Town of East Haven v. Eastern Airlines, Inc.

• Citation: 282 F. Supp. 507
• Decision Date: 31 January 1968
• Docket Number: Civ. No. 12175.
• Parties: The TOWN OF EAST HAVEN, New Haven-Committee against Airport Expansion, East Haven-Committee against Airport Expansion, James Canali, N. Leo Corona, Michael Fusco, Michael Rascati, Salvatore Criscuolo, Jeremiah Camarota, Andrew Proto, Michael Criscuolo, Louis G. Audette, Alphonse G. Guidone, Leon Amendola, Leslie Munro and Earl W. Jones, Plaintiffs, v. EASTERN AIRLINES, INC., Allegheny Airlines, Inc., the Administrator of the Federal Aviation Agency and the City of New Haven, Defendants.
• Court: U.S. District Court — District of Connecticut

282 F. Supp. 507

The TOWN OF EAST HAVEN, New Haven-Committee against Airport Expansion, East Haven-Committee against Airport Expansion, James Canali, N. Leo Corona, Michael Fusco, Michael Rascati, Salvatore Criscuolo, Jeremiah Camarota, Andrew Proto, Michael Criscuolo, Louis G. Audette, Alphonse G. Guidone, Leon Amendola, Leslie Munro and Earl W. Jones, Plaintiffs, v. EASTERN AIRLINES, INC., Allegheny Airlines, Inc., the Administrator of the Federal Aviation Agency and the City of New Haven, Defendants.

Civ. No. 12175.

United States District Court D. Connecticut.

January 31, 1968.

William A. Blank, Brooklyn, N. Y., and Anthony V. DeMayo, of Cohen & DeMayo, New Haven, Conn., for plaintiffs.

J. Daniel Sagarin, Asst. U. S. Atty., New Haven, Conn. (Jon O. Newman, U. S. Atty., Hartford, Conn., on the brief), and Martin J. White, Regional Counsel, Federal Aviation Administration, for defendant Administrator of the Federal Aviation Agency.

William R. Murphy (Louis M. Winer and Bruce Lewellyn, on the brief), of Tyler, Cooper, Grant, Bowerman & Keefe, New Haven, Conn., for defendants Eastern Airlines, Inc. and Allegheny Airlines, Inc.

Robert Matthew Beckman, Washington, D. C. (Thomas F. Keyes, Jr., Corp. Counsel and Roger J. Frechette, Asst. Corp. Counsel, New Haven, Conn., on the brief), for defendant City of New Haven.

TIMBERS, Chief Judge.

NATURE OF ACTION AND RELIEF SOUGHT

This action arises out of commercial flight operations at Tweed-New Haven Airport (the airport). The airport is the municipal airport of the City of New Haven and is operated by New Haven through a Board of Airport Commissioners. However, a substantial portion of the land upon which the airport is located lies outside the city limits of New Haven and within the Town of East Haven. The Town of East Haven, together with various property owners in the vicinity of the airport and committees of these property owners, have brought this action to obtain relief from alleged injuries sustained from the recent introduction of prop-jet and pure jet commercial flights into and out of the airport. Plaintiffs in their original complaint named as defendants Eastern Airlines, Inc. (Eastern) and Allegheny Airlines, Inc. (Allegheny), the two commercial air passenger carriers responsible for jet operations at the airport, and the Administrator of the Federal Aviation Agency (Administrator). Subsequently, with leave of the Court, plaintiffs filed an amended complaint joining the City of New Haven as a defendant.

Generally, the amended complaint charges that jet operations at the airport so interfere with plaintiffs' enjoyment of their nearby property as to justify relief on theories of a taking without compensation, trespass and public and private nuisance. In addition, the complaint alleges that defendants Eastern and Allegheny have operated their aircraft negligently and in violation of FAA rules and regulations; and that the City of New Haven likewise has operated the airport and proceeded with its expansion in disregard of these rules and regulations and specifically in disregard of a grant agreement with the FAA. Finally, the complaint charges that the Administrator, in permitting the jet operations and airport expansion, has failed to enforce federal law, regulations, and the grant agreement as it is his duty to do. Plaintiffs seek an injunction against continuance of the allegedly improper activities and a mandamus compelling the Administrator to abate these activities as carried on by the other defendants. Plaintiffs also seek damages.

The Court now has before it for determination motions to dismiss by defendant Administrator, defendants Eastern and Allegheny, and defendant City of New Haven.^* For reasons subsequently stated, the Administrator's motion is granted; the airlines' and City of New Haven's motions are denied.

FAA ADMINISTRATOR'S MOTION TO DISMISS

The Administrator urges several grounds in support of his motion to dismiss. His first claim is that he is not properly subject to service of process in this action and, therefore, the Court lacks in personam jurisdiction. A further claim is that venue, insofar as the Administrator is a defendant, is not properly laid in this District. The Administrator also makes a substantive attack upon the complaint, charging that the Court is without jurisdiction to grant the relief sought.

The validity of service and the propriety of venue may be dealt with simultaneously. Plaintiffs seek relief in the nature of mandamus against the Administrator. Prior to 1962, such relief, if available at all, was generally obtainable only from the District Court for the District of Columbia. There were several reasons for this. First, only the District Court for the District of Columbia had original jurisdiction to grant mandatory relief except as such relief was ancillary to jurisdiction otherwise obtained. See, e. g., Covington & Cincinnati Bridge Co. v. Hager, 203 U.S. 109 (1906); Rosenbaum v. Bauer, 120 U.S. 450 (1887); Kendall v. United States, 37 U.S. (12 Pet.) 524 (1838); McIntire v. Wood, 11 U.S. (7 Cranch) 504 (1813); Fagan v. Schroeder, 284 F.2d 666 (7 Cir. 1960); United States ex rel. Vassel v. Durning, 152 F.2d 455 (2 Cir. 1945); Palmer v. Walsh, 78 F.Supp. 64 (D.Or.1948). Second, the territorial restrictions upon service of process expressed in Rule 4(f), Fed.R.Civ.P., prevented effective service upon government officials having their public residence in the District of Columbia in actions commenced outside of that jurisdiction. See, e. g., Martinez v. Seaton, 285 F.2d 587 (10 Cir. 1961), cert. denied, 366 U.S. 946 (1961). Finally, the general venue rule that "a civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all the defendants reside, except as otherwise provided by law" (28 U.S.C. § 1391(b) (1964)) meant that actions had to be brought in the District of Columbia whenever the government official had his public residence there.

In order to remove these obstacles and "make it possible to bring actions against Government officials and agencies in U. S. district courts outside the District of Columbia", Congress in 1962 enacted 28 U.S.C. § 1361 (1964) and 28 U.S.C. § 1391(e) (1964). S.Rep.No. 1992, 87th Cong., 2d Sess. (1962); 1962 U.S. Code, Congressional and Administrative News 2784, 2785. Section 1361 confers upon all the district courts "orginal jurisdiction of any action 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." Section 1391(e) deals with the problems of venue and service of process by providing:

"(e) A civil action in which each defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, may, except as otherwise provided by law, be brought in any judicial district in which: (1) a 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."

Although plaintiffs assert that this Court has jurisdiction with respect to their complaint against the Administrator pursuant to 28 U.S.C. § 1361, they do not claim, nor can they claim, the benefits of 28 U.S.C. § 1391(e), because this latter section only applies in civil actions in which each defendant is a federal official or agency.

The legislative history of 28 U.S.C. § 1391(e) provides no explanation for the requirement that "each" defendant must be a government official or agency. See S.Rep.No. 1992, supra, at 2784-2790. The wording does prevent the hardship which could result if a non-government defendant were subjected to the provision's liberal service of process and venue rules merely because the government was also joined as a defendant in the same action. But the wording does appear unnecessarily broad and without justification where there is independent authority for service of process and venue with respect to each non-government party joined as a defendant. The only possible argument in support of the requirement in such instances is that enough of a burden has been placed on government officials and agencies by subjecting them to suits away from their official residences without placing upon them the additional burden of defending a suit with non-government codefendants. The weakness of this argument is evident. The burden, if it is one at all, cannot be a great one and certainly is minor in comparison to the burden placed on the plaintiff of having to bring separate actions. At any rate, there is no indication that Congress was acting to avoid this additional burden upon the government.

Nevertheless, the Court has no choice in view of the unambiguous wording of the statute but to find that plaintiffs are not entitled to its benefits. See Lewis v. United States, 92 U.S. 618, 621 (1875); United States v. Turner, 246 F.2d 228, 230 (2 Cir. 1957).

Without 28 U.S.C. § 1391(e), plaintiffs remain confronted with the service of process and venue problems previously mentioned. See Alfonso v. Hillsborough County Aviation Authority, 308 F.2d 724 (5 Cir. 1962); United Publishing and Printing Corp. v. Horan, 268 F.Supp. 948 (D.Conn.1967); Taft Hotel Corporation v. Housing and Home Finance Agency, 162 F.Supp. 538, 539 (D.Conn.1958), aff'd, 262 F.2d 307 (2 Cir. 1958), cert. denied, 359 U.S. 967 (1957); Regina Cargo Airlines, Inc. v. CAB, 10 F.R.D. 628 (E.D.N.Y.1950).

Plaintiffs claim...