Vector Research, Inc. v. Howard & Howard Attorneys P.C.

DAVID A NELSON,

Circuit Judge, concurring in part and dissenting in part.

I agree that the district court was correct in dismissing the claims against defendant Gutwald, but I would affirm the dismissal of the claims against the attorney defendants as well.

The United States Supreme Court has never held that persons not employed by the federal government are subject to liability under the theory adopted in Bivens v. Six Unknown Named Agents, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971). And our circuit has flatly declared, in a published opinion, that a plaintiffs failure to allege in his complaint that a defendant was a federal employee “renders the pleading insufficient under Bivens.” Wagner v. Metropolitan Nashville Airport Authority, 772 F.2d 227, 230 (6th Cir.1985).

It is true, as Judge Martin pointed out in his concurring opinion in Wagner , that the complaint in that case not only failed to allege that the defendant was a government employee, it also failed to allege that he was a government “agent.” Id. at 231, n. 1 (Martin, J., concurring). But if the court had intended to rest its decision on the fact that the complaint did not allege that the defendant was either an agent or an employee of the federal government, I assume that the court would have said so. 1

If Wagner means what it says, I am not sime it is in conflict with Yiamouyiannis v. Chemical Abstracts Service, 521 F.2d 1392 (6th Cir.1975). Yiamouyiannis , as Judge Starr has pointed out, may appropriately be characterized “not as recognizing a constitutional tort action against a non-governmental defendant but rather as holding that, by being federally funded, an entity may become a federal actor.” Reuber v. United States, 750 F.2d 1039 , 1071 n. 4 (D.C.Cir.1984) (Starr, J., dissenting in part). “That line of analysis is clearly cut off,” Judge Starr went on to note, “by the later Supreme Court holding in Blum v. Yaretsky, 457 U.S. 991 , 102 S.Ct. 2777 , 73 L.Ed.2d 534 (1982) (state funding of a facility does not convert action by the facility into state action).”

Wagner , as I read it, is consistent with the view expressed by the First Circuit in Fletcher v. Rhode Island Hospital Trust National Bank, 496 F.2d 927 , 932 n. 8 (1st Cir.) (“While federal officers may, at times, be subject to suit for unconstitutional behavior, see Bivens ... there is no cause of action against private parties acting under color of federal law or custom”), cert. denied, 419 U.S. 1001 , 95 S.Ct. 320 , 42 L.Ed.2d 277 (1974). The majority of circuits that have addressed the issue, however, have concluded that there may be circumstances under which a Bivens action will lie against a person who is not a federal officer. 2 If our circuit precedent rule does not require this court to hold that Bivens claims may be asserted only against federal employees, I am still not persuaded that the plaintiffs’ amended complaint states such a claim against the attorney defendants in the case at bar.

Even under the approach followed by the majority of our sister circuits that have ad *702 dressed the issue, it is clear that constitutional damage actions against private actors will not be recognized by the courts where there are special factors that make such recognition inappropriate. See Reuber, 750 F.2d at 1069 (Starr, J., dissenting in part). I believe that recognition of a Bivens action is not appropriate here.

For one thing, an impartial federal judge decided that the defendant attorneys were entitled to precisely the type of order they sought to obtain for their client. The order was too broad, as we now know, but in the absence of affirmative action by Congress to crerte a cause of action against attorneys who are the beneficiaries of judicial error, it seems to me that this court should be very hesitant about creating such a cause of action by implication. Today’s decision may well have a chilling effect on aggressive lawyering in the future — and the factual situation with which the defendant attorneys were confronted in this case was one that certainly seemed to call for aggressive lawyering, in my view.

I realize that the defendants may still assert a good faith defense to the plaintiffs’ Bivens claims. Litigation of even the strongest defense entails some degree of risk, however — and I would not subject the defendant attorneys to that risk, or to the costs, in time and money, that reversal of the dismissal will require them to bear.

As to the state law tort claims, the plaintiffs have no cause of action against the defendant attorneys unless the attorneys acted with malice. Malice may be averred generally, under Rule 9(b), Fed.R.Civ.P., but there must still be factual allegations giving rise to a “strong inference” that the defendants acted with the requisite state of mind. See Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46, 50 (2d Cir.1987), cert. denied, 484 U.S. 1005 , 108 S.Ct. 698 , 98 L.Ed.2d 650 (1988), overruled on other grounds, United States v. Indelicato, 865 F.2d 1370 (2d Cir.1989). Like the district court, I think the plaintiffs’ complaint is deficient in this respect.

. In a subsequent case where both Judge Martin and Judge Krupansky — the author of Wagner— were on the panel, the court observed that in Wagner it had refused to extend liability in Bivens actions beyond “federal officers.” Nguyen v. Michigan, No. 92-1657, 1993 WL 281462, at * 1 (6th Cir. July 27, 1993) (unpublished).

. See Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1337-1339 (9th Cir.1987); Reuber v. United States, 750 F.2d 1039 (D.C.Cir.1984); Dobyns v. E-Systems, Inc., 661 F.2d 1219 (5th Cir.1982).