Appeal from an order of the United States District Court for the Southern District of New York, Hon. Charles S. Haight, Jr., judge, denying a motion pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5) to dismiss the two complaints as to defendant Goodwin for lack of personal jurisdiction. Reversed.
Before Smith, Mansfield and Mulligan, Circuit Judges.
In two actions brought in the United States District Court for the Southern District of New York individual plaintiffs complained that the defendants, former and present F.B.I. employees, either participated in or authorized the wiretapping of their conversations, the breaking and entering of their homes, and the opening of their mail in violation of 18 U.S.C. §§ 2511, 2520, the First, Fourth and Ninth Amendments, as well as the New York common law right of privacy. These allegedly unlawful activities by F.B.I. agents and employees relate to the investigation from 1970 through 1972 by "Squad 47", part of the Bureau's New York office into the "Weathermen", a group of persons considered to be radicals and terrorists. Among the defendants was Guy L. Goodwin, an attorney with United States Department of Justice in Washington, D.C. The complaints alleged that Goodwin, who had been chief of the special litigation section of the internal security division of the Justice Department at the time the allegedly unlawful acts had been committed, had been aware of these activities and had authorized and procured them. The plaintiffs sought damages as well as injunctive and declaratory relief.
In the Blackburn action, the defendant Goodwin was personally served with process in Washington, D.C. while in Cole he was served there by certified mail. The asserted bases for jurisdiction were 28 U.S.C. § 1391(e) and the New York "long-arm" statute, N.Y.C.P.L.R. § 302 (McKinney 1972 & 1978 Supp.). In the district court defendant Goodwin moved for an order dismissing the complaints as to him pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5) for lack of personal jurisdiction. The court below, Hon. Charles S. Haight, Jr., Judge, denied the motion, holding that section 1391(e) provided both venue and personal jurisdiction over the defendant Goodwin. An interlocutory appeal*fn1 was certified pursuant to 28 U.S.C. § 1292(b) since the order involved a controlling question of law, I. e., whether section 1391(e) provides a district court with venue and nationwide In personam jurisdiction in a personal damage action against a United States official in his individual capacity for allegedly illegal and unconstitutional acts committed during the course of his employment.*fn2
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, or an agency of the United States, or 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. 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, employees, or agencies 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.
Since this is a civil action brought against an officer or employee of an agency of the United States and plaintiffs all allege residence in the Southern District of New York, and since service, although not made personally in the Southern District, was in conformity with the statute, it would appear at first blush that Judge Haight reached a proper conclusion and indeed one previously reached by two courts of appeals in other circuits. Driver v. Helms, 577 F.2d 147, 154-56 (1st Cir. 1978), cert. granted sub nom. Colby v. Driver, 440 U.S. 953, 99 S. Ct. 1490, 59 L. Ed. 2d 767 (1979); Briggs v. Goodwin, 186 U.S.App.D.C. 170, 176-177, 569 F.2d 1, 7-8 (D.C. Cir. 1977), cert. granted sub nom. Stafford v. Briggs, 439 U.S. 1113, 99 S. Ct. 1015, 59 L. Ed. 2d 71 (1979).*fn3 Although the case is not without difficulty, we are persuaded that section 1391(e) does not apply here. Accordingly, we reverse the order of the district court and dismiss both complaints as to the appellant Goodwin for lack of personal jurisdiction.
We commence by observing that although this precise issue has not previously been before us, we have construed section 1391(e) in the past. In Natural Resources Defense Council, Inc. v. Tennessee Valley Authority, 459 F.2d 255, 258 (2d Cir. 1972), Judge Friendly cautioned:
§ 1391(e) was not the whole statute which Congress enacted in 1962. It was the second section, the first being what has been codified as 28 U.S.C. § 1361, And the two must be read together. (Emphasis supplied.)*fn4
Sections 1361 and 1391(e) were enacted together as part of the Mandamus and Venue Act of 1962 (the Act). Pub.L. 87-748, § 2, 76 Stat. 744. Section 1361 provides that "(t)he district courts shall have original 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." The overall purpose of the Act was stated in the House and Senate reports as follows:
The purpose of this bill . . . is to make it possible to bring actions against Government officials and agencies in U.S. district courts outside the District of Columbia, which, because of certain existing limitations on jurisdiction and venue, may now be brought only in the U.S. District Court for the District of Columbia.
H. Rep. No. 536, 87th Cong., 1st Sess. 1 (1961) (hereinafter House Report); S. Rep. No. 1992, 87th Cong., 2d Sess. (1962), in 1962 U.S. Code Cong. & Admin. News, pp. 2784, 2785 (hereinafter Senate Report).
The "existing limitations on jurisdiction and venue" which the Act was designed to cure have been recounted by Judge Friendly in Liberation News Service v. Eastland, 426 F.2d 1379, 1383 (2d Cir. 1970) and in Natural Resources Defense Council, Inc. v. Tennessee Valley Authority, supra, 459 F.2d at 258-59. The problem began with M'Intire v. Wood, 11 U.S. (7 Cranch) 504, 3 L. Ed. 420 (1813), where the Supreme Court held that lower federal courts lacked mandamus jurisdiction over federal officers. In Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 9 L. Ed. 1181 (1838), the Court remedied the situation somewhat by holding that mandamus actions could be heard in the Circuit Court for the District of Columbia. In order to avoid the jurisdictional limitations of M'Intire, plaintiffs sought injunctive rather than mandamus relief against federal officers. However, this procedure was burdened by the requirement that the official's superior officer, who usually resided in Washington, D.C., be joined as an indispensable ...