United States Court of Appeals, Second Circuit.: No. 861, Docket 82-2255
United States Court of Appeals, Second Circuit.: No. 861, Docket 82-2255
United States Court of Appeals, Second Circuit.: No. 861, Docket 82-2255
2d 29
The individual defendants in this action, who were members of the United
This action was commenced in 1978 by plaintiffs Theodore Green and Daniel
Porter, who were then inmates at FCI Danbury and whose parole grants had
been rescinded by the Commission, allegedly pursuant to its judiciallydisapproved procedures, resulting in delays in the releases of Green and Porter
of 68 days and 372 days, respectively. The complaint, filed as a class action,
seeks (1) a writ of mandamus compelling the Commission and the
Commissioners to cease violating the constitutional rights of the plaintiffs and
others similarly situated, and to take certain affirmative steps to protect those
rights, (2) a declaratory judgment that regulations followed by the Commission,
to wit, 28 C.F.R. Sec. 2.34, 42 Fed.Reg. 39,817 (1977), are unconstitutional,
and (3) compensatory and punitive damages from the Commissioners in their
individual capacities, in accordance with Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29
L.Ed.2d 619 (1971).
In answering the complaint in 1978, the Commissioners asserted, inter alia, that
the court lacked jurisdiction over them except in their official capacities. In
1981, they moved for a preliminary determination of their defenses of lack of
personal jurisdiction and improper venue as to the claims against them in their
individual capacities. Relying on Stafford v. Briggs, 444 U.S. 527, 100 S.Ct.
774, 63 L.Ed.2d 1 (1980), the Commissioners contended that Sec. 1391(e)
allows nationwide service of process and expanded venue only with respect to
claims against federal officials in their official capacities, and not with respect
to damages claims against them in their individual capacities. In response to this
motion, plaintiffs moved for, and were granted, permission to serve process on
the Commissioners pursuant to the Connecticut long-arm statute,4
Conn.Gen.Stat. Sec. 52-59b.5
7
Title
28, U.S.C. Sec. 4203 indicates that hearing examiners are subordinates who act
with the Commissioners' knowledge and consent, and for their benefit. Without the
former, the latter would simply be unable to discharge their statutory duties.
Examiners, moreover, do not appear to possess rulemaking authority, but must
follow instructions given by the Commissioners, who alone are empowered to
render decisions.
8
There is direct evidence in this case that the hearing examiners at FCI Danbury
were aware of this and, therefore, despite knowledge of case law by federal
courts in this district, instead followed contrary instructions given by the
defendants.... In doing so, it hardly can be said they were acting in behalf of the
government and that "[o]nly the United States government acting in the public
interest stood to benefit." Compare Marsh v. Kitchen, 480 F.2d 1270, 1273 (2d
Cir.1973) (Emphasis Added).
10
Over the Commissioners' objections, the district court adopted the magistrate's
recommendation. The court certified the question of the applicability of Sec.
52-59b(a)(2) for interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b).
DISCUSSION
11
Subsection (2) of Conn.Gen.Stat. Sec. 52-59b(a), which is set out in full in note
5 supra, provides, in pertinent part, that
a12court may exercise personal jurisdiction over any nonresident individual ... who ...
through an agent ... (2) commits a tortious act within the state....
13
14
Although this question apparently has not previously been decided by the courts
of Connecticut, we are aided by the fact that the Connecticut long-arm statute
was patterned after N.Y.Civ.Prac.Law ("CPLR") Sec. 302(a) (McKinney
1972).6 See Bross Utilities Service Corp. v. Aboubshait, 489 F.Supp. 1366,
1374 n. 39 (D.Conn.), aff'd mem., 646 F.2d 559 (2d Cir.1980); Gandolfo v.
Alford, 31 Conn.Supp. 417, 333 A.2d 65 (Super.Ct.1975). Thus, "New York
decisions are especially useful and relevant in construing General Statutes Sec.
52-59b...." Id., 333 A.2d at 69.
15
a16court may exercise personal jurisdiction over any nondomiciliary ... who ...
through an agent ... 2. commits a tortious act within the state ....
17
Under New York law it is established that this subsection does not provide
jurisdiction over a defendant in his individual capacity based on an agent's
tortious act within the state unless the agent was representing the defendant in
his individual capacity. See, e.g., Grove Press, Inc. v. Angleton, 649 F.2d 121,
122-23 (2d Cir.1981), discussed in greater detail below; Unicon Management
Corp. v. Koppers Co., 250 F.Supp. 850, 853 (S.D.N.Y.) (no jurisdiction over
individual defendants since agents acted as agents of corporation rather than of
defendant corporate employees), aff'd on other grounds, 366 F.2d 199 (2d
Cir.1966); Mandaglio v. United Brotherhood of Carpenters, 528 F.Supp. 468,
471 (E.D.N.Y.1981) (to same effect in dismissing claim against union official
in his individual capacity).
18
In Grove Press, Inc. v. Angleton, supra, the plaintiffs sued the Central
Intelligence Agency ("CIA") and eight former CIA officials, complaining of
surveillance in violation of their constitutional rights and seeking injunctive and
declaratory relief, a writ of mandamus against the CIA, and money damages
from the individual defendants. See Grove Press, Inc. v. CIA, 608 F.2d 926,
927 (2d Cir.1979), in which, in an earlier appeal in the same case, we reversed
an order sustaining jurisdiction over individual defendants under Sec. 1391(e)
and remanded for consideration of applicability of the New York long-arm
statute. On remand the district court upheld jurisdiction on the basis of CPLR
Sec. 302(a)(2) on the ground that CIA personnel in New York had acted as
agents of the defendant CIA officials. We reversed because the district court
had "found nothing to suggest that these appellants expected to benefit as
individuals from the wrongdoing alleged in the complaint." 649 F.2d at 122-23.
We noted that
19 far as the record discloses, these individuals ... were simply United States
[s]o
employees acting as agents for the United States government. More than this was
required to make a prima facie showing that they were appellants' personal agents.
20
Id. at 123. Accord Marsh v. Kitchen, 480 F.2d 1270, 1273 (2d Cir.1973) (in
executing warrant for plaintiff's arrest, Secret Service agents located in New
York and acting on instructions of appellees, who were a Missouri Secret
Service agent and an Assistant United States Attorney for the Western District
of Missouri, were not acting as their agents: "[a]ppellees did not stand to benefit
from the arrest of Marsh").
21
22
In the present case, plaintiffs have failed to make a prima facie showing, see,
e.g., Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981),
that the Commission's hearing examiners at FCI Danbury represented the
Commissioners as individuals. In suggesting that plaintiffs had met their burden
of establishing jurisdiction, the magistrate relied on 18 U.S.C. Sec. 4203
Nor do we find pertinent either the magistrate's observation that the interest of
the government does not benefit from the performance of acts that are
unconstitutional, or the plaintiffs' emphasis on the importance of Bivens -type
actions as a means of vindicating constitutional rights. We agree that it is not in
the interest of the government or the public to have their goals pursued in an
unconstitutional manner; but this does not mean either that in proceeding in
such a manner an official is pursuing his own individual interests, see Grove
Press, Inc. v. Angleton, supra, or that the existence of in personam jurisdiction
can be inferred simply from the potential for personal liability.
24
George J. Reed, named as a defendant in the caption, had retired from the
Commission at the time service of the complaint was first attempted and
apparently has not appeared in the action, although he was not expressly
excluded from those in whose behalf this appeal was undertaken. We note also
that since this action was commenced, several other defendants have also
retired and are no longer members of the Commission
See Williams v. United States Board of Parole, 383 F.Supp. 402, 405
(D.Conn.1974); Green v. Nelson, 442 F.Supp. 1047, 1058-59 (D.Conn.1977),
and cases cited therein; Drayton v. McCall, 445 F.Supp. 305, 311 (D.Conn.),
rev'd, 584 F.2d 1208 (2d Cir.1978). In Drayton v. McCall, this Court rejected
the Commission's argument that a parole grantee is not entitled to any due
process procedural protection prior to rescission of a grant of parole, and we
concluded that the procedures followed had denied Drayton due process. We
reversed the district court's outright grant of parole, however, because we
rejected the court's view that due process in rescission hearings required the
entire panoply of safeguards set forth in Morrissey v. Brewer, 408 U.S. 471, 92
S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93
S.Ct. 1756, 36 L.Ed.2d 656 (1973), and we remanded for entry of a conditional
order, granting parole to Drayton in the event the Commission persisted in its
refusal to follow the procedures we identified as required
3
The relevant portion of CPLR Sec. 302(a)(2), set forth below, is virtually
identical to Connecticut's Sec. 52-59b(a)(2):
(a) ... As to a cause of action arising from any of the acts enumerated in this
section, a court may exercise personal jurisdiction over any nondomiciliary, or
his executor or administrator, who in person or through an agent:
***
commits a tortious act within the state, except as to a cause of action for
defamation of character arising from the act;
....