# Petition — Stafford v. Briggs > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0008%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 444 U.S. 527 ## Text *~ 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 en TABLE OF CONTENTS IEA LLL A ES 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 qn ii 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 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. 7a Columbia could then issue.” Since H.R. 10089 would have conferred no mandamus jurisdiction and would not have applied to actions against officials “individually,” the Department doubted whether its enactment “would serve any useful purpose.”’ | H.R. 12622*8 was drafted to meet these and other?? criti- cisms. Its first section extended mandamus jurisdiction to all of the federal district courts.*° Its second section broad- ened the prior venue proposal to include suits directed at a federal official’s activity whether characterized as occurring “in his official capacity” or “under color of legal author- ity.“ The purpose of the new bill was “to provide readily available, inexpensive judicial remedies for the citizen who is aggrieved by the workings of Government, but who would previously have been compelled* to sue in the Dis- 26. Compare M’/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. Sa trict of Columbia by the pre-existing venue provisions, which were deemed “contrary to the sound and equitable administration of justice.”** And the House Report specif- ically noted that “(t]he venue problem also arises in an action against a Government official seeking damages from him for actions which are claimed to be without legal authority but which were taken by the official in the course of performing his duty.”* The House passed H.R. 12622°° but the Senate adjourned before any action was taken on it. So, in the next Con- gress, it was reintroduced as H.R. 1960,°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. 9a Rather, both the House and Senate committees rejoined with the observation that the “venue problem” which the bill sought to rectify was as troublesome in damage suits _ against officials as in other sorts of civil litigation.” This colloquy between the Department of Justice and the legislative draftsmen demonstrates the legislature’s comprehension and resolution of the issue before us. The conscious addition by Congress of language designed to ex- tend Section 1391(e) to suits for damages against federal officials acting under color of legal authority, coupled with its adherence to that language despite highly respectable protest,*? manifests beyond peradventure an intent to broaden venue in just such suits. Our duty is to harken to the will of Congress as expressed, and the statutory man- date is clear. We realize, of course, that other courts have entertained divergent views on the relation of Section 1391(e) to damage actions against federal officials.** We acknowledge 41. Id. at 3; H.R.Rep.No. 536, supra note 36, at 3. 42. See note 39 supra. 43. The Fifth Circuit, in Ellingburg v. Connett, 457 F.2d 240, 241 (Sth Cir. 1972), held that “Section 1391(e)(4) . .. may be a basis for venue” in a civil rights action “for damages and injunctive relief against officers . . . of the 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. IT As we noted at the outset,** the Federal Rules of Civil Procedure govern service of process in cases laying venue under Section 1391(e), “except that the delivery of the summons and complaint to the officer or agency ... may be made by certified mail beyond the territorial limits of the district in which the action is brought.”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 oe Joun K. BricGs, &T AL., Plaintiffs, Vv. Guy Goopwin, ET AL., Defendants. rt 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 oe Joun Briaes, et al., Plaintiffs, v. 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 SS JoHN BriaGs, ET AL., Appellants, v. 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, v. 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, v. Guy Goopwin, Individually and as Attorney for the Department of Justice, et al. ne 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 rr - Wiiu1am H. Starrorp, JR., ET AL., Petitioners, v. 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 re 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 I. Plaintiffs’ Complaint asserts that this Court has venue of this action under 28 U.S.C. §1391(b) and (e), Those provisions are: “(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in’ the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law. (e) A civil action in which each defendant is an officer or 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. V. Plaintiffs contend that the law in Fifth Cireuit, as evi- denced by Ellinburg v. Connet, 457 F.2d 240 (5th Cir. 1972), dictates that Section 1391(e)(4) provides venue in the district of plaintiff’s residence for a cause of action against a federal employee in his individual capacity, seek- ing monetary relief. In Ellinburg, petitioner was a prisoner at Texarkana, Texas, within the Eastern District of Texas. Petitioner filed a petition for mandamus against several prison offi- cials residing in Texarkana, requesting that the Court order the defendant (1) to remove detainers against the petitioner, (2) to drop the practice of opening Petitioner’s mail, (3) to grant petitioner the “minimum custody” status, (4) to stop spying on the prisoners, and (5) to refrain from serving unequal portions of food to different prisoners. The trial court dismissed the petition, saying that it was a habeas corpus petition which must be brought in the dis- trict where the prison was located. The United States Court of Appeals for the Fifth Cireuit concluded that the district court was erroneous in charac- terizing the petition as a habeas corpus petition, holding that it was a petition in the nature of mandamus. The Court then looked to each of the specific venue alternatives under Section 1391(e). Subsection 1 thereof provides that the action may be brought in a district where a defendant resides. None of the defendants resided within the Northern District; therefore, venue was not proper under Subsection 1. Subsection 2 provides that venue is properly laid where a cause of action arises. Plaintiff’s complaint did not state 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. X. 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0008%3A01. Public record. Not legal advice.