Opposition — Farkas v. United States

No. 80-370

ODAK, JR., CLERK

_ Supreme Court, Us.

ce FILED

OCT 10 1960

——s

wee

In the Supreme Court of the United States

OCTOBER TERM, 1980

FRANK FARKAS, PETITIONER

V.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

IN OPPOSITION

WADE H. McCreg, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Affiliated Ute Citizens vy. United States,

GO UE, BED csesnscntsescnripertcccesticsintimganianiaaiine 2

Bell v. Hood, 327 U.S. 678 ciecccccccssscccccsssssseseeeeees 3

Bivens v. Six Unknown Fed. Narcotics. Agents,

BBD UB. FB scosesisciisvnsadsviinsunsatanicentmnintiipaapatiline 3

Butz v. Economou, 438 U.S. 478 .u.cccceecseesseseeeees 3

Griffith v. Nixon, 518 F. 2d 1195,

Cert. denied, 423 U.S. 995 wiccrccccsscccseseseceesseees 3

Rabiolo v. Weinstein, 357 F. 2d 167,

cert. denied, 391 U.S. 923 .............. idininiennthdecdas 3

Scheuer v. Rhodes, 416 U.S. 232 cicccccccccccccsessseees 3

Tart v. Hudgins, 58 F.R.D. 116 ee 3

United States v. King, 395 U.S. 1 c.ccceccccssscceeeeeees 3

United States v. Shaw, 309 U.S. 495 uo... 2, 3

United States v. Sherwood, 312 U.S. 586 ............ 2

Wallach v. Cannon, 357 F. 2d 557 ....ccccccccsseeeeees 3

Miscellaneous:

Fed. R. of Civ. P.:

DUD GRID sscccisesecanvensessocsssennsenininensaiaunonaiapnaia 3

TRAD GED) vninsasicincndsnssscnvaccecniachotunsenamenebbonnananie 3

PRUE DAD) oeninccsscccicccrssconssosssesnnubnnnsonesesssensanasnions 2

Iu the Supreme Court of the Mnited States

OCTOBER TERM, 1980

No. 80-370

FRANK FARKAS, PETITIONER

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

IN OPPOSITION

Petitioner seeks review of the dismissal of his damage

action against the United States and several Internal

Revenue Service employees on the ground of sovereign

immunity and because he failed to serve the complaint

upon the individual named defendants.

The pertinent facts may be summarized as follows: On

August 23, 1976, petitioner pleaded guilty to one count of

willful evasion of his federal income taxes (Pet. App. 5a;

A. All-A12).! On April 11, 1979, petitioner filed this suit

for damages in the United States District Court for the

District of Columbia, naming as defendants the United

States, the then-current Commissioner of Internal

“A.” refers to the pages of the appendix filed by petitioner as an

attachment to his brief in the court of appeals.

l

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Revenue, and two Internal Revenue Service agents (Pet.

App. 3a-5a). In his complaint, petitioner alleged that the

defendants conspired to deny his civil rights. Specifi-

cally, petitioner charged that during the course of a tax

audit, respondent IRS Agent Howell Elliott took posses-

sion of certain of his tax records, and that the IRS later

refused to return the records to him for use in his

defense against the tax evasion charges. Petitioner claims

that the lack of the records resulted in his guilty plea (Pet.

App. 4a-Sa).

Pursuant to Fed. R. Civ. P. 12(b), respondents moved

to dismiss the complaint on the grounds, inter alia, that

the action was barred as against the United States by

sovereign immunity, and that the individual defendants

had not been properly served with process (A. A9-A25).

The district court dismissed the suit with prejudice (Pet.

App. 6a-7a). The court of appeals ordered that the suit be

dismissed without prejudice. After noting that the

government had not waived its sovereign immunity and

that no personal service of the complaint had been made

on the individual defendants, the court of appeals vacated

the judgment of the district court dismissing the suit with

prejudice but simultaneously entered its own order

dismissing the suit without prejudice (Pet. App. 8a-9a).

1. The court of appeals correctly dismissed without

prejudice petitioner's suit for damages. Petitioner

challenges (Pet. 2-5) the dismissal of his suit against the

United States on the ground of sovereign immunity. But it

is well established that the United States may not be sued

without its consent, for absent such consent no court has

subject matter jurisdiction over such a suit. Affiliated Ute

Citizens v. United States, 406 U.S. 128, 141-142 (1972);

United States v. Sherwood, 312 U.S. 584, 586 (1941);

United States v. Shaw, 309 U.S. 495, 500-501 (1940). By

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statute, the United States has waived its immunity and

consented to be sued for certain specific classes of claims.

See United States v. Shaw, supra, 309 U.S. at 500-501.

Such a waiver, however, cannot be implied, but must be

unequivocally expressed. United States v. King, 395 U.S.

1, 4 (1969). Petitioner failed even to allege the existence of

such a waiver applicable to this action. The court of

appeals therefore properly dismissed his suit.

Given the long and consistent history of the doctrine of

sovereign immunity, petitioner cannot argue that the

doctrine violates his right to due process. Scheuer v.

Rhodes, 416 U.S. 232 (1974); Bell v. Hood, 327 U.S. 678

(1946); Bivens v. Six Unknown Fed. Narcotics Agents,

403 U.S. 388 (1971); and Butz v. Economou, 438 U.S. 478

(1978), upon which petitioner relies (Pet. 3-5), are

distinguishable actions against individual: officials for

“bad faith” wrongdoing. They do not stand for the

proposition that damage actions may be taken against the

United States itself for such acts.

2. The court of appeals likewise correctly dismissed

petitioner’s suit against the individual respondents

because he failed to serve his complaint on them. Rules

4(d)(1) and (d)X(5) Fed. R. Civ. P. require that defendants

in this type of action be served personally, whether or not

they are being sued in their individual or official

capacities. The district court was therefore without

jurisdiction over the individual defendants. Griffith v.

Nixon, 518 F. 2d 1195, 1196 (2d Cir.) cert. denied, 423

U.S. 995 (1975); Rabiolo v. Weinstein, 357 F. 2d 167, 168

(7th Cir. 1966), cert. denied, 391 U.S. 923 (1968); Wallach

v. Cannon, 357 F. 2d 557, 558-559 (8th Cir. 1966). Since it

is undisputed that petitioner failed to serve the individuai

defendants, dismissal of the complaint was proper

whether or not they had actual notice of the suit. Tart v.

Hudgins, 58 F.R.D. 116, 117 (M.D. N.C. 1972).

to

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It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

WADE H. McCreg, JR.

Solicitor General

OCTOBER 1980

DOJ-1980-10