IN THE UNITED 8TATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

STEVE JACKSON GAMES
INCORPORATED,  STEVE JACKSON,
ELIZABETH McCOY,
WALTER MILLIKEN,
STEFFAN O'SULLIVAN

     Plaintiffs,                 Civil Action No.
                                  A 91 CA 346
       vs .

UNITED STATES SECRET SERVICE,
UNITED STATES OF AMERICA,
WILLIAM J. COOK,
TIMOTHY M. FOLEY, BARBARA GOLDEN,
and HENRY M. KLUEPFEL,

   Defendants.
 
___________________________________________________­ 

MOTION TO DISMISS OF THE  INDIVIDUAL DEFENDANTS  

Defendants William J. Cook, Timothy Foley, Barbara Golden
and Henry M. Kluepfel, pursuant to Rule 12(b)(2) of the Federal
Rules of Civil Procedure, hereby move to dismiss plaintiffs'
claims against them for lack of personal jurisdiction.
 ­ 
Respectfully submitted,

STUART M. GERSON
Assistant Attorney General

RONALD F. EDERER
United States Attorney

HELENE M. GOLDBERG
Director, Torts Branch

NICKI L. KOUTSIS
Assistant Director, Torts Branch

------

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

STEVE JACKSON GAMES
INCORPORATED, STEVE JACKSON,
ELIZABETH McCOY,
WALTER MILLIKEN, and
STEFFAN O'SULLIVAN

  Plaintiffs,                   Civil Action No.
                                  A 91 CA 346


UNITED STATES  SECRET SERVICE,
UNITED STATES OF AMERICA,
WILLIAM J. COOK,
TIMOTHY M. FOLEY, BARBARA GOLDEN,
and HENRY M. KLUEPFEL,

   Defendants.
 

_____________________________________________________­ 

MEMORANDUM IN SUPPORT OF THE MOTION TO
DISMISS OF THE INDIVIDUAL DEFENDANTS 

  INTRODUCTION  

This is a suit for damages and injunctive relief brought by
Steve Jackson Games, Inc. (SJG), Steve Jackson, its owner, and
three users of an electronic bulletin board system operated  by
SJG. Plaintiffs have sued the United States, the Secret Service
and two of its special agents, an Assistant United States
Attorney and Henry M. Kluepfel, a private citizen, alleging
violations of the First and Fourth Amendments, along with
violations of the Privacy Protection Act (PPA) and the Electronic
Communications Privacy Act (ECPA).
 ­ 
For the reasons stated below, plaintiffs' claims against the
individual defendants must be dismissed pursuant to Rule 12
(b)(2) of the Federal Rules of Civil Procedure because this Court
lacks personal jurisdiction over those defendants.

 ARGUMENT  

I. This Court Lacks In Personam Jurisdiction Over the Individual
Defendants

  A.  The Fiduciary Shield Doctrine Prohibits the Exercise of
      Personal Jurisdiction
 ­ 
The individual defendants in this case all reside in either
Illinois or New Jersey. They own no property in Texas, derive no
income from the State and transact no personal business here.
Exhibits A-D. In order for this Court to exercise personal
jurisdiction over the individual defendants, plaintiffs must
demonstrate that, even though the defendants do not reside in
Texas, they nevertheless have sufficient contacts with the State
to subject them to jurisdiction here.

When a defendant challenges the existence of personal
jurisdiction, the burden is on plaintiff to prove that
jurisdiction is in fact proper.  McNutt v. General Motors
Acceptance Corp.,  298 U.S. 178, 189 (1936). This is a suit
against individual defendants for alleged constitutional and
statutory violations as well as against the United States.
Because relief is sought against the defendants personally rather
than solely against the United States, plaintiff must prove that
this Court has personal jurisdiction over each of the individual
defendants. See e.g. Griffith v. Nixon, 518 F.2d 1195 (2nd
Cir.), cert. denied, 423 U.S. 995 (1975).
 ­   

In International Shoe Co. V. Washington, 326 U.S. 310 317
personal jurisdiction over an out-of-state defendant, a plaintiff
personal jurisdiction over an out-of-state defendant, a plaintiff
must first establish that the defendant is amenable to service of
process under the laws of the forum state and has certain
"minimum contacts" with the State such that the exercise of
jurisdiction would not offend "traditional notions of fair play
and substantial justice."  Because the Texas long-arm statute has
been held to extend to the 1imits of due process, see  Stuart v.
Spademan, 772  F.2d  1185, 1189 (5th Cir. 1985),  this Court need
only determine whether the exercise of personal jurisdiction over
the individual defendants would be constitutionally permissible.
Id.

In order to satisfy the constitutional prerequisites for the
exercise of personal jurisdiction, plaintiffs must demonstrate
that the individual defendants took some action by which they
purposefully availed themselves of the benefits and protections
of the forum state.  Hanson v. Denckla,  d 357 U.S. 235 (1958).
Before jurisdiction can be exercised, a defendant's connection
with the forum must be such that he should have reasonably
anticipated that he could be "haled into court" in that forum.
World-Wide Volkswagen Corp. v. Woodson, 444 U.S.  d 286, 297 (1980);
Stuart v. Spademan, 772  F. 2d at 1190.  "When a controversy is
related to or arises out of a nonresident's contacts with the
forum, the minimum-contacts inquiry focuses on the relationship
among the defendant, the forum, and the litigation.  Stuart v.
Spademan, 772  F.2d at 1190.  "[T]he constitutional touchstone 
 ­ 
** FN 1 The exercise of jurisdiction under these circumstances is
      denominated "specific jurisdiction". Stuart v. Spademan, 772
      F.2d at 1190 and n.3

remains, however,  whether the defendant purposefully established
'minimum contacts' in the forum State." Burger King v.
Rudzewicz, 471 U.S. 462, 474 (1985), citing   International Shoe,
326 U.S. at 216.

The individual defendants' limited contacts with this forum
are insufficient to justify the exercise of personal jurisdiction
over them. None of the defendants has purposefully availed
himself or herself of the privilege of personally conducting any
activities in this forum such that there would have been any
reasonable basis to anticipate being haled into court here.
Instead, the most that can be argued is that the defendants are
alleged to have engaged in wrongful actions in Texas in their
capacities either as federal or corporate employees. However,
acts undertaken in a jurisdiction on behalf of an employer simply
do not subject the employee to suit in that jurisdiction in his
or her personal capacity.

In  Stuart v. Spademan  772 F.2d at 1197, the Fifth Circuit
recognized that the fiduciary shield doctrine prohibits the
exercise of personal jurisdiction over an individual whose
transaction of business in the forum occurred solely as a
corporate officer.  See also Saktides v. Cooper, 742  F. Supp.
382, 385 (W.D. Tex. 1990).  The fiduciary shield doctrine rests
upon the sound determination that it would be unjust to require a
defendant to defend a suit in a forum where "'his only relevant
 ­ 
 ***FN 2 Of course, the strong justifications for the doctrine
         with respect to officers of corporations, are equally applicable
         to federal employees.
 ­ 
contacts are acts performed not for his own benefit but for the
benefit of his employer.'"  Saktides v. Cooper, 742 F. Supp. at
385, citing Marine Midland Bank v. Miller, 664 F.2d 899, 902 (2nd)
Cir. 1981).

The complaint in this action is silent as to any personal
contacts by any of the defendants with this forum and, as their
declarations attest, these individuals have had no significant
contact with Texas other than that which occurred in connection
with their employment.  See  Exhibits A-D. Under these
circumstances, dismissal is appropriate.

    B. The Supremacy Clause Prohibits the Exercise of
 ­     Jurisdiction over the Federal Employee Defendants

Those courts which have considered the question have held
that federal officials conducting Government business within the
forum do not, on that basis alone, subject themselves to personal
jurisdiction.  See, e.g., Green v.  d McCall,  d 710 F.2d 29, 32-34 (2 ,Č"d
Cir. 1983);  Grove Press, Inc. v. Angleton, 649 F. 2d 121 (2d  Cir.
1981); Glaros  v.  Perse,  628 F.2d 679, 681-82 (lst  Cir.  d 1980);
Marsh v. Kitchen, 480 F.2d 1270, 1272-73 (2d Cir.  d 1973).

The result of Green and like cases finds support not only in
the fiduciary shield doctrine but also in principles of federal
supremacy. It has long been recognized that the federal
government "can act only through its officers and agents, and
they must act within the States," In re  Neagle, 135 U.S. 1, 61-
62 (1890), and that the Supremacy Clause, U.S. Const. art. VI,
cl. 2, shields federal officers and agencies from state
interference with the performance of their duties. Neagle,  d 135

U.S. at 75 (Supremacy Clause immunity from state prosecution);
M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 432 (1819) (Bank
of the United States immune from state tax);   California v.
Walters, 751  F.2d 977, 978 (9th Cir. 1984) (sovereign immunity
bars state prosecution of Veterans' Administration and its
Administrator).

The Supremacy Clause prevents the State of Texas from
effectively conditioning the federal employee defendants'
activities within her borders upon being subject to suit there
for those actions.  Cf.  Martin Malhoyt,   830 F.2d 237, 250-51
(D.C. Cir. 1987) (federal officers immune from state law tort
actions because under the Supremacy Clause state law cannot
dictate standards for performance of federal duties).
Accordingly, this Court should dismiss the claims against the
federal employee defendants for lack of personal jurisdiction.
 ­ 
CONCLUSION

For the reasons stated above, plaintiffs' claims against the
individual defendants should be dismissed.
 ­ 
Respectfully submitted,

STUART M. GERSON
Assistant Attorney General

RONALD F. EDERER
United States Attorney

HELENE M. GOLDBERG
Director, Torts Branch

NICKI L. KOUTSIS
Assistant Director, Torts Branch