William W. JONES, Plaintiff-Appellant, v. William PERRIGAN, Defendant-Appellee.
No. 71-1768
United States Court of Appeals, Sixth Circuit
April 26, 1972
Charles M. Tatelbaum, Baltimore, Md. (Gary Goldstein and Schimmel & Tatelbaum, P. A., Baltimore, Md., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, and BRYAN and FIELD, Circuit Judges.
PER CURIAM:
Upon this appeal the appellant challenges the action of the District Judge in remanding this bankruptcy proceeding to the Referee.
The debtors filed their petition for an Arrangement under Chapter XI of the Bankruptcy Act on December 13, 1967. Two days prior thereto, on December 11, 1967, appellant had obtained a lien by writ of foreign attachment upon certain property of the debtors, and thereafter the debtors filed an application to have the lien declared null and void upon the ground that it had been obtained within four months prior to the filing of the petition and at a time when the debtors were insolvent. The Referee took evidence upon the question of insolvency and thereafter entered an order declaring appellant‘s lien null and void under Section 67(a) (1) of the Bankruptcy Act,
The matter was certified to the District Court upon appellant‘s petition for review. The District Court conducted a hearing and entered a memorandum order finding that the determination of the Referee that the debtors were insolvent on the critical date was not supported by substantial evidence in the record. The Court made the observation, however, that “the interests of the creditors of the Wolmans [Debtors] require in the view of this Court that any determination with regard to the insolvency * * * be made after a full and fair presentation of the relevant and material evidence to the Referee.” The order then provided that the matter be remanded to the Referee for the purpose of developing further evidence relative to the issue of insolvency.
The appellant contends that the District Court should have confined its order and disposition of this controversy to its initial finding that the conclusion of the Referee was not supported by substantial evidence in the record, and that the Court erred in its remand to the Referee. Upon review of the record, we conclude that the action of the District Judge in ordering the remand was a permissible exercise of his discretion under both Section 2(a) (10) of the Bankruptcy Act,
The order of the District Court is Affirmed.
Thomas F. Turley, Jr., U. S. Atty., J. N. Raines, Asst. U. S. Atty., Memphis, Tenn., on brief for defendant-appellee.
Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and KINNEARY, District Judge.*
PHILLIPS, Chief Judge.
William Jones while in State custody was interviewed by FBI Agent William Perrigan. Upon his release on bond from incarceration under the State charges, Jones was arrested by Perrigan pursuant to Dyer Act arrest warrants allegedly procured by Perrigan by execution of perjured affidavits in support thereof. The Dyer Act charges were dismissed at preliminary hearings for want of probable cause.
We disagree with the basis of the decision of the District Court. As a matter of public policy, certain officials are absolutely immune from liability for acts committed within the scope of their office, even if the acts were corrupt or malicious. See, e. g., Tenny v. Brandhove, 341 U.S. 367, 376-377, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (legislators); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347-349, 20 L.Ed. 646 (1871) (judges). The immunity of law enforcement officers from false arrest liability is a qualified one, in the nature of an affirmative defense. Immunity is available only if the officer acted in good faith with probable cause. See Pierson v. Ray, 386 U.S. 547, 557-559, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). “This immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen.” Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959). The mere fact that Perrigan was an FBI agent does not per se establish his immunity from the claim of Jones. Fine v. Paramount Pictures, Inc., 171 F.2d 571, 574 (7th Cir. 1948).
We are in agreement with the holding of the Second Circuit on remand in Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1341 (1972):
“We have concluded and now decide and hold that it is a principle of federal law that Agents of the Federal Bureau of Narcotics, and other federal police officers such as Agents of the FBI performing similar functions, while in the act of pursuing alleged violators of the narcotics laws or other criminal statutes, have no immunity to protect them from damage suits charging violations of constitutional rights. We further hold, however, that it is a valid defense to such charges to allege and prove that the federal agent or other federal police officer acted in the matter complained of in good faith and with a reasonable belief in the validity of the arrest and search and in the necessity for carrying out the arrest and search in the way the arrest was made and the search was conducted.”
Jones’ complaint alleged that Perrigan acted “willfully, deliberately, wrongfully, knowingly, and illegally” and “without probable or reasonable cause.” These allegations, “however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). Accord, Bivens v. Six Unknown Named Agents, 403 U.S. 388, 389-390, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Whether the defense of qualified immunity is available cannot be determined appropriately from the pleadings. Fine v. Paramount Pictures, supra, 171 F.2d at 574.
The District Judge denied Perrigan‘s motion to dismiss for want of subject matter jurisdiction. This court is required to consider independently the question of jurisdiction and dismiss on its own motion if jurisdiction is lacking. Mansfield C. & L. M. Ry. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884). Jones’ sole jurisdictional allegation invokes
We hold that the court has no jurisdiction of this case under
Vacated and remanded.
WEICK, Circuit Judge (dissenting).
In his order of dismissal the District Judge ruled that plaintiff‘s action against a federal agent was not within the scope of
The defendant had filed a motion for summary judgment and supported it by his own affidavit and an affidavit of his superior. Both were Special Agents of the Federal Bureau of Investigation. Plaintiff had attached to his complaint a copy of the record of the United States Commissioner, which record included the complaints charging plaintiff with violations of the Dyer Act, the arrest warrants, and temporary commitment papers. It appeared from these affidavits that the complaints filed against Jones were authorized by the Assistant United States Attorney; the warrants were issued by the United States Commissioner, and were served by Perrigan. At all times Perrigan was acting within the line of his duties as a Special Agent of the FBI.
Instead of ruling on the motion for summary judgment, the District Judge applied the doctrine of official immunity and held that the complaint did not state a claim upon which relief could be granted. In his order the District Judge noted that the complaint contained allegations that were “conclusory, superfluous, scurrilous and other unnecessary.”
Because of the affidavits and other papers, plaintiff “may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is no genuine issue for trial.”
Good faith is a defense to policemen, not only at common law, but under the Civil Rights Acts. The mere fact that the charges filed against plaintiff were dismissed by the United States Commissioner for want of probable cause, does not establish liability for false arrest and malicious prosecution. Pierson v. Ray, 386 U.S. 547, 555-557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). It ought not to establish liability of a Special Agent of the FBI.
Since the District Judge did not pass upon this issue, a remand of the case for an evidentiary hearing on the motion for summary judgment might result in disposition of the case on grounds other than immunity. This would avoid the necessity of our ruling on a very sensitive and controversial issue, particularly on authority which I believe to be tenuous.
The majority opinion relies on Fine v. Paramount Pictures, Inc., 171 F.2d 571 (7th Cir. 1948). The opinion of the Court in Fine does contain language, not supported by the citation of any authority, to the effect that the mere fact that defendants were an Assistant United States Attorney and a Special Agent of the FBI, did not per se establish immunity. This statement of the Court was
Upon remand of Bivens to the Second Circuit to determine the issue of immunity of Narcotics Agents, that Court undertook to equate the liability of all federal agents, including Special Agents of the FBI, with the common law liability of state police officers, and denied immunity. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339 (2d Cir., decided Mar. 8, 1972).2
Insofar as the Court‘s statements in Bivens related to Special Agents of the FBI, they were pure dicta. The same is true as to the quotation in this Court‘s opinion from Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).
Special Agents of the FBI are college graduates, having earned degrees in either law or accounting. They are well trained. They have many discretionary and executive duties to perform. In my opinion, they have official immunity. Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896); Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950); Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Estate of Burks v. Ross, 438 F.2d 230 (6th Cir. 1971), and cases therein cited.
Judges have granted themselves immunity. Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646 (1871). Legislators have immunity,
The executive branch of the Government is coequal with the legislative and judicial branches. If it is good policy to provide immunity for legislators and judges, the same rule should extend to members of the executive department, which is charged with the duty of protection of not only the other two departments but also the public. It can hardly be said that only members of the executive department violate the constitutional rights of people. Legislators and judges also can violate the Constitution.3
We ought not to place a heavy burden on federal officers to defend themselves in the many frivolous suits which may be filed against them by prisoners. Mr. Justice Blackmun, in his dissent in Bivens, predicted an avalanche of such suits. Mr. Justice Black in his dissent said:
“There is a real danger that such suits might deter officials from the proper and honest performance of their duties.”
I would affirm the judgment of the District Court, or in the alternative, remand the case for an evidentiary hearing on the motion for summary judgment, without this Court‘s ruling on the issue of immunity until necessary after such hearing has been conducted.