Lamont v. Haig
| Decision Date | 16 October 1978 |
| Docket Number | No. 75-2006,75-2006 |
| Citation | 192 U.S.App. D.C. 8,590 F.2d 1124 |
| Parties | , 192 U.S.App.D.C. 8 Agnes LAMONT, Gladys Bissonette, Ellen Moves Camp, Eugene White Hawk, Marvin Ghost Bear, Edgar Bear Runner, Oscar Bear Runner, Severt Young Bear, Rachel White Dress, Helen Red Feather, Eddie White Dress, Vicki Little Moon, Madonna Gilbert, Lorelei Means and Carla Blakley, Appellants, v. Alexander HAIG, Lieutenant General, United States Army, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David E. Engdahl, Denver, Colo., with whom Terrance A. Sidley, Alexandria, Va., was on the brief, for appellants.
Stanley Dalton Wright, Atty., Dept. of Justice, Washington, D. C., with whom Robert L. Keuch, Edward S. Christenbury and Thaddeus B. Hodgdon, Attys., Dept. of Justice, Washington, D. C., were on the brief, for appellees.
Before BAZELON, TAMM and ROBINSON, Circuit Judges.
Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.
Appellants instituted suit to recover damages allegedly flowing from the deployment and utilization of Army and Air Force personnel for law-enforcement purposes pursuant to a conspiracy by appellees, present or past officers or employees of the United States. 1 The episode complained of took place in and around the Village of Wounded Knee, South Dakota, on the Pine Ridge Indian Reservation, from February until May of 1973. Appellants assert that the events that transpired then and there gave rise to an implied civil cause of action under the Fifth Amendment's Due Process Clause and 18 U.S.C. § 1385, which penalizes criminally the use of elements of the Army or Air Force to execute the laws, absent express constitutional or statutory authority. 2 The District Court dismissed the action for lack of venue 3 under 28 U.S.C. § 1391, 4 and expressly declined to rule on other procedural objections advanced by appellees. 5
We hold that Section 1391(e) conferred venue only with respect to those appellees who retained positions in the Federal Government at the time appellants' suit was commenced. 6 We find, however, that ambiguity in appellants' complaint precludes determination of whether Section 1391(b) bestows venue over claims against the remaining appellees. 7 Consequently, we remand to permit amendments to the complaint and to enable the District Court to reconsider its ruling in light of the clarification to be afforded thereby. 8
In relevant part Section 1391(e) provides:
A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority . . . may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, 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. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers (or) employees . . . were not a party.
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. 9
Very recently, in Briggs v. Goodwin, 10 we construed this provision as encompassing suits for money damages against federal officers who had acted under color of law though in excess of legal authority. In Briggs, the defendants all held federal posts at the time suit was filed, as well as when the cause of action arose. 11 In the case at bar, the constitutional and statutory violations charged were allegedly perpetrated by appellees while they were federal incumbents and were acting as such under color of their official authority. 12 The similarity ends at this point, however, for prior to commencement of appellants' action, several of the 14 appellees withdrew from federal service. Whether that occurrence renders Section 1391(e) inapplicable to them though there is no venue problem as to the others is the question we must first address.
Our quest begins with a close look at the language of Section 1391(e), and several of its ramifications become quite readily apparent. It has no application unless at least one defendant to the action 13 is either (a) "an officer or employee of the United States or (some) agency thereof," 14 or (b) "an agency of the United States" 15 or (c) "the United States" itself. 16 Moreover, if venue is predicated upon the presence of a federal officer or employee as a defendant, he must, as we have indicated, have "act(ed) in his official capacity or under color of legal authority." 17 If a defendant is a federal officer or employee who has taken such action, or is the United States or one of its agencies, and no other statute requires otherwise, 18 the plaintiff may choose from among as many as three alternative forums where venue is proper. The first is "where a defendant in the action resides." 19 The second is where "the cause of action arose." 20 The third is where "any real property involved in the action is situated" 21 or, if none is involved, where "the plaintiff resides." 22
Section 1391(e) thus addresses the issue of venue proper as to the United States, a federal agency, or a federal officer or employee whose conduct meets the statutory specifications. The section makes clear, moreover, that "additional persons may be joined as parties to any such action" 23 an action against a federal defendant just described but its instruction regarding venue with respect to "(a)dditional persons" is quite different. For them it is necessary to satisfy "such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party." 24 So, while Section 1391(e) has provided specially for and, indeed, has broadened 25 venue vis-a-vis the federal defendants it designates, the conditions conferring venue as to an "(a)dditional person ( )" must also exist before that person may be joined in the litigation. 26 It follows that if suit is sought to be maintained not only against a federal defendant embraced within Section 1391(e) but also against an "(a)dditional person( )," there must be proper venue as specified in the pertinent statutes as to each. 27
Aside from venue, there may of course be other problems for the plaintiff in a suit against several defendants, some of whom are federal officers. Joinder of "(a)dditional persons" must conform to standard practice, 28 and it goes without saying that personal jurisdiction over each defendant is indispensable to in personam actions. Save in one respect, Section 1391(e) itself governs neither of these matters; on the contrary, it makes clear that joinder of parties and service of process must observe relevant demands of the Federal Rules of Civil Procedure. 29 The sole exception is that in cases wherein it applies, "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." 30
Section 1391(e), fully analyzed, emerges as a provision according federal agencies and servants special treatment for venue purposes treatment unlike that extended to any other litigant. And the statutory language indicates that its unique venue specifications regarding individual defendants are limited to those enjoying federal office or employment when initially sued. One searches Section 1391(e) in vain for even so much as a hint of any congressional desire to widen venue or ameliorate service of process in suits against those whose federal incumbency is a thing of the past. As "we are not at liberty to act in (Congress') stead," 31 we must construe Section 1391(e) as its terms apparently demand absent evidence of a contrary legislative intent or a showing that adherence to a natural reading of the statutory language will produce a result at variance with the policy of the legislation as a whole. 32
Less than striking is the discovery that nothing in the legislative history of Section 1391(e) specifically indicates that its provisions were meant to apply to suits filed against former federal personnel. In the committee reports and during debate in both Houses, reference was commonly made to federal officers and employees, but in no instance was coverage of past jobholders explicitly addressed. It is surprising that if Section 1391(e) was actually intended to reach bygone federal servants, some congressional articulation of that purpose did not eventuate. For "(t)he construction urged by (appellants) would potentially subject a retired government official to suit in any federal court in the country," 33 and it seems "inconceivable that Congress would so substantially broaden the venue provision applicable to every individual once employed by the federal government without comment." 34
To be sure, Congress did outline the legislation's broad objectives, and principal among the congressional aims was provision of a "readily available, inexpensive judicial remed(y) for the citizen who is aggrieved by the workings of Government." 35 By expanding venue and easing the rigors of process-service requirements in suits against federal officials, Congress certainly advanced that goal considerably. It does not necessarily follow, however, that Congress meant to go further and "provide a net that could draw everyone connected with a governmental action into...
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