Blackmar v. Guerre
(342 US 512, 96 L ed 534, 72 S Ct 410)
[342 U.S. 512]
ARMAND EDWARD BLACKMAR, Petitioner,
L. F. GUERRE, Manager, Veterans Administration, Regional
Office No. 3021, New Orleans, Louisiana, et al.
SUMMARY OF DECISION
A federal district court in Louisiana was held, in an opinion by MINT0N, J., in which seven justices concurred, to be without jurisdiction of an action by a discharged employee of the regional office of the Veterans Administration in Louisiana against the Civil Service Commission and the regional manager of the Veterans Administration, to obtain reinstatement. The ground of decision was that the Civil Service Commission is not a suable entity and that its members were never served and could not be served within the territorial jurisdiction of the court.
BLACK, J., dissented without opinion.
Classified to U.S. Supreme Court Digest, Annotated
Pleading §§ 103, 213, 214 - defenses of lack of jurisdiction and improper venue - how raised.
1. The defenses of lack of jurisdiction over the person of defendants and improper venue are, under Rules of Civil Procedure No. 12(b), properly presented by motion to dismiss and by answer.
[96 L ed 534]
United States § 105(2) - Civil Service Commission - suability.
2. Authority to sue the United States Civil Service Commission as such is not conferred either by the provisions of the Hatch Act (5 USC § 118k(c)) for court review of determinations of the Commission, or by the provisions of the Administrative Procedure Act (5 USC §§ 1000 et seq.) for judicial review of administrative determinations.
[See annotation references 1-3.]
United States § 105(1) - suability of federal agencies.
3. Authority to sue a federal agency must be found in explicit language or in the fact that the agency is the offspring of a suable entity.
[See annotation reference 3.]
Argued January 30 and 31, 1952. Decided March 3, 1952.
ON WRIT of Certiorari to the United States Court of Appeals for the Fifth Circuit to review a judgment affirming an order of the District Court of the United States for the Eastern District of Louisiana dismissing a suit for improper venue and lack of jurisdiction. Affirmed.
See same case below, 190 F2d 427.
Rene R. Nicaud, of New Orleans, Louisiana, argued the cause, and, with Conrad Meyer III and Hugh H. Brister, also of New Orleans, Louisiana, filed a brief for petitioner:
The United States Civil Service Commission is to be considered present and suable in New Orleans as well as the District of Columbia, and on the question of venue (i. e., the place where the action may be brought) for the review of the administrative proceedings, the controlling provision is not the general venue statute 28 USC § 1391 (b), but the particular and express provision of § 10 (b) 5 USC § 1009 (b) of the Administrative Procedure Act, which clearly does permit the action to be brought in the District Court for the Eastern District of Louisiana since it is a court of competent jurisdiction.
The service effected on the Civil Service Commission through its Regional Manager in New Orleans was proper service on the Commission. See Federal Rules of Civil Procedure, Rule 4 (d), (4), (5). Cf. Seven Oaks, Inc. v. Federal Housing Administration (CA 4th Va) 171 F2d 947.
The Civil Service Commission waived its objection to venue or personal jurisdiction.
By the Administrative Procedure Act, Congress recognized the responsibility of the United States Government for the arbitrary or unlawful acts of its administrative agencies and consented to action for the judicial review and redress thereof in its courts. See United States v. Yellow Cab Co. 840 US 543, 95 L ed 523, 71 S Ct 899; Keifer & Keifer v. Reconstruction Finance Corp. 306 US 881, 88 L ed 748, 59 S Ct 516; Federal Housing Administration v. Burr, 309 US 242, 84 L ed 724, 60 S Ct 488; Reconstruction Finance Corp. Vb J. G. Menihan Corp. 312 US 81, 85 L ed 595, 615 Ct 485.
The Civil Service Commission is a legal entity. See 5 USC 868. Cf. Texas & P. R. Co. v. Interstate Commerce Corn. 162 US 197, 40 L ed 940, 16 S Ct 666; Federal Housing Administration v. Burr, 309 US 242, 84 L ed 724, 60 S Ct 488; Seven Oaks, Inc. v. Federal Housing Administration (CA7th Wis) 171 F2d 947; Robertson v. Railroad Labor Board, 268 US 619, 69 L ed 1119, 45 S Ct 621; Bradley Lumber Co. v. National Labor Relations Board (CA 5th) 84 F2d 97; Wages v. United States
1. On construction and application of Administrative Procedure Act, see annotations in 94 L ed 631 and 95 L ed 473.
2. On constitutionality and construction, as to nature of review of statute providing for appeal to or review by court of order of civil service commission, see annotation in 125 ALR 263.
3. On suit against federal officers or agents as suit against United States, see annotations in 58 L ed 92 and 62 L ed 756.
[96 L ed 535]
Civil Service Com. (CA6th Tenn) 170 F2d 182.
The Hatch Act authorizes the bringing of the review action at the plaintiff's residence, but makes no provisions for extraterritorial service. Therefore, when it requires service of the petition for review on the Commission, Congress necessarily shows that it considers the Commission present and subject to service in each of the United States.
Benjamin Forman, of Washington, D. C., argued the cause, and, with Solicitor General Penman, Assistant Attorney General Holmes Baldnidge, and Samuel D. Slade, also of Washington, D. C., filed a brief for respondent:
Under Williams v. Fanning, 332 US 490, 92 L ed 95, 68 S Ct 188, and earlier cases, it is clear that the Civil Service Commission is an indispensable party to this suit.
Since the official residence of the Commission is in the District of Columbia, venue as to the Commission cannot properly be laid in the Louisiana District Court. See Butterworth v. Hill, 114 US 128, 29 L ed 119, 5 S Ct 796; Hunter v. United States (CA 4th NC) 183 F2d 446; Podovinnikoff v. Miller (CASd Pa) 179 F2d 937; Benlinsky v. Woods (CA4th Md) 178 F2d 265, cert den 339 US 949, 94 L ed 1363, 70 S Ct 805; Connor v. Miller (CA2d NY) 178 F2d 755; United States Dept. of Agriculture v. Hunter (CA5th Tex) 171 F2d 793; Daggs v. Klein (CA9th Cal) 169 F2d474, cert den 335 US 908, 93 Led 441, 69 S Ct 411; Clement Martin, Inc. v. Dick Corp. (DC Pa) 97 F Supp 961; Stamatiou v. Miller (DC Pa) 88 F Supp 556; Isthrnian S. S. Co. v. Le Baron (DC NY) 72 F Supp 223; Mission Beverage Co. v. Porter (DC NY) 72 F Supp 568; Olin Industries v. National Labor Relations Board (DC Mass) 72 F Supp 225; Olson v. Porter (DC Wis) 68 F Supp 240; Wisconsin Restaurant Asso. v. Porter (DC Wis) 68 F Supp 239; Tribal Council of Blackfeet Indian Reservation v. Ickes (DC Mont) 58 F Supp 584; Hartmann v. Federal Reserve Bank (DC Pa) 55 F Supp 801; Scientific Mfg. Co. V. Walkter (DC Pa) 40 F Supp 465; Ernest v. Fleissner (DC Wis) 38 F Supp 326; Smith v. Farley (DC NY) 38 F Supp 1012; Juell v. Commissioner of Immigration & Naturalization (DC NY) 37 F Supp 333, mod on other grounds (CA2d) 121 F2d 728; Canon v. Robertson (DC Md) 32 F2d 295, mod on other grounds Senitha v. Robertson (CA4th) 45 F2d 51. The only court which would have jurisdiction in personam over the Commission is the District Court for the District of Columbia. See Butterworth v. Hill, 114 US. 128, 29 L ed 119, 5 S Ct 796; Podovinnikoff v. Miller (CA3d Pa) 179 F2d 937; Putnam v. Ickes, 64 App DC 339, 78 F2d 223, cert den 296 US 612, 80 L ed 434, 56 S Ct 132; Appalachian Electric Power Co. v. Smith (CA4th Va) 67 F2d 451.
Assuming that this suit is against the respondents as individual officers acting in excess of statutory authority, the suit can be maintained only in the District Court for the District of Columbia.
Since service by mail upon the Commission in Washington, D. C., was àervice outside the territorial limits of Louisiana, and no statute of the United States provides for service, in cases such as the one at bar, anywhere in the United States, such attempted service was invalid under Rule 4 (f) as well as under Rule 4 (d). See Robertson v. Railroad Labor Board, 268 US 619, 69 L ed 1119, 45 S Ct 621; Munter v. Weil Corset Co. 261 US 276, 67 L ed 652, 43 S Ct 347; Foster-Milburn Co. v. Knight (CA2d NY) 181 F 2d 949; Love v. Royall (CA8th Minn) 179 F2d 5; Berlinsky v. Woods (CA 4th Md) 178 F2d 265, cert den 339 US 949, 94 L ed 1363, 70 S Ct 805; Connor v. Miller (CA2d NY) 178 F2d 755; Eighth Regional War Labor Board v. Humble Oil & Refining Co. (CA5th Tex) 145 F2d 462, cert den 325 US 883, 89 L ed 1998, 65 S Ct 1577; Blank v. Bitker (CA7th Ill) 135 F2d 962; Putnam v. Ickes, 64 App DC 839, 78 F2d 223, cert den 296 US 612, 80 L ed 484, 56 S Ct 132; Appalachian Electric Power Co. v. Smith (CA4th Va) 67 F2d 451 - all holding that process cannot run outside the court's jurisdiction.
Service upon a subordinate official of an agency could constitute proper service only if that official were authorized specifically by appointment or by law to accept service of process. See Olin Industries v. National Labor Relations Board (DC Mass) 72 F Supp 225; Waterman v. Somervell (DC NY) 34 F Supp 695, cert den 317 US 630, 87 L ed 508, 63 S Ct 48, reh den 317 US 710, 87 L ed 566, 63 S Ct 255, 318 US 798, 87 L ed 1162, 63 S Ct 527, and 320
[96 L ed 536]
US 214, 87 L ed 1851, 63 S Ct 1442; International Molders Union of North America v. National Labor Relations Board (DC Pa) 26 F Supp 428; Jamestown Veneer & Plywood Corp. v. National Labor Relations Board (DC NY) 13 F Supp 405; Regina Cargo Airlines, Inc. v. Civil Aeronautics Board (DC NY) 10 FRD 628; Mission Beverage Co. v. Porter (DC NY) 72 F Supp 568; Federal Landlords Committee, Inc. v. Woods (DC NY) 9 FRD 622. In the present case, there is no such authorization and petitioner points to none.
Because of these provisions in the Federal Rules of Civil Procedure and the traditional territorial limitations upon the exercise of in personam jurisdiction, it is clear that the only court which would have jurisdiction in personam over the Civil Service Commission is the District Court for the District of Columbia. See Smart v. Woods (CA6th Ohio) 184 F2d 714, cert den 340 US 936, 95 L ed 675, 71 S Ct 496; Hunter v. United States (CA4th NC) 183 F2d 446; Love v. Royall (CA 8th Minn) 179 F2d 5; Podovinnikoff v. Miller (CA3d Pa) 179 F2d 937; Berlinsky v. Woods (CA4th Md) 178 F2d 265, cert den 339 US 949, 94 L ed 1363, 70 S Ct 805; Connor v. Miller (CA2d NY) 178 F2d 755; United States Dept. of Agriculture v. Hunter (CA5th Tex) 171 F2d 798; Daggs v. Klein (CA9th Cal) 169 F2d 174, cert den 835 US 908, 93 L ed 441, 69 SCt 411; Mecartney v. Hoover (CA7th Iii) 151 F2d 694; Eighth Regional War Labor Board v. Humble Oil & Refining Co. (CA5th Tex) 145 F2d 462; Howard v. United States (CA10th Kan) 126 .F2d 667, cert den 816 US 699, 86 L ed 1768, 62 S Ct 1297, reh den 317 US 705, 87 L ed 563, 63 S Ct 25; Jewel Productions, Inc. v. Morgenthau (CA2d NY) 100 F2d 390; Abe Rafelson Co. v. Tugwell (CA 7th Ill) 79 F2d 653; Putnam v. Ickes, 64 App DC 389, 78 F2d 223, cert den 296 US 612, 80 L ed 484, 56 S Ct 182; Transcontinental & Western Air, Inc. v. Farley (CA2d NY) 71 F2d 288, cert den 293 US 608, 79 L ed 695, 55 S Ct 119; Appalachian Electric Power Co. v. Smith (CA4th Va) 67 F2d 451; Juell v. Commissioner of Immigration & Naturalization (DC NY) 87 F. Supp 533, mod on other grounds (CA3d) 121 F2d 728; Canon v. Robertson (DC Md) 32 F2d 295, mod on other grounds Senitha v. Robertson (CA4th) 45 F2d 51; Kentucky Natural Gas Corp. v. Public Service Com. of Kentucky (DC Ky) 28 F Supp 509, affd (CA6th) 119 F2d 417; Clement Martin, Inc. v. Dick Corp. (DC Pa) 97 F Supp 961; Mission Beverage Co. v. Porter (DC NY) 72 F Supp 568; New Amsterdam Casualty Co. v. United States (DC Pa) 71 F Supp 155; Olson v. Porter (DC Wis) 68 F Supp 240; Tribal Council of Blackfeet Indian Reservation v. Ickes (DC Mont) 58 F Supp 584; Totus v. United States (DC Wash) 39 F Supp 7; Ernest v. Fleissner (DC Wis) 38 F Supp 326; International Molders Union of North America v. National Labor Relations Board (DC Pa) 26 F Supp 423; Carr v. Desjardines (DC OkIa) 16 F Supp 346; Jamestown Veneer & Plywood Corp. v. National Labor Relations Board (DC NY) 13 F Supp 405; Eng Kam v. McGrath (DC Wash) 10 FRD 135; Regina Cargo Airlines, Inc. v. Civil Aeronautics Board (DC NY) 10 FRD 628; Federal Landlords Committee, Inc. v. Woods (DC NY) 9 FRD 622; Klein v. Hines (DC Ill) 1 FRD 649.
Respondents did not waive their defenses of improper venue, lack of jurisdiction in personam, and want of jurisdiction to grant the relief requested.
As a factual matter, it is clear that the respondents did not intend to waive the defenses of improper venue and want of jurisdiction. Apart from this factual absence of intent to waive these defenses, it is clear that respondents did not waive them as a matter of law. Rule 12 (b) of the Federal Rules of Civil Procedure expressly provides that objections to venue or jurisdiction may be made by answer or by motion. In this case, it was done by both.
Section 12 (c) of the Hatch (Political Activities) Act of 1939, as added by the Act of July 19, 1940, 54 Stat 767, 5 USC 118k (C), makes the Civil Service Commission a suable entity solely for the purposes of judicial review of determinations made by the Commission under § 12 (b) of that act, and the Commission is not otherwise suable as an entity.
That the scope of § 12 (C) is thus limited is apparent both from the internal.structure of the act as a whole and from the legislative history of § 12 (c). See United Public Workers v. Mitchell, 380 US 75, 91 L ed 754, 67 S Ct 556.
Congress made no provision for judicial review of orders of the Commission enforcing the provisions of § 9.
[96 L ed 537]
See United Public Workers v. Mitchell, 330 US 75, 91 L ed 754, 67 S Ct 556. Congress drew an express distinction between the rights of federal employees and state employees with respect to judicial review.
The Civil Service Commission is not a corporate agency of the United States, is not engaged in commercial activity, and has not been endowed by Congress with the power to sue and be sued.
Mr. Justice Minton delivered the opinion of the Court.
Petitioner, a veteran employed as authorization officer in the Regional Office of the Veterans Administra tion in New Orleans, was removed from his position. He appealed under § 14 of the Veterans' Preference Act of 1944 (5 USC (Supp IV) § 863) to the Tenth Regional Office of the United States Civil Service Commission in New Orleans. The Regional Board found that his discharge was not warranted and recommended that he be reinstated to his position. The Veterans Administration appealed to the Board of Appeals and Review of the Civil Service Commission in Washington.
The Commission reversed the Tenth Regional Board and so notified petitioner.
Petitioner then instituted this suit in the District Court for the Eastern District of Louisiana, naming as defendants Guerre, the Regional Manager of the Veterans Administration, who had first discharged him, and the United States Civil Service Commission. Guerre was served personally. Service on the Commission was sought through personal service on Weinstein, the United States District Attorney, and on Leach, the Regional Director of the Tenth United States Civil Service Region. Both Weinstein and Leach resided within the Eastern District of Louisiana. Service by registered mail was made in the District of Columbia upon the Attorney General of the United States and the United States Civil Service Commission.
Petitioner prayed for a judgment of the District Court setting aside and annulling his discharge by Guerre and the action of the Civil Service Commission confirming [342 U.S. 514] Guerre's action, and declaring that "plaintiff is entitled to an order from the United States Civil Service Commission directing Guerre to restore plaintiff to his aforesaid position" with back pay. Respondents appeared and filed a motion to dismiss because of improper venue and lack of jurisdiction. After this motion was overruled, respondents filed an answer raising, among other things, the same issues. On motions of both parties for summary judgment, the court sustained that of respondents, holding that it lacked jurisdiction over the persons of the Commissioners, who were not residents of the Eastern District of Louisiana and who were indispensable parties. The Court of Appeals affirmed on the ground that there was no venue in the District Court, without prejudice to further proceedings by petitioner in the proper venue. 190 F2d 427. We granted certiorari. 342 US 884, post, 663, 72 S Ct 176.
We do not reach the merits in this proceeding. We are met at the threshold with a challenge by motion and answer as to the venue and jurisdiction of the District Court of Louisiana to entertain this action.
Headnote 1 These defenses as to law and fact were properly presented in this manner. Fed Rules of Civ Proc 12(b).
If the Commission could be sued eo nomine, we would be confronted with the question of whether service as here made would be sufficient to bring the Commission into court; but Congress has not constituted the Commission a body corporate or authorized it to be sued eo nomine.
It is suggested that such authorization is given by the Hatch Act. (1)
[96 L ed 538]
Headnote 2 Not so. While § 118k(c) of 5 USC does provide that a state officer or employee found to have violated § 118k (b) may obtain review in the District Court of the district in which he resides, this is not authorization for a new proceeding against the Civil Service Commission. [342 U.S. 515] It is authorization only for a transfer of the case from the Commission to the District Court - a continuation of the same proceeding before another tribunal. Review is instituted by petition and notice to the Commission, which is directed by the Act to file a transcript of the record in the case in the District Court. The court reviews the case on the old record, with the right to hear further evidence. Even this limited review is not afforded federal employees found to have violated §118(i). Thus, by no stretch of the imagination can the limited review granted state employees by the Hatch Act be deemed an authorization by Congress for the present suit against the Commission. When Congress authorizes one of its agencies to be sued eo nomine, it does so in explicit language, or impliedly because the agency is the offspring of such a sueable entity. See Keifer and Keifer v. Reconstruction Finance Corp. 306 US 381, 390, 83 L ed 784, 789, 59 S Ct 516.
Headnote 3 Since the Civil Service Commission is not a corporate entity which Congress has authorized to be sued, a suit involving the action of the Commission generally must be brought against the individual Commissioners as members of the United States Civil Service Commission.
No such suit was brought here, and no service was had upon the individuals comprising the Civil Service Commission. Therefore, neither the individuals comprising the Civil Service Commission nor the Commission as a suable entity was before the District Court. We do not have a question of venue as to defendants until we have defendants before the court. The only defendant before the court was Guerre. The venue as to him was all right, but it is obvious no relief can be granted against him.
It is further suggested that judicial review is authorized by the Administrative Procedure Act, 5 USC §§ 1001 et seq. Certainly there is no specific authorization in that Act for suit against the Commission as an entity. Still [342 U.S. 516] less is the Act to be deemed an implied waiver of all governmental immunity from suit. If the Commission's action is reviewable under § 1009, (2) it is reviewable only in a court of "competent jurisdiction." Assuming, without deciding, that Commission action is reviewable by court action under §1009, it must follow that review must be in that district where the Commissioners can be served. Since we have held that the Civil Service Commission is not an entity that may be sued anywhere it may be functioning but only the Commissioners may be sued where they can be served, § 1009 does not aid petitioner in an action brought in Louisiana. The courts of the District of Columbia are the only courts of "competent jurisdiction" to reach the members of the Civil Service Commission.
Since the members of the Civil
"Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion- "(a) Right of review.
"Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.
"(b) Form and venue of proceedings. "The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action . . in any court of competent jurisdiction …
[96 L ed 539]
Service Commission were never served, and could not be served, in the District Court for the Eastern District of Louisiana, and the Civil Service Commission is not a corporate entity, it follows that the only defendant before the court was Guerre, and, as we have pointed out, no relief could possibly be granted against him in these proceedings, the judgment is
Mr. Justice Black dissents.
[96 L ed 540]