United States v. Underwood

577 F.2d 157
CourtCourt of Appeals for the First Circuit
DecidedJune 23, 1978
DocketNo. 77-1541
StatusPublished
Cited by6 cases

This text of 577 F.2d 157 (United States v. Underwood) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Underwood, 577 F.2d 157 (1st Cir. 1978).

Opinion

COFFIN, Chief Judge.

Plaintiffs-appellees brought this action in 1975 in the federal district court for the district of Rhode Island on behalf of themselves and others similarly situated. Their complaint alleges that the defendants-ap[149]*149pellants1 illegally interfered with their mail, thereby violating appellees’ rights under the First, Fourth, Fifth, and Ninth Amendments. The suit seeks damages and declaratory and injunctive relief. Subject matter jurisdiction was invoked under 28 U.S.C. §§ 1331(a), 1339, 1343, 1361, and 5 U.S.C. § 702.

Appellants are 25 present or former United States government officials, each sued in his individual and in his official or former official capacity. One of the named plaintiffs, Driver, lives in Rhode Island,2 but none of the appellants reside in or have substantial contacts with Rhode Island, and the complaint does not allege that any illegal activity occurred in Rhode Island.3 Therefore, venue is not proper under 28 U.S.C. § 1391(b), and, since none of the appellants were served within Rhode Island,4 service of process was inappropriate under F.R.Civ.P. 4(f).

Appellees invoke 28 U.S.C. § 1391(e) to support venue and service of process:5

“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.”6

Appellants filed motions to dismiss under Federal Rules of Civil Procedure 12(b)(2) (lack o:” jurisdiction over the person), 12(b)(3) (improper venue), and 12(b)(4) (insufficiency of process). The district court denied these motions, but certified that the questions involved controlling issues of law as to which there is substantial ground for difference of opinion and that an immediate appeal could materially advance the litigation. Driver v. Helms, 74 F.R.D. 382, 401-02 (D.R.I.1977). We thus have appellate jurisdiction under 28 U.S.C. § 1292(b).

Appellants argue that 28 U.S.C. § 1391(e), contrary to the holding of the district court, does not give venue to the district court in Rhode Island, does not give the court jurisdiction over the persons of the appellants, and does not authorize the service of process on these appellants. They argue that reliance on § 1391(e) is misplaced because that section does not apply to former officials, does not apply to suits against officials for damages in their individual capacities, and does not independently supply in personam jurisdiction.

THE FORMER OFFICIALS

Ordinarily the plain meaning of the language of a statute is controlling. See [150]*150Massachusetts Financial Services, Inc. v. Securities Investor Protection Corp., 545 F.2d 754, 756 (1st Cir. 1976). Section 1391(e) applies, by its terms, when a “defendant is an officer or employee of the United States . . . acting in his official capacity or under color of legal authority . . . .” (emphasis added) Because the operative language is in the present tense, we read the section to exclude a defendant who was an officer or employee.

“Of course, deference to the plain meaning rule should not be unthinking or blind. We would go beyond the plain meaning of statutory language when adherence to it would produce an absurd result or ‘an unreasonable one “plainly at variance with the policy of the legislation as a whole.” ’ ” Massachusetts Financial Services, supra, 545 F.2d at 756, quoting United States v. American Trucking Ass’ns, Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940), quoting Ozawa v. United States, 260 U.S. 178, 194, 43 S.Ct. 65, 67 L.Ed. 199 (1922); cf. Natural Resources Defense Counsel v. TVA, 459 F.2d 255, 257 (2d Cir. 1972) (eschewing the “tyranny of literalness”).7 We do not, however, find any indication in the statute itself or in the legislative history that former officials were meant to be included. We are not alone in this conclusion. See Kipperman v. McCone, 422 F.Supp. 860, 876 (N.D.Cal.1976); Wu v. Keeney, 384 F.Supp. 1161, 1168 (D.D.C.1974).

The cases that have reached a contrary result have decided that excluding former officials would undercut the policies of § 1391(e). See Driver v. Helms, supra,

74 F.R.D. at 398-400; United States v. McAninch, 435 F.Supp. 240, 245 (E.D.N.Y. 1977); Lowenstein v. Rooney, 401 F.Supp. 952, 962 (E.D.N.Y.1975). We do not think it absurd or plainly at variance with the policies of § 1391(e) to limit it to those who are government officials at the time the action is brought.8 We are unimpressed by the specter of government officials resigning their positions simply because they fear an action might be brought against them. As the court below noted, resignation would not terminate their liability. See Driver v. Helms, supra, 74 F.R.D. at 399-400. The most an official could gain would be to avoid venue in the district where a plaintiff lives. A career in government service is, one would think, a disproportionate sacrifice to make for so small a gain. Moreover, we are not persuaded that Congress’ desire “to provide readily available, inexpensive judicial remedies for the citizen who is aggrieved by the workings of Government”, H.Rep. No. 536, 87th Cong., 1st Sess. 3 (1961) [hereinafter referred to as House Report], indicates that Congress meant § 1391(e) to provide a net that could draw everyone connected with a governmental action into litigation in a particular district.

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United States v. John Underwood
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577 F.2d 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-underwood-ca1-1978.