text:
[323 U.S. 459, 460] Mr. Merle H. Miller, of Indianapolis, Ind., for petitioner.
The District Court denied recovery. The Circuit Court of Appeals affirmed. 4 Certiorari was granted5 on peti- [323 U.S. 459, 462] tioner's assertion of error in that the Circuit Court of Appeals decided an important question of local law probably in conflict with an applicable decision of the Supreme Court of Indiana. Department of Treasury v. International Harvester Co., 221 Ind. 416, 47 N.E.2d 150. As we conclude that petitioner's action could not be maintained in the federal court, we do not decide the merits of the issue.
Petitioner's right to maintain this action in a federal court depends first, upon whether the action is against the State of Indiana or against an individual. Secondly, if the action is against the state, whether the state has consented to be sued in the federal courts. Recently these questions were discussed in Great Northern Life Insurance Co. v. Read, 322 U.S. 47 , 64 S.Ct. 873.
In that case this Court held that as the suit was against a state official as such, through proceedings which were authorized by statute to compel him to carry out with state funds the state's agreement to reimburse moneys illegally exacted under color of the tax power, the suit was one against the state. We said that such a suit was clearly distinguishable from actions against a tax collector to recover a personal judgment for money wrongfully collected under color of state law. 322 U.S. 47, 50 , 51 S., 64 S.Ct. 873, 874, 875. Where relief is sought under general law from wrongful acts of state officials, the sovereign's immunity under the Eleventh Amendment does not extend to wrongful individual action, and the citizen is allowed a remedy against the wrongdoer personally. Atchison, T. & S.F. Ry. Co. v. O'Connor, 223 U.S. 280 , 32 S.Ct. 216, Ann.Cas.1913C, 1050; cf. Matthews v. Rodgers, 284 U.S. 521, 528 , 52 S.Ct. 217, 220. Where, however, an action is authorized by statute against a state officer in his official capacity and constituting an action against the state, the Eleventh Amendment operates to bar suit except in so far as the statute waives state immunity from suit. Smith v. [323 U.S. 459, 463] Reeves, 178 U.S. 436 , 20 S.Ct. 919; Great Northern Life Insurance Co. v. Read, 322 U.S. 47 , 64 S.Ct. 873.
We are of the opinion that petitioner's suit in the instant case against the department and the individuals as the board constitutes an action against the State of Indiana. A state statute prescribed the procedure for obtaining refund of taxes illegally exacted, providing that a taxpayer first file a timely application for a refund with the state department of treasury. 6 Upon denial of such claim, the taxpayer is authorized to recover the illegal exaction in an action against the 'department.' Judgment obtained in such action is to be satisfied by payment 'out of any funds in the state treasury.' 7 This section clearly provides for a action against the state, as opposed to one against the collecting official individually. No state court decision has been called to our attention which would indicate that a different interpretation of this statute has been adopted by state courts.
Petitioner's suit in the federal District Court is based on 64-2614( a) of the Indiana statutes and therefore constitutes an action against the state, not against the collecting official as an individual. Petitioner brought its action in strict accord with 64-2614(a). The action is against the state's department of treasury. The complaint carefully details compliance with the provisions of 64-2614(a) which require a timely application for refund to the department as a prerequisite to a court action authorized in the section. It is true the petitioner in the present proceeding joined the Governor, Treasurer and Auditor of the state as defendants, who 'together constitute the Board of Department of Treasury of the State of Indiana.' But, they were joined as the collective repre- [323 U.S. 459, 464] sentatives of the state, not as individuals against whom a personal judgment is sought. The petitioner did not assert any claim to a personal judgment against these individuals for the contested tax payments. The petitioner's claim is for a 'refund,' not for the imposition of personal liability on individual defendants for sums illegally exacted. We have previously held that the nature of a suit as one against the state is to be determined by the essential nature and effect of the proceeding. Ex parte Ayers, 123 U.S. 443, 490 , 499 S., 8 S.Ct. 164, 174, 175; Ex parte State of New York, 256 U.S. 490, 500 , 41 S.Ct. 588, 590; Worcester County Trust Co. v. Riley, 302 U.S. 292, 296 , 298 S., 58 S.Ct. 185, 186, 187. And when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants. Smith v. Reeves, supra; Great Northern Life Insurance Co. v. Read, supra. We are of the opinion, therefore, that the present proceedings was brought in reliance on 64-2614(a) and is a suit against the state.
It remains to be considered whether the State of Indiana has consented to this action against it in the federal court.
The Eleventh Amendment provides that: 'The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.' This express constitutional limitation denies to the federal courts authority to entertain a suit brought by private parties against a state without its consent. Hans v. State of Louisiana, 134 U.S. 1, 10 , 10 S.Ct. 504, 505; Ex parte State of New York, 256 U.S. 490, 497 , 41 S.Ct. 588, 589; State of Missouri v. Fiske, 290 U.S. 18, 25 , 54 S.Ct. 18, 20; United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512 , 60 S.Ct. 653, 656; Great Northern Life Insurance Co. v. Read, supra; State v. Mutual Life Ins. Co., 175 Ind. 59, 71, 93 S.E. 213, 42 L.R.A.,N.S., 256; Hogston [323 U.S. 459, 465] v. Bell, 185 Ind. 536, 548, 112 N.E. 883. While the state's immunity from suit may be waived, Clark v. Barnard, 108 U.S. 436, 447 , 2 S.Ct. 878; Gunter v. Atlantic Coast Line, 200 U.S. 273 , 26 S.Ct. 252; State of Missouri v. Fiske, 290 U.S. 18, 24 , 54 S.Ct. 18, there is nothing to indicate authorization of such waiver by Indiana in the present proceeding.
It remains to be considered whether the attorney general for the State of Indiana in his conduct of the present proceeding has waived the state's immunity from suit. The state attorney general is authorized to represent the state in actions brought under the Indiana refund statute. 11 He appeared in the federal District Court and the [323 U.S. 459, 467] Circuit Court of Appeals and defended the suit on the merits. The objection to petitioner's suit as a violation of the Eleventh Amendment was first made and argued by Indiana in this Court. This was in time, however. The Eleventh Amendment declares a policy and sets forth an explicit limitation on federal judicial power of such compelling force that this Court will consider the issue arising under this Amendment in this case even though urged for the first time in this Court.
We interpret this provision as indicating a policy prohibiting state consent to suit in one particular case in the absence of a general consent to suit in all similar causes of action. Since the state legislature may waive state immunity only by general law, it is not to be presumed in the absence of clear language to the contrary, that they conferred on administrative or executive officers discretionary power to grant or withhold consent in individual cases. Nor do we think that any of the general or special powers conferred by statute on the Indiana attorney general to appear and defend actions brought against the state or its officials can be deemed to confer on that officer power to consent to suit against the state in courts when the state has not consented to be sued. 13 State court deci- [323 U.S. 459, 469] sions construe strictly the statutory powers conferred on the Indiana state attorney general and hold that he exercises only those powers 'delegated' to him by statute and does not possess the powers of an attorney general at 'common law.' 14 It would seem, therefore, that no properly authorized executive or administrative officer of the state has waived the state's immunity to suit in the federal courts.
Gunter v. Atlantic Coast Line, 200 U.S. 273 , 26 S.Ct. 252, is not applicable to the instant case since it involved a taxpayer's ancillary suit to enjoin South Carolina tax officials from collecting taxes in violation of an earlier decision of this Court upholding the validity of a state agreement of exempt the taxpayer's property. Humphrey v. Pegues, 16 Wall. 244. The Pegues case involved a suit against the state in the person of its tax officials, the state attorney general appearing for the state and arguing the case on the merits, no issue of sovereign immunity being raised. In the Gunter proceeding, brought over twenty [323 U.S. 459, 470] years later, defendant South Carolina attacked the validity of the Pegues judgment on the gound that in that proceeding the state had not consented to be sued. This Court held the Pegues judgment was res judicata and binding on the state because the South Carolina statutes conferred on the state officials and the attorney general power there to 'stand in judgment for the state,' 200 U.S. at pages 285, 286, 26 S.Ct. at page 256. The state's submission to the court was authorized by statute not by the unauthorized consent of an official. Farish v. State Banking Board, 235 U.S. 498, 512 , 35 S.Ct. 185, 189. No distinction was drawn between federal and state courts. Reliance was placed on contemporaneous administrative interpretation of the state statutes, absence of any legislative action repudiating the attorney general's conduct of the case and the failure of the state government in all its departments, for more than twenty years, to assert any right in conflict with the Pegues adjudication. Administrative construction by a state of its statutes of consent has influence in determining our conclusions. Great Northern Life Insurance Co. v. Read, supra.
As we indicated in the Read case, the construction given the Indiana statute leaves open the road to review in this Court on constitutional grounds after the issues have been passed upon by state courts. The advantage of having state courts pass initially upon questions which involve the state's liability for tax refunds is illustrated by the instant case where petitioner sued in a federal court for a refund only to urge on certiorari that the federal court erred in its interpretation of the state law applicable to the questions raised.
The judgment of the Circuit Court of Appeals is vacated and the cause is remanded to the District Court with directions to dismiss the complaint for want of consent by the state to this suit.
[ Footnote 1 ] We need not consider the present status of the board of the department of treasury as 64-2614, Burns, Indiana Stat.Ann. (1943 Replacement), provides for suit agaisnt the 'department.' See Indiana Acts 1933, ch. 4, 13; Indiana Acts 1941, ch. 4 and ch. 13, 2, 8; Tucker v. State, 218 Ind. 614, 35 N.E.2d 270.
[ Footnote 2 ] Burns, Indiana Stat.Ann. 64-2602 (1943 Replacement).
[ Footnote 4 ] Ford Motor Co. v. Department of Treasury of State of Indiana et al., 7 Cir., 141 F.2d 24.
[ Footnote 5 ] 322 U.S. 721 , 64 S.Ct. 1266.
[ Footnote 6 ] See note 3 supra, 64-2614(a).
[ Footnote 7 ] Burns, Indiana Stat.Ann. 64-2614(b) (1943 Replacement).
It does not appear that the right to sue the department of treasury for erroneous tax payments, which was granted by 64-2614(a), Burns, Indiana Stat.Ann. (1943 Replacement) (see Acts 1937, ch. 117, 14, pp. 631, 632) has been repealed or transferred to the state board of finance by the Acts 1941, ch. 27, or otherwise.
If it is held by Indiana that the state's consent to be sued for the recovery of taxes was covered by 60-310 rather than by 64-2614(a), we should be of the opinion, until otherwise advised by Indiana adjudications, that the consent was limited to suits in the state courts.
Chapter 27 of the Acts of 1941, which creates the state board of finance, apparently invests the board with control over public funds rather than with the collection and refund of taxes.
[ Footnote 9 ] Reference to a particular state court in a California statute similar to 64-2614 was held to warrant an inference that the state legislature consented to suit against the state in a state court only. See Smith v. Reeves, 178 U.S. 436, 441 , 20 S.Ct. 919, 921.
[ Footnote 12 ] State ex rel. Woodward v. Smith, 85 Ind.App. 56, 152 N.E. 836, is the only Indiana decision which has come to our attention as involving the authority of state executive or administrative officials to consent to suit against the state. In that case plaintiff sued to foreclose a mortgage on certain land and joined the state of Indiana as defendant in order to obtain cancellation of a prior judgment lien on this property in favor of the state. The defendant state filed a cross-complaint for affirmative relief seeking satisfaction of its lien. The intermediate state court held that since the state appeared, pleaded to the merits and filed a cross-complaint for affirmative relief, it thereby consented that it might be made a party to determine the priority of its lien. This case involves an application of the well-accepted principle that when a sovereign sues for affirmative relief, it is deemed to have waived its sovereign immunity as to the issues presented by its affirmative claim. State v. Portsmouth Savings Bank, 106 Ind. 435, 7 N.E. 379.
Section 64-2614(c) specifically authorizes him to represent the state in actions brought under the provisions of 64-2614(a) under which petitioner's suit is brought. See note 11, supra.
[ Footnote 14 ] State ex rel. v. Home Brewing Co., 182 Ind. 75, 87-95, 105 N.E. 909; Julian et al. v. State, 122 Ind. 68, 23 N.E. 690. Various lower federal court decisions have held that a state attorney general cannot waive state immunity from suit. Deseret Water, Oil & Irrigation Co. v. State of California, 9 Cir., 202 F. 498; Title Guaranty & Surety Co. v. Guernsey, D.C., 205 F. 91; O'Connor v. Slaker, 8 Cir., 22 F.2d 147; Dunnuck v. Kansas State Highway Commission, D.C., 21 F.Supp. 882. The United States Attorney General has been held to be without power to waive the sovereign immunity of the United States. Stanley v. Schwalby, 162 U.S. 255, 269 , 270 S., 16 S.Ct. 754, 760; cf. United States v. Shaw, 309 U.S. 495, 501 , 60 S.Ct. 659, 661.
See Richardson v. Fajardo Sugar Co., 241 U.S. 44 , 36 S.Ct. 476, where, without consideration of any limitations on his powers, we held that the attorney general of Puerto Rico could waive its sovereign immunity.

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In December 1959 and January 1960, the National Railroad Adjustment Board issued monetary awards in favor of certain members of respondent union on their claims for breach of collective bargaining contracts between the union and petitioner, the Denver & Rio Grande Western Railroad Company. The railroad refused to honor the awards, the union struck to enforce them and the strike was permanently enjoinedby the District Court. 185 F.Supp. 369, aff'd, 10 Cir., 290 F.2d 266, cert. denied, 366 U.S. 966, 81 S.Ct. 1925, 6 L.Ed.2d 1256. The railroad then sued the union for damages in the United States District Court for the District of Colorado, also joining as defendants R. E. Carroll, chairman of the union's General Grievance Committee on the property of petitioner, and the chairmen of various local lodges of the union. The complaint alleged that the defendants had breached their duties under the Railway Labor Act, 44 Stat. 577, as amended, 45 U.S.C. § 151 et seq. The District Court overruled the union's motion to dismiss for improper venue, held the strike illegal because the union had failed to exhaust its statutory remedies to enforce the Adjustment Board awards, and awarded damages based on the railroad's loss of traffic caused by the illegal strike. The judgment ran against both the union and Carroll, the case against the other defendants being dismissed for failure of proof. The Court of Appeals, 367 F.2d 137, reversed, holding that the union could be sued under § 1391(b) only in the district of its residence and that its residence was not in Colorado.1 Because of the seeming conflict with Rutland R. Co. v. Brotherhood of Locomotive Eng'rs, 2 Cir., 307 F.2d 21, we granted certiorari. 385 U.S. 1000, 87 S.Ct. 719, 17 L.Ed.2d 541. We reverse.
Section 1391(b) is the general venue statute governing transitory causes of action in the federal courts where jurisdiction does not depend wholly on diversity of citizenship. Following its amendment in 1966, 80 Stat. 1111, the section permits suit either in the district where all of the defendants reside or in the district where the claim arose. At the time this suit was brought, however, venue lay only at the defendant's residence, as had been the case since 1887. 24 Stat. 552, as corrected by 25 Stat. 433 (1888). Thus for almost 80 years proper venue in federal-question cases was limited to the district of the defendant's residence, whether the defendant was an individual, a corporation, or an unincorporated association such as this respondent. During all of this time, down to and including the 1966 amendment, Congress has not expressly defined the residence of an unincorporated association for purposes of the general venue statute. The same was true with respect to corporations until 1948 when Congress directed that a corporation could be sued in the judicial district 'in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.' 28 U.S.C. § 1391(c). Congress has maintained its silence, however, with respect to the residence of the unincorporated association. The resolution of that issue, as was true for the corporation prior to 1948, has been left to the courts. The issue is now here for the first time.
Of course, venue for a suit against an unincorporated association becomes important only if the association is itself suable. At common law, such an association could be sued only in the names of its members and liability had to be enforced against each member. This principle was rejected in United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975, where this Court, recognizing the growth and pervasive influence of labor organizations and noting that the suability of trade unions 'is of primary importance in the working out of justice and in protecting individuals and society * * *,' 259 U.S., at 390, 42 S.Ct., at 576, held that such organizations were suable in the federal courts and that funds accumulated by them were subject to execution in suits for tots committed during strikes. The Coronado holding is now reflected in Fed.Rule Civ.Proc. 17(b).
The Coronado case dealt with capacity to be sued, not with venue, but it did legitimate suing the unincorporated association as an entity. Although that entity has no citizenship independent of its members for purposes of diversity jurisdiction, United Steelworkers of America v. R. H. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217, a case relied upon by the Court of Appeals here, we think that the question of the proper venue for such a defendant, like the question of capacity, should be determined by looking to the residence of the association itself rather than that of its individual members. Otherwise, § 1391(b) would seem to require either holding the association not suable at all where its members are residents of different States, or holding that the association 'resides' in any State in which any of its members resides. The first alternative seems wholly at odds with Coronado and in addition removes federal-question litigation from the federal courts unnecessarily; the second is patently unfair to the association when it is remembered that venue is primarily a matter of convenience of litigants and witnesses. H.R.Rep. No. 1893, 89th Cong., 2d Sess., p. 2; U.S.Code Congressional and Administrative News 1966, p. 3693. Of course, having concluded that the unincorporated association should be viewed as an entity for purposes of residence under § 1391(b), that residence must still be ascertained, an inquiry requiring examination of congressional intent and the interests reflected in Coronado and in principles underlying venue limitations.
In Sperry Prods., Inc. v. Association of American Railroads, 132 F.2d 408, 145 A.L.R. 694, the Court of Appeals for the Second Circuit dealt with the issue of what district an unincorporated association may be said to inhabit under the special venue statute governing patent suits, then 28 U.S.C. § 109 (1940 ed.), now 28 U.S.C. § 1400. That court thought the association should be treated like a corporation. Under the decisions of this Court, corporations had a single residence for venue purposes, the State of their incorporation. Likewise, the Sperry court thought the unincorporated association should be considered as having a single residence, in its case its principle place of business. Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, had already determined, however, that corporations, while having only one residence, nevertheless consented to be sued in federal diversity suits where they were licensed to do business. And Neirbo had much to do with producing the 1948 congressional definition of corporate residence as including not only the State of incorporation but wherever the corporation is licensed to do business or is doing business.
We think it most nearly approximates the intent of Congress to recognize the reality of the multi-state, unincorporated association such as a labor union and to permit suit against that entity, like the analogous corporate entity, wherever it is 'doing business.' Congress has itself recognized as much in a special venue statute, § 301(c) of the Labor Management Relations Act, 1947, 61 Stat. 157, 29 U.S.C. § 185(c), which provides that actions against labor unions governed by the Labor Management Relations Act may be brought in any district where the union maintains its principal office or in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members. That statute was enacted but a year before the 1948 revision of the Judicial Code, and while it does not mention residence, it is a considerable indication that Congress had no desire, then or at any previous time, to construe 'residence' as used in the general venue provision so as to confine suits against a labor union to the district where its principal office is located. Moreover, from the standpoint of convenience to parties and witnesses, there would be little merit in holding that suits against unions covered by the National Labor Relations Act may be brought anywhere the responsible representatives of the union take concrete action and yet hold that suits for similar conduct against unions subject to a parallel federal labor statute, the Railway Labor Act, may be brought only where the union's principal office is located. Nor need we here be concerned, as in Bouligny, with possible effects on the scope of the jurisdiction of the federal courts. Under these circumstances, for this Court to create such a distinction without some positive lead from Congress and in the face of sound policy considerations to the contrary would be unjustified.
We therefore conclude that the Court of Appeals improperly applied § 1391(b) as it read when this suit was brought. But even if we instead agreed with the Court of Appeals on this question, the case must be considered in light of the present form of that section, that is, as amended by the Act of November 2, 1966, which provides for venue not only at the place of a defendant's residence but also in the ditr ict where the claim arose. This amendment does not change the substantive law applicable to this lawsuit. It is wholly procedural. Absent some contrary indications by the Congress and absent any procedural prejudice to either party, the 1966 amendment to § 1391 is applicable to this suit. See United States v. State of Alabama, 362 U.S. 602, 80 S.Ct. 924, 4 L.Ed.2d 982; Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207; American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 201, 42 S.Ct. 72, 75, 66 L.Ed. 189; Pruess v. Udall, 123 U.S.App.D.C. 301, 359 F.2d 615. As this Court said in applying 28 U.S.C. § 1404(a) to pending actions, 'No one has a vested right in any given mode of procedure'. Ex parte Collett, 337 U.S., at 71, 69 S.Ct., at 953. And in any event, if the decision below were affirmed, the petitioner could reinstitute the same action in the same District Court and seek the benefits of the current version of § 1391, absent the barrier of any applicable statute of limitations. We do not, of course, intimate any views as to whether this claim 'arose' in the District of Colorado. That would be an issue for the District Court should it now be determined, in light of this opinion, that respondent was not doing business in Colorado when this suit was instituted.
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice FORTAS, join, dissenting.
This suit for damages caused by an illegal strike was brought by the Denver and Rio Grande Western Railroad against the Brotherhood of Railroad Trainmen and certain of its individual members in the United States District Court for Colorado where the Brotherhood's local lodges went on strike. The Brotherhood, an unincorporated association with its headquarters and principal place of business in Cleveland, Ohio, filed a motion to dismiss on the ground of improper venue. The District Court denied this motion, and after a trial without a jury, gave the railroad a $37,988 judgment against the union. The Court of Appeals reversed. 10 Cir., 367 F.2d 137. It held that the applicable venue statute, 28 U.S.C. § 1391(b),1 gave venue only to the district court for the district where the union's principal place of business is located. I would affirm this holding.
In holding venue improper as to the union, the Court of Appeals rejected the holding of the Second Circuit in Rutland R. Corp. v. Brotherhood of Locomotive Eng'rs, 307 F.2d 21, cert. denied, 372 U.S. 954, 83 S.Ct. 949, 9 L.Ed.2d 978, that a union may be sued under § 1391(b) in any district where it is doing business. The Second Circuit in Rutland recognized that prior to the Judicial Code of 1948, under the predecessor of § 1391(b),2 most courts had held that an unincorporated association is suable only at its principal place of business and that the only express change made in pre-existing general venue law by the 1948 Code was the expansion of corporate venue from the place of incorporation to the place of doing business. § 1391(c).3 Nevertheless, the court reasoned that there are sound policies for treating unincorporated associations like corporations and that, though the language of § 1391(c) expressly applies to corporations and not to unincorporated associations, Congress implicitly intended for the expanded concepts of corporate residence under § 1391(c) to be applied in determining the residence of an unincorporated association under § 1391(b).
For myself I cannot draw any such inference from the 1948 amendments to the general venue statute. Sections 1391(b) and (c) were part of a general Code revision designed comprehensively to cover the rules of procedure, including venue, and there is no reference whatever in these sections or their legislative history, so far as I can determine, that would permit us to infer that Congress intended that unincorporated associations be treated as corporations for venue purposes, thus changing the judicially established rule that unincorporated associations are suable only at their principal place of business. Though this Court recognizes that 'Congress has maintained its silence * * * with respect to the residence of the unincorporated association', it approves the Rutland holding because 'sound policy considerations' indicate it 'most nearly approximates the intent of Congress.' In reaching this result, the Court adopts the Rutland reasoning that Congress in 1948 must have approved of assimilating for venue purposes the treatment of unincorporated associations to that of corporations, because such a process of assimilation had been advocated by Judge Learned Hand in Sperry Prods., Inc. v. Association of American Railroads, 2 Cir., 132 F.2d 408, 145 A.L.R. 694, cert. denied, 319 U.S. 744, 63 S.Ct. 1031, 87 L.Ed. 1700. The narrow issue dealt with in Sperry was where, under the special venue provisions for a patent infringement suit,4 is an unincorporated association deemed to be an 'inhabitant.' The Sperry court first held that, since an unincorporated association can be sued in its own name to enforce a federal right, United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975, and since it can be served with process under Fed.Rule Civ.Proc. 17(b), it should, for venue purposes, be treated as a single individual, not an aggregate of individuals.5 The Sperry court then held that for purposes of the special patent venue provision an unincorporated association is an 'inhabitant' of the district where its principal place of business is located—precisely what the Court of Appeals held here as to § 1391(b). In reaching this result, Judge Hand advanced legislative policy reasons, similar to those advanced by the Court here today, for treating an unincorporated association like a corporation, then deemed to be an inhabitant only of its State of incorporation and of the district within that State where its principal place of business was located. It is Judge Hand's process of reasoning, not his holding, that the Court uses in assimilating the treatment of unincorporated associations under § 1391(b) to the treatment of corporations under § 1391(c).
'Sperry Products, Inc. v. Association of American Railroads took the position that an unincorporated association is an 'inhabitant,' i.e., resident, of the district where it has its principal place of business.
Third, Congress in 1948 was clearly aware of the venue problems involved in suing an unincorporated association. Just the year before, in 1947, it had expressly considered these problems in relation to suits against labor unions to enforce collective bargaining agreements8 and in § 301(c) of the Labor Management Relations Act, 1947, 61 Stat. 157, 29 U.S.C. § 185(c), explicitly provided for venue in such suits '(1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members.' That action is wholly consistent with the idea that Congress' total failure in 1948 to provide a similar venue rule applicable to other kinds of suits against a union was neither inadvertent nor meant to be cured by judicial implication. Whether there is 'little' or much 'merit' in holding that venue of a union subject to the Railway Labor Act, 44 Stat. 577, as amended, is different from the venue of a union under the express venue provisions of the National Labor Relations Act, 49 Stat. 449, as amended, is a question for Congress, not this Court. Finally, since 1948 the lower courts have been completely divided on the question of whether an unincorporated association can be sued at a place other than its principal place of business.9 In the light of all these things, I cannot impute to Congress an unarticulated intent to make an unincorporated association's venue precisely the same as that of a corporation.
The Court of Appeals also reversed the damage award against respondent Carroll, concluding that Carroll was not responsible for the strike in question. We do not disturb this factual determination of the Court of Appeals. Carroll's residence is admittedly within the District of Colorado.
Other lower court cases are divided on the question whether an unincorporated association can be sued at a place other than its principal place of business. Cases restricting venue to the association's principal place of business include Brotherhood of Locomotive Firemen & Enginemen v. Graham, 84 U.S.App.D.C. 678 69, n. 2, 175 F.2d 802, 804, n. 2, rev'd on other grounds, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22; McNutt v. United Gas, Coke & Chem. Workers, D.C., 108 F.Supp. 871, 875; Salvant v. Louisville & N.R. Co., D.C., 83 F.Supp. 391, 396; Westinghouse Elec. Corp. v. United Elec. Radio & Mach. Workers, D.C., 92 F.Supp. 841, aff'd without discussion, 3 Cir., 194 F.2d 770; Cherico v. Brotherhood of R.R. Trainmen, D.C., 167 F.Supp. 635, 637—638; cf. Hadden v. Small, D.C., 145 F.Supp. 387 (partnership). Cases holding that unincorporated associations may be sued where they do business: Portsmouth Baseball Corp. v. Frick, D.C., 132 F.Supp. 922; Eastern Motor Express v. Espenshade, D.C., 138 F.Supp. 426, 432; American Airlines, Inc. v. Air Line Pilots Assn., D.C., 169 F.Supp. 777, 781—783; R & E Dental Supply Co. v. Ritter Co., D.C., 185 F.Supp. 812; cf. Joscar Co. v. Consolidated Sun Ray, Inc., D.C., 212 F.Supp. 634.
None of the parties here have suggested that an unincorporated association's residence for venue purposes depends on the residence of each individual member, and I agree with the Court's holding that an unincorporated association like a union is a single entity with a residence. The only problem here is to locate that residence.
After Sperry the lower courts divided on whether its holding should be extended to the pre-1948 general venue provision (see n. 3, supra). Compare Brotherhood of Locomotive Firemen & Enginemen v. Graham, 84 U.S.App.D.C. 67, 175 F.2d 802, rev'd on other grounds, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22, and Griffin v. Illinois Cent. R. Co., D.C., 88 F.Supp. 552, 555, with Thermoid Co. v. United Rubber Workers, D.C., 70 F.Supp. 228, 233—234.
Moore, Commentary on the U.S. Judicial Code 193 (1949). Now, however, for legislative policy reasons such as the protection from abuse contained in the transfer provision of 28 U.S.C. § 1404(a) and the multi-state nature of unincorporated associations' activities, Professor Moore believes the position taken in Rutland 'desirable.' 1 Moore, Federal Practice 0.142(5. 4), at 1508. See also Comment, 44 Calif.L.Rev. 130 (1956); Note, 39 St. John's L.Rev. 353, 358—360 (1965); Note, 13 Okla.L.Rev. 206 (1960); 45 Geo.L.Rev. 132 (1956). But see Kaplan, Suits Against Unincorporated Associations Under the Federal Rules of Civil Procedure, 53 Mich.L.Rev. 945, 949—950 (1955); Comment, 8 Stan.L.Rev. 708 (1956).
H.R.Rep. No. 245, 80th Cong., 1st Sess., 108—109 (1947); S.Rep. No. 105, 80th Cong., 1st Sess., 15—18 (1947).
Cases holding an unincorporated association may be sued only at its principal place of business: Brotherhood of Locomotive Firemen & Enginemen v. Graham, supra, 84 U.S.App.D.C., at 69, n. 2, 175 F.2d, at 804; McNutt v. United Gas, Coke & Chem. Workers, D.C., 108 F.Supp. 871, 875; Salvant v. Louisville & N.R. Co., D.C., 83 F.Supp. 391, 396; Westinghouse Elec. Corp. v. United Elec. Radio & Mach. Workers, D.C., 92 F.Supp. 841, 842, aff'd without discussion, 3 Cir., 194 F.2d 770; Cherico v. Brotherhood of R.R. Trainmen, D.C., 167 F.Supp. 35 , 637—638; cf. Hadden v. Small, D.C., 145 F.Supp. 387 (partnership). Cases holding that an unincorporated association may be sued where it does business: Portsmouth Baseball Corp. v. Frick, D.C., 132 F.Supp. 922; Eastern Motor Express, Inc. v. Espenshade, D.C., 138 F.Supp. 426, 432; American Airlines, Inc. v. Air Line Pilots Assn., D.C., 169 F.Supp. 777, 781—783; R & E Dental Supply Co. v. Ritter Co., D.C., 185 F.Supp. 812; cf. Joscar Co. v. Consolidated Sun Ray, Inc., D.C., 212 F.Supp. 634.
Since I agree with the Court that the 1966 amendment of § 1391(b) should apply to pending cases such as this one, I would not have filed this dissent had the Court remanded this case solely for a determination of the propriety of venue under the 1966 amendment.