Opposition Brief — Suarez v. Wainwright

SUPREME COURT, U. 8 eat ot

in the AUG 26 1975

Supreme Un

of the

Gnited States

No. 75-144 A

EFRAIN T. SUAREZ, et al.,

Petitioners,

v8.

LOUIE L. WAINWRIGHT,

Director, Division of Corrections,

State of Florida, et al.,

Respondents.

Brief in Opposition to Petition for Writ of

Certiorari to the United States Court of

TOPICAL INDEX

a EES ONE ETE

STATEMENT OF THE CASE

QUESTIONS PRESENTED ....

POINT I

POINT II

POINT III

CONCLUSION .

CERTIFICATE OF SERVICE

3-7

10-12

13

14

Il

TABLE OF CITATIONS

Case Page

Alyeska Pipeline Service Co. v. Wilderness Society,

44 L.Ed.2d 141 (1975) sai 14

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics,

403 U.S. 388 (1971) 11

Campbell v. Weatherford,

427 F.2d 131 (5th Cir. 1970) ; 12

City of Kenosha v. Bruno,

412 U.S. 507 (1973) ae 9

Collins v. State of Florida,

432 F.2d 60 (5th Cir. 1970) 9

Henig v. Odorioso,

256 F.Supp. 276 (E.D. Pa. 1966), aff'd 385

F.2d 491 (3rd Cir. 1967), cert. den., 390 U.S.

1016 (1968), reh. den., 391 U.S. 929 (1968) 12

Hill v. City of El Paso,

437 F.2d 352 (5th Cir. 1971) : 9

Knowles v. Carson,

419 F.2d 369 (5th Cir. 1969) Pee aa Sete 12

Mareno v. Henckle,

431 F.2d 1299 (5th Cir. 1970) . 9

Mayhue v. City of Plantation,

375 F.2d 447 (5th Cir. 1967) 9

Ill

TABLE OF CITATIONS (cont.)

Case Page

Monroe v. Pape,

365 U.S. 167, 81 S.Ct. 4738, 5 L.Ed.2d 492

I a a a 9

Moor v. County of Alameda,

A cI aaa cecil 9

Strung v. Anderson,

452 F.2d 632 (9th Cir. 1971) __. 12

United States v. Janis,

Case No. 74-958 De 11

Via v. Cliff,

470 F.2d 271 (8rd Cir, 1972) 9

Yumick v. Cotter,

1 7.20 0 Te Coe. 1901) 9

Sa KT

in the

Supreme Court

of the

Gnited States

OCTOBER TERM 1975

NO.

EFRAIN T. SUAREZ, et al.,

Petitioners,

vs.

LOUIE L. WAINWRIGHT,

Director, Division of Corrections,

State of Florida, et al.,

Respondents.

Brief in Opposition to Petition for Writ of

Certiorari to the United States Court of

Appeals for the Fifth Circuit

2

INTRODUCTION

This Brief is submitted on behalf of the following

Respondents in this cause:

(a) Dade County, Florida, a political subdivision

of the State of Florida.

(b) Richard E. Gerstein, State Attorney for the

Eleventh Judicial Circuit of Florida in and for Dade

County, Florida.

(c) Michael Daugherty, a Special Investigator em-

ployed in and by the office of the aforesaid State Attor-

ney.

(d) Barbara Williams, a policewoman who in this

case received her instructions from the aforesaid State

Attorney.

(e) Myrtle Ellison, a policewoman who in this case

received her instructions from the aforesaid State Attor-

ney.

The last four named Respondents will be referred to

throughout this Brief as the County Officials.

3

STATEMENT OF THE CASE

Although the basic physical facts recited in the State-

ment of the Case contained in the Petition for Writ of

Certiorari are factually correct, the recitation also con-

tains such emotionally charged adjectives and adverbs that

it cannot be regarded as a straightforward and objective

narrative of the circumstances. The Respondents submit-

ting this Brief would therefore cal] the Court’s attention

to the clear, objective, and simple statement of the factual

circumstances set out in Judge Tuttle’s opinion written

without dissent for the United States Court of Appeals

for the Fifth Circuit. They respectfully request that the

statement of the case contained in that opinion be regarded

as their statement of the case for the purposes of this

Brief. For the convenience of the Court the aforesaid state-

ment of facts is set forth below:

We here deal with the final chapter in a tale of

three lawsuits arising in the Southern District of

Florida, as a result of which the original plain-

tiff, the appellant here, has, by action of the

United States Tax Court, received full relief in

the matters originally litigated but who now com-

plains that the trial court declined to award him

his attorney’s fees.

Suarez has been attempting for some five years

to prevent the Internal Revenue Service from

utilizing copies of records which had been seized

from his office on January 3, 1964 by police of-

ficers of Dade County, Florida and which had

been used to produce his conviction for perform-

ing illegal abortions. The first of these efforts

4

was made in connection with his filing a petition

for release from the state court conviction by writ

of habeas corpus on the ground that his convic-

tion had been obtained by the use of the illegally

seized records. Asserting that the state officials

had furnished copies of the records to the Internal

Revenue Service agents, he amended his petition

for habeas corpus to seek an injunction against

the IRS officials. He subsequently filed a second

civil suit seeking an injunction against the use

of evidence, based on alleged violations of his

Fourth and Fifth Amendment rights.

Following the grant of the writ of habeas cor-

pus by the federal court, Suarez was released

from his state conviction and was not brought to

trial a second time. Thereupon the state court

issued an order directing all officers, both state

and federal, to surrender the records and all

copies thereof to the plaintiff. Upon the failure

of the Internal Revenue officials to return the

copies that they possessed criminal contempt pro-

ceedings were filed in the state court against the

federal officials. This case was removed to the

federal court, and this became the third prong of

the litigation which we now bring to a close.

Claims for damages against the state and federal

officials for their illegal use of the evidence have

been abandoned by the appellant.

The trial court dismissed the removed state

criminal contempt proceedings and _ initially

granted a preliminary injunction against the use

by the federal officials of the illegally obtained

Sk as a ei. ie ea

AEA — <

5

evidence. However, when the case came on for

final hearing, the trial court dismissed the other

two complaints as well, primarily on the author-

ity of Brittingham v. C.I.R., 451 F.2d 315 (5th

Cir. 1971). The trial court noted that the ques-

tion whether the evidence obtained from the il-

legal search by the state officers could be used in

the civil tax proceeding which had been instituted

on behalf of the federal agents upon having re-

ceived access to the documents taken from Sua-

rez’s office could be determined in the Tax Court

upon proper motion being made by the taxpayer.

The trial court dismissed the claim for damages

against the state officials on the ground that any

action against them was barred by the three-year

statute of limitations. The court also found that

there was no personal liability on the part of the

federal officers, because, unlike the case in Bivens

v. Six Unknown Agents, 403 U.S. 388 (1971)

there was no unconstitutional activity undertaken

by the agents themselves, but rather they were

operating solely within their official capacity. The

court held further that the Federal Tort Claims

Act did not waive sovereign immunity because

it expressly provides that its waiver of immunity

was not applicable to claims arising out of the

assessment or collection of a tax.

As contemplated by the district court, the Tax

Court, upon motion duly made by the taxpayer,

held in a well-considered opinion that the evi-

dence obtained by virtue of the illegal raid could

not be utilized in the civil tax case against Sua-

6

rez. It held that the concession by the Commis-

sioner that his determination of some $700,000

of tax deficiency was based solely upon the ille-

gally seized records destroyed the presumption of

correctness of the determination. A decision was

therefore entered in favor of the taxpayer, Suarez

v. Commissioner, 58 T.C. No. 78 (Filed Aug. 10,

1972.) Although notice of appeal was filed by the

Commissioner in the tax case, the appeal was

subsequently dismissed by stipulation. Thus, Dr.

Suarez’s original complaint, which had as its pur-

pose the prevention of the use by the IRS agents

of the illegally obtained evidence in a tax case

against him, was mooted. There is therefore noth-

ing left on the merits of the original three com-

plaints which were dismissed by the trial court,

and which are on appeal here now.

However, Dr. Suarez contends that the effort

and delay and concern which he suffered before

finally prevailing on the principal issue warrants

his recovering an attorney’s fee against the fed-

eral officials. He claimed against the state offi-

cials as well, but it is clear that any claim against

them, even if otherwise permissible, cf., Named

Individual Members San Antonio Conservation

Society v. Texas Highway Dept., 496 F.2d 1017,

1026 (5th Cir. 1974) would be barred by the

statute of limitations.

We can find no basis on which attorney’s fees

could be allowed in this kind of action against the

federal officials. In fact, as pointed out in the

San Antonio case just cited we noted that the

7

parties there conceded that the federal defend-

ants are immunized from an award of attorney’s

fees by provisions of 28 U.S.C. §2412.'

As we have stated, the injunction issue has

been mooted by the action of the Tax Court, taken

following the decision of the district court in these

cases. In such circumstances there is nothing left

to be tried. The appeal must therefore be dis-

missed.

'This section provides as follows:

§2412. Costs.

Except as otherwise specifically provided by

statute, a judgment for costs, as enumerated in sec-

tion 1920 of this title but not including the fees

and expenses of attorneys may be awarded to the

prevailing party in any civil action brought by or

against the United States or any agency or official

of the United States acting in his official capacity,

in any court having jurisdiction of such action. A

judgment for costs when taxed against the Govern-

ment shall, in an amount established by statute or

court rule or order, be limited to reimbursing in

whole or in part the prevailing party for the costs

incurred by him in the litigation. Payment of a

judgment for costs shall be as provided in section

2414 and 2517 of this title for the payment of

judgments against the United States. As amended

July 18, 1960, Pub.L. 89-507, §1, 89 Stat. 308.

8

QUESTIONS PRESENTED

I.

WHETHER RESPONDENT DADE COUNTY,

A POLITICAL SUBDIVISION OF THE

STATE OF FLORIDA, CAN BE HELD LIA-

BLE UNDER CIVIL RIGHTS OR OTHER

FEDERAL STATUTES FOR ACTS COMMIT-

TED IN THE PERFORMANCE OF ITS GOV-

ERNMENTAL FUNCTIONS?

II.

WHETHER THE MONEY CLAIMS AGAINST

RESPONDENT DADE COUNTY OFFICIALS

WERE BARRED BY FLORIDA STATUTES

OF LIMITATION IN THE ABSENCE OF

ANY STATED LIMITATIONS PERIOD IN

THE FEDERAL CIVIL RIGHTS ACTS?

Il.

WHETHER PETITIONERS ARE ENTITLED

TO ATTORNEYS’ FEES OR COSTS ON ANY

OTHER BASIS IN THIS CAUSE?

~

9

POINT I

WHETHER RESPONDENT DADE COUNTY,

A POLITICAL SUBDIVISION OF THE

STATE OF FLORIDA, CAN BE HELD LIA-

BLE UNDER CIVIL RIGHTS OR OTHER

FEDERAL STATUTES FOR ACTS COMMIT-

TED IN THE PERFORMANCE OF ITS GOV-

ERNMENTAL FUNCTIONS?

The Trial Court dismissed Counts III and IV of the

Amended Complaint as to Dade County on the ground

that acts committed by that governmental entity in the

performance of its governmental functions did not con-

stitute a cause of action for money damages under the

Civil Rights Acts. Such dismissal was correctly based upon

Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d

492 (1961); Mayhue v. City of Plantation, 375 F.2d 447

(5th Cir. 1967); Hill v. City of El Paso, 487 F.2d 352

(5th Cir. 1971); and Mareno v. Henckle, 431 F.2d 1299

(5th Cir. 1970).

Since the issuance of the Trial Court’s order, the point

of law upon which the Court relied has been reinforced

by such cases as City of Kenosha v. Bruno, 412 U.S. 507

(1973) ; Moor v. County of Alameda, 411 U.S. 693 (1973) ;

Yumick v. Cotter, 452 F.2d 59 (7th Cir. 1971); Collins v.

State of Florida, 432 F.2d 60 (5th Cir. 1970); and Via v.

Cliff, 470 F.2d 271 (8rd Cir. 1972). In the Moor case this

Court painstakingly traced the history of Sec. 1983,

U.S.C.A., and found there were no exceptions which could

be used as a basis of claim for money damages against

either counties or municipalities.

10

POINT Il

WHETHER THE MONEY CLAIMS AGAINST

RESPONDENT DADE COUNTY OFFICIALS

WERE BARRED BY FLORIDA STATUTES

OF LIMITATION IN THE ABSENCE OF

ANY STATED LIMITATIONS PERIOD IN

THE FEDERAL CIVIL RIGHTS ACTS?

The language of the Trial Court’s opinion on this

point reads:

With respect to the individually named de-

fendants under Count III, the action must also

be dismissed. Count III is founded upon the Civil

Rights Statutes and upon claims for deprivation

of plaintiffs’ constitutional rights based upon the

Supreme Court’s recognition of such a claim in

Bivens v. Six Unknown Named Agents of Fed-

eral Bureau of Narcotics, 403 U.S. 388 (1971).

The actions of defendants for which damages are

sought occurred on January 3, 1964, more than

six years prior to the institution of the present

action. It is well recognized that because no statute

of limitations is specified in the Civil Rights

Statutes (which are part of the basis for plain-

tiffs’ claim here) the applicable state limitation

periods should be adopted. Shank v. Spruill, 406

F.2d 756 (5th Cir. 1969) ; Beard v. Stephens, 372

F.2d 685 (5th Cir. 1967). The Fifth Circuit has

interpreted the Civil Rights Statutes as falling

within the three-year limitation period under

F.S. §95.11(5) (a). Nevels v. Wilson, 423 F.2d

691 (5th Cir. 1970). Even if this action were

11

deemed to fall within the purview of the more

liberal four-year limitation period under F.S.

$95.11(4), it would likewise be barred.

Plaintiffs’ claims under Count III are, how-

ever, founded upon a Bivens claim aside from the

Civil Rights Statutes. The Supreme Court when

it recognized the existence of a claim founded

upon a constitutional deprivation in Bivens did

not reach the issue of limitation of that form of

action. In the absence of any authority from ei-

ther the Supreme Court, or the Fifth Circuit,

this Court is of the opinion that the claim under

Bivens should, by analogy to the Civil Rights

Statutes, borrow the state statute of limitations

applicable under Nevels v. Wilson, supra. Count

III must also be barred under either the three-

or four-year Florida Statute, F.S. $95.11, and is

therefore dismissed.

Petitioners grasp at the Janis (United States v. Janis,

Case No. 74-958) straw like drowning men and contend

that this case is a “Bivens” type of action and therefore

somehow distinguishable. Respondent County Officials

would point out that the Bivens action pertained only to

Federal officials (Bivens v. Siw Unknown Named Agents

of Federal Bureau of Narcotics, 403 U.S. 888 (1971)).

However, even if a Bivens type claim is available against

state and local officials, there are no stated periods of

limitation applicable to federal civil actions prosecuted

under Bivens or the Civil Rights Acts. Petitioners in such

circumstances contend that the Federal Courts should now

create a limitations period by decree which would permit

them (the Suarezes) to obtain the relief they wish retro-

12

actively. Your Respondents contend to the contrary and

maintain that, when there is no federally legislated period

of limitation, the applicable state statute of limitations

must be applied. This position is buttressed on the real-

ization that, if utter chaos is to be avoided, some limita-

tions period must accompany every legal remedy created

for the benefit of citizens.

It is well settled in the Fifth Circuit as well as other

circuits that a statute of limitations is not tolled by a

plaintiff’s incarceration. Knowles v. Carson, 419 F.2d 369

(5th Cir. 1969) ; Campbell v. Weatherford, 427 F.2d 131

(5th Cir. 1970); Henig v. Odorioso, 256 F.Supp. 276

(E.D.Pa.1966), aff'd. 385 F.2d 491 (3rd Cir. 1967), cert.

den., 390 U.S. 1016 (1968), reh. den., 391 U.S. 929 (1968).

Similarly, on the question of whether the accrual of

a civil rights action for an allegedly impermissible search

is postponed until the validity of the search and seizures

has been adjudicated, there is a Ninth Circuit case direct-

ly on point. In Strung v. Anderson, 452 F.2d 632 (9th Cir.

1971), the Court held that the accrual of a civil rights

action based on an allegedly impermissible search was not

postponed until the validity of the search and seizure had

been adjudicated.

Thus, Respondent County Officials believe that they

have shown that the Florida statute of limitations is an

absolute bar to the suit of Petitioners, and the limitation

period was not tolled by incarceration or any other factor

in this cause.

eae.

13

POINT III

WHETHER PETITIONERS ARE ENTITLED

TO ATTORNEYS’ FEES OR COSTS ON ANY

OTHER BASIS IN THIS CAUSE?

The final paragraph on page 27 of the Petition for

Writ of Certiorari makes it evident that Petitioners have

limited their claim to attorneys’ fees and costs. This be-

ing so, it would appear that their petition for relief in this

regard should have been addressed to the Tax Court, a

forum in which they were successful, rather than to the

Federal District Court where the first four counts of their

complaint were dismissed.

Further, Rule 9 of the Federal Rules of Civil Proce-

dure requires:

“When items of special damages are claimed,

they shall be specifically stated.”

The Petitioners, having failed to specifically claim

attorneys’ fees in their complaint or amended complaint,

are now barred from asserting a claim for such relief at

this juncture of the proceedings.

14

CONCLUSION

For the reasons stated above and for the reasons so

clearly articulated by the Court in the recent case of

Alyeska Pipeline Service Co, v. Wilderness Society,

U.S , 44 L.Ed.2d 141, 95 S.Ct... (1975), your

Respondents ask that the writ herein sought be denied.

Respectfully submitted,

STUART L. SIMON

Dade County Attorney and

Attorney for Respondent

County Officials

1626 Dade County Courthouse

Miami, Florida 33130

By:

STUART L. SIMON

and

ROBERT. A. GINSBURG

By:

ROBERT A. GINSBURG

Assistant County Attorney

15

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy

of the foregoing Brief in Opposition to Petition for a

Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit was mailed this oAsiy of Au-

gust, 1975, to: Office of Attorney General, The Capitol,

Tallahassee, Florida; Scott P. Crampton, Assistant At-

torney General, Department of Justice, Tax Division,

Washington, D.C. 20530; Clemens Haggland, Esquire,

Assistant United States Attorney, 300 Ainsley Building,

Miami, Florida; John S. Lloyd, Esquire, City Attorney,

65 S.W. First Street, Miami, Florida 33130; and Stanley

Jay Bartel, Noriega & Bartel, P.A., 2100 First Federal

Building, One S.E. 3rd Avenue, Miami, Florida 33131.

ST

FiAQT I Cc: ‘

we Fa bso ilvi

STUART L. SIMON