Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-01035).

Michael Jeffrey Kator, with whom Irving Kator, Washington, D.C., was on the brief for appellant.

Mary Coster Williams, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Michael Ryan, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

Before BORK and BUCKLEY, Circuit Judges, and HAROLD H. GREENE,* District Judge.

Opinion for the Court filed by District Judge HAROLD H. GREENE.

HAROLD H. GREENE, District Judge:

This case concerns the proper method of service of process on a federal official who is being sued, ostensibly in her individual capacity, for activities that might actually fall within the scope of her official duties. More specifically, the question is whether in that situation service upon the individual alone is sufficient, or whether, as the District Court held, service on the United States is also required. Because we conclude that under the circumstances of this case service on the defendant alone did not meet the requirements of Rule 4(d)(5) of the Federal Rules of Civil Procedure, we affirm the order of the District Court quashing service and dismissing the action.1

* In August 1983, appellant Luise Light was Director of the Nutrition Guidance and Educational Research Division of the United States Department of Agriculture (USDA), working under the supervision of appellee Isabel Wolf. During that period, appellant negotiated with the American Heart Association (AHA) to provide services for one of the AHA's publications. According to appellant, she had received a firm offer of a contract from the AHA when appellee contacted that organization and "raised questions about the propriety of my conduct and inferred that USDA would be displeased with AHA if they concluded arrangements with me."2 AHA thereupon withdrew its contract offer, and appellant brought suit against appellee for slander and tortious interference with contract.

Pursuant to Rule 4(d)(1), appellant served a copy of the summons and complaint on appellee by certified mail to the latter's residence in the District of Columbia. However, she did not also serve the United States, and it is that failure that led to the present controversy. On May 17, 1984, the United States Attorney moved on behalf of appellee to stay discovery and to dismiss the action or to quash service of process. The District Court granted the stay motion, and subsequently it ordered that service of process be quashed and the action be dismissed. This appeal followed.

II

Rule 4(d)(5) of the Federal Rules of Civil Procedure governs the service of process upon federal officials. The rule provides that "[s]ervice shall be made ... [u]pon an officer ... of the United States, by serving the United States and by sending a copy of the summons and of the complaint by registered or certified mail to such officer...." Service upon the United States is, in turn, governed by Rule 4(d)(4). That rule requires "deliver[y of] a copy of the summons and complaint to the United States Attorney for the district in which the action is brought" and the mailing of a copy of these papers by "registered or certified mail to the Attorney General of the United States...."3 Service of process upon individuals, on the other hand, is governed by Rule 4(d)(1), which requires

deliver[y of] a copy of the summons and of the complaint to [the individual] personally or by leaving copies thereof at his dwelling house or usual place of abode ... or by deliver[y of] a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

The controversy before us raises an issue that is simply stated but does not have an obvious answer: which of these rules applies when a plaintiff frames his complaint against a federal official as a private action but that complaint at least arguably implicates the official activities of the defendant?

The government4 correctly points out that Rule 4(d)(5) draws no explicit distinction between suits against a federal officer in an official capacity and those brought against such an officer in his or her private capacity; the rule simply refers to service "[u]pon an officer ... of the United States."5 But that argument proves too much.

The Federal Rules of Civil Procedure, like any statute, must not be interpreted woodenly when the literal language leads to absurd results, and on this basis courts have long recognized that Rule 4(d)(5) service is not required with respect to "actions brought against persons who just happen to be, or to have been, federal officials." See Relf v. Gasch, 511 F.2d 804, 808 n. 18 (D.C.Cir.1975); Lawrence v. Acree, 79 F.R.D. 669, 671 (D.D.C.1978). If, for example, the head of a federal agency is being sued by an individual who tripped and fell on an obstacle negligently maintained on the official's private lawn, then obviously service to the United States Attorney under Rule 4(d)(5) is not required; there must be some connection between the lawsuit and the federal government before such service is required. As a leading commentator has noted, "Rule 4(d)(5) applies only if the action is in substance one against a federal officer or agency in its official capacity." J. Moore, Moore's Federal Practice p 4.29 at 4-240 (1986).III

Appellant strongly disclaims any connection between her suit and official government business, and indeed the face of the complaint reveals no such connection. Jurisdiction is alleged pursuant to 28 U.S.C. Sec. 1332(a), the federal diversity statute. Appellee's home address but not her official address is listed on the complaint, and the complaint does not reveal on its face that appellee was appellant's supervisor in a federal department or that the actions in question grew out of this employment relationship. In fact, no mention whatever is made of either appellant's or appellee's employment with the federal government. Thus, based solely on the allegations of the complaint, appellant would be correct: this lawsuit would be a purely private dispute, and were we to follow the Third Circuit's dictum in Micklus v. Carlson, 632 F.2d 227, 240 (3d Cir.1980), that "[t]he applicable method of service under Rule 4(d) depends upon the theory under which a party proceeds,"6 we would have to rule for appellant.

However, as we see it, in cases of this type the theory that appears from the words of the complaint may tell only half the story, and to allow plaintiff to accomplish service solely on that basis may not further "the interest of doing substantial justice"--the interest which underlies these rules of procedure. See C. Wright & A. Miller, Federal Practice and Procedure Sec. 1083, at 332-33 (1969). The appropriate question is not whether the complaint is drafted to portray or to conceal an official connection, but instead whether, as noted supra, the action might in substance be regarded as one against a federal officer in his or her official capacity.

The instant case at least presumptively reveals such official substance. As already stated, appellee was appellant's supervisor at the Department of Agriculture. In late 1983, while she was still working for that Department, appellant negotiated and received a contract offer to provide nutrition services for a private foundation. Once appellee learned of these negotiations, she would not have known whether her subordinate was trying to obtain a private contract or an official one; the USDA itself periodically enters into such contracts with private groups.7 However, whether official or private, the negotiations implicated appellee's duties as a Department of Agriculture administrator.8 If the contract was to be official, it would have required appellee's approval; if the contract was to be personal, appellant may have been in violation of the Department's conflict of interest regulations.9

In light of this connection between the contract offer to appellant, which formed the basis of her claim in the District Court, and appellee's duties to the Department of Agriculture, appellant's portrayal of this action as "purely personal"10 was misleading and inaccurate.11 Thus, as this very case demonstrates, reliance on the allegations of the complaint to sanction purely personal service may effect substantive violations of Rule 4(d)(5).

A requirement of official service in cases such as this is supported also by practical considerations. If a plaintiff is free in effect to determine whether the action is to be treated, initially at least, as a private one, the burden is cast upon the defendant official to contact and to attempt to persuade government counsel to provide the necessary defense. In view of the workload of attorneys in the Department of Justice and the various United States Attorney's Offices, and of the ponderousness of bureaucracies generally, it is likely to be difficult in many instances for the target of a "private" lawsuit to secure representation by government counsel in the early stages of litigation when often crucial tactical decisions need to be made.

On the other hand, the burden on a plaintiff under Rule 4(d)(5) is not an onerous one: all that is required is the delivery of a copy of the summons and complaint to the United States Attorney and mailing to the Department of Justice. Such service will enable and require the appropriate official to determine within the sixty days allowed to the United States for an answer to the complaint whether the defense properly may and will be undertaken by government counsel: such counsel could either decline to become involved, or they could, as here, provide representation to the official on the basis that his or her actions were likely "within the scope of [her] employment." See 28 C.F.R. Sec. 50.15. The Department of Justice thus deserved notice of this claim so that it could prepare, or at least decide whether to prepare,12 for litigation.