Florence O‘CAMPO, Appellant, v. Edna HARDISTY, Paul H. Wright, R. V. Rushford, N. P. Hughes and N. Drakulich, Appellees
No. 15535
United States Court of Appeals Ninth Circuit
Dec. 31, 1958
262 F.2d 621
There is substantial evidence in the record of unfair labor practices under
C. E. Luckey, U. S. Atty., Edward J. Georgeff, Asst. U. S. Atty., Portland, Or., for appellees.
Before FEE and HAMLIN, Circuit Judges, and BOWEN, District Judge.
HAMLIN, Circuit Judge.
Florence O‘Campo, appellant herein, filed an action for damages in the Circuit Court of the State of Oregon for the County of Multnomah against five persons, one of whom was a former emplоyee of appellant and the other four were employees of the Internal Revenue Service. She alleged that the five defendants conspired to ruin and destroy plaintiff‘s reputation as a nursing home operator and to breach the contraсts which plaintiff had with various patients or persons who had contracted with plaintiff for the care of wards or relatives. The four government employees, served individually on June 20, 1956, joined in the removal of the case to the District Court of the United States for the District of Orеgon (
Thereafter, following a denial of a motion for rehearing, plaintiff filed a timely notice of appeal. This Court has jurisdiction under
The main charge in plaintiff‘s complaint was contained in paragraphs 5 and 6 thereof, which are set out below.2
The request for admissions also contained the following first two paragraphs:
“1. Before the commencement of said action at all the times hereinafter mentioned, petitioners were and now are employees of the Internal Revenue Service of the United States of America. * * *”
“2. At all the times mentioned in said aсtion, petitioners were acting solely under color of their respective offices and by authority of the Internal Revenue Laws of the United States and all their acts in connection with the matters charged in said complaint were committed by each of them undеr color of their respective offices.” [Emphasis supplied.]
Under
There was also before the Court in the pleadings the verified petition of Appellees for removal of the case from the state court to the United States District Court which, inter alia, contained the statements as follows:
“3d. On June 14, 1956, the aforementioned delinquent taxes remained unpaid and a notice of seizure and sаle was served by the Internal Revenue Service, covering plaintiff‘s property at 10305 S.E. 82nd Avenue, Portland, Oregon. Plaintiff operated a rest home on said premises and because of the aged and bedridden patients confined there, the premises were not padlocked by the Internal Revenue Agents, but the Clackamas County, Oregon, Welfare Office, guardians and intimate relatives of the various patients, were notified of the federal government‘s seizure of the rest home and advised that arrangements should be considered for their future care in view of these circumstances.”
No denial was ever filed by the plaintiff of the facts set forth in this petition, and no motion to remand the case was ever filed by the plaintiff.
We hold that the unanswered request for admissions resulted in Appellant‘s admitting that at all times the Appellees were acting solely under color оf their offices and by the authority of the Internal Revenue Laws. The unanswered verified petition lends even more weight to the soundness of the District Court‘s ruling. By failing to answer or otherwise deny the facts alleged in the petition, the Appellant admitted that the rest home was not рadlocked,4 and that the proper authorities were notified to assure that arrangements would be made for the care of the patients therein.5
It has been held that governmental officers are not generally liable for their discretionary acts done pursuant to their lawful authority. See Cooper v. O‘Connor, 1938, 69 App.D.C. 100, 99 F.2d 135, at page 139, 118 A.L.R. 1440, where the Court said:
“It is not necessary—in order that acts may be done within the scope of official authority—that they should be prescribed by statute (United States v. Birdsall, 233 U.S. 223, 230-231, 34 S.Ct. 512, 58 L.Ed. 930); or even that they should be specifically direсted or requested by a superior officer. Mellon v. Brewer, 57 App.D.C. 126, 129, 18 F.2d 168, 171, 53 A.L.R. 1519, certiorari denied 275 U.S. 530, 48 S.Ct. 28, 72 L.Ed. 409. It is sufficient if they are done by an officer ‘in relation
to matters committed by law to his control or supervision.’ * * * (Standard Nut Margarine Co. [of Florida] v. Mellon, 63 App.D.C. 339, 341, 72 F.2d 557, 559, certiorari denied 293 U.S. 605, 55 S.Ct. 124, 79 L.Ed. 696); оr that they have ‘more or less connection with the general matters committed by law to his control or supervision.’
It is, of course, much simpler to state the rule than to apply it. A delicate balancing of interests is apparent. Every application of the rulе involves a determination of whether the desirable result of discouraging highhanded and oppressive official action is outweighed by the risk of inhibiting and hamstringing those who energetically and objectively pursue their governmental duties. In such a delicate area one shоuld move slowly. This is not an area that lends itself to sweeping generalities. Every case must be decided on its own merits.
This immunity for discretionary governmental action developed in actions against judicial officers, Bradley v. Fisher, 1871, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646. At an early date the rule was extended tо protect legislative and administrative officers. Spalding v. Vilas, 1896, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780. A list indicating officers who have been held to be protected by this immunity appears in 22 U. of Chi.L.Rev. (1955) 641.
Governmental immunity and the attendant immunity of those in its service has always been subjected to close scrutiny in the cоurts. United States v. Lee, 1882, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171. Despite this, the doctrine has been extended by some to a point where many think the delicate balance is in danger of being upset. Certainly the instant case need not, nor do we wish it to, depend on Gregoire v. Biddle, 2 Cir., 1949, 177 F.2d 579. This last case is often cited for the proposition that even malice does not defeat the immunity.
We believe that governmental immunity is tested not by the high standing or rank of the officer—not on a “King can do no wrong” theory—but by the nature of the function exercised. If the officer acts beyond the scope of the аuthority conferred upon him, he is, and should be, liable for the injurious consequences. Such a case is Ampey v. Thornton, D.C.Minn.1946, 65 F.Supp. 216, where an F.B.I. agent, in the course of tracking down a fugitive from justice, called a neighbor of the fugitive a vile name.
As we have indicated above, in the instant case, frоm the facts as gleaned from the pleadings and admissions, everything done by the Appellees was done under color of their offices. That minor governmental officers are within the scope of the immunity is well established. Complaints were dismissed against, or summary judgment granted to, the following minor governmental officials on the basis of their immunity: State Psychiatrist and Superintendent of State Hospital, in United States ex rel. McNeill v. Tarumianz, D.C.Del.1956, 141 F.Supp. 739; Internal Revenue Agents, in Hartline v. Clary, D.C.S.C. 1956, 141 F.Supp. 151; Officers of Veterans Administration Regional Office, in De Busk v. Harvin, 5 Cir., 1954, 212 F.2d 143.
The admissions in this case clearly show that the actions of the Appellees were entirely propеr and gave rise to no cause of action. The notice sent by the Appellees to the proper authorities that the rest home would be closed was clearly reasonably necessary for the proper performance of their duties, for the nоtice assured that those persons who could care for the patients of the rest home were notified of the expected inconvenience.
The summary judgment was properly entered.
The judgment is affirmed.
JAMES ALGER FEE, Circuit Judge, concurs in the result.
Notes
Ҥ 1442. Federal Officers Sued or Prosecuted
“(a) A civil action or criminal prosecution commenced in a State court against any of the follоwing persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
“(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office оr on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue. * * *”
“V
“That with intent to carry out said conspiracy, Defendants wrongfully obtained and disclosed to one another the names and addresses of guardians and relatives of said patients to be told the Plaintiff was no longer capable of operating a nursing home and that said nursing home was closed and that said guardians and relatives must immediately remove from the said nursing home the patients therein who were under the jurisdiction of the said respective guardians and relatives, and that the Plaintiff would no longer operate said nursing home and that the same would be immediately closed.
“VI
“That in pursuance of said conspiracy, Defendants did causе eleven of Plaintiff‘s fifteen patients to be removed from said nursing home and did cause Plaintiff‘s reputation as a nursing home operator to be materially damaged.”
Ҥ 6331. Levy and distraint
“(a) Authority of Secretary or delegate.—If any person liable to pay any tax neglects or rеfuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (exсept such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. * * *
“(b) Seizure and sale of property.—The term ‘levy’ as used in this title includes the power of distraint and seizure by any mеans. In any case in which the Secretary or his delegate may levy upon property or rights to property, he may seize and sell such property or rights to property (whether real or personal, tangible or intangible).”