# E. B. Weiss v. R. C. Lehman and Wayne Larue

> Court of Appeals for the Ninth Circuit · May 12, 1982 · 676 F.2d 1320

URL: https://www.frixlaw.com/law-library/cases/9469158

## Case

- **Full name:** E. B. WEISS, Plaintiff-Appellee, v. R. C. LEHMAN and Wayne LaRue, Defendants-Appellants
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** May 12, 1982
- **Citations:** 676 F.2d 1320; 1982 U.S. App. LEXIS 19338
- **Precedential status:** Published
- **Opinion:** Dissent by Boochever
- **Judges:** Van Dusen, Farris, Boochever
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

BOOCHEVER, Circuit Judge,
dissenting:
I do not share the majority’s belief that our original decision in this case ( 642 F.2d 265 [9th Cir. 1981]) is incorrect in light of Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981).
I
BACKGROUND
Under Bivens v. Six Unknown Named Agents, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), as interpreted in Carlson v. Green, 446 U.S. 14 , 100 S.Ct. 1468 , 64 L.Ed.2d 15 (1980) and Davis v. Passman, 442 U.S. 228, 245-48 , 99 S.Ct. 2264, 2277-78 , 60 L.Ed.2d 846 (1979), a plaintiff injured by a federal employee’s violation of the plaintiff’s constitutional rights is entitled to recover money damages when there is neither a special factor counselling hesitation nor an equally effective alternative remedy. Bivens, 403 U.S. at 396-97 , 91 S.Ct. at 2004-05 . In our original decision, we affirmed the jury verdict and award of damages for Weiss because neither of the above limitations on a Bivens action were present.
We found no reason to “hesitate” in implying a damage remedy because Lehman “was adequately protected by the availability at trial of a qualified immunity defense.” 642 F.2d at 267 . Indeed, the case was tried to the jury on the issue of whether Lehman was entitled to qualified immunity. There was sharply disputed evidence regarding the nature and value of the destroyed property. 1 Clearly implicit in the jury’s verdict for Weiss, that was made after jury instructions to which no objection has been raised on appeal, 2 are findings that the property *1324 had value and that Lehman’s actions were not entitled to qualified immunity. In Butz v. Economou, 438 U.S. 478, 505-07 , 98 S.Ct. 2894, 2910-11 , 57 L.Ed.2d 895 (1978), the Court held that an official was protected by qualified immunity unless he knew or should have known that his conduct was unlawful. We were not “hesitant” in our original decision in implying a Bivens remedy because the qualified immunity defense meant that Lehman was not being held individually accountable for “mere mistakes in judgment.” Id. at 507 , 91 S.Ct. at 2911 . Nevertheless, as discussed more fully below, the majority, in its attempt to bring this case within Parratt’s scope, ignores the jury’s fact-finding role and infers that the property was valueless debris that Lehman “acted no worse than negligently” in destroying. Majority at 1322.
We also held in our initial decision that the Tucker Act and the Fifth Amendment did not offer Weiss the sort of equally effective alternative remedy that precludes bringing a Bivens action. We noted that, in light of Carlson v. Green, Lehman had abandoned his claim that the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 (b), 2680, afforded an adequate alternative remedy. 642 F.2d at 266 n.2. I believe that Carlson rather than Parratt is the controlling precedent here, and that, even if Parratt were applicable, the majority errs in applying the standards set forth therein.
II
Carlson and Parratt
In Carlson , the plaintiff brought a Bivens action alleging that a federal prison official had violated her deceased son’s constitutional rights by failing to provide proper medical attention. The Court discussed at length whether the plaintiff’s available remedy under the FTCA precluded her from bringing a Bivens action. After reviewing the Congressional comments accompanying the 1974 amendments to the FTCA, the Court concluded that it was “crystal clear that Congress views FTCA and Bivens as parallel, complementary causes of action.” 446 U.S. at 20 , 100 S.Ct. at 1472 . The Court went on to hold that, in the absence of an explicit expression from Congress to the contrary, a victim of wrongdoing by a federal official has an action against the Government under the FTCA as well as a Bivens action against the individual official.
In contrast to Carlson and the present case, Parratt turned on whether the availability of a fully adequate state remedy precluded a plaintiff from bringing an action under 42 U.S.C. § 1983 against a state prison official for the negligent loss of property. It was undisputed in Parratt that the state official was at worst negligent and that the plaintiff could have been fully compensated through his available state remedies. 451 U.S. at 537, 543-44 , 101 S.Ct. at 1916-17 .
The alternative-remedy issue in Parratt was not, as in Carlson and the present case, which of two federal remedies should have been pursued by a victim of a federal official’s intentional tort, but, rather, whether negligent actions by state officials are actionable under § 1983 (where no pre-deprivation notice is practical) if the state provides an adequate remedy. The focus in Parratt was on whether a federally actionable due process violation had occurred. The issues in Carlson and the present case are completely different. The availability of a FTCA remedy, as “a parallel, complementary” alternative to a Bivens action, Carlson, 446 U.S. at 20 , 100 S.Ct. at 1472 , does not make Lehman’s conduct any less of a violation of Weiss Fifth Amendment rights. The alternative state remedy was significant in Parratt because without it there would have been a federally actionable due *1325 process violation. In contrast, the question in this case turns on whether the availability of alternative remedies precluded a Bivens action. There is no question but that all the various post-deprivation procedures — i.e., Bivens , FTCA, and Tucker Act actions — satisfy due process.
One clear indication of how distinguishable Parratt is from the situation in Carlson and the present case is the fact that neither Bivens nor Carlson were even mentioned in Parratt . Five Justices filed concurring opinions in Parratt , in which they emphasized, inter alia, the narrow scope of the Court’s holding. The concurring Justices emphasize that Parratt turns on whether unintentional acts by state officials should be actionable in federal court under the Due Process Clause. See, e.g., 451 U.S. at 545-46, 547 , 101 S.Ct. at 1917-18, 1919 . For example, Justice Powell cautions that the Due Process Clause should not become a vehicle for federal litigation of state torts under § 1983, “a statute that already has burst its historical bounds.” Id. at 549 n.7, 550-52, 554, 101 S.Ct. at 1920 n.7, 1921, 1923. These concerns are inapposite to whether the availability of an alternative federal remedy precluded Weiss from bringing a Bivens action against Lehman.
Ill
The Parratt Test
Even if the Parratt test were applicable here, I would reach a different result from the majority in applying it. I believe that there was a practical means of affording pre-deprivation process and that no meaningful alternative to a Bivens remedy existed after the taking.
First, this is not the type of case where it was impractical to provide meaningful predeprivation process. In Parratt , the claim was made against supervisory prison officials to recover the value of materials lost due to the negligent failure of subordinates to follow normal procedures in handling mail. Because the officials had no way of knowing in advance that the subordinates would mishandle the mail, it was impossible to provide pre-deprivation process. In contrast, Lehman, in his capacity as the manager of the Forest Service Ranger Station that performed the clean-up operation, made a deliberate decision not to publish notice before destroying Weiss’ property. There was ample opportunity to give notice had Lehman correctly evaluated the status of the property. Although there was not the type of impracticality here as existed in Parratt , it still may be argued that, once the decision was made that the property was abandoned and valueless, it was impractical to publish notice. This is far from the type of “random and unauthorized” conduct that made notice impractical in Parratt. 451 U.S. at 541, 546 , 101 S.Ct. at 1915, 1918 . Here, Lehman, the supervising official, made a deliberate pre-deprivation decision, which the jury found to be unreasonably wrong, that the notice provisions should be dispensed with.
Second, I also question whether the FTCA is a “meaningful means” by which to assess the propriety of Lehman’s action. Parratt, 451 U.S. at 539 , 101 S.Ct. at 1915 . In my opinion, the FTCA would be a “highly questionable” as opposed to a “meaningful” means because of the Act’s discretionary function exemption. 3 The majority relies principally on the case of Hatahley v. United States, 351 U.S. 173 , 76 S.Ct. 745 , 100 L.Ed. 1065 (1956) in contending that Lehman’s acts do not fall within the discre *1326 tionary function exemption. In that case, however, it was undisputed that the Government officials knew the identity of the owners of the horses they destroyed, yet failed to give notice required by the appropriate federal regulations. The Court stated:
We are here not concerned with any problem of a “discretionary function” under the Act, see Dalehite v. United States, [ 346 U.S. 15 , 73 S.Ct. 956 , 97 L.Ed. 1427 ]. These acts were wrongful trespasses not involving discretion on the part of the agents, and they do give rise to a claim compensable under the Federal Tort Claims Act.
351 U.S. at 181 , 76 S.Ct. at 752 .
Had Weiss pursued this action under the FTCA, the Government would certainly have argued that Lehman’s decision that notice was unnecessary because the property was abandoned and valueless constituted an act of discretion. Although not airtight, such an argument would have substantial merit. See Dalehite v. United States, 346 U.S. 15, 35-36 , 73 S.Ct. 956, 967-968 , 97 L.Ed. 1427 (1953); Martin v. United States, 546 F.2d 1355 (9th Cir. 1976), cert. denied, 432 U.S. 906 , 97 S.Ct. 2950 , 53 L.Ed.2d 1078 (1977); Youngstrom v. Dunn, 447 F.2d 948 (8th Cir. 1971) (per curiam); United States v. Delta Industries, Inc., 275 F.Supp. 934 (N.D.Ohio 1966). The FTCA provides that judgment in a tort claims action “shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the Government whose act or omission gave rise to the claim.” 28 U.S.C. § 2676 . Thus, by filing under the FTCA, Weiss would have taken a substantial chance of losing because of the discretionary function exception and of being barred from bringing a subsequent action. Under these circumstances, so fragile a remedy as the FTCA is not a meaningful means to assess the propriety of Lehman’s actions.
For all the reasons discussed, I would adhere to Judge Farris’ original opinion.
. Weiss introduced evidence, including photographs and the testimony of several witnesses, showing that the property included valuable mining equipment and parts. The record also contains disputed evidence regarding whether Weiss failed to remove the property because the road to it was unusable or because the property was worthless.
. The jury was instructed that Lehman was protected by qualified immunity if, inter alia, “there existed reasonable grounds for the belief that the action taken was appropriate” and Lehman “acted in good faith.” The court explained that “good faith” meant that Lehman:
had an honest belief, after a reasonable investigation of the facts, that [his] action was a proper exercise of [his] authority; and that *1324 [he] acted without any motivation of malice, ill will, anger, revenge, personal animosity, or the like; and, further, that [his] action was not taken with a careless disregard of the rights of any person affected.
The jury was further instructed that it must find for Lehman: (a) unless he destroyed the property knowingly, voluntarily, and intentionally and not because of a reasonable mistake or accident; (b) if he “were merely abating or removing exposed or insanitary refuse or valueless debris;” or (c) he acted within the bounds of his lawful authority.
. Section 2680(a) of the Federal Tort Claims Act provides that liability should not be imposed on the basis of “the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” This discretionary function exception has presented interpretive problems from the time of its enactment. The principal difficulty is simply that all federal employees exercise a certain amount of discretion in the discharge of their duties. Courts have responded to the need to draw the elusive line between protected and unprotected activities by fashioning various tests such as the “planning-operational test,” the “good Samaritan” test, and the balancing-of-policy-factors test. See generally Caban v. United States, 671 F.2d 1230 (2d Cir. 1982). Under any of these tests, I feel it is highly questionable whether Weiss would have an action against the Government under the FTCA.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9469158. Public record. Not legal advice.