Meir Kahane, Plaintiff-Petitioner-Appellee v. Norman Carlson, Director of the Federal Bureau of Prisons, Defendants-Respondents-Appellants
527 F.2d 492
2d Cir.
1975
Check Treatment

*2 broader than required. We therefore J. JOSEPH SMITH, Circuit Judge: modify the and, order modified, as af- firm. In Kahane, appellant an ortho- Jurisdiction in the court below rabbi, dox Jewish was sentenced in the upon founded the mandamus power pro- Eastern District of New to impris- York vided 28 U.S.C. 1361: onment and fine for conspiracy to violate the federal Firearms Act. 18 U.S.C. The district courts shall original have 371. However, the sentence impris- jurisdiction of any action in the nature onment was suspended by court, of mandamus compel an officer or Kahane was placed probation. Ka- employee of the United States or any hane and his family had made their agency thereof perform a duty home in the Eastern District for many owed to the plaintiff. years prior to his conviction. While Ka- The United hane was States contends probation, however they had re- that, even though moved to mandamus Israel with permission exists generally courts, the court in the district and Kahane had become a can- venue does not didate lie in the properly for East election to Knesset, ern District of Israeli New York for this partic Parliament. Kahane subsequent- ular mandamus ly action.1 admitted to violating the terms of his concurring opin- Several granted other Friendly, circuits have Brother 1. Our against prison relief officials, see, g., Taylor ion, argues e. that mandamus Blackwell, (5th because 1969); as this inappropriate such for cases Barnett v. U.S.App.D.C. 296, far removed in states prisoners who reside (1969); Long F.2d 995 (3d will be able their incarceration F.2d 816 the site of vacated and remanded on in their bring other suit over grounds, states, to all causing great inconvenience home Blackwell, Walker simply that 28 U.S.C. note concerned. Indeed, judge broad 1404(a) gives present action is a more appealing prisoner’s cause candidate to remove for discretion mandamus than those cases, earlier If the dis- judicial district. since to another action Kahane is in effect challenging a an inconven- prisoner’s policy nationwide residence trict of the Bureau action, Prisons rather than mandamus ient location conditions of con- finement single a 1404(a) the lawsuit penitentiary. shift of authorizes district of incarceration. was a long-time resident of the Eastern 1391(e) governs District and was under probation active According mandamus cases.2 to the supervision there, probation which he government, prisoner’s neither violated. Under these circumstances we present contemplated place incar hold until he ceration, successfully had com- nor the residence of any re pleted probation and had been released spondent was in the Eastern District. *3 from supervision, Kahane No real should have property is involved in the in been considered a resident of stant action nor could the the East- cause of action ern District for the purpose venue, of regarding deprivation of kosher diet be entitled to turn to the court for said to have arisen in the Eastern Dis district. Finally, government trict. main

tains, plaintiff’s residence is not in the Venue is a doctrine of conve Eastern District of. New York. With nience of the forum. Denver & R. G. W. assertion, disagree. this last we R. R. v. Brotherhood of Railroad Train men, 387 U.S. 18 The parties agree that the case (1967); L.Ed.2d 954 Rutland Ry. v. does not qualify (1) under subdivisions Brotherhood of Locomotive Engineers, (3) 1391(e). pass We need not (2d 1962), Cir. cert. de upon Kahane’s contention that venue can nied, S.Ct. (2) be sustained under subdivision since Penrod Drilling Co. qualify circumstances do the case un Johnson, (5th der 1391(e)(4),which man establishes denied, cert. damus venue in the plain district of the (1970). Domicileis usual sure, tiff’s residence. To be residence ly the best measure of that convenience for the purposes of 1391 often is inter removal, since with intent to relinquish preted as equivalent domicile, personal ties to the old home and remain there are some indications that Kahane indefinitely new, at the is the handiest changed has his domicile from the East dividing line in measuring relative con ern District of Moore, New York. 1 J. venience Here, of the however, forum. 5.1-2, 10.142[5.1-1, 7]; Practice continuing probation obligations to the Connett, Ellingburg court of the Eastern District made it (5th 1972); Ott v. United States more sensible to consider that district as Parole, Board of F.Supp. Kahane’s purposes residence for the (W.D.Mo.1971). the venue statute. Because of the un moved to sentencing, After his Kahane usual circumstances here—Kahane’s long-time for office family Israel with his and ran residence in the Eastern Dis circumstances trict ordinary there. Under combined with probation obliga a find- strong that would be tions to the support court of that district —we the time of ing of Israeli domicile. At conclude that venue was properly laid in sentence, however, he the his conviction and Eastern District of New York.3 1391(e) generally provides: in manda- 3. Venue was broadened 2. 28 U.S.C. § agencies against to end actions mus is defendant in which each A civil action District of Co- in the concentration actions employee United States of the an officer or petitioners in the and inconvenience lumbia acting any agency in his official thereof or agencies many districts in which distant authority, legal capacity or or under color well, however, might operate. States, except may, agency an of the United narrowing provisions for cases consider law, brought provided as otherwise conduct to affect the such as this which seek (1) any judicial a defend- in which: in which institutions to the districts of fixed resides, (2) the cause or ant in the action Coleman, J., dissent- lie. See the institutions arose, any property in- (3) real action or Connett, Ellingburg ing 457 F.2d 240 situated, (4) the volved in the action property is in- plaintiff if no real resides in the action. volved ment, represents it bare minimum of the merits reach the therefore authorities, jail with or without matter. specific request, are constitutionally estab well quite now It do, only for Muslims insti penal while lished but indeed for any group inmates restrictions subject are tutions religious with restrictions on diet. are not freedoms,4 the restrictions their supra Barnett at 1001. Martinez, Procunier limit. without 1800, 40 L.Ed.2d 396, 94 S.Ct. justifies The evidence in this case on fun operate they Where finding deep the court’s religious as the freedom rights such practising to a orthodox significance damental must of restriction degree worship, (which prisoner concededly is) Jew anby justified can be that which only the laws of Kashruth. The dietary in government substantial “important important, are an integral part laws penal by the the restriction terest” the covenant between the people Jewish *4 413, 1800.6 at 94 S.Ct. Id. institution.5 and the God of Israel. recognized The district court on the properly courts have evidence be- The accommo thoroughly justified must fore it was authorities in its prison that to receive finding of the right religious importance the date religious scru dietary with their the Jewish rules. consistent diets Kleindienst, 507 F.2d agree v. with the Chapman court below that the ples. 1974); Ross v. Black 1246, (7th prison proscribed by authorities are 1973); Bar religious 477 F.2d 616 constitutional status of ledge, freedom U.S.App.D.C. managing v. from the institution in a nett man- (1969). prevents F.2d 995 ner which unnecessarily Ka- hane’s observance dietary obliga- of his “one full- request for Their [Muslims’] prisons tions. difficulties for the and day diet once a pork-free course inherent in this rule would seem sur- essentially daily” three times coffee mountable in view of the small number official degree for a modest plea a in federal practising Jews orthodox religious obligations. to their deference (which prisons the evidence indicated feasible Certainly this concession is twelve), would not approximately exceed manage- standpoint 405- Martinez, supra, at 416 U.S. v. Procunier proposition that with the familiar 4. We start at 1807. 94 S.Ct. brings the nec- about awful incarceration “[1] many essary or limitation withdrawal the denial of we hold that kosher Because by justified rights, privileges a retraction by any “important justified or food is not sys- underlying penal our the considerations interest,” government we need substantial 266, 285, Johnston, tem.” Price v. prisoners’ on restrictions not decide whether 1049, 1060, (1948). L.Ed. 1356 68 S.Ct. justified by rights need be Amendment First 319, 321, Beto, 405 U.S. also Cruz See government “important in- an or substantial (1972). In stringent more demands of terest” or corollary of a Amendment context the First “compelling government interest.” This a principle inmate retains that a this “compelling adopted expressly in- rights are not that First Amendment those Oswald, terest” formula Goodwin prisoner or his status as a with inconsistent However, objectives penological legitimate with decisions, subsequent Supreme Court system. corrections Martinez, supra, use the lan- Procunier 817, 822, Procunier, 94 S.Ct. 417 U.S. guage “important Pell substantial inter- of an 2800, 2804, (1974). test, government est.” Under that latter presumably burden in sustain a lesser must practice prison regulation offends 5. When prisoners’ rights. justifying restrictions guarantee, fed- fundamental constitutional of kosher Because we hold that denial duty pro- discharge their will eral courts using the standard food is unconstitutional Avery, rights. Johnson tect constitutional government, we need more favorable stringent “com- decide whether the more pelling test is the one which is ulti- interest” mately controlling. in view that state and of the fact Mandate may issue forthwith. food, city prisons provide kosher holi- high do so institutions (concur- Judge FRIENDLY, Circuit un- are not that medical diets days and system. the federal known in ring): review indicates

The order under Judge Weinstein’s initial opinion in means within several there are case, dated May 1975, predicated which Ka respondents reach of on 28 or, U.S.C. § alter- Some of may respected. rights hane’s natively, on 28 although means, for self- such as methods these the only named defendant was the fruits, are vegetables preparation “United States of America.” Following themselves. respondents suggested by this court’s decision in United States v. fish, eggs and tinned boiled Huss, Provision of which held insti regular may be made from cheese was unavailable for “matters language supplies. tution of internal prison administration,” id. at 603-04, and that does not lie opinion incorporated in the may order7 “against unknown federal respondents,” interpreted require hot kosher TV id. 520 F.2d 604-05, at we returned this dinners. If these are merely suggested case to the district court for methods, reconsidera- we find no fault with them. tion. Kahane then filed a complaint If, however, un- requires order imple der § and a petition for a writ mentation every of each and one of *5 habeas corpus under 28 2241, methods, these go it would further than each with named respondents. Judge necessary to required reach the result. Weinstein treated these complaints as Such details are best left to the prison’s amendments to original case, the management and which provide can from the dismissed them insofar as they were sep- food supplies available within budgetary arate actions. In an opinion dated Au- limitations. Prison authorities have rea gust 21, 1975, the court, light in sonable discretion selecting the means of the amended pleadings, by concluding prisoners’ which rights are effectuat “that it accordingly jurisdiction has over ed. Pell Procunier, See 817, the subject matter parties and and (1974); venue in this district proper,” is denied v. Malcolm, Shakur 525 F.2d “the defendants-respondents’ motion for 1975). (2d n. 3 a transfer of this judicial cause to a foods, dis- frozen, prepared use trict wherein the plaintiff-petitioner is constitu- is not helpful, perhaps while will be incarcerated.” to merits, As the acceptable another tionally it reaffirmed the conclusions reached in provided. is kosher keeping means the previous opinion. re- to order modify therefore sufficient a diet On appeal, Government, provision regard quire with- health good possibly, although I think er sustain laws, dietary Jewish roneously, violating feeling by bound out state specific mandating ment in United Huss, otherwise States v. supra, without modified, the order 520 so F.2d at quoted As of diet. in the margin,1 items contests only the venue. affirmed. pre- by hot kosher portion Judge bles, supplemented 7. The relevant Weinstein’s order meals. reads a follows: frozen cooked precedents Under the established App. at 198-99. cases, dietary at a minimum federal Muslim a district 1361affords been held 1. It has dietary prisons provide alternatives to must proper court with observing dietary laws that Jewish would actions of federal a claim consider requirements not violate kosher —for rights. E.g., amendment violate first officials breads, fruits, acceptable example, certain U.S.App.D.C. Barnett v. cheeses, fish, eggs vegeta- boiled and tinned Long 1968). (3d properly that if this action was of discretion of agree the exercise influence making the district court in the brought agency under officer or sustaining venue on the Cong. decision.” & Ad justified U.S.Code Cong., of Kahane’s residence 2d Sess. ground min.News 1962). York, of New District Eastern in affirmance. I concur (e)(4). Thus While the distinction thus made is easier However, set forth be- reasons state than to apply, there is a recog- low, the action was I do believe that difference, nizable as Mr. Justice Doug- 1361 and consider that within § las said in Panama Canal Co. v. Grace impor- is free to raise this Government Co., Inc., Line supra, 356 U.S. at question tant on another occasion if so S.Ct. at between “[wjhere cases advised. matter peradventure clear, where the agency is clearly derelict in failing to spectacle large warden of a act, where the inaction or action turns being pris- answerable for on a law,” mistake of on the hand, one 1361 to district and, other, those “where the duty judges scattered from Maine to Hawaii to act turns on matters of doubtful or highly debatable inferences from large and Florida to Alaska—an inevitable consequence if 1361 and the concomi- or loose statutory terms”—here constitu- provision entitling plaintiff tant venue terms, tional “the construction to sue in the district of his residence are of the statute is a distinct and profound applicable heartening not a one. The —is exercise of discretion.” legislative tortuous of 1361 history has Fiocca, been reviewed in Byse and Sec- If the Bureau of Prisons had ruled tion 1361 of the Mandamus Venue that no attention whatever giv- would be Act of 1962 and Judicial “Nonstatutory” en to the requirements Kosher food Review of Federal Administrative Ac- Jews, Orthodox that would have been tion, 81 Harv.L.Rev. 308 such a disregard blatant of the First this court in Liberation News Service v. Amendment that 1361 would be availa- Eastland, 1383-84 Cir. ble to such a defendant sentenced to a say Suffice it here to that the federal prison term. But *6 the Bureau primary purpose was to had taken no such position. It had been make the remedy traditional of manda- made by clear the testimony and find- mus more readily by available a broad ings in United Huss, States v. provision, 1391(e), expand not to F.Supp. 752 (S.D.N.Y.1975),of which the the nature recently of mandamus. As I district court judicial took notice and of wrote, concurring Opportu- in Economic which the parties aware, were well that nity Comm’n County of Nassau v. Wein- the Bureau would go to considerable 1975): 393, berger, (2 407 Cir. lengths to religious accommodate beliefs concerning diets. In the words of Bu- of manda nature words “in the The reau of Prisons Policy Statement 7300.- something, mean do

mus” 43A, Court Supreme what very likely before years only four had said A committed may offender abstain Canal Co. Panama passed, was from eating items, statute those food served 309, Inc., Co., 356 U.S. Line to general v. Grace population, which are 752, 2 L.Ed.2d 788 317-18, 78 S.Ct. prohibited by the religion of the resi- stated that Report (1958). Senate dent. The committed may offender to the amendment purpose “The receive portions added of non-rationed jurisdic that specifically items, food provide line, from the serving main by district courts conferred tion which in ho way cause a violation of compelling to is limited the bill the restrictions of the professed faith agency per or official by Government the committed offender. Ordinari- or to plaintiff owed to duty ly, form the practical problems of institu- to direct or decision, not but amake tional administration primary must be question cases); of re- eral arranging for the observance 1 Recommendations sacraments, ligious holidays, Reports cele- of the Administrative Con brations, diets, and the like. ference of United States 169 Friendly, Federal Jurisdiction: A Gener was stronger given even commitment An (1973), al View 121-22 judges federal this In the by Government in case. have indulged sometimes in a construc remand, urging after while argument tion of unwarranted its words “the Court to decline to entertain history, as the writer Cortright did in to, at at the juncture suit Resor, 245, 250-51 least, it,” at- transfer the Government’s denied, cert. 405 U.S. 92 S.Ct. torney said: L.Ed.2d (1972), where represent pris- to the Court that [the Government did not challenge provided would be with a nutri- oner] jurisdiction. Wechsler, Cf. Hart & tionally adequate would be diet that Federal Courts and the System Federal acceptable, religious according to his (2d 1158-60 ed. may Whatever vitamin, tenets and with sufficient said about such latitudinarism in other mineral his health supplements so situations, there is justification no it not placed jeopardy. would when habeas corpus under 28 U.S.C. Thus, the question litigated sole to be furnishes a wholly adequate rem 1361 action was whether the Bu- edy for federal pos in the best gone had enough satisfy reau far its sible venue —the district in which the obligation to appropriate make an recon- n prisoner is confined.2 Preiser v. Rodri ciliation of Rabbi Amend- Kahane’s First guez, 411 U.S. right religion ment to free exercise of L.Ed.2d 439 in no way decided “with his status as a with the corpus habeas would not lie chal legitimate penological objectives of the lenge confinement; conditions of it de system,” Procunier, corrections Pell v. cided only a state prisoner who 817, 822, 825-26, 94 S.Ct. seeking challenge the length of con This falls in finement could not utilize 42 U.S.C. Mr. Justice Douglas’ category, second jurisdictional 1983 and its counterpart, first. 1343(3), 28 U.S.C. to avoid the exhaus an effort It doubtless true tion requirements 2254(b) (c). jurisdictional require- to avoid a Although amount Mr. Justice only Stewart said ment which in suits seems senseless the availability of habeas to chal officers, Wechsler, against lenge conditions was “arguable,” Revision of Jurisdiction and the at 93 S.Ct. the earlier Code, Judicial Comtemp. him, 13 Law & cases cited Johnson v. Avery, (1948); ALI, Study Prob. *7 (1969), Division of Jurisdiction State Swenson, between Wilwording and v. 404 172- pp. and Courts 1311 and 92 § S.Ct. (1968) (original uncertainty

76 in all fed- jurisdiction (1971), 418 betrayed no on appropriateness applicable of 2. The and convenience that not be at in all such a case. theOn side, are allowing forum manifest. If Rabbi Kahane ever is privi- other Rabbi Kahane the prison eight leges to a federal months sent after the decreed here should cause disturbances delay already through pro- he has part prisoners, of obtained on the of other as the Bureau ceedings sentencing and predicts, ought op- court in this of Prisons there to be an guess appeal, may safely portunity one that the speedy court for the warden to seek modi- complaint present will last. When a prison; not be his fication a federal court from near the arises, controversy corpus much will turn on the new habeas under 2241 § affords prison 1391(e) and the warden and application facts other officials whereas of 1361 §§ Brooklyn, go might in, not have to require example, should allow a warden for Atlan- there, go testify. ta, Ga., Rabbi Kahane to in order to seek modification of an order made existing special Braden v. consideration a district court in a Alaska Hawaii Kentucky, Judicial Court of 30th 1361 if the an action had obtained (1973), would order there basis of his residence.

499 procedure, calendar summary Developments in the also Circuit’s point. See Connett, 457 F.2d 240 v. Corpus, Ellingburg Habeas 84 Harv. Law—Federal dissent, Judge 1083-84 Coleman’s I find L.Rev. (1972), of provisions persuasive the venue much more of at inaptness F.2d 457 2241 availability opinion. of The decisions 1391(e) majority than Circuit, did not that of Columbia argue ppwerfully District of challenge Director, utilized to Pris 1361 to be U. S. Bureau of intend v. Young 331 administration. 367 F.2d ons, U.S.App.D.C. prison Carlson, said in United States true, we 506 F.2d 131 as v. (1966); It is Wren cir McGuire, that several 512 F.2d 918 Huss, see footnote v. Starnes (1974); v. 1361 to have held instructive as to quite decisions seem cuit jurisdiction of by basing basis caused can be appropriate an that mischief be the le challenging petitions claims Even in considering 1361. jurisdiction for However, form, conditions. directed, against least in at gality not brought warden, were the circuit cases of these immediate most prisoner’s confinement, with the warden necessary it to attempt has found as a defendant. named judges by the enthusiasm of district curb (5 Blackwell, 66 Cir. 360 F.2d Walker “absent ruling extraordinary that cir 1966); which we need today Toles v. cumstances de Katzenbach, 385 F.2d 107 lineate, (9 1967), vacated, Cir. such actions ordinarily should the district transferred of confine L.Ed.2d [to Long Parker, under 28 1404(a)] ment as a (3 1968); Cir. Young Director, Barnett v. of course.” matter 133 U.S.App.D.C. 296, 410 F.2d F.2d at 332. (D.C.Cir. supra, Enforcing that 1969); Taylor Blackwell, rule, filling out the term “extraordi (5 1969); circumstances,” Mead v. nary the court F.2d (9 1972); appeals develop complicated Workman v. list Mitchell, 502 F.2d (9 1974); govern disposition rules to also Waddell v. Alldredge, 480 considered a normally what is matter for Cir. 1973). Since federal court’s discretion. jurisdiction the trial See Starnes and venue McGuire, would supra, exist 512 F.2d at under 929-33. the approach am suggesting Included in that list is the consideration would yield an identical result; indeed, that, cases which “should properly several of these cases ex plicitly recognized the district court brought” under § habeas corpus re lief was also be free to transfer the case” since “must available —e. g., Mead v. Parker, supra.3 there is no reason in “we believe the court to these cases for deviate to as- been able as I have As far the traditional rule residence circuits have assumed certain, two only (and custodian thus the the immediate grievance prisoner’s over a confinement) is the correct fo place of confinement over the have at 931-32.4 How much not also 2241 would rum.” when § satisfactory the deci- it would be to rule respect to With more available. been extraordinary circum- utilizing except the Fifth panel a divided sion advocat- argued have 4. The ap- which Government the decisions has not as on this Insofar peal been based *8 1361 have for the denial of its reach transfer motion broad was aed corpus relief assumption habeas an abuse of discretion —much less the “clear- challenging the necessary cut abuse of discretion” under our unavailable Long Dempster in A. Olinick decision & Sons v. confinement —see their of conditions Fiocca, supra, Brothers, Inc., at 349- Parker, Byse (2 supra; & McNamara, appealable to render such a denial 50; cf. Ashe it stood by the inval- alone. 1965) is vitiated force —their assumption. idity of stances, 1361 is not available and exclusive remedy!5 America, of UNITED STATES my for in support view further find Appellee, 2255. of § interrelation to the Judicial Code added Section largely to cure 1948, was enacted et PS HOTEL CORPORATION under arising gen- of problems al., Appellants. statute: inordi- corpus eral habeas No. 75-1342. where load districts nate case located, and, more particu- were

prisons Appeals, United States Court of Eighth unavailability in the district of Circuit. larly, the who had testi- of witnesses confinement Dec. 1975. Submitted legality to the the sen- mony relevant Dec. was said in United States Decided 1975. tence. As 205, 220-21, 72 Hayman, Rehearing Denied Jan. L.Ed. “[t]he any 2255 is to hold of Section purpose hearing sentencing of trans- of the inconvenience

because other court officials and neces-

porting to the district confine- witnesses

sary who a brings prisoner

ment.” Since right “the must claim to be 2255 action

released,” it is clear that section is a prisoner attacking only

not available confinement, we his as Huss, supra; States v. held in United see supra, F.2d at

also Mead thus 2255 relief “inade-

1111. With ineffective,” a

quate prisoner attack- may

ing the conditions confinement claim

bring his the dis- he is confined—a

trict where forum as claims airing such as

convenient sentencing passing is for This illegality.

claims of rational deci- respect with to the ven-

sion of prisoner applications

ue of federal is im- invoke

periled if can residence to review

the district

discretionary determinations of Prisons.

warden or Bureau review, availability availability appellate under 28 U.S.C. transfer limited 5. The answer, frequent speak supra, the time re- 1404(a) in view no note 4 grant judges quired. this and of district reluctance