Driver v. Helms, No. 77-1482

CourtU.S. Court of Appeals — First Circuit
Writing for the CourtBefore COFFIN, Chief Judge, CAMPBELL and BOWNES; COFFIN
Citation577 F.2d 147
Docket NumberNo. 77-1482
Decision Date25 May 1978
PartiesRodney D. DRIVER et al., Appellees, v. Richard HELMS et al., Appellants.

Page 147

577 F.2d 147
Rodney D. DRIVER et al., Appellees,
v.
Richard HELMS et al., Appellants.
No. 77-1482.
United States Court of Appeals,
First Circuit.
Argued March 8, 1978.
Decided May 25, 1978.

Page 148

Walter H. Fleischer, Washington, D. C., Donald J. Cohn and Jacquelin A. Swords, New York City, with whom Earl Nemser, Cadwalader, Wickersham & Taft, New York City, George M. Vetter, Jr., Hinckley, Allen, Salisbury & Parsons, Providence, R. I., Seymour Glanzer, Kenneth Adams, Joel Kleinman, Dickstein, Shapiro & Morin, Washington, D. C., James V. Kearney, Nancy E. Friedman, Webster & Sheffield, New York City, Alan T. Dworkin, Aisenberg & Dworkin, Joseph V. Cavanagh, Higgins, Cavanagh & Cooney, Providence, R. I., Charles R. Donnenfeld, Cameron M. Blake, Rodney F. Page, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D. C., Guy J. Wells, Dayton, Ohio, Gunning, LaFazia & Gnys, Inc., Providence, R. I., Alfred F. Belcuore, Cole & Groner, P. C., Washington, D. C., Harry W. Asquith, Edward W. Moses, Swan, Kenney, Jenckes & Asquith, Providence, R. I., Wallace L. Duncan, Duncan, Brown, Weinberg & Palmer, Joseph Dailey, Memphis, Tenn., and Breed, Abbott & Morgan, Washington, D. C., were on briefs for appellants.

Melvin L. Wulf, New York City, with whom Clark, Wulf & Levine, Burt Neuborne, New York City, Richard W. Zacks, Winograd, Shine & Zacks, Providence, R. I., and Joel M. Gora, New York City, were on brief, for appellees.

Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., Lincoln C. Almond, U. S. Atty., Providence, R. I., Robert E. Kopp and Paul Blankenstein, Attys., Appellate Section, Civil Division, Dept. of Justice, Washington, D. C., on brief for United States, amicus curiae.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

Plaintiffs-appellees brought this action in 1975 in the federal district court for the district of Rhode Island on behalf of themselves and others similarly situated. Their complaint alleges that the defendants-appellants

Page 149

1 illegally interfered with their mail, thereby violating appellees' rights under the First, Fourth, Fifth, and Ninth Amendments. The suit seeks damages and declaratory and injunctive relief. Subject matter jurisdiction was invoked under 28 U.S.C. §§ 1331(a), 1339, 1343, 1361, and 5 U.S.C. § 702.

Appellants are 25 present or former United States government officials, each sued in his individual and in his official or former official capacity. One of the named plaintiffs, Driver, lives in Rhode Island, 2 but none of the appellants reside in or have substantial contacts with Rhode Island, and the complaint does not allege that any illegal activity occurred in Rhode Island. 3 Therefore, venue is not proper under 28 U.S.C. § 1391(b), and, since none of the appellants were served within Rhode Island, 4 service of process was inappropriate under F.R.Civ.P. 4(f).

Appellees invoke 28 U.S.C. § 1391(e) to support venue and service of process: 5

"A civil action in which each defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, may, except as otherwise provided by law, be brought in any judicial district in which: (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action.

"The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought." 6

Appellants filed motions to dismiss under Federal Rules of Civil Procedure 12(b)(2) (lack of jurisdiction over the person), 12(b)(3) (improper venue), and 12(b)(4) (insufficiency of process). The district court denied these motions, but certified that the questions involved controlling issues of law as to which there is substantial ground for difference of opinion and that an immediate appeal could materially advance the litigation. Driver v. Helms, 74 F.R.D. 382, 401-02 (D.R.I.1977). We thus have appellate jurisdiction under 28 U.S.C. § 1292(b).

Appellants argue that 28 U.S.C. § 1391(e), contrary to the holding of the district court, does not give venue to the district court in Rhode Island, does not give the court jurisdiction over the persons of the appellants, and does not authorize the service of process on these appellants. They argue that reliance on § 1391(e) is misplaced because that section does not apply to former officials, does not apply to suits against officials for damages in their individual capacities, and does not independently supply in personam jurisdiction.

THE FORMER OFFICIALS

Ordinarily the plain meaning of the language of a statute is controlling. See

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Massachusetts Financial Services, Inc. v. Securities Investor Protection Corp., 545 F.2d 754, 756 (1st Cir. 1976). Section 1391(e) applies, by its terms, when a "defendant is an officer or employee of the United States . . . acting in his official capacity or under color of legal authority . . . ." (emphasis added) Because the operative language is in the present tense, we read the section to exclude a defendant who was an officer or employee.

"Of course, deference to the plain meaning rule should not be unthinking or blind. We would go beyond the plain meaning of statutory language when adherence to it would produce an absurd result or 'an unreasonable one "plainly at variance with the policy of the legislation as a whole." ' " Massachusetts Financial Services, supra, 545 F.2d at 756, quoting United States v. American Trucking Ass'ns, Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940), quoting Ozawa v. United States, 260 U.S. 178, 194, 43 S.Ct. 65, 67 L.Ed. 199 (1922); cf. Natural Resources Defense Counsel v. TVA, 459 F.2d 255, 257 (2d Cir. 1972) (eschewing the "tyranny of literalness"). 7 We do not, however, find any indication in the statute itself or in the legislative history that former officials were meant to be included. We are not alone in this conclusion. See Kipperman v. McCone, 422 F.Supp. 860, 876 (N.D.Cal.1976); Wu v. Keeney, 384 F.Supp. 1161, 1168 (D.D.C.1974).

The cases that have reached a contrary result have decided that excluding former officials would undercut the policies of § 1391(e). See Driver v. Helms, supra, 74 F.R.D. at 398-400; United States v. McAninch,435 F.Supp. 240, 245 (E.D.N.Y.1977); Lowenstein v. Rooney, 401 F.Supp. 952, 962 (E.D.N.Y.1975). We do not think it absurd or plainly at variance with the policies of § 1391(e) to limit it to those who are government officials at the time the action is brought. 8 We are unimpressed by the specter of government officials resigning their positions simply because they fear an action might be brought against them. As the court below noted, resignation would not terminate their liability. See Driver v. Helms,supra, 74 F.R.D. at 399-400. The most an official could gain would be to avoid venue in the district where a plaintiff lives. A career in government service is, one would think, a disproportionate sacrifice to make for so small a gain. Moreover, we are not persuaded that Congress' desire "to provide readily available, inexpensive judicial remedies for the citizen who is aggrieved by the workings of Government", H.Rep. No. 536, 87th Cong., 1st Sess. 3 (1961) (hereinafter referred to as House Report), indicates that Congress meant § 1391(e) to provide a net that could draw everyone connected with a governmental action into litigation in a particular district. For instance, those who were never government officials but are defendants in a law suit clearly cannot be reached by § 1391(e). 9 In fact there is a clear indication in the legislative history that Congress did not mean to reach at least those former officials who have moved away from Washington. 10 Therefore, we reverse the district court as to this point and hold that

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§ 1391(e) does not apply to those defendants who, at the time this action was brought, were not serving the government in the capacity in which they performed the acts on which their alleged liability is based. 11
PERSONAL DAMAGE ACTIONS

The next issue we must face is whether § 1391(e) applies to actions for damages against officials in their individual capacities. Section 1391(e) was passed, together with 28 U.S.C. § 1361, as the Mandamus and Venue Act of 1962. Before 1962 most actions against federal officials could not be brought outside the District of Columbia. Higher officials residing in Washington were usually indispensable parties against whom venue could not be secured except in Washington. Furthermore, such actions were often in the nature of mandamus, and federal district courts outside the District of Columbia lacked subject matter jurisdiction over mandamus actions. The crux of appellants' argument is that § 1391(e) should be narrowly construed as a companion to § 1361, designed to combat the specific, relatively narrow problem that spurred Congress to act. That is, they would have us read § 1391(e) to do no more than supply venue in those suits made possible by § 1361, "(suits) in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."

The Second Circuit has twice followed similar reasoning, but in cases distinguishable from ours. In Liberation News Service v. Eastland, 426 F.2d 1379 (2d Cir. 1970), the court said that § 1391(e) was aimed at the mischief posed by the inability to review government action outside Washington and that § 1391(e) reached only those who might be subject to compulsion under § 1361. The holding of the case, however,...

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44 practice notes
  • Haile v. Henderson Nat. Bank, No. 79-1296
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 13 Agosto 1981
    ...The effect of such Congressional action was carefully analyzed in Driver v. Helms, 74 F.R.D. 382 (D.R.I.1977), modified on other grounds, 577 F.2d 147 (1st Cir. 1978) (affirming the district court's reasoning and holding as to personal jurisdiction), cert. den., 439 U.S. 1114, 99 S.Ct. 1016......
  • Kedra v. City of Philadelphia, Civ. A. No. 77-4046.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 29 Junio 1978
    ...authority, he was not acting "officially" and therefore only can be held personally liable for his conduct. See, e. g., Driver v. Helms, 577 F.2d 147, 151-154 (1st Cir. 1978); Briggs v. Goodwin, 186 U.S. App.D.C. 170, 569 F.2d 1, 4 (1977); Walker v. Hughes, 558 F.2d 1247, 1249 n. 1 (6th Cir......
  • Goldhaber v. Foley, Civ. A. No. 81-0672.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 16 Julio 1981
    ...have not properly served them with process and, therefore, have not effected personal jurisdiction over them. See Driver v. Helms, 577 F.2d 147, 155 (1st Cir. 1978), rev'd on other grounds sub nom. Colby v. Driver, 444 U.S. 527, 100 S.Ct. 774, 63 L.Ed.2d 1 (1980). In this regard, the federa......
  • Estates of Ungar ex rel. Strachman v. Palestinian, No. CIV.A. 00-105L.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • 24 Julio 2001
    ...court cannot obtain personal jurisdiction without effective service of process. Lorelei, 940 F.2d at 719-20 n. 1 (citing Driver v. Helms, 577 F.2d 147, 155 (1st Defendants PA and PLO Plaintiffs argue that jurisdiction over defendants PA and PLO is established through the nationwide service ......
  • Request a trial to view additional results
44 cases
  • Haile v. Henderson Nat. Bank, No. 79-1296
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 13 Agosto 1981
    ...The effect of such Congressional action was carefully analyzed in Driver v. Helms, 74 F.R.D. 382 (D.R.I.1977), modified on other grounds, 577 F.2d 147 (1st Cir. 1978) (affirming the district court's reasoning and holding as to personal jurisdiction), cert. den., 439 U.S. 1114, 99 S.Ct. 1016......
  • Kedra v. City of Philadelphia, Civ. A. No. 77-4046.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 29 Junio 1978
    ...authority, he was not acting "officially" and therefore only can be held personally liable for his conduct. See, e. g., Driver v. Helms, 577 F.2d 147, 151-154 (1st Cir. 1978); Briggs v. Goodwin, 186 U.S. App.D.C. 170, 569 F.2d 1, 4 (1977); Walker v. Hughes, 558 F.2d 1247, 1249 n. 1 (6th Cir......
  • Goldhaber v. Foley, Civ. A. No. 81-0672.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 16 Julio 1981
    ...have not properly served them with process and, therefore, have not effected personal jurisdiction over them. See Driver v. Helms, 577 F.2d 147, 155 (1st Cir. 1978), rev'd on other grounds sub nom. Colby v. Driver, 444 U.S. 527, 100 S.Ct. 774, 63 L.Ed.2d 1 (1980). In this regard, the federa......
  • Estates of Ungar ex rel. Strachman v. Palestinian, No. CIV.A. 00-105L.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • 24 Julio 2001
    ...court cannot obtain personal jurisdiction without effective service of process. Lorelei, 940 F.2d at 719-20 n. 1 (citing Driver v. Helms, 577 F.2d 147, 155 (1st Defendants PA and PLO Plaintiffs argue that jurisdiction over defendants PA and PLO is established through the nationwide service ......
  • Request a trial to view additional results

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