused.

See J. Goebel, supra note 68, at 226, 460, 473; Warren, supra note

68, at 72. Thus, “a precedent was established, which is still unbroken

[with but one exception, see Act of Feb. 13, 1801, ch. 4, §§ 4, 21, 2

Stat. 89, 96, repealed Act of Mar. 8, 1802, ch. 8, §1, 2 Stat. 132]

against ‘the overlapping of state lines in the boundaries of federal

judicial districts.” P. Bator, P. Mishkin, D. Shapiro & H. Wechsler,

The Federal Courts and the Federal System 33 (2d ed. 1973).

73. See, e.g., the instances cited in Robertson v. Railway Labor

Bd., supra note 71, 268 U.S. at 624-625, 45 S.Ct. at 623-624, 69 L.Ed.

at 1122; Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508, 512 (2d

Cir. 1960); 4 C. Wright & A. Miller, Federal Practice and Procedure

: at 522-528 (1968); Comment, 7 Rut.Cam.L.J. 158, 162 n. 7

( ).

74. E.g., Fraley v. Chesapeake & O. Ry., 397 F.2d 1, 3 (3d Cir.

1968) ; Lone Star Package Co. v. Baltimore & O. R. R., 212 F.2d

147, 155 (Sth Cir. 1954). Fraley relies on Lone Star, which in turn

relies on United States v. Scophony Corp., 333 U. S. 795, 818, 68

S.Ct. 855, 866, 92 L.Ed. 1091, 1106 (1948), applying the “fairness

considerations” of International Shoe Co. Vv. Washington, supra note

64, to a determination as to whether a British corporation could be

subjected to suit in the United States. Whether an alien is amenable

to suit in this country is, as Professor Rheinstein has noted, a ques-

18a

a constitutional magic to lines that Congress can at any

time redraw. As tradition alone’?> works no such necro-

mancy, we must reject appellees’ constitutional argument

as well.

Itt

We are requested by appellees at least to temper our view

of the involved statute by its purportedly pernicious reper-

cussions. Our answer must naturally be that it was for

Congress alone to weigh those repercussions. Congress

may not have anticipated that the flow of litigation of the

sort at bar would rise from trickle to floodtide ;”° still we

may not distort the statute to mollify its operation. If, as

appellees melodramatically contend, application of Section

1391(e) as written “would subvert the orderly administra-

tion of the criminal justice system,’ it is Congress that

should be alerted, for we are not at liberty to act on its

stead. ;

To sum up, Section 1391(e)(1), providing as it does for

venue in actions for redress of injuries inflicted by federal

officials under color of legal authority, supports cognizance

tion analogous to that presented when a state court attempts to exer-

cise jurisdiction over someone not found in that state, and quite a

different matter from applying such a test to a sovereign state’s power

to formulate jurisdictional tenets within its territorial limits. Rhein-

stein, The Constitutional Bases of Jurisdiction, 22 U.Chi. L.Rev. 775,

786-787, 796 (1955). Cf. Shaffer v. Heitner, 433 U.S. 186, 197-198,

97 S.Ct. 2569, 2576-2577, 53 L.Ed.2d 683 (1977).

75. See note 72 supra.

76. It has been noted that between 1961 and 1970 the number of

civil rights actions filed in federal courts increased 1346%—from 296

a a3). H. Friendly, Federal Jurisdiction—A General View 16

77. Brief for Appellees at 26.

19a

of this litigation in the District of Columbia. That section

also sanctions the use of certified mail for extraterritorial

service in this action, and as so applied is constitutional.

These conclusions require us to reverse the District Court’s

dismissal of appellants’ action against Messrs. Stafford,

Carrouth and Meadow, and to remand the case for further

proceedings. -

* * *

20a

APPENDIX B

JoHN BnricGs et al., Plaintiffs,

Vv.

Guy Goopwin, Individually and as Attorney for the Depart-

ment of Justice, Division of Internal Security, et al.,

Defendants.

Civ. A. No. 74-803.

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA.

Nov. 20, 1974.

¢ « -_

MEMORANDUM AND OrvER

Avusrzy HK, Rosiyson, Jr., District Judge.

In this civil action, Plaintiffs seek declaratory relief and

damages for alleged violatious of their constitutional rights

which arose from the criminal case of United States v.

Briggs, G.C.R. 1353 (the “Gainesville 8” case) in which

eight of the Plaintiffs hereis. were acquitted of conspiracy.

The Defendants Guy Goodwin, William H. Stafford, Jr. and

Stuart J. Carrouth are attorneys with the Department of

Justice and were responsible for conducting the investiga-

tion, the grand jury proceedings and the prosecution of

that case. Defendant Claude Meadow is a special agent of

the Federal Bureau of Investigation and was also involved

in the investigation.

After the Plaintiffs served a notice to take the deposition

of Defendant Guy Goodwin, remaining Defendants moved

for a transfer of venue and for a stay of the deposition

2la

pending a ruling on their motion for transfer. In the alter-

native, Defendants Stafford, Carrouth and Meadow moved

to dismiss and for a stay of Defendant Goodwin’s deposi-

tion pending the filing of and a determination on a Motion

to Dismiss as to Defendant Goodwin on the grounds of

immunity. On July 19, 1974, this Court ordered that the

deposition of Defendant Goodwin be stayed pending a

determination on the question of his immunity from prose-

eution, without prejudice to the pending motions of the

other Defendants.

The Court finds that the Motion to Dismiss filed by

Defendant Guy Goodwin and the Motion to Transfer this

ease to the Northern District of Florida filed by Defendants

Stafford, Carrouth and Meadows are both ripe for deter- —

mination. For reasons explained hereinafter, both Motions

must be denied.

In their Complaint, Plaintiffs have alleged that Defend-

ant Goodwin violated their constitutional rights by com-

mitting perjury when questioned under oath by a United

States District Judge concerning the presence of govern-

ment informants in the “defense camp”. Relying upon two

recent eases from the Third Circuit and several earlier

eases from the Second and District of Columbia Circuits,

Defendant Goodwin moves to dismiss the Complaint as to

him. He contends that as a special attorney of the United

States Department of Justice and federal prosecutor, he

is absolutely immune from any damage claim based upon

his alleged misconduct while acting in his official capacity.

Plaintiffs oppose this Motion and contend that the doc-

trine is inapplicable on the grounds that the alleged mis-

eonduet in this ease is beyond the scope of any official duty

and is in violation of federal law. Plaintiffs rely upon

recent eases from the Fourth, Sixth and Seventh Circuits

which reject absolute immunity and adopt a qualified

22a

immnuity for prosecutors. They contend that the recent

ease of Apton v. Wilson, 165 U.S.App.D.C. —, 506 F.2d

83 (1974), No, 73-1614, decided August 16, 1974, indicates

a trend in this Cireuit toward adopting this developing

analytical view of the doctrine.

After careful analysis of the numerous cases cited

by counsel in this action, the Court concludes that Defend-

ant Goodwin’s Motion to Dismiss for failure to state a

claim upon which relief can be granted based upon absolute

prosecutorial immunity must be denied at this juncture.

As the cases indicate, the doctrine of immunity for quasi-

judicial officers like prosecutors derives from the fact that

in the course. of performing their official duties, they often

exercise a discretion similar to that exercised by judges.

The Courts have reasoned that to ensure vigorous and

effective enforcement of the laws, prosecutors should be

protected from possible vindictive lawsuits arising from

their activities in performing that function. This need for

freedom from procedural constraints in performing their

discretionary functions and the built-in safeguards within

the judicial process to check misconduct are together con-

sidered justification for extending the judicial immunity

doctrine to prosecutors.

However, several recent cases indicate that this “quasi-

judicial” immunity is not absolute. Scheuer v. Rhodes,

416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Apton,

supra, Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965) ;

Lewis v. Brautigam, 227 F.2d 124 (5th Cir. 1955); Hilliard

v. Williams, 465 F.2d 1212 (6th Cir. 1972), cert. denied, 409

U.S. 1029, 93 S.Ct. 146, 34 L.Ed.2d 322 (1972). These cases

indicate a growing trend toward determining the applica-

bility of quasi-judicial immunity by analyzing the nature

of the activity being performed. Where performing func-

23a

tions closely aligned with the judicial process such as pre-

senting evidence to the grand jury or prosecuting at trial,

prosecutors still enjoy absolute immunity. But as the

nature of the activity moves further from the judicial

process, the Courts have held that immunity becomes less

functional and is therefore not absolute.

The Defendants reasonably rely upon Cooper ».

O’Connor, 69 App.D.C. 100, 99 F.2d 135 (1938) and Laugh-

lin v. Garnett, 78 U.S.App.D.C. 194, 188 F.2d 931 (1943) as

authority for their contention that this jurisdiction foliows

the theory of absolute immunity. However, the Court

reads the more recent case of Apton, supra, which inter-

prets Scheuer, supra, as indicating a trend in this Circuit

to adopt an analytical approach to and a more restrictive

application of the doctrine of quasi-judicial immunity.

Although these recent cases are factually distinguishable

from the ease at hand, the reasoning of the opinions indi-

eates to this Court that assertions of quasi-judicial immu-

nity cannot be rigidly accepted on their face, but rather an

analysis of the activity being performed at the time the

alleged misconduct occurred is required to determine the

applicability of the doctrine.

Where, as in this case, a prosecutor is alleged to

have committed perjury, an activity beyond the scope of his

authority, in clear violation of law and far removed from

the discretionary areas of the judicial process traditionally

protected by the quasi-judicial immunity doctrine, the

Court concludes that this doctrine is not applicable.

Therefore, Defendant Goodwin’s Motion to Dismiss on

these grounds must be denied.

Tn addition, the Court concludes that the Motion

to Transfer this action in accordance with 28 U.S.C. $1404

24a

and §1406 filed by Defendants Stafford, Carrouth and

Meadows must also be denied. Title 28 U.S.C. §1391

(e)(1) provides that proper venue lies where a Defendant

in the action resides. Since Defendant Goodwin’s Motion

to Dismiss has been denied, and he remains in this ection,

the Court finds venue proper in this District. It is well

established law that a plaintiff’s choice of venue is given

preference and the burden of establishing that an action

should be transferred is on the moving party. 1 Moore’s

Federal Practice § 1.145[5]. The Court finds that Defend-

ants here have failed to meet that burden, and thus their

Motion to Transfer to the Northern District of Florida

must be denied.

Upon the above considerations, it is by the Court this

20th day of November, 1974;

Ordered, that Defendant Guy Goodwin’s Motion to Dis-

miss this action be and hereby is denied; and it is

Further ordered, that the Motion to Transfer filed by

Defendants Stafford, Carrouth and Meadows, be and

hereby is denied.

e * e

25a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE District or CoLUMBIA

CIVIL ACTION No. 74-803

Joun K. BricGs, &T AL.,

Plaintiffs,

Vv.

Guy Goopwin, ET AL.,

Defendants.

ORDER

Upon consideration of the Alternative Motion of Defend-

ants Stafford, Carrouth and Meadow to Dismiss this Action

as to them for Lack of Jurisdiction over their Persons,

Improper Venue, Insufficiency of Process and Insufficiency

of Service of Process, the memoranda of points and author-

ities in support thereof and in opposition thereto, it appear-

ing to the Court that service of process upon said defend-

ants was made by certified mail; that the Complaint fails to

allege the defendants transacted any business in the District

of Columbia or caused tortious injury to plaintiffs in the

District of Columbia by an act or omission therein as

required by District of Columbia Gode § 13-423(a) ; that the

action against said defendants could not have been brought

in this Court prior to the enactment of 28 U.S.C. § 1391(e)

and is not one in essence against the United States as

26a

required by § 1391(e) ; and that by reason thereof the Court

lacks venue and in personam jurisdiction with respect to

defendants Stafford, Carrouth and Meadow, service of

process on them was insufficient, and the action as to these

defendants should be dismissed, it is, therefore, by the

Court this 4th day of March 1975:

OrvereD that the Alternative Motion of Defendants Staf.

ford, Carrouth and Meadow to dismiss this action be, and

the same hereby is, granted; and it is further

OrvereEp that this action be, and the same hereby is, dis-

missed as to defendants William H. Stafford, Jr., Stuart J,

Carrouth, and Claude Meadow.

Dated: March 4, 1975

Avsrey BE. Rosrnson, Jr.

United States District Judge

27a

IN THE UNITED STATES DISTRICT COURT

FoR THE District oF COLUMBIA

Civil Action No. 74-803

Joun Briaes, et al.,

Plaintiffs,

Guy Goopwin, individually and as Attorney for the

Department of Justice, Division of Internal Security, e¢ al.,

Defendants.

ORDER OF FINAL JUDGMENT AS TO DEFENDANTS

STAFFORD, CARROUTH AND MEADOW

On the prior Order of this Court entered March 4, 1975

dismissing this action as to defendants William H. Stafford,

Jr., Stuart J. Carrouth and Claude Meadow, it appearing

to the Court that there is no just reason for delay in the

entry of final judgment on said Order, and the Court

expressly so determines, it is, therefore, by the Court,

pursuant to Rule 54(b) of the Federal Rules of Civil Pro-

cedure, this 4th day of April, 1975:

Orperep that final judgment be, and the same hereby is,

entered on said Order of March 4, 1975 dismissing this

action as to defendants William H. Stafford, Jr., Stuart J.

Carrouth and Claude Meadow.

/s/ Avusrey E. Rosrnson, Jr.

United States District Judge

28a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE District or CoLumMBIA Circuit

September Term, 19

No. 75-1578—Civil 74-803

JoHN BriaGs, ET AL.,

Appellants,

Guy Goopwin, Individually and as Attorney for the

Department of Justice, ev aL. [STAFFoRD, ET AL. ]

——————l-

APPEAL FROM the United States District Court for the

District of Columbia.

So rr

Berore: McGowan, Rosinson and Wi.kry, Cireuit Judges

JUDGMENT

THIS REVUE came on to be heard on the record on appeal

from the United States District Court for the District of

Columbia, and was argued by counsel.

ON CONSIDERATION THEREOF It is ordered and adjudged

by this Court that the judgment of the District

Court appealed from this cause is hereby reversed and the

case is remanded to the District Court for further proceed-

ings in accordance with the opinion of this Court filed

herein this date.

Per Curiam

For the Court:

Grorce A. FisHErR

George A. Fisher, Clerk

Date: September 19, 1977

Opinion for the Court filed by Cireuit Judge Robinson

UNITED STATES COURT OF APPEALS

FOR THE District or CotumBia Circuit

Filed Sep 21 1977

Georce A. Fisuer, Clerk

29a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE District or CoLuMBIA CIRCUIT

No. 75-1578

Civil Action #74-803

qu ae —

Joun Bricas, et al.,

Appellants,

Guy Goopwin, Individually and as Attorney for the

Department of Justice, et al.

— —-

BeroreE: McGowan, Robinson and Wilkey, Circuit

Judges

ORDER

Upon consideration of the petition for rehearing filed by

appellees Guy Goodwin, et al, and it appearing that appel-

lees filed a motion to lodge documents in connection with the

petition for rehearing, it is

OrpERED by the Court that appellees’ motion to lodge

documents is granted and the Clerk is directed to lodge said

documents, and it is

FurtHer OrpereD by the Court that appellee’s petition for

rehearing is denied.

Per Curiam

For the Court:

Grorce A. FisHer, Clerk

30a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE District or CoLumsBiA Circuit

No. 75-1578

Civil Action #74-803

Joun Bricas, et al.,

Appellants,

Guy Goopwin, Individually and as Attorney for the

Department of Justice, et al.

Brerore: Bazelon, Chief Judge; Wright, McGowan,

Tamm, Leventhal, Robinson, MacKinnon,

Robb and Wilkey, Circuit Judges

ORDER

The suggestion for rehearing en banc filed by appellees

Guy Goodwin, et al, having been transmitted to the full

Court and no Judge having requested a vote with respect

thereto, it is

OrpERED by the Court en banc that appellees’ aforesaid

suggestion for rehearing en banc is denied.

Per Curiam

For the Court:

Grorce A. Fisuer, Clerk

—

3la

APPENDIX G

SUPREME COURT OF THE UNITED STATES

No. A-699

- Wiiu1am H. Starrorp, JR., ET AL.,

Petitioners,

JoHN Briaas, ET AL.

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon Consiperation of the application of counsel for

petitioner(s),

Ir Is Orverep that the time for filing a petition for writ

of certiorari in the above-entitled cause be, and the same

is hereby, extended to and including April 30, 1978.

Tre Curer Justice

Chief Justice of the United States

Dated this 23rd day of February, 1978

32a

APPENDIX H

UNITED STATES DISTRICT COURT

SoutHerNn District or New York

77 Civ. 1450

Ricwarp BeErrTo.t,

Plaintiff,

—against—

THe Securitirs AND EXxCHANGE

Commission, et al.,

Defendants.

—-— ee

MEMORANDUM AND ORDER

OWEN, District Judge

Before me are three motions. The first is by defendants

to dismiss plaintiff’s complaint seeking declaratory and

injunctive relief, as well as damages, as a result of allegedly

illegal searches and seizures conducted at various offices in

New York and New Jersey in violation of plaintiff’s fourth

amendment rights. The second and third motions are cross

motions having to do with discovery, pro and con.

Turning to the first motion and the declaratory relief

sought in this case—that any use in connection with a civil

or criminal investigation or prosecution of information

garnered or materials seized from the various locations in

New Jersey and New York in alleged violation of plaintiff’s

fourth amendment rights is illegal—it is essentially equiv-

alent to the injunctive relief sought, that is, a prohibition

33a

against the use of any such information or materials. A

grant of declaratory or injunctive relief would in these cir-

cumstances have substantially the same effect as an order

pursuant to Fed. R. Crim. P. 41(e) for the return of the

seized property, which I am denying in a separate memo-

randum and order because of a related criminal indictment

against plaintiff pending in the District of New Jersey.

Tt would be a manifest abuse of discretion for this court

to exercise jurisdiction over the requests for injunctive and

declaratory relief where, as here, to do so would necessarily

be to interfere with criminal proceedings pending in an-

other federal judicial district. See Smith v. Katzenbach,

351 F.2d 810, 816 (D.C. Cir. 1965). Accordingly, defend-

ants’ motion to dismiss plaintiff’s first two prayers for

relief, denominated XITI(a) & (b) in the complaint, is

granted.

Plaintiff’s allegation of $2,000,000 damages is based on

the theory of Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388 (1971). The named defendants move

to dismiss it on the ground that the complaint fails to state

a claim upon which relief may be granted, and defendants

Johnathan L. Goldstein, the United States Attorney for the

District of New Jersey at the time the complaint was filed,

and Charles J. Walsh, an employee of the United States

Attorney for the District of New Jersey, claim in addition

that the court lacks personal jurisdiction over them for

purposes of the Bivens claim because they were not served

1. Plaintiff maintains that the facts pleaded in the complaint also

state a claim for relief under 42 U.S.C. §§ 1985(3) & 1986. There

is no merit to this claim. At the minimum, there must be an allega-

tion, which is lacking here, of some “class-based, invidiously discrim-

inatory animus behind the conspirators’ action.” Griffin v. Breck-

enridge, 403 U.S. 88, 102 (1971) (footnote omitted). In addition,

these sections of Title 42 are inapplicable to federal officials acting

under color of federal law. Hilliams v. Halperin, 360 F. Supp.

554, 556 (S.D.N.Y. 1973).

34a

within the state and the complaint fails to state facts upon

which the court could assert long-arm jurisdiction over

them pursuant to Fed. R. Civ. P. 4(e) and N.Y.C.P.L.R.

§ 302(a) (2).

The vice of plaintiff’s complaint with respect to the

Bivens cause of action against the cight named defendants

associated with the SEC is that the complaint merely iden-

tifies them as “officials and employees of the SEC,” and

thereafter never refers to any of them again by name.

Instead, plaintiff refers throughout to the “defendants” and

the “defendants acting individually and/or in concert”.

With plaintiff alleging numerous illegal searches and

seizures at various locations over a period of more than

nine months, this type of pleading is obviously unfair and

insufficient. It is impossible for any of the named defend-

ants to know from the complaint exactly what he is being

made to answer for, and where and when the actions com-

plained of against him were taken.

In order to withstand a motion to dismiss a Bivens-based

claim must assert as to each defendant—named or unnamed

—his personal participation in the conduct complained of,

see, e.g., Buck v. The Board of Elections, 536 F.2d 522, 524

(2d Cir. 1976), and just as in the ease of a civil rights

complaint brought under 42 U.S.C. $1983 against a state

official, liability may not be predicated merely upon the

doctrine of respondent superior. E.g., Black v. United

States, 534 F.2d 524, 527-28 (2d Cir. 1976); Morpurgo v.

Board of Higher Education, 423 F. Supp. 704, 713-14

(S.D.N.Y. 1976).

Plaintiff’s conclusory allegations of conspiracies to

deprive him of his fourth amendment rights, lodged against

these defendants without the pleading of overt acts com-

mitted by them in furtherance of the conspiracy, are also

insufficient to state a claim for relief. See Jacobson v.

35a

Organized Crime and Racketeering Section of the United

States Department of Justice, 544 F.2d 637, 639 (2d Cir.

1976), cert. denied, 45 U.S.L.W. 3666 (U.S. Apr. 5, 1977) ;

Powell v. Workmen’s Compensation Board, 327 F.2d 131,

137 (2d Cir. 1964).

Against these standards it is plain that plaintiff has

failed to state a Bivens claim upon which relief niay be

granted against the eight defendants assertedly associated

with SEC.

Of course, the foregoing applies equally well to defend-

ants Goldstein and Walsh. In addition, the allegations

made specifically against them on information and belief,

see J[11 and 53 of the complaint, suffer from the same

infirmity previously discussed—lack of specificity.

Lastly, plaintiff relies on 28 U.S.C. §1391(e) as con-

ferring personal jurisdiction on this court over defendants

Goldstein and Walsh. This section, however, only controls

venue once personal jurisdiction and jurisdiction over the

subject matter are independently established. United

States ex rel. Rudick vy. Laird, 412 F.2d 16, 20 (2d Cir.),

cert. denied, 396 U.S. 918 (1969). Since defendants Gold-

stein and Walsh were not served in the Southern District

of New York and the conclusory allegations of conspiracy

or agency are insufficient to confer long-arm jurisdiction

over them under N.Y.C.P.L.R. § 302, see Lehigh Valley

Industries, Inc. v. Birenbaum, 527 F.2d 87, 89&n.1, 93-94

(2d Cir. 1975), this court must dismiss the Bivens claim

against them on the additional ground of lack of personal

jurisdiction.

Plaintiff has recently apprised the court in an unverified

letter of the names of several of the persons alleged by

him to have actually committed the searches and seizures

complained of. Accordingly, plaintiff will be given leave

to replead against those whom he can properly charge by

36a

name, and plaintiff will also be afforded discovery to the

extent necessary to learn who else, if anyone, was on the

premises allegedly controlled by him and in violation of his

fourth amendment rights.

However, since a substantial criminal prosecution is

facing plaintiff in the District of New Jersey, and since

many, including potentially dispositive threshhold issues

in the Bivens action will no doubt be determined in the New

Jersey prosecution, this court will defer further proceed-

ings in the instant case until after the pending criminal

charges in the District of New Jersey have been resolved,

both in the interest of judicial economy, see United States

v. American Radiator & Standard Sanitary Corp., 388 F.2d

201, 204 (3d Cir. 1967), cert. denied, 390 U.S. 922 (1968),

and also to protect the government from having to comply

with discovery demands of plaintiff in a civil suit as an ex-

pedient to circumvent the more restrictive discovery appli-

cable rules in criminal cases, e.g., Campbell vy. Eastland,

307 F.2d 478, 487 (5th Cir. 1962), cert. denied, 371 US.

955 (1963). See United States v. Nordel, 397 U.S. 1, 12

n.27 (1970). Thus, plaintiff’s motion for an order com-

pelling defendants to answer his interrogatories is also

denied, without prejudice.

In sum, plaintiff’s claims for declaratory and injunctive

relief are dismissed, the Bivens claim against all ten named

defendants is dismissed without prejudice and with leave

to replead, provided, however, that further proceedings,

including repleading pursuant to leave, are deferred pend-

ing the outcome of plaintiff’s trial on criminal charges in

the District of New Jersey.

Submit order on notice.

November 4, 1977.

R. Owen

United States District Judge

37a

APPENDIX I

IN THE UNITED STATES DISTRICT COURT

For THE WESTERN District oF Texas

Ex Paso Drvision

No. EP-77-CA-35

rrp

Iusk M, Siarer, et al,

Plaintiffs,

Vv.

Masor Genera C. J. Levan, et al,

Defendants.

aoe

MEMORANDUM OPINION AND ORDER

Plaintiffs have filed the instant Complaint alleging that

the Defendants, individually and acting in combination,

conspiracy and concert of action, either murdered Ralph

J. Sigler or placed him in a position of extreme danger

and failed to protect him, in violation of the Fifth Amend-

ment to the Constitution of the United States of America,

and that the Defendants, individually and acting in com-

bination, conspiracy and concert of action, did, in violation

of the Fourth Amendment to the Constitution of the

United States of America, unlawfully seize the papers,

personal property, and memorabilia of Ralph J. Sigler.

Plaintiffs allege that the Defendants, in committing such

actions, were acting in their official capacity or under the

color of legal authority.

38a

Plaintiffs’ Complaint asserts that this Court has venue

of this action under 28 U.S.C. §1391(b) and (e), Those

provisions are:

“(b) A civil action wherein jurisdiction is not

founded solely on diversity of citizenship may be

brought only in’ the judicial district where all

defendants reside, or in which the claim arose,

except as otherwise provided by law.

(e) A civil action in which each defendant is an

officer or emplcyee of the United States or any

agency thereof acting in his official capacity or

under color of legal authority, or an agency of the

United States, may, except as otherwise provided

by law, be brought in any judicial district in which:

(1) a defendant in the action resides, or (2) the

cause of action arose, or (3) any real property

involved in the action is situated, or (4) the plaintiff

resides if no real property is involved in the action.

“The summons and complaint in such an action

shall be served as provided by the Federal Rules of

Civil Procedure except that the delivery of the sum-

mons and complaint to the officer or agency as

required by the Rules may be made by certified mail

beyond the territorial limits of the district in which

the action is brought.” 28 U.S.C. $1391.

Defendant, Mason Generat C. J. Levan, has moved the

Court to dismiss Plaintiffs’ claim against Levan asserting,

among other things, that Section 1391 does not authorize

maintenance of this suit in the Western District of Texa..

Levan contends specifically that Plaintiffs’ asserted basis

for venue, Section 1391(4) does not apply to a suit against

an individual officer of the United States when that suit

39a

requests relief in the form of money damages for defend-

ant’s individual action.

II.

Plaintiffs’ claim can be summarized as a claim for relief

based on two separate theories. First, Plaintiffs claim

monetary damages resulting from the death of Ralph J.

Sigler because of Defendants’ alleged violation of Ralph J.

Sigler’s rights under the Fifth Amendment to the Constitu-

tion of the United States of America. Second, Plaintiffs

seek to recover Ralph J. Sigler’s papers, chattels, and

memorabilia allegedly wrongfully taken from Ralph J.

Sigler in violation of his rights under the Fourth Amend-

ment to the Constitution of the United States of America.

Plaintiffs’ first claim is for monetary relief and their second

claim is in the form of a request for a mandatory injunc-

tion.

III.

Defendant Levan contends that 28 U.S.C, §1391(e) is

inapplicable to an action against a Government official for

monetary damages. Defendant argues that, although the

literal reading of the statute provides venue in a district

where the plaintiffs reside, that provision cannot be read

literally, but must be read in conjunction with 28 U.S.C.

§ 1361, providing the District Court of the United States

with jurisdiction over mandamus proceedings against a

Government official.

Plaintiffs respond with the contention that Section

1391(e)(4) provides a basis for venue as it makes no dis-

tinction between actions in the nature of injunction and

mandamus on one hand and actions for monetary damages

on the other hand.

40a

IV.

Tn support of his argument that Section 1391(e) is in-

applicable to Plaintiffs’ cause of action seeking monetary

relief, Defendant relies most heavily on the case of Natural

Resources Defense Counsel, Inc. v. Tennessee Valley Au-

thority, 459 F.2d 255 (2nd Cir. 1972). In Natwral Resources,

plaintiff, a New York resident, sued a defendant whose resi-

dence was established by federal statute in Alabama. Plain-

tiff sought to maintain venue in New York, (plaintiff’s

residence), under 28 U.S.C. § 1391(3) (4). Defendant moved

to dismiss the claim for lack of proper venue, contending

that Section 1391(e) was not intended to apply to an action

against a locally based federal business corporation such as

the TVA, but only to actions against federal officers or

agencies which, prior to enactment of Section 1391(e) could

have been brought only at the seat of federal government,

in the district court for the District of Columbia.

Tn ruling that Section 1391(e) did not provide a basis for

venue of plantiff’s claim, Chief Judge Friendly made a

searching analysis of the history and purpose behind that

section. Section 1391(b) was only a part of the Congres-

sional enactment of Public Law No. 87-748, 87th Congress

(1961). The companion statute is codified as 28 U.S.C.

§ 1361, which gives the United States District Court original

jurisdiction of actions in the nature of mandamus to compel

an officer or employee of the United States or any agency

of the United States to perform a duty owed to the plain-

tiff. The Judicial Subcommittee to which the original bill

was referred reported as follows:

“The purpose of this bill is to make it possible to

bring actions against Government officials and agen-

cies in the United States District Courts outside the

4la

District of Columbia, on jurisdiction and venue, may

now be brought only in the U.S. District Court of the

District of Columbia.” H.R. Rep. No, 536, 87th Con-

gress, First Session, page 1.

The need for such legislation arose from the decision in

McIntire v. Wood, 11 U.S. (7 Cranch) 504, 3 L.Ed. 420

(1813), denying to the lower federal courts mandamus

jurisdiction over federal officers, with the exception of man-

damus actions maintained in the District of Columbia.

Kendall v. United States ex, rel. Stokes, 837 U.S. (12 Pet.)

524, 9 L.ldd. 1181 (1838). In addition to the unavailability

of the federal district court for mandamus actions, injunc-

tions were permissible only when the superior officer in

Washington was not an indispensable party, as he was the

individual who would be required to take the action re-

quested by the injunction. Williams v. Fannings, 332 U.S.

490, 493, 68 S.Ct. 188, 189, 92 L.Ed. 95 (1947).

The decision in Natural Resources was based on the opin-

ion of the United States Court of Appeals for the Second

Circuit that the specific purpose of Section 1391(e) was to

broaden the venue of civil actions which should have pre--

viously been brought only in the District of Columbia. Jd.

at 259. The Court concluded that, since the TVA could,

prior to the enactment of Section 1391(e), be sued outside

the District of Columbia, Section 1391(e) was inapplicable

to an action against the TVA. The TVA had always been

subject to suit, with the same venue limitations as other

corporations in any district in which it did business. Jd. at

259.

Defendant Levan concludes, therefore, that an action

against a federal employee in his individual capacity, seek-

ing the remedy of monetary damages, is not governed by

Section 1391(e), as it is not the type of action which could

42a

previously have been brought only in the District of

Columbia.

Plaintiffs contend that the law in Fifth Cireuit, as evi-

denced by Ellinburg v. Connet, 457 F.2d 240 (5th Cir.

1972), dictates that Section 1391(e)(4) provides venue in

the district of plaintiff’s residence for a cause of action

against a federal employee in his individual capacity, seek-

ing monetary relief.

In Ellinburg, petitioner was a prisoner at Texarkana,

Texas, within the Eastern District of Texas. Petitioner

filed a petition for mandamus against several prison offi-

cials residing in Texarkana, requesting that the Court

order the defendant (1) to remove detainers against the

petitioner, (2) to drop the practice of opening Petitioner’s

mail, (3) to grant petitioner the “minimum custody” status,

(4) to stop spying on the prisoners, and (5) to refrain from

serving unequal portions of food to different prisoners.

The trial court dismissed the petition, saying that it was

a habeas corpus petition which must be brought in the dis-

trict where the prison was located.

The United States Court of Appeals for the Fifth Cireuit

concluded that the district court was erroneous in charac-

terizing the petition as a habeas corpus petition, holding

that it was a petition in the nature of mandamus. The

Court then looked to each of the specific venue alternatives

under Section 1391(e). Subsection 1 thereof provides that

the action may be brought in a district where a defendant

resides. None of the defendants resided within the

Northern District; therefore, venue was not proper under

Subsection 1.

Subsection 2 provides that venue is properly laid where

a cause of action arises. Plaintiff’s complaint did not state

43a,

that any cause of action arose within the Eastern District

of Texas; therefore, venue under Subsection 2 was not

proper.

Subsection 3 provides venue only in a case where real

property is involved. The Court concluded that Subsection

3 was inapplicable.

Subsection 4, providing venue in the place of plaintiff’s

residence, gave rise to the Fifth Circuit’s surmise that

venue may properly have been laid in the Northern District

of Texas. The Court noted that, although petitioner was

incarcerated in Texarkana, within the Eastern District of

Texas, the record did not adequately show whether peti-

tioner may actually have been a resident of the Northern

District of Texas. The Court remanded the case to the

trial court for a determination of whether plaintiff was a

resident of the Northern District.

The opinion in Ellixburg is lacking in analysis of the

purposes and history of Section 1391(e). The Court did

not differentiate between a claim for monetary damages

and a request for mandamus. It is clear from a reading of

the Ellinburg opinion that plaintiff’s original petition con-

tained requests for mandamus and injunctive relief. If

monetary damages were requested, that request was clearly

incidental to plaintiff’s primary remedial request.

The main thrust of the Ellinburg opinion was that the

trial court failed to consider all possibilities for appro-

priate venue, and should have been more deliberate in

broadly construing the pro se complaint of the petitioner.

Plaintiffs cite several district court cases in support of

the proposition that Section 1391(e) (4) provides venue in

the district of plaintiff’s residence in a suit requesting

monetary relief.

Lowenstein v. Rooney, 401 F.Supp. 952 (E.D.N.Y. 1975)

was an action against government officials in Washington,

44a

alleging that those officials took action in Washington, D.C.,

to conspire against the plaintiff and cause him to lose a

Congressional election. Plaintiff’s complaint sought

declaratory and injunctive relief as well as damages.

In determining that venue was properly laid in New

York, the district of plaintiff’s residence, the Court cited

legislative history to the effect that Section 1391(e) (4)

applied to an action where the defendant was allegedly

“acting within the/apparent scope of his authority and not

as a private citizen.” H.R. 1960, 87th Congress, First

Session (1961) ; 7d. at 962. The Court, however, undertook

no analysis of the history or purpose of Section 128 ‘(e),

nor did it address the legislative history providing that the

purpose of that section was to broaden the venue provision

of those actions wiuch previously could have been brouglit

only in the District of Columbia.

The Lowenstein opinion is directly at odds with the

opinion in Natural Resources, and does not attempt to dis-

tinguish Natural Resources or to be compatible with

Natural Resources, although the Court rendering the

Lowenstein decision is within the Second Judicial Cireuit,

the Cireuit which rendered the Natural Resources opinion.

Plaintiffs also rely on Briggs v. Goodwin, 384 F.Supp.

1228 (D.D.C. 1974) and Wu v. Kenny, 384 F.Supp. 1161

(D.D.C. 1974). In Briggs plaintiff brought a suit against

four government attorneys who had been in charge of a

former criminal prosecution against the plaintiffs where

plaintiffs had been acquitted. On a motion by the defend-

ants to transfer the case from Washington, D.C. to North

Carolina, the Court ruled that Section 1391(e) provided

venue, as it was the place of residence of one of the defend-

ants. There was no discussion of the legislative history of

Section 1391(e). Additionally, the Court was not con-

<= to os enanlllal

ee ter a creme

Ne ee eee

45a

cerned, as is the Court in the instant case, with the subsec-

tion of Section 1391(e) dealing with venue in the place of

Plaintiffs’ residence. There was no discussion of the relief

requested, and whether that relief was monetary or in the

form of injunctive or mandatory relief. The Court merely

concluded that the burden rested upon the Defendants to

show reason why there should be a transfer, and that

Defendants had failed to meet that burden. Jd. at 1230.

In Wu the plaintiff sued the defendants for statements

allegedly made by defendants, which statements lead to

the denial of plaintiff’s application for a grant from the

National Endowment for Humanities. The summons and

complaint were served upon the defendants in the manner

provided in Section 1391(e), that is, by certified mail

beyond the territorial limits of the district in which the

action was brought. The Court rejected the defendants’

contention that Section 1391(e) was inapplicable in a tort

action for damages, and concluded that Section 1391(e) was

applicable, since such actions were “probably not specifi-

eally contemplated by Congress,” but appeared to fall

within the literal bounds of Section 1391(e). Jd. at 1168.

The continuing authority of Briggs and Wu is question-

able in light of dicta from the United States Court of

Appeals for the District of Columbia in Relf v. Gasch, 511

F.2d 804 (D.C. Cir. 1975), stating that Section 1391(e)

applies only if a claim is stated against a federal officer in

his official capacity; in actions involving a federal officer

individually, the rule is not available. Jd. at 808, n. 18.

VI.

The Court finds the decisions in eases limiting the appli-

eability of Section 1391(e) to be the better-reasoned

authority. These decisions thoroughly consider the legis-

lative history of the statutes, analyze the historical inability

46a

to proceed against government officials acting in their offi-

cial capacity, and analyze the distinctions between the

nature of the relief requested by Plaintiffs attempting to

lay venue under Section 1391(e). See Quinata v. Kelly.

430 F.Supp. 1328 (E.D.Pa. 1977); Rimar v. McCowan, 374 —

F.Supp. 1179 (E.D.Mich. 1974); Davis v. Federal Deposit

Insurance Corp., 369 F.Supp. 277 (D.C.Colo. 1974); and

Holicky v. Selective Service Local Board No. 3, 328 F.Supp.

1373 (D.C.Colo. 1971).

VII.

In Plaintiffs’ claim for deprivation of Fifth Amendment

rights, seeking monetary relief from the Defendants, all

acts alleged to have been committed by the Defendants

occurred outside the Western District of Texas. Plaintiffs

do not claim that a cause of action arose, with respect to

that cause of action, within the Western District of Texas.

The allegations of Plaintiffs’ Complaint are that Mr. Sigler

reported, as ordered by the Defendants, to Ft. Meade,

Maryland where he was subjected by the Defendants to

extensive questioning and various types of threats and

intimidations, the intent and effect of which was to force

Mr. Sigler to end his own life.

Plaintiffs’ asserted basis for jurisdiction is 28 U.S.C.

§$ 1331(a), giving this Court jurisdiction over a cause of

action arising under the Constitution of the United States

of America. In such an action, when jurisdiction is not

founded solely on diversity of citizenship, the appropriate

venue is where all defendants reside, or where the claim

arose, except as otherwise provided by law. Where Court

to construe Section 1391(e), applying to actions against an

officer of the United States, as allowing an action for mone-

tary damages to be brought in the district of Plaintiffs’

residence, the Court would be allowing Section 1391(e) to

47a

expand the venue provision stated in Section 1391(b). In

view of the legislative history of Section 1391(e), the Court

concludes that it was not the intent of Congress to broaden

venue in actions which could previously have been brought

in any district wherein the claim arose.

Prior to the enactment of Section 1391(e), the Plaintiffs

in this type of cause would not have been deprived of a

forum at the place where the claim arose, as they would

have been if the actions were one in the nature of man-

damus or injunction. The Court concludes that it was not

the intent of Congress to broaden venue provisions for an

action requesting monetary damages, as such actions were

not the evils at which Section 1391(e) was aimed.

An additional policy reason for refusing to allow a forum

in the district of Plaintiffs’ residence is the necessity of

having government officials present in the places where

they conduct their day-to-day activities. It is entirely

proper to require a government official to be present at

Court sessions and appear for Court proceedings in a dis-

trict in which that official may have conducted illegal ac-

tivity. However, to require a government official to be sub-

ject to suit at any point where a plaintiff may happen to

reside, merely because that official may have conducted

some activity in the Government’s Capital, would be an

undue burden on those persons who are responsible for

Government operations.

The Court concludes, therefore, that the Western Dis-

trict of Texas is an improper place for the hearing of

Plaintiff’s claim against the Defendants for violation of

Plaintiffs’ Fifth Amendment rights claiming monetary

damages from the Defendants.

48a

VIII.

Defendant Levan does not consent the venue of Plain-

tiffs’ claim for alleged deprivation of Fourth Amendment

rights, which claim seeks relief in the nature of an injunc-

tion against the Defendants. That action is properly main-

tainable in the Western District of Texas, as it is the type

of action at which Section 1391(e) was aimed.

IX.

The Western District of Texas is an appropriate venue

for the maintenance of Plaintiffs’ claim for violation of

Ralph J. Sigler’s Fourth Amendment rights, but is an im-

proper venue for Plaintiffs’ claim of Fifth Amendment

violations.

Under the provisions of 28 U.S.C. § 1406(a), the Court,

if it be in the interest of justice, may transfer a case to

any district or division in which it could have been brought.

The allegations of Plaintiffs’ Complaint are to the effect

that the wrongful death of Ralph J. Sigler occurred at Ft.

Meade, Maryland, and that the Defendants’ actions leading

to Sigler’s death were committed at Ft. Meade, Maryland.

The Court will, therefore, transfer Plaintiffs’ cause of ac-

tion for violations of Fifth Amendment rights to the dis-

trict court of Maryland.

Defendant Levan is the only one of the Defendants who

has moved for dismissal for inappropriate venue. The par-

ties have not briefed the question of transfer of the case

against all Defendants.

The parties have not addressed the question of whether

the Court should transfer the entire case, including the

Fourth Amendment claim, in the interest of justice and for

the convenience of parties and witnesses, pursuant to 28

49a,

U.S.C. §1404(a). Under that section, the case may be

transferred to any other district or division where it might

have been brought. The parties have not briefed the ques-

tion of whether Plaintiffs’ claim of seeking the return of

allegedly illegally seized documents might also have been

brought in the district court in Maryland.

The Court, therefore, will withhold the transfer of the

Fifth Amendment claim against Defendant Levan to the

district court of Maryland, will withhold a determination of

whether to transfer the Fifth Amendment claim against the

other Defendants and will withhold a determination of

whether to transfer the Fourth Amendment claim, pending

receipt, from all parties in this cause, of briefs pertaining

to whether the entire action pending in the Western Dis-

trict of Texas should be transferred to the district court in

Maryland.

Iv Is THererore Orverep that all parties in this cause

file with the Court, within twenty (20) days of this date,

briefs addressing the issue of whether the Court should, in

addition to transferring Plaintiffs’ Fifth Amendment claim

against Defendant Levan to the district court of Mary-

land, also transfer Plaintiffs’ Fourth Amendment claim and

Fifth Amendment claim against the other Defendants to

the district court of Maryland, pursuant to 28 U.S.C.

§ 1404(a).

March 22, 1978

Wii §. Sessions

William S. Sessions

United States District Judge

50a

APPENDIX J

Pending cases of which petitioners are aware in which

the questions presented are being or have recently been

litigated.

1. Blair v. Baumgardner, Civil Action No. 77-C-390

(E.D. Wise.)

2. Halkin v. Helms, Civil Action No. 75-1773 (D.D.C.)

3. The Black Panther Party v. Levi, Civil Action No.

76-2205 (D.D.C.)

4. Sigler v. LeVan, Civil Action No. EP77-CA 35 (W.D.

Tex.)

5. Driver v. Helms, No. 77-1482 (1st Cir.)

6. Todd v. Brown, Civil Action No. 77-185-'TUC-MAR

(D. Ariz.)

7. Lamont v. Haig, No. 75-2006 (D.C. Cir.)

8. Guilday v. Department of Justice, Civil Action No.

4578 (D. Del.)

9. MeCarthy v. Jonnard, Civil Action No. 77-695-A

(E.D. Va.)

10. Misko v. United States, Civil No. 77-875 (D.D.C.)

11. Berlin Democratic Club v. Brown, No. 310-74

(D.D.C.)

12. Horman v. Kissinger, Civil Action No. 77-1748

(D.D.C.)

13. Mason v. Clayton, Civil Action No. 77-0995 (D.D.C.)

14. Bertoli v. SEC, 77 Civ. 1450 (S.D.N.Y.)

15. National Lawyers Guild v. Attorney General, 77

Civ. 999 (S.D.N.Y.)’

16. LaRouche v. Kelley, 75 Civ. 6010 (S.D.N.Y.)

17. Clavir v. United States, 76 Civ. 1071 (S.D.N.Y.)

5la

APPENDIX K

THE FEDERAL STATUTES CONTAINING

PROVISIONS FOR NATIONWIDE SERVICE

OF PROCESS

1. Actions under the Federal Interpleader Act, 28

U.S.C. §§ 1335, 1397, 2361: The res is within the forum

and is the subject matter of the litigetion. It provides a

fair basis for summoning the claimants into the forum to

determine their respective rights thereto. See Shaffer v.

Heitner, supra, at pp. 208-09, and n. 37.

2. Actions seeking to assert rights in property where

the defendant cannot be served within the state or does not

voluntarily appear, 28 U.S.C. § 1655: See paragraph 1

above.

3. Process against the corporation in a shareholder’s

action, 28 U.S.C. § 1695: The corporation in a derivative

suit is a nominal party defendant and is the real party,

in interest on the plaintiff side. The nominal plaintiff

has on behalf of the corporation selected the forum pre-

sumably having the best reach for the real defendants in

mind.

4. Injunction actions by the United States under Sec-

tion 5 of the Sherman Act and Section 15 of the Clayton

Act, 15 U.S.C. §§ 5, 25: In antitrust conspiracy cases addi-

tional defendants may be summoned whether or not they

reside in the district but only when the court finds “that the

ends of justice require” [emphasis ours] that they be

brought in. In these cases the out-of-state defendant must

be added because it is claimed that he acted in combination

with the in-state defendant or defendants already before

the court. The combination in vioiation of the antitrust

52a

laws must, at least at one end, have been committed in the

forum state pursuant to the agreement of the out-of-state

defendant.

5. Actions against corporations under the antitrust

laws, 15 U.S.C. § 22: This statute specificially limits the

districts in which suit can be brought to the district whereof

the corporation is an inhabitant, may be found or transacts

business. In any such instance the demands of due process

are met since the corporate defendant would have “mini-

mum contacts” with each such district.

6. Actions in which a receiver is appointed and the land

or other property of a fixed character, the subject of the

action, lies within different districts, process may issue and

be executed in any such district, 28 U.S.C. § 1692: See para-

graph 1 above.

7. In certain actions wnder the interstate commerce

laws pursuant to 28 U.S.C. § 2321 and 49 U.S.C. §§ 20, 23,

43: Section 2321 of Title 28 applies only to actions brought

by the United States (28 U.S.C. § 2322) to enforce Inter-

state Commerce Commission orders and permits process

of district courts to run nationwide. ICC orders support

a nationwide structure of operations adequate to meet the

International Shoe test. ICC regulated carriers operate

under licenses which may be properly made conditional

upon a submission to nationwide jurisdiction. Shaffer v.

Heitner, supra at 216.

8. Actions by a national banking association under the

provisions of chapter 2 of Title 12, to enjoin the Comp-

troller of Currency, or any receiver acting under his direc-

tion, First National Bank of Caton v. Comptroller of the

Currency, 252 U.S. 504 (1919); 28 U.S.C. § 1394: Such

actions ure brought to enjoin a banking official of the

53a

United States with nationwide responsibilities and, by

reason thereof, such official is “present” in the district of

any bank subject to the exercise of his regulatory authority.

9. Actions against officers of the United States, 28

U.S.C. §1391(e): This, of course, is the subject of this

petition.

10. Actions brought in the name of the United States

on bonds of contractors for public buildings or works, 40

U.S.C. § 270(b): Such suits on construction contract bonds

are authorized in the district in which the contract was to

be performed and executed. One who bonds such a contract

would certainly have the necessary “minimum contacts”

with the jurisdicion where the contract is to be performed.

ll. Actions brought under the Securities Act of 1933

and the Securities Exchange Act of 1934, 15 U.S.C.

§§ 77v(a), 78aa: These statutes specifically lin..t the dis-

tricts in which suit can be brought to the districts where

the defendant is found, or is an inhabitant, or transacts

business, or where an offer or sale of securities took place,

if the defendant participated therein. In any such instance

the demands of due process are met since the defendant

would have “minimum contacts” with each such district.

12. Actions under the Investment Company Act of 1940,

15 U.S.C. § 80a-43: This statute specifically limits the dis-

trict in which suit can be brought to the district where the

defendant is an inhabitant or transacts business. The

demands of due process are met since the defendant would

have “minimum contacts” with such districts.

13. Actions under the Public Utility Holding Company

Act of 1935, 15 U.S.C. § 79y: See paragraph 12 above.

14. Actions against the Secretary of Health, Education

and Welfare to review benefits wnder the Social Security

Act, 42 U.S.C. § 405(g): See paragraph 8 above. In addi-

tion, such an action is “nominally” against the Secretary,

and “in essence” against the United States.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.