UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
October 16, 1978
ALEXANDER HAIG, LIEUTENANT GENERAL, UNITED STATES ARMY, ET AL.
Before BAZELON, TAMM and ROBINSON, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
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
No. 75-2006 1978.CDC.177
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 75-0271).
Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON
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. *fn1 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. *fn2 The District Court dismissed the action for lack of venue *fn3 under 28 U.S.C. 1391, *fn4 and expressly declined to rule on other procedural objections advanced by appellees. *fn5
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. *fn6 We find, however, that ambiguity in appellants' complaint precludes determination of whether Section 1391(b) bestows venue over claims against the remaining appellees. *fn7 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. *fn8 I. SECTION 1391(e) VENUE
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. *fn9
Very recently, in Briggs v. Goodwin, *fn10 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. *fn11 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. *fn12 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.
A. The Statutory Text
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 *fn13 is either (a) "an officer or employee of the United States or (some) agency thereof," *fn14 or (b) "an agency of the United States" *fn15 or (c) "the United States" itself. *fn16 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." *fn17 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, *fn18 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." *fn19 The second is where "the cause of action arose." *fn20 The third is where "any real property involved in the action is situated" *fn21 or, if none is involved, where "the plaintiff resides." *fn22
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" *fn23 an action against a federal defendant just described but its instruction regarding venue with respect to "additional 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." *fn24 So, while Section 1391(e) has provided specially for and, indeed, has broadened *fn25 venue vis-a-vis the federal defendants it designates, the conditions conferring venue as to an "additional person " must also exist before that person may be joined in the litigation. *fn26 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 "additional person," there must be proper venue as specified in the pertinent statutes as to each. *fn27
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 "additional persons" must conform to standard practice, *fn28 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. *fn29 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." *fn30
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," *fn31 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. *fn32
B. The Legislative History
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," *fn33 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." *fn34
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." *fn35 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 litigation in a particular district. . . . " *fn36 We are mindful that legal representation at governmental expense is frequently, though discretionarily, extended to those who were in federal employ in the past. *fn37 But, counsel fees aside, defense of a damage action is hardly a desired experience, and its situs in a distant forum may well entail an appreciable disruption of the defendant's ongoing affairs. *fn38 A congressional determination to treat burdens of that magnitude as incidents of current federal service is not readily transferable to actions against those who have shed the mantel of federal office. *fn39
C. The Sum of Relevant Considerations
Confronted, then, with a relatively unambiguous statute, an absence of any specific indication of congressional intent to deny erstwhile federal officials the venue protection traditionally afforded defendants, and a general statutory design largely unadaptable to the context of the present controversy, our course seems relatively clear. However the inclusion of former federal officeholders within the purview of Section 1391(e) may fare on the scale of wisdom, the judgment was one for Congress to make, and we are constrained to acknowledge their exemption.
Our conclusion draws strong support from the well considered decision of the only other federal appellate court to address the issue thus far. Recently, in Driver v. Helms, *fn40 the First Circuit endorsed our determination in Briggs *fn41 that Section 1391(e) embraces actions for money damages but ruled that it does not extend to suits against those no longer in federal employment. Moreover, our holding today was foreshadowed, if not compelled, by one of our earlier pronouncements on the subject. We had occasion to construe Section 1391(e) in Relf v. Gasch, *fn42 which involved a transfer of civil litigation purportedly under authority of 28 U.S.C. § 1404(a) to a district "where it might have been brought." *fn43 The Relf plaintiffs pressed a claim for damages against present and past federal officials not only for misuse of authority but also for purely personal conduct. *fn44 Insofar as the plaintiffs sought relief for activities of the latter sort, we doubted that Section 1391(e) authorized venue in or service of process from the transferee court. *fn45 Even "apart from the inefficacy of process available in (the transferee) district for any defendant sued only in a purely personal role," *fn46 we pointed out that the departure of some of the defendants from federal service prior to institution of suit "increased the likelihood that they were not amenable to service of process from" (the transferee) court. *fn47 Personal jurisdiction over the defendants in Relf could have rested only on Section 1391(e) or on the defendants' presence in the transferee district, and on the record the latter seemed improbable. We remanded the case to enable amendments to the complaint for the purpose of developing a more complete basis for determining whether venue was proper and personal jurisdiction existed in the transferee district. *fn48
We now reaffirm Relf and explicitly hold that former federal officers and employees are beyond the reach of Section 1391(e). *fn49 That does not mean that the section is completely inapplicable to the case at bar, for one or more appellees remained in federal employ at the time appellants' suit was filed. *fn50 Section 1391(e) furnished venue for the action against those appellees and, as we have said, it specifically authorizes joinder of additional persons as parties if venue requirements otherwise applicable are met. *fn51 The only possible alternative basis for venue, however, is Section 1391(b), a general provision pertaining to civil litigation not resting jurisdictionally on diverse citizenship. Since the District court ruled broadly here that venue did not lie in the District of Columbia under Section 1391, *fn52 we must review the determination, implicit in its dismissal of appellants' lawsuit, with respect to Section 1391(b). II. VENUE UNDER SECTION 1391(b)
In Section 1391(b) Congress ordained:
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. *fn53
As some of those made defendants to this litigation did not reside in the District of Columbia, venue under Section 1391(b) is proper only if it is a district "in which the claim arose." At first blush that might appear to be a determination easy enough to make but, though simply phrased, this component of Section 1391(b) has sometimes proved puzzling in application for two principal reasons. In the first place, Congress did not supply any particular definition of the language "in which the claim arose," either in statutory text or in pertinent legislative history, and no black-letter rule is derivable from other legal contexts in which that phraseology is employed. *fn54 Perhaps more seriously, the reference to "The judicial district" in which the claim arose might suggest that only a single district can satisfy the statutory standard with respect to any given claim. Though resort to familiar common law theories might furnish a reasonable ground for selection of a particular district in uncomplicated tort or contract actions, *fn55 choice of a single district is a much more difficult undertaking when sophisticated multistate activities of relative complexity are in issue. *fn56
The legislative history of Section 1391(b), by its very generality, is helpful in the resolution of the problem. The portion of Section 1391(b) extending venue to a district "in which the claim arose" was added by amendment in 1966, *fn57 and the resulting "enlargement of venue" was intended merely to "facilitate the disposition of . . . claims by providing, in appropriate cases, a more convenient forum to the litigants and the witnesses involved." *fn58 The legislative concern was pragmatic: Since the place where the claim arose is the situs of events important to the case, Congress undertook "to facilitate the administration of justice " *fn59 by permitting suit in a district where the litigation might more handily progress. *fn60
This practical orientation of Section 1391(b), then, counsels against adherence to mechanical standards in its application. *fn61 Rather, where "the claim arose" should in our view be ascertained by advertence to events having operative significance in the case, and a commonsense appraisal of the implications of those events for accessibility to witnesses and records. *fn62 And, though a proliferation of permissible forums is staunchly to be avoided, *fn63 it is evident that the often unfruitful pursuit of a single locality as the one and only district in which the claim arose is not needed to ensure the efficient conduct of the litigation. Not surprisingly, then, courts in some number have construed Section 1391(b) as conferring venue in a district where a substantial portion of the acts or omissions giving rise to the actions occurred, notwithstanding that venue might also lie in other districts. *fn64 We endorse that interpretation wholeheartedly. So long as the substantiality of the operative events is determined by assessment of their ramifications for efficient conduct of the suit *fn65 an important step upon which we would unfailingly insist loyalty to the objectives of Section 1391(b) will be amply preserved. *fn66 We come, then, to the question whether the case at bar can pass muster on that basis.
Appellants seek damages for depredations assertedly inflicted in violation of 18 U.S.C. § 138567 and the Due Process Clause of the Fifth Amendment. They aver an appropriation of military equipment and a deployment of military personnel for the purpose of executing the laws in and around the Village of Wounded Knee.68 Consonantly with the principles we have delineated, Section 1391(b) venue of appellants' claims would lie in the District of Columbia if appellees' liability expectably could be established in substantial part by proof of acts or omissions occurring here. Success in that endeavor would depend, however, upon appellants' ability to demonstrate proper venue with respect to each cause of action69 and each appellee.70
Appellants' complaint makes evident that in some appreciable measure defendants' allegedly unlawful activities happened in South Dakota. Indeed, Wounded Knee will long be remembered for the notorious conflagration occurring there. But appellants tell us that events having a major role in the putatively illegal operations took place in the District of Columbia. In their brief, they state that "Washington was "command central' for the Wounded Knee seige (Sic )";71 they insist that "it was there that the conspiracy for execution of that scheme was developedit was from Washington that the critical orders, authorizations, and instructions issued throughout the seige (Sic ), and it was to Washington that the principal on-site officials periodically returned for consultation and strategy sessions with the officials who held in their Washington offices the ultimate operational control."72
Since appellants do not contend that the asserted conspiracy itself is civilly actionable,73 the mere fact that the conspiracy was formulated in the District of Columbia may bear little significance for potential liability of any appellee whose own contribution to its consummation was confined wholly to South Dakota. At the moment, however, there is no call for a decision on Section 1391(b) venue with respect to any particular appellee. To begin with, the record on appeal, as we shall shortly see, lacks the information vital to individual determinations. Moreover, appellees who assertedly exercised "operational control" from the District of Columbia may be legally accountable even absent willful participation by others in South Dakota. Consequently, appellants might be able to establish liability on the part of "operational controllers" by proof that in substantial part their activities occurred within the District of Columbia.74 That could be true even as to appellees whose connection with the Wounded Knee affair was limited to planning in the District of Columbia.
The problem, however, is that appellants' complaint does not explicate the claims indicated more comprehensively in their brief before this court. Although conferences and other conduct related to the conspiracy were chronicled in the complaint, with rare exception the locus of those activities does not appear. We thus are unable to appraise the tenor and extent or the implications for facility of this litigation of events that may have taken place in the District of Columbia, and the same disability may well have precluded a considered judgment by the District Court. In these circumstances, we think appellants should have the opportunity to amend the complaint to specify more clearly which of the asserted activities transpired here and which appellees are thought to have had a hand therein.75 Then, in light of the amendments and our construction of Section 1391(b), the District Court can more soundly determine whether and to what extent venue may be proper under that section.76
The judgment dismissing appellants' suit for want of proper venue is accordingly vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion.