The opinion of the court was delivered by: JUDD
The case is before the court on defendant's motion to dismiss on jurisdictional grounds and for summary judgment and plaintiff's cross motion for summary judgment.
The plaintiff, a United States Senator from Indiana, brought this action against the Federal Aviation Administration (FAA) and its Administrator, John H. Shaffer, to have declared unconstitutional, as applied to plaintiff, certain FAA regulations pertaining to airport searches, and for injunctive relief.
Senator Hartke alleges that he was stopped while boarding an Allegheny Airlines flight in Evansville, Indiana, enroute to Washington, D.C. to attend a session of the Senate, and was informed that it would be necessary that he submit to a search of his person and property. Although plaintiff told FAA and airline personnel that he was a Senator enroute to Washington, they insisted that he could not board the plane unless he was searched. The plaintiff states that this incident has been repeated at other airports on several other occasions.
The procedure is alleged to be violative of Article I, section VI of the United States Constitution because it is "a restraint tantamount to temporary arrest." Article I, section VI provides, in part, that Senators and Representatives
"shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same . . ."
Service of the summons and complaint on FAA was made at John F. Kennedy International Airport by service on the Regional Counsel, who informed the Marshal that he was not authorized to accept service. Service on Mr. Shaffer was made by certified mail to his Washington office, and to the United States Attorney General in Washington.
The defendants' motion to dismiss the complaint asserts that there is no subject matter jurisdiction over the FAA under the principles of sovereign immunity, that venue is improper as to defendant Shaffer, and that because of defective service there is no personal jurisdiction over Shaffer.
Plaintiff's counsel asserts that it would have been inappropriate to bring the action in Indiana, because Senator Hartke has had a part in the appointment process of every United States district judge in that state, and the judges might be disqualified to act. 28 U.S.C. §§ 144, 455.
I. Subject Matter Jurisdiction
It is well established that the United States government cannot be sued without its consent, see Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 688, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949), and that a suit against a federal agency is a suit against the federal government. Blackmar v. Guerre, 342 U.S. 512, 72 S. Ct. 410, 96 L. Ed. 534 (1952); Fort Worth National Corp. v. Federal Savings and Loan Ins. Corp., 469 F.2d 47 (5th Cir. 1972); New Haven Public Schools v. General Services Administration, 214 F.2d 592 (7th Cir. 1954); M.G. Davis & Co. v. Securities and Exchange Commission, 252 F. Supp. 402 (S.D.N.Y. 1966).
In Blackmar v. Guerre, supra, the plaintiff sued the regional manager of the Veterans' Administration and the United States Civil Service Commission in an attempt to regain his job as an authorization officer in a regional Veterans' Administration office. The district court granted summary judgment for the defendant on the ground that it lacked jurisdiction over the persons of the commissioners, who were deemed indispensable parties. The Court of Appeals affirmed on the ground that venue had been improper. Blackmar v. Guerre, 190 F.2d 427 (5th Cir. 1951). In affirming the dismissal, the Supreme Court held that the Civil Service Commission was not a suable entity, stating (342 U.S. at 514, 72 S. Ct. at 411):
"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 ...