E. B. Weiss v. R. C. Lehman and Wayne Larue
676 F.2d 1320
9th Cir.
1982
Check Treatment

*2 deprived claimed that he had been of his DUSEN,* Before VAN FARRIS and without due of law in vio- BOOCHEVER, Judges. Circuit lation of the Fourteenth Amendment. The Supreme Court found no viola- FARRIS, Judge: Circuit tion. We consider this case for second time Parratt states that Supreme remand from the Court for light Taylor, necessity quick reconsideration of Parratt either the action impracticality providing or the State (1981). any meaningful predeprivation process * Dusen, “special Finding counselling Honorable Francis L. Van Senior United neither factors Circuit, Judge, “equally States Circuit the Third sit- hesitation” nor an ting by designation. remedy,” we affirmed. Our decision was vacated. U.S. -, - 70 L.Ed.2d The Forest Ser- themselves defective. availability of can, coupled with the when expected pub- and cannot be to as- is not by which vice meaningful means some abandoned and lish notice before propriety the State’s sess the can the Forest taking, satisfy property. Nor worthless the initial some time after reasonably provide expected proc- be procedural Service requirements departing from *3 negligently before ess. destroying by proper procedures 539, at 1915. Id. 101 S.Ct. erroneously to be abandoned and believed quick action. was no need for Here there worthless. mean- task, then, is to decide whether Our of Parratt impracti- requirement The second ingful process was predeprivation had clearly Weiss more satisfied. adequate postdeprivation is cal and an remedy under so, adequate suffer a alternative If Weiss did not was available. Act, 28 Tort Claims U.S.C. Federal deprivation of his without 1346(b), 2671-2680. §§ of law. fit Lehman's con attempt find, however, we cannot Weiss’ We “discretionary function or us into the record before duct from limited determine exception liability, 28 U.S.C. process duty” meaningful predeprivation 2680(a), generally fails. “The distinction allegations, impractical. § application of the per made in the support, offered in the evidence their exemption is between those deci no function mit that Lehman acted a conclusion plan policy are on a negligently respect to sions which made with worse than level, argues opposed as to those made ownership ning Weiss interest. Weiss' Thompson oc level.” v. United deprivation operational not have would 1104, States, Forest 592 F.2d 1111 proper Lehman followed curred had States, 665 Lindgren v. United procedures for Service the destruction See 262.4, Thompson 978, 1982) (quoting personal property. 980 See 36 C.F.R. § States). Blessing dispo v. United impoundment Cf. provides which v. United States, (E.D.Pa.1978). F.Supp. notice to 447 1160 personal property sition of after opera owner, Here, was on the if the address of Lehman’s conduct name and unknown, speci planning rather level. then after tional level than owner States, 173, Hatahley mere 351 U.S. public notice. Since removal of fied See 745, (1956). debris, old, body 100 1065 rusty such as an car 76 S.Ct. L.Ed. worthless, Navajo Hatahley, sued under the thought to be abandoned and Indians require with 36 Act to recover for the compliance would not Federal Claims 262.4, to com horses. The wrongful C.F.R. the asserted failure destruction of their § ply here, grazing public based on the evidence in the rec horses had been lands of ord, appear been no more were seized. have the United States when negligent oversight. agents comply than a If there was with notice Federal failed negligent departure specified merely proper requirements by from the Federal procedures, pro Range then such to follow before the horses. failure Code 2860(a) government’s cedures was no less unauthor “random and reliance on as a § 181, departure procedure by liability rejected. ized” than the Id. at bar to 76 the prison officials in Parratt. Under at 751. S.Ct. circumstances, meaningful predeprivation trivializing result Parratt avoided would be for the same the Fourteenth Amendment. reasons for the respondent’s argument that accept To prison officials in a hear provide in this conduct of state officials case ing prior to the tortious loss of the of the Fourteenth constituted violation 541, property. 101 inmate’s See id. at necessarily almost Amendment would turning alleged injury every sult not ar been a state offi- may

As Weiss does inflicted gue procedures acting of law” into a the Forest cial under “color Service

violation of the 1981]) Fourteenth Amendment in light incorrect [9th cognizable under It is hard to 527, Taylor, § Parratt v. perceive any logical stopping place to Presumably, reasoning. such a line of under this party rationale who I in nothing

involved more than an auto- BACKGROUND mobile accident with state official could allege a constitutional violation under Bivens Under v. Six Unknown Named reasoning 1983. Such make Agents, “would U.S. Fourteenth font of Amendment a tort interpreted L.Ed.2d in Carl upon superimposed law to be whatever Green, son v. U.S. systems may already be administered (1980) Passman, L.Ed.2d and Davis v. Davis, the states.” Paul *4 1155, 1160, 96 47 S.Ct. L.Ed.2d 405. (1979), plaintiff injured a by L.Ed.2d a We do not think that the drafters the employee’s plain violation of the Fourteenth Amendment the intended tiff’s constitutional is entitled to re play amendment a such role in our money damages cover when there is neither society. special counselling a factor hesitation nor Id. at permit at To the equally S.Ct. 1917. remedy. jury process a this case to find Bivens, 396-97, viola- at S.Ct. solely tion based negligence mere original 2004-05. In our we af be inconsistent with the more limited role jury firmed verdict and award of dam contemplated by the Due Process Clause ages for Weiss because neither of the above Parratt. a present. limitations on Bivens action were

The judgment in favor of Weiss is vacat- We found no reason to “hesitate” in im- remand, ed. On Weiss should have the damage plying a because Lehman opportunity pursue a due claim adequately protected by “was the availabili- facts, showing additional such in- qualified at trial of immunity a defense.” tentional property destruction of his inter- Indeed, 642 F.2d at 267. the case was tried est, that would make the Parratt limitation jury to the on the issue of whether Lehman inapplicable.2 qualified was immunity. entitled to There Vacated and Remanded for pro- further sharply disputed regarding was evidence ceedings opinion. consistent with this destroyed prop- nature and value of the erty.1 Clearly implicit jury’s in the verdict BOOCHEVER, Judge, Circuit dissenting: Weiss, jury that was made after instruc- I do not the majority’s share belief objection that tions to which no has been raised original our (642 decision in this case appeal,2 findings that property evidence, 2. We do including not decide now a photo- Weiss introduced predicated graphs greater testimony witnesses, violation could be and on acts of several showing negligence than but than that less intentional included valuable con- mining equipment parts. duct. The record also disputed regarding contains evidence given The intent cannot be “a uni- Weiss failed to remove the because spectrum form answer across the entire the road to it was unusable because the conceivable constitutional violations which property was worthless. might subject action,” be the of a McCollan, Baker v. 443 U.S. jury 2. The that was instructed Lehman was if, protected by qualified immunity alia, inter Rather, we must close attention to the grounds “there existed reasonable for the belief particular nature of the constitutional viola- appropriate” that the action taken was determining tion asserted in good whether intent is Lehman “acted in faith.” The court ex- necessary a plained “good element of a violation. faith” meant that Lehman: 547-48, at at belief, had an in- honest after reasonable (Powell, J., concurring). facts, vestigation of the action was [his] authority; proper exercise of and that [his] companying the 1974 amendments to were actions and that Lehman’s had value immunity. In Butz concluded that the Court qualified not entitled to 478, 505-07, 98 Economou, Congress views FTCA “crystal clear that 2910-11, L.Ed.2d 895 complementary caus parallel, and Bivens as protected that an official Court held at at es of action.” unless he knew qualified immunity that, hold went on to 1472. The Court that his conduct have known should expression from explicit of an the absence in our were not “hesitant” unlawful. We contrary, victim of Congress implying a Bivens reme- original decision in has an wrongdoing by a federal official immunity dy qualified defense because under the the Government being was not held meant Lehman against the a Bivens action FTCA as well as for “mere mistakes individually accountable individual official. at judgment.” Id. present contrast Carlson below, Nevertheless, fully more as discussed the availa turned on whether bring this majority, attempt in its remedy pre bility fully adequate state of a scope, ignores the case within Parratt’s bringing an action cluded jury’s fact-finding role and infers that pris against a state under U.S.C. § that Lehman property was valueless debris proper for the loss on official in de- negligently” than “acted no worse undisputed in Parratt ty. It was Majority stroying. negligent and was at worst state official We also held in our initial decision *5 fully been the could have that the Act and the Fifth Amendment Tucker through his available state compensated equally did not offer Weiss the sort of 537, 543-44, 101 at remedies. 451 U.S. precludes remedy at 1916-17. that, in bringing a Bivens action. We noted alternative-remedy in issue The Green, light of Carlson v. Lehman had not, present in and the was as Carlson abandoned his claim that the Federal remedies should (FTCA), 1346(b), which of two federal Claims Act 28 U.S.C. §§ offi- adequate pursued by rem- a victim of a federal afforded an alternative been edy. tort, but, rather, 642 F.2d at 266 n.2. I believe that whether intentional cial’s Carlson rather than Parratt is the control- ac- officials are negligent actions state here, that, ling Par- precedent even if (where pre-depri- no tionable under § applicable, majority ratt were the errs in pro- practical) is if the state vation notice applying the forth therein. standards set in adequate remedy. The focus vides an federally a actiona- Parratt was on whether

II The process violation had occurred. ble due present the case are and Parratt issues in Carlson and Carlson availability a The of completely different. Carlson, plaintiff brought In a Bivens the complementa- remedy, parallel, “a alleging prison official action federal action, Carlson, ry” to a Bivens alternative had son’s constitution- violated her deceased not at does at failing provide proper medi- rights by al to any a viola- conduct less of make Lehman’s at cal attention. The Court discussed rights. Fifth Amendment tion of Weiss length plaintiff’s the available signifi- remedy state was The alternative precluded her under the FTCA without it there cant in Parratt because bringing a Bivens action. After federally been a actionable viewing Congressional the comments ac- would have malice, knowingly, voluntarily, any and intention- acted without motivation of [he] will, ally revenge, animosity, anger, personal a reasonable mistake or ill and not because of or like; accident; merely abating and, further, (b) or “were was if he the [his] insanitary exposed disregard removing val- refuse or the taken with a careless of debris;” (c) the person he acted within of affected. ueless authority. jury it must of his lawful further instructed that bounds (a) destroyed find for he the Lehman: unless contrast, process. Parratt, question deprivation In process violation. the claim in this case turns on whether the availabili- supervisory was made offi- Bi- precluded a of alternative remedies cials to recover the value materials lost There no but that vens action. due to the failure of subordinates post-deprivation proce- all the various procedures handling follow in normal i.e., Bivens, FTCA, and Tucker Act way mail. Because the officials had no dures — satisfy process. knowing in advance that actions — subordinates mail, impossible mishandle the distinguisha One clear indication of how provide pre-deprivation process. In con- ble Parratt is from in the situation Carlson trast, Lehman, in capacity his as the mana- present case is the fact that neither ger Ranger of the Forest Service Station Bivens nor even in Carlson were mentioned performed operation, clean-up concurring Parratt. Five Justices filed Parratt, publish made deliberate decision not to opinions in empha sized, alia, scope property. inter notice before the narrow holding. concurring ample opportunity Court’s Justices There was notice emphasize that Parratt turns correctly had Lehman evaluated the status unintentional acts state should property. officials Although there was not be actionable in federal court under type impracticality here as existed See, Due e.g., Process Clause. at that, it be may argued still once 545-46, 547, 101 1917-18, 1919. at For the decision was made that example, Justice Powell cautions that valueless, it was abandoned and im- Due Process Clause should not become publish notice. This far from litigation vehicle for federal of state torts type of “random and unauthorized” “a already statute that has conduct that made notice n.7, its burst historical bounds.” Id. at 549 541, 546, Parratt. 550-52, 554, n.7, at 1920 Here, Lehman, supervising inapposite 1923. These concerns official, pre-deprivation made deliberate availability whether the of an alternative jury which the to be found unrea- remedy precluded bring Weiss from sonably wrong, provisions *6 ing a against Bivens action Lehman. dispensed should be with. Second, I also Ill “meaningful is a means” The Parratt Test propriety assess the of Lehman’s action. Even if applicable the Parratt test were 539, U.S. here, I would reach a different result from “high- my opinion, the FTCA be a would majority in applying it. I believe that ly questionable” opposed “meaning- ato there was affording means of ful” means because of the discretion- Act’s pre-deprivation process and that no mean- ary exemption.3 majority function ingful alternative to a Bivens exist- principally on v. Hatahley lies the case of ed taking. after the States, 173, 745, United U.S. First, type (1956) contending this is not it case where 100 L.Ed. 1065 provide meaningful pre- Lehman’s acts do within the discre- not fall 2680(a) responded 3. Section their of the Federal Tort duties. Courts have to the Claims provides liability protected Act should not be im- need to line between draw elusive posed perform- by fashioning unprotected the basis of “the or exercise and activities vari perform ance or “planning-operational the failure to exercise ous tests as the discretionary duty part test, test,” “good function or bal Samaritan” agency federal generally or an ancing-of-policy-factors of the Govern- test. See Ca ment, States, (2d not the discretion involved be ban v. United exception tests, abused.” This any function I Under of these feel it presented interpretive problems has from the highly questionable whether Weiss would have principal difficulty time of its enactment. The the Government simply employees all federal exercise FTCA. discharge certain amount of discretion exemption. In that tionary function

however, BANK, Appellant, undisputed PUBALI identity knew the officials Government v. they destroyed, yet horses the owners of the BANK, the Aristos CITY NATIONAL appro- required give failed to Willis, McGuire, Group, A. Robert Jack stat- priate regulations. Court Svikhart, Margo Appellees. ed: No. 80-5263. concerned with We are here not Appeals, United Court States “discretionary un- problem of a function” Ninth Act, der see Dalehite United Circuit. 956,

States, 97 L.Ed. U.S. [346 Argued Oct. and Submitted wrongful were tres- These acts 1427]. May Decided passes involving not discretion on the Rehearings Denial of As Amended on part agents, do of the rise 10, 1982. Sept. compensable to a claim under the Federal Act. Claims 76 S.Ct. at 752. pursued under the Had Weiss this action certainly Government argued that Lehman’s decision that unnecessary proper

notice was because the was abandoned valueless constituted Although airtight,

an act of discretion. argument

such an would have substantial States,

merit. See Dalehite States, (1953);

L.Ed. 1427 Martin v. United 1976), denied,

546 F.2d 1355 cert.

(1977); Dunn, Youngstrom v. 447 F.2d 948 1971) curiam); (per United States Industries, Inc.,

v. Delta F.Supp.

(N.D.Ohio 1966). provides The FTCA

judgment in a tort claims action “shall con *7 complete

stitute bar to

claimant, by subject reason of the same

matter, gave

Government whose act or omission Thus,

rise to the claim.” 28 U.S.C. filing under the Weiss would

have taken a losing substantial chance of excep

because of the function being

tion and bringing barred from

subsequent action. Under these circum

stances, fragile so as the

not a meaningful pro means to assess the

priety of Lehman’s actions. discussed,

For all the reasons I would Judge original opinion.

adhere to Farris’