Special Rules Within Section 1391

Section 1391(b) sets the default venue rules for an ordinary civil action through three alternatives. Venue lies in a district where any defendant resides, if all defendants reside in the state that contains the district. It lies in a district where a substantial part of the events or omissions, or of the property at issue, is located. Only when neither alternative works anywhere does it lie in a district where some defendant is subject to personal jurisdiction.¹ The earlier sections of this chapter built on those alternatives and on the residence definitions that feed the first of them, and the section just completed showed the general statute giving way to other venue statutes and to the removal statute.

Section 1391 also carries exceptions within its own text. Subsections (e), (f), and (g) set venue rules for particular defendants and claims, and where one of them applies, subsection (b) does not supply the answer. A student can apply the three familiar alternatives flawlessly to a suit one of these subsections governs and still reach the wrong result. This section therefore aims at recognition: you should be able to spot the defendant or claim that triggers a special rule and know that the general alternatives do not control it. Three situations follow, beginning with suits against the federal government and its officers.

Federal Officer Defendants

Subsection (e)(1) governs a civil action in which a defendant is the United States, a federal agency, or an officer or employee of the United States "acting in his official capacity or under color of legal authority." Such an action may, "except as otherwise provided by law," be brought in any district that satisfies one of three tests.²

A defendant in the action resides in the district.³
A substantial part of the events or omissions giving rise to the claim occurred in the district, or a substantial part of the property that is the subject of the action is situated there.⁴
The plaintiff resides in the district, if no real property is involved in the action.⁵

The first two tests resemble the residence and events alternatives of subsection (b). The third has no counterpart there, because subsection (b) never asks where the plaintiff lives.

Picture subsection (b) applied to a suit against a federal official. A rule that looked only to the defendant's home or to the place of the events would tend to send the suit to the official's post, and for an official stationed in the capital, a plaintiff from across the country would have to litigate there. Subsection (e) widens the plaintiff's choices in two ways. It adds the plaintiff's own district, and it frees the residence alternative from the requirement that all defendants share one state. The plaintiff-residence option has a visible lineage: the bill from which the provision descended would have permitted an action against a federal officer in his official capacity in any district where a plaintiff in the action resides.⁶

Briggs v. Goodwin shows the first test at work and shows how far the provision reaches. The plaintiffs alleged constitutional violations by four federal officials and sought a declaratory judgment and compensatory and punitive damages. They claimed that Goodwin, a Justice Department attorney, had falsely told a district judge during grand jury proceedings in Florida that none of the witnesses represented by counsel were government agents or informants, and they sued him together with two federal prosecutors and an FBI agent.⁷ Goodwin's official residence was in the District of Columbia, while the other three defendants lived in Florida and were served by certified mail. The plaintiffs sued in the District of Columbia.⁸ The district court dismissed for improper venue, but the court of appeals held that the case could be entertained there, because it was commenced in the district where one defendant officially resided and the complaint alleged conduct in an official capacity or under color of legal authority.⁹

Two lessons follow. First, one defendant's residence in the District of Columbia was enough. The Florida defendants did not have to reside there, as they would under the same-state condition of subsection (b)(1). Second, the defendants urged the court to exclude any case in which a money judgment could be returned against a federal officer, and the court, after examining the history of the statutory language, declined to add that exception.¹⁰ In that case, then, the prayer for damages did not defeat venue. Confirm current authority on damages claims against officers sued personally before relying on that point. The clause the court applied is now (e)(1)(A).

The service rule in (e)(2) travels with the venue rule. The summons and complaint are served as the Federal Rules of Civil Procedure provide, except that delivery to the officer or agency may be made by certified mail beyond the territorial limits of the district in which the action is brought.¹¹ That is how the Florida defendants in Briggs received process in a suit pending in Washington. An officer's post and the plaintiff's chosen district will often lie far apart, and a rule requiring personal delivery inside the forum district would cancel much of the venue the statute grants. The clause governs how papers reach a distant officer. Venue, and the court's power over each defendant, remain separate questions.

Whether a plaintiff may sue a federal agency or officer at the plaintiff's own home depends on one fact: whether the action involves real property.

The real-property exclusion keeps a plaintiff's home district from competing with the district where the land lies, which clause (B) already authorizes. The word "resides" is also a defined term on the plaintiff's side of the case. A plaintiff who is a natural person resides where that person is domiciled, and a plaintiff that is an entity resides only in the district where it maintains its principal place of business.¹²

The second sentence of (e)(1) protects the other parties. Additional persons may be joined 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."¹³ A private contractor joined alongside a federal agency must therefore satisfy venue as though the agency were absent, so the special venue available against the federal defendant cannot carry along a private party with no tie to the chosen district. The rule for defendants who live abroad works the same way: their joinder is disregarded when venue for the other defendants is worked out.¹⁴ In both settings, a party with unusual venue treatment may not enlarge the venue available against everyone else.

Because subsection (e) speaks of "the plaintiff" in the singular, a question arises when several plaintiffs sue together: must each one satisfy the plaintiff-residence alternative? Courts construing § 1391(e) have answered no. In Finley v. National Endowment for the Arts, four individual plaintiffs sued the agency, and the defendants argued that venue was defective for two of them because those two neither lived nor had a principal place of business in the district.¹⁵ The court relied on decisions construing § 1391(e), among them Exxon Corp. v. FTC, which found venue proper where at least one plaintiff resides in the forum district. It adopted that decision's reasoning that requiring every plaintiff to meet the venue standard independently would produce "an unnecessary multiplicity of litigation."¹⁶ Finley applied the principle to the Privacy Act's own venue provision rather than to § 1391(e) itself, and held that if any plaintiff satisfies the requirement, it is satisfied as to the rest, so venue was proper as to all four.¹⁷ Without the principle, plaintiffs who challenge the same agency action on the same evidence but live in different places would each have to file separately, and the agency would defend one decision over and over. The principle still needs one plaintiff who truly satisfies the provision. If no plaintiff resides in the filing district and neither a defendant's residence nor the events support it, nothing carries the others.

The opening phrase "except as otherwise provided by law" means that (e)(1) yields to special venue statutes of the kind described earlier in this chapter.¹⁸ Many review statutes specify their own venues for challenging agency action, and some confine a challenge to a particular court.¹⁹ A suit against a federal agency therefore begins with the same question as any other: does a specific statute govern this claim?

Exam Analysis Steps

Because the provision turns first on who the defendant is and then offers three independent places to sue, it is best run as a short filter.

Confirm that a defendant is the United States, a federal agency, or an officer or employee sued for acting in an official capacity or under color of legal authority, and check whether another statute supplies a venue rule for the claim.
Ask whether any defendant in the action resides in the filing district. Do not ask whether all defendants share a state.
Ask whether a substantial part of the events or omissions, or of the property that is the subject of the action, lies in the filing district.
Ask whether the plaintiff resides in the filing district and whether the action involves real property. One plaintiff's residence is enough for all plaintiffs.
Check venue for any private co-defendant separately, as if the federal defendant were not in the case, and confirm that service on a distant officer can be made by certified mail.

Foreign State Defendants

Subsection (f) gives suits against a foreign government a venue list of their own. A civil action against a foreign state, as § 1603(a) defines that term, may be brought in the places that four numbered paragraphs name.²¹ The definition lives in another title, and this chapter needs only the venue consequence. Subsection (f) ties venue to connections other than residence, and it supplies four anchors:

Events or property: any district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated.²²
Vessel or cargo: any district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under section 1605(b).²³
Agency or instrumentality: any district in which the agency or instrumentality is licensed to do business or is doing business, if the action is brought against an agency or instrumentality as defined in section 1603(b).²⁴
The District of Columbia: the United States District Court for the District of Columbia, if the action is brought against a foreign state or a political subdivision of one.²⁵

The first anchor repeats the wording of the events-and-property alternative in subsection (b)(2), so a student who can find a substantial part of the events behind a claim can carry that skill straight into a suit against a foreign state.²⁶ The other three anchors are narrower. The vessel-or-cargo paragraph reaches only claims of the kind identified by its cross-reference to § 1605(b), which this chapter does not unpack. For recognition, it is enough to see that the location of a ship or its freight supports venue for that category of claim alone. The last two paragraphs name their defendants. Paragraph (f)(3) follows the business footprint of an agency or instrumentality, such as a state-owned company with licenses or operations in particular districts, while paragraph (f)(4) is reserved for the foreign state or its political subdivision.

The contrast between those last two paragraphs is where a mistake is most likely, and an invented pair of claims shows it.

Hypothetical Illustration

A Minnesota importer sues a foreign government itself over a supply contract that was negotiated, performed, and breached entirely overseas, and none of the government's property lies in any United States district. The events-and-property paragraph offers nothing, because no part of the story occurred in a district here. The District of Columbia is a proper venue because the defendant is the foreign state. The importer has a parallel claim, likewise arising overseas, against a state-owned shipping line, which we assume is an agency or instrumentality of that government. The line is not the foreign state, so the District of Columbia paragraph is unavailable against it. Venue lies instead in each district where the line is licensed to do business or is doing business, such as the districts that hold its port offices.

Without the District of Columbia anchor, a plaintiff suing a foreign state over conduct that took place wholly abroad would ordinarily have no district in which to file.²⁷ The anchor guarantees one place where the foreign state itself can be sued, whatever the location of the events or property. The paragraphs are alternatives, so a plaintiff needs to satisfy only one that applies to the defendant and the claim. A suit against a foreign state therefore starts with the list in subsection (f), not with the residence and fallback alternatives of subsection (b). Whether a court may hear the claim at all is a separate question that this chapter does not take up.

Mass Accident Cases

Subsection (g) is the last of the specialized rules inside § 1391, and it covers a narrow category of litigation that grows out of a single accident. It provides that "[a] civil action in which jurisdiction of the district court is based upon section 1369 of this title may be brought in any district in which any defendant resides or in which a substantial part of the accident giving rise to the action took place."²⁹ The rule turns on the basis of jurisdiction, so the first task is to recognize a § 1369 case. That statute carries its own requirements, and they, not § 1391, decide which accidents qualify.³⁰ For venue, the signal is simple: when jurisdiction rests on § 1369, reach for subsection (g) instead of subsection (b).

The ordinary alternatives fit such a case poorly, and the reason lies in how they are built. The residence alternative requires every defendant to reside in the state that contains the chosen district, so a disaster that draws defendants from several states closes it for the whole case.³¹ The events alternative asks where a substantial part of the events giving rise to "the claim" occurred, and the answer can differ from claim to claim and defendant to defendant. One court, for example, laid venue for the claim against a defendant in California because all of that defendant's activity occurred there.³² Subsection (g) removes both difficulties. It asks about the accident that gave rise to the action as a whole, and it joins two alternatives with "or," so a district that satisfies either one is proper. The first is any district in which any defendant resides, with no condition that the defendants share a state. The second is any district in which a substantial part of the accident took place. Because one event produced every plaintiff's claim, the place of the accident and the homes of the defendants give the litigation a small set of natural forums, and the answer does not shift from one plaintiff to the next.

Two features of that result deserve attention. The word "resides" in (g) carries the meaning subsection (c) supplies, so the pyrotechnics company resides wherever it is subject to personal jurisdiction on the claim.³³ The words "substantial part" are also the ones subsection (b)(2) uses, so the earlier sections' reasoning about how much connection a district must have is the natural guide to deciding whether the accident took place in a given district to a substantial degree.³⁴ Proper venue in Nevada still leaves personal jurisdiction over each defendant as a separate requirement, as with every venue rule in this chapter.

The usual instinct is to treat any catastrophe with many victims as a subsection (g) case, and the statutory trigger shows why that instinct fails.

The bus crash is no less a tragedy than the fire, and the difference in venue comes entirely from the basis of jurisdiction. Subsection (g) governs when, and only when, jurisdiction is based on § 1369. Every other civil action in the district courts returns to the general alternatives.