concurring:
It certainly seems anomalous to conclude that in a lawsuit of this nature — brought against a state official at the seat of government by the United States in vindication of its constitutional prerogatives — the district court is incapable of exercising “personal” jurisdiction over the defendant. Perhaps hoping to capitalize on this perception, the government, in its presentations to us, has attempted to frame its dispute as effectively one with New Mexico itself, or at least its Supreme Court. But as the majority properly points out, the only named defendant in the complaint is Ferrara. And although she is named in her official capacity as the New Mexico Supreme Court’s chief disciplinary counsel, the government must nevertheless establish the district court’s jurisdiction over her person. Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 29 (1st Cir.1988); see also Edmond v. U.S. Postal Serv. Gen. Counsel, 949 F.2d 415, 424-25 (D.C.Cir.1991). For this reason, I concur in the court’s determination that the district court lacks personal jurisdiction over the defendant — even though she is being sued not as a person, but as an instrumentality of state government, and even though it is the United States that has brought the suit.
This outcome might well be attributed to the inadequacy of the personal jurisdiction doctrine to account for the circumstances of this case. That doctrine, at least as it has developed to this point, does not allow for consideration of the one aspect of this case which might be thought particularly significant — that this case presents a legal dispute between governments within the federal system. The very notion of personal jurisdiction strikes me as inapplicable to this sort of case, especially in light of the Supreme Court’s determination that a state is not a “person” within the meaning of the Due Process Clause, South Carolina v. Katzenbach, 383 U.S. 301, 323-24, 86 S.Ct. 803, 816, 15 L.Ed.2d 769 (1966), a proposition that compels the conclusion that there is no constitutional requirement of personal jurisdiction over a state defendant. Cf. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, *8332104, 72 L.Ed.2d 492 (1982) ( The requirement that a court have personal jurisdiction flows not from Art. Ill, but from the Due Process Clause_ It represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty.”). Still, I think we have no choice but to follow the doctrine as laid down, even though it has been formulated with an eye to disputes between private parties. It admits of no grounds for distinguishing this suit on the basis urged by the United States, ie., the governmental nature of the parties and their relationship as sovereign participants in the federal system.
We have been provided, in this regard, with no principled grounds for distinguishing this case from a suit by Doe himself, or by any private party seeking to enjoin a state official from revoking any sort of state authorization (such as a driver’s license) based on events within the forum state and having consequences there. The government does not contend that personal jurisdiction could be asserted under those hypothetical facts. Instead, it emphasizes that, in this case, it is the United States that has brought suit. But the government does not explain why this makes a difference. The government does not claim, for instance, that the United States is free to sue any state in any federal district. Nor does it offer any legal grounds for approaching the question of personal jurisdiction differently when suit is brought by the United States in the District of Columbia district court. The government, in other words, urges us to adopt a holding limited to the specific facts of this case — “a restricted railroad ticket, good for this day and train only.” Smith v. Allwright, 321 U.S. 649, 669, 64 S.Ct. 757, 768, 88 L.Ed. 987 (1944) (Roberts, J., dissenting). But it is not doctrinally sound to look to the plaintiff in determining whether jurisdiction is appropriate against the defendant. The intuitive reasonableness of allowing the federal government to sue a state in the District of Columbia — which, of course, the United States cam, do when it brings suit within the original jurisdiction of the Supreme Court — is not by itself enough, and I am unable to envision a rule of decision based on considerations acknowledged in the precedents that control.
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There is one point, however, on which I do not agree with the majority. I do not read the D.C. long-arm statute to bar service of summons upon a state. Section 13-421 of the D.C.Code provides for asserting personal jurisdiction over “any ... commercial or legal entity.” This language, I think, can only be read to include states within its ambit. Granted, the definition does not actually include the word “state,” but a state is certainly a “legal entity.” I think the court over-reads Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45 (1989), in which the Court determined that the word “person” as used in 42 U.S.C. § 1983 did not include a state. The rule of interpretation therein adopted principally reflected the Will Court’s concern about readily attributing to Congress an intention to impose monetary liability on the states. Here, by contrast, we have a purely procedural statute. Any constitutional concerns, if present at all, are certainly far less weighty. More important, I think it is incorrect to read Will to require courts to engage in linguistic contortions to avoid finding statutory coverage of states. And it is only through such contortions that one can construe the phrase “any ... legal entity” not to include a state.
My disagreement with the majority over the interpretation of D.C.Code § 13-421 is inconsequential, however, since as I have already indicated I believe that the law requires that personal jurisdiction be established against Ferrara as the named defendant. And I agree with the majority that Ferrara’s contacts with the District of Columbia have not been sufficient to justify the exertion of extraterritorial jurisdiction over her person.