Schenker v. United States Parole Commission

85 F.R.D. 696, 1980 U.S. Dist. LEXIS 10341

• Court: District Court, D. Colorado
• Decided: March 5, 1980
• Docket: Civ. A. No. 79-K-985
• Status: Published

Opinion

ORDER

KANE, District Judge.

The above-entitled action seeks to recover monetary damages for alleged violation of plaintiff’s constitutional rights under the Fifth and Eighth Amendments. Defendants are the United States Parole Commission and named individual members of that commission.

It is unclear to what extent plaintiff seeks to recover monetary damages from the parole commission as an entity, but plaintiff has not cited any authority which provides an exception to the protection which sovereign immunity affords the United States and its agencies from suits in which “the judgment sought would expend itself on the public treasury . . .,” Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947). See also Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).

Plaintiff also seeks to recover damages from named individual members of the commission. Plaintiff bases subject matter jurisdiction on 28 U.S.C. § 1331. Defendants allege that this court does not have personal jurisdiction over them and that venue is not proper. Plaintiff apparently relies most heavily on Section 2 of the Mandamus and Venue Act of 1962, 28 U.S.C. § 1391(e). A recent decision of the United States Supreme Court, Stafford v. Briggs, - U.S. -, 100 S.Ct. 774, 63 L.Ed.2d 1 (1980), makes it clear that that reliance is now misplaced, since the court has concluded that § 1391(e) does not apply to actions for monetary damages brought against federal officials in their individual capacities.¹

Plaintiff has mentioned F.R.Civ.P. Rule 4(d), subsections (4) and (7), as providing for service of process and the acquisition of jurisdiction over the named individual defendants.² Rule 4(d)(4) does not apply, since these defendants are being sued in their individual capacities. In such cases, service must be according to Rule 4(d)(1). The provisions in Rule 4(d)(7) also do not apply, since no federal statute other than the Mandamus and Venue Act has been cited as providing an alternative manner of service of process. In addition, out-of-state service under the Colorado Rules of Civil Procedure, which is the applicable law of the forum state, allows service by mail or publication only in regard to in rem proceedings; otherwise, service must be by personal delivery. See C.R.Civ.P. Rule 4(f).

The question of proper venue is controlled by 28 U.S.C. § 1391(b). None of the named individual defendants reside in this district, and there is no indication that this is where the claim arose. Accordingly,

IT IS ORDERED that the claims for monetary damages against the United States Parole Commission be and hereby are dismissed, as barred by the doctrine of sovereign immunity.

IT IS FURTHER ORDERED that the claims for monetary damages against the named individual members of the United States Parole Commission be and hereby are dismissed, on the grounds of absence of jurisdiction over their persons, insufficient service of process, and improper venue. This civil action is dismissed with each party to bear his, her or its own costs.

2 . While it is clear that personal jurisdiction and service of process are two different things, “ ‘[S]ervice of process is the vehicle by which the court may obtain jurisdiction.’ ” Driver v. Helms, 577 F.2d 147, 155 (1st Cir. 1978), rev’d Stafford v. Briggs, - U.S. -, 100 S.Ct. 774, 63 L.Ed.2d 1 (1980).

1 . While Chief Justice Burger, writing for the majority, framed the question at page one of the slip opinion as one of venue, the opinion, as well as § 1391(e) itself, is clear that service of process and personal jurisdiction are also affected.