Blackmar v. Guerre
| Decision Date | 11 July 1951 |
| Docket Number | No. 13540.,13540. |
| Citation | 190 F.2d 427 |
| Parties | BLACKMAR v. GUERRE et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
René R. Nicaud, New Orleans, La., for appellant.
Lansing L. Mitchell, Nicole E. Simoneaux, Asst. U. S. Attys., John N. McKay, U. S. Atty., New Orleans, La., for appellees.
Before HUTCHESON, Chief Judge, and SIBLEY and STRUM, Circuit Judges.
Appellant sued in the Eastern District of Louisiana under the declaratory judgment act, 28 U.S.C.A. § 2201, to secure a judgment declaring him entitled to reinstatement in his former position with the Veterans' Administration in New Orleans, from which he was discharged by the regional manager there, which action was affirmed by the U. S. Civil Service Commission. This appeal is from a judgment below dismissing the complaint for improper venue.
Defendants named in the complaint are: "L. F. Guerre, manager, Veterans' Administration regional office No. 3021, New Orleans, Louisiana, and United States Civil Service Commission."1 Unless venue is properly laid in the Eastern district of Louisiana, and service of process can be effectuated there, both of which the Commission contests, the action must abate, as the Commission is clearly an indispensable party. To nullify the Commission's approval of appellant's dismissal by the Veterans' Administration is one of the principal objects of the complaint, which seeks mandatory relief against the Commission to correct its alleged error.
The complaint alleges that the Commission is represented in New Orleans by a regional director, upon whom process was served, and who resides in the Eastern district of Louisiana. But the suit is against the Commission itself, not the regional director. The complaint is silent as to the domicile of the Commission. The court takes judicial notice, however, that the Commission's official situs and legal domicile is in the District of Columbia, where its plenary powers are exercised, though many of its subordinate and ministerial functions are necessarily carried out locally by regional officials who act, not by virtue of their own authority, but solely under the control and direction of the Commission. This fact, however, does not authorize suits against the Commission wherever its functions are thus vicariously performed.
Federal jurisdiction of this case is rested, not upon diversity of citizenship, but upon the ground that it is a civil action arising under the Constitution and laws of the United States, the requisite jurisdictional amount being involved. 28 U.S.C.A. § 1331. Appellant also asserts that sec. 10 of the Administrative Procedure Act, 5 U.S.C. A. § 1009, confers jurisdiction.
The suit is in personam, as it involves only the personal rights or legal relations of the parties and their duty, or breach of duty, with respect thereto. Such a suit may be brought only in the judicial district where all defendants reside, "except as otherwise provided by law." 28 U.S.C.A. § 1391(b). (Italics supplied.) We have been directed to no other statute, and have found none, which provides "otherwise" for a suit of this nature. Compare Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949; Shapiro v. Bonanza Hotel Co., 9 Cir., 185 F.2d 777.
Since the domicile or legal residence of an executive agency of the United States, such as the Civil Service Commission, is ordinarily at the seat of government, suit must necessarily be brought in the District of Columbia under 28 U.S.C.A. § 1391(b) where, as here, there...
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Fahey v. O'Melveny & Myers
...law, appellees do not favor us with an expression of their views as to the significance of the pronouncements in Blackmar v. Guerre, 5 Cir., 190 F.2d 427 and the same case on appeal reported in 342 U.S. 512, 72 S.Ct. 410. And see Payne v. Fite, 5 Cir., 184 F.2d 977 which also considers the ......
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Hoffman v. Blaski Sullivan v. Behimer
...with Anthony v. Kaufman, 193 F.2d 85, and Torres v. Walsh, 221 F.2d 319. The Fifth Circuit, too, has held both ways. Compare Blackmar v. Guerre, 190 F.2d 427, 429, with Ex parte Blaski, 245 F.2d 737. The Ninth Circuit has held a District Court to be without power to transfer an action, on p......
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De La Fuente v. ICC
...369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962); (2) the transferee district must be one in which venue is proper, Blackmar v. Guerre, 190 F.2d 427 (5th Cir. 1951), aff'd, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534 (1952), and in which the defendants are amenable to service of process, see Ho......
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DC Electronics, Inc. v. Schlesinger
...921, 72 S.Ct. 675, 96 L.Ed. 1334; and (2) the action may be transferred only to a district in which venue is proper, Blackmar v. Guerre, 190 F.2d 427 (5th Cir. 1951). affirmed, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534 (1952), and in which the defendants are amenable to service of process. S......