Appendix — White v. United States

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APPENDIX ‘A |

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL SUEGER, |

Appellant, . “8 es

aaa oee uh LLY Nos 21,874

“~~

i POCHYLA, CONSTANCE”

; POCHYLA, THOMAS A. RYAN

-arid KATHERINE RYAN, © Ea reg

Appellees.

So APPEAL from the United States Dis-

2 trict Court for the District of Arizona.

THIS CAUSE came on to be heard on. |

the Transcript of. the Record from one a

United States District Court for the. Dis-

7 trict of Arizona and was duly submitted.

| ON CONSIDERATION _WHEREOF , It is now

here ordered. and adjudged by this Court ,

‘that the judgment of the said District

‘Court in ‘this Cause be, ‘and hereby ‘is .

affirmed, “9 © ce

ii

' Filed and entered June 26, 1968.

APPE B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Pau. Su.aer, } ;

F ; Appellant,

vB. :

>No. 21,874

B. H. Pocuyia, Constance Pocuy.ia, THomas

A. Ryan and Karuerme Ryan,

Appellees. ;

[June 26, 1968]

Appeal from the United States District Court

District of Arizona ~

Before: ELY and CARTER, Circuit Judges, and PECKHAM,

District Judge ;*

JAMES M. CARTER, Circuit Judge. .

‘This action in three counts was removed from the Arizona

State court, to the United States District Court, District of -

Arizona, pursuant to 28 U.S.C. Section 1442' on the-ground that

*Hon. Robert F. Peckham; United States District Judge, Northern

128 U.S.C. § 1442, reads in pertinent part:

“41442, Federal officers sued or prosecuted

(a) A civil action or criminal prosecution commenced in a State

court against any of the following persons may be removed by them to

the district court of the United States for the district and division en-

bracing the place wherein it is ing:

(1) Any officer of the United: States or any agency thereof, or person

acting under him, for any act under color of such office or . . . (June

25, 1948, c. 646, 62 Stat. 938.)”

2 Paul Sulger vs.

the appellees, B. H. POCHYLA-and THOMAS A. RYAN, were

officers of the United States, as provided in the above cited

statute.

‘The appeal is from an ofder granting summary judgment in

This court has jurisdiction pursuant to the provisions of 28

U.S.C. § 1291.

_* ‘THE QUESTION 3

The question’ presented is whether the appellees, Pochyla and

: Ryan, Army officers, are immune from the action for slander for

statements made during an investigation of the appellant's ‘busi-

ness. There is no possible basis for liability as to the appellee

THE FACTS

ain

The appellee, Pochyla, a Major General of the United States

Army, was Commanding General of the Army Electronic Proving

Grounds at Fort Huachuca, Arizona, from September 1, 1963

In the latter part of 1964, numerous complaints were made to

the military euthorities concerning the condition of appellant's

B.H.Pochyla,etal. 1g

The reports and affidavits were forwarded to the Arizona -

Corporation Commission by Colonel .Ryan, at the direction of

General Pochyla. An ‘Order to Show Cause why appellant’s

license to operate limousines and taxi cabs should not be revoked,

was issued by the Arizona Corporation Commission and-a hearing

was scheduled for February 11, 1965. General Pochyla was sub-

poenaed at appellant’s request, and Colonel Ryan accompanied

him to the hearing. The Corporation Commission took the matter

-under advisement.

Thereafter and prior to April 2, 1965, Colonel Ryan advised

General Pochyla that a substantial amount of new evidence had

been brought’ to the Colonel’s attention as a result of a criminal

complaint filed by appellant against a soldier stationed at Fort .

Huachuca. Further investigation was conducted and more affi- ©

‘davits were obtained. This investigation revealed that appellant

was apparently soliciting soldiers to go to Mexican border towns

for immoral purposes and in: violation of Army Regulations.

As a result of the new evidence, Colonel Ryan at General

Pochyla’s request, filed on April 8, 1965, a petition to reopen the -

hearing in appellant’s miatter before the Commission, and to

receive new evidence. The petition was granted, and the new

- hearing took place beginning June 7, 1965.

The allegedly slanderous statements, set forth i in the first cause

of action and incorporated by reference in the third cause of

action (the only one before us on this appeal), were-as follows:

“That Paul Sulger, on numerous occasions in Sierra Vista

and elsewhere, openly and notoriously solicited transportation”

for hire to carry members of the United States Army sta-

tioned at Fort Huachuca for illicit and immoral purposes

and extending credit to such passengers, so that said monies

be used for drinking and illicit and/or immoral purposes.”

This statement was taken in part but not verbatim from the

". new charges filed with the Commission on April 8, 1965.2

2The actual charge filed on April 8, 1965, with the Commission and

from which appellant extracted the language shown in his complaint,

was contained in. paragraph II of the petition to reopen and read as

follows:

“That said Paul Sulger, acting individually and through his agent

cab drivers, had on numerous occasions in Sierra Vista, Arizona and

7

ae 7 Paul Sulger vs.

The June hearing was devoted to the allegations that. appellant

solicited fares from soldiers stationed at Fort Huachuca to cer-

‘tain establishments i in Naco, aig Mexico, located,on the United

“Talfter due se the ‘Coiantaiion finds that -the allega-

tions of complainants’ complaint are true and that Respondent

had violated the rules and regulations . . .” of the Commission

and of the State of Arizona.® |

On May 2, 1966, appellant filed this action against the appel- .

lees, Pochyla arid Ryan and their wives, in the Superior Court

of the State of Arizona. On motion it was removed to the United.

States District Court.:

Appellees filed a motion for summary saint supported by

affidavits of General Pochyla and Colonel Ryan, to the-effect that

all acts done by them were in the course of their military duties.

Affidavits of the appellee wives were filed, which stated that they

were in no way involved, and had no knowledge of any of the

facts. Before hearing, the affidavits of Major General Cagwin,

the superior of General Pochyla and of Colonel Johnson, the -

superior of Colonel Ryan, were filéd stating the authority of

Pochyla and Ryan in all matters concerning the “health, safety

and moral well being” of dee messes f and civilian personnel .at ©

the Fort.

Appellant filed affidavits of two witnesses; Stone and Thornton.

Stone, in his affidavit, stated that Colonel. “Ryan said in May

icant openly and notoriously, solicited transportation for hire

to carry members of the United States Army, stationed at Fort

Huachuca, to. Naco, Mexico, expressly in violation of the regulations

of the United States Army Electronic Proving Ground, and with

the knowledge that said transportation could be for illicit and im-

moral purposes. That said Paul Sulger has promoted ‘the soliciting

of hired transportation for such purposes by extending credit to -

passengers for the cost of said transportation from Sierra Vista to

_ 8This order was reversed by the Arizona Court of Appeals on proce-

dural grounds. Sulger v. Commission, 5 Ariz. App. 69,;.423 P. 2d 145.

~~

b .

ces

B. W.Poohl, to oo. ee

1965, that sapallent and his wife were morally unfit to conduct

the business, and that “we”, meaning he and General Pochyla,

were going to put appellant out of business; and that appelfien

was soliciting for prostitutes and was a pimp. - 3

Thornton stated in. his affidavit, that in May 1965, Colonel .

_ Ryan said that appellant and his-wife wéfé morally anfit —. 4

-that “they” were going to put appellant out of business. ,

On. this record the matter was heard, and.on August 10, 1966,

‘the trial judge instructed the.clerk to enter an order granting

‘the motion for summary judgment. By error the clerk entered

an order denying the motion.

Depositions were taken and on January 16, 1967, the govern-

ment, believing the motion had ‘been denied, again filed a motion

for summary judgment. The trial judge, upon the filing of the

new motion, discovered the clerk’s error and on the same day

instructed the entry of a correct order granting the motion for

summary judgment nunc pro tune as of August 10, 1966, and

the same was properly entered by the clerk.

The depositions taken after August 10, 1966, are not properly

before us, except that. during oral argument of this appeal, coun-

sel for appellant stipulated and urged this court to consider the

depositions as to the: fact that both Stone and Thornton, -who

made the affidavits herein, were approached in May 1965 by

oe

’ . Colonel Ryan to be witnesses for the Army before the Arizona

Commission. It is clear from the depositions that the words said

by Colonel Ryan were in “the course of conversations in part

discussing the coming reopened Commission hearing, in June

1965.

a DISCUSSION

The » ailoged slander:was made during the investigation of the

ease before the Arizona Commission against appellant. The first

of, appellant’s two witnesses, Stone, was approached by Colonel

Ryan and asked to be a witness af the hearings before the

Arizona Corporation Commission. The second witness, Thornton,

was appellant’s former partner and present employee. The subject

of appellant arose in a telephone conversation with Colonel Ryan,

. in which there was discussion of the fact that Thornton failed to

_ appear at the first hearings before the« Arizona en Com-

. Mission, after pers: ee ee

-

Paul Sulger vs.

In the case of Barr v. Matteo, 360 U.S. 564 (1959), the. Court

held that governmental officers: have an - absolute privilege and

immuhity against suits-for damages against them arising out of

actions taken by them within: the perimeter of their line of duty.

In S & S Logging Co. v. Barker, 366 F.2d 617 (1966), this cir-

-euit held that immunity from suit granted to governmental em- _

ployees is not limited to those of cabinet rank, nor to those

exercising judicial or quasi-judicial functions, and quoted from |

Barr.v. Matteo (supra), “ ‘The privilege is . . . an expression of

a policy designed to aid in the effective functioning of govern-

ment. The complexities and magnitude of governmental activity

have become so great that there must of necessity be a delegation

and :redelegation of authority as to many functions, and we can-

not say that these functions become less important simply be-

eee ee eee :

hierarehy.”” (366 F.2d at 620).

There can be no question that interviewing potential witnesses

for a hearing in which the United States Army was a participant

is within the holdings of a long line of immunity cases.* Colonel

Ryan was ordered by the Post Commander, General Pochyla, to

conduct an investigation of appellant’s business after complaints

‘were recejved from Army personnel..As Commanding General of

Fort Huachuca, General Pochyla was directly responsible for and .

authorized. to initiate any necessary action in all matters which

pertained to or affected the health, safety and moral well-being

of all military and civilian personnel. assigned to the Army Post.

‘General Pochyla was acting in the line of duty when he ordered

an investigation of appellant’s business after receiving complaints

from soldiers stationed at the Fort.

Colonel, Ryan had been ordered to make the investigation and

‘ he was therefore acting within the scope of his duty when he

made the alleged statements during interviews with potential

witnesses, and while appellant’s case was being discussed. The

- statements made by Colonel Ryan to Stone and Thornton, related

to the pending charges before the Arizona Commission. The oral

: statements were part of the charge-the Army expected to prove.

The further statement that a meaning Pochyla and Ryan,

ieee Norton ©. McShane, 382 F.2d 855 (5 Cir. 1964), footnote 5, for

. sn extensive list of immunity cases.

ss bac Pochyla, et al. 7

. ‘were going to put veiiiens out of -business was an honest state-

ment of what they expected to accomplish before the Commission.

“The fact that the action here taken was within the outer

perimeter” of his line of duty “is enough to render the privilege

applicable, despite the allegations of. malice in the complaint

.. Barr v Matteo, supra, at page 575.

Appellant’s s contention that the District Court had no is Sartalie.

tion over the cause of action, since no bond was filed as required

~“by’ 28 U.S.C. § 1446(d), is without merit. Section 1446(d) spe- -

. cifically exempts the necessity for..2 bond in any ‘petition for

“” yemoval “in behalf of the United States.” Appellees’ verified peti-

tion for removal, setting. forth the fact the General Pochyla and /

Colonel Ryan were United States Army officers, was signed and

filed by the United States Attorney’s office.

Appellant contends however, that unless the United States is

actually’ a party to the suit, the petition is not in behalf of the

United States. Appellant relies on Nelson v. Peter Kiewit Sons’

~Co., 130 F. Supp. 59 (D.C.N.J. 1955), in which a petition for

removal was signed by. the United States\ Attorney. The petition

made no other mention that removal was made at the request

of a department or agency cf the United States. The Court said

that the sole petitioners were the defendants, all of which were

civilian contracting companies. These facts are clearly distinguish-

able from the instant case in which the petition specifically sets

forth that the appellees are United States Army officers. In -

Kiewit, supra, the Court-said the grounds of the petition are not

those which concern the United States in any way. In the instant

case, it is clear that the United States has a great deal at stake,

to wit, Army officers acting within the scope of their authority.

Appellant’s claim that a bond should have been filed must fall

also on the ground of ‘waiver. In Ayers v. Watson, 113 U.S. 594

(1885), the Court said that “the proffer of a proper bond” is

“essential if insisted on, but, according to the ordinary principles |

. which govern such cases, may be waived, either expressly or by

. implication.” [Emphasis added]. Appellant has waived his objec-

_ tion by not raising it in the Court below. | -

We hold that the statements made were absolutely privileged.

The judgment of the District Court is affirmed.

‘PERNAU-WALSH PRINTING CO., SAN FRANCISCO 7-2-68—255

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APPENDIX -C

"28 U.S.C. Section 1254, subsection 1:

be reviewed by the Supreme Court

"Cases in the courts of appeal ag if.

y

the following methods: 7

. "(1) By writ of certiorari .

_ granted upon the petition,of any

_- party. to any civil or criminal

_~ ease, before or after rendition

ae of judgment or decree;" Oe ee

’ 28 U.S.C., Rule 56(b), Rules of ‘Civil

ead

Procedure:

",.. A party against whom a claim |

--. is asserted ... may, at any

time, move with or without support-

ing affidavits for a summary judg-

ment in his favor as to all or any = °°

part thereof."