177 F.2d 579 (2nd Cir. 1949), 36, Gregoire v. Biddle

Docket Nº:36, 21401.
Citation:177 F.2d 579
Party Name:GREGOIRE v. BIDDLE et al.
Case Date:October 24, 1949
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 579

177 F.2d 579 (2nd Cir. 1949)



BIDDLE et al.

Nos. 36, 21401.

United States Court of Appeals, Second Circuit.

October 24, 1949

Argued Oct. 3, 1949.

Gunther Jacobson, New York City, for plaintiff-appellant.

John F. X. McGohey, U.S. Atty., New York City, Harold J. Raby, New York City, Robert Roy Dann, New York City, for defendants-appellees.

Before L. HAND, Chief Judge, and SWAN and CLARK, Circuit Judges.

L. HAND, Chief Judge.

The plaintiff has appealed from a judgment, which dismissed a complaint in two counts because of its 'failure to state a claim upon which relief can be granted'- Rule 12(b)(6), Federal Rules of Civil Procedure, 28 U.S.C.A. The first count alleged that the five defendants were two successive Attorneys-General of the United States, two successive Directors of the Enemy Alien Control Unit of the Department of Justice, and the District Director of Immigration at Ellis Island; and that they arrested the plaintiff on the pretence that he was a German and therefore an enemy alien. In spite of a ruling of the Enemy Alien Hearing Board after a hearing that he was a Frenchman, they kept him in custody from January 5, 1942, until September 18, 1946, when Judge Knox found that he was a Frenchman and released him by an order, D.C. 69 F.Supp. 889, which this court affirmed on November 6, 1947. 1 The count ended by alleging that the arrest and imprisonment was 'without any authority of law and without any reasonable or colorable cause, ' and that the defendants 'conspired together and maliciously and wilfully entered into a scheme to deprive the plaintiff * * * of his liberty contrary to law.' The second count reiterated these allegations and added that the defendants 'subjected the plaintiff * * * to the deprivation of his liberty and of his rights, privileges and immunities secured by the Constitution and the laws of the United States, ' and deprived him of equal protection of the law in violation of Sections 43 and 47 of Civil Rights Act. 2 The judge held that the defendants had an absolute immunity from liability, even though their unlawful acts had been induced only by personal ill-will, and dismissed the complaint for that reason.

We lay aside any extenuating facts, which we might gather from the record in United States ex rel. Gregoire v. Watkins, supra, 1 not because we should not be free to consider them if need were, 3 but, because

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we think that the complaint should not stand, even though under Rule 9(b) we read the allegation that the defendants arrested the plaintiff 'maliciously and wilfully, ' as though it had specifically alleged that they had acted altogether from personal spite and had been fully aware that they had no legal warrant for arresting or deporting the plaintiff. True, so stated, that seems at first blush a startling proposition; but we think, not only that it necessarily follows from the decision of the Supreme Court in Yaselli v. Goff; 4 but that, as a new question, the result is desirable. The facts in Yaselli v. Goff appear in the opinion of this court from which the appeal was taken, 5 they were as follows. The action was to recover damages for the malicious prosecution of the plaintiff- a 'Special Assistant to the United States Attorney'- by the defendant, Goff, who had been appointed a 'Special Assistant to the Attorney-General, ' and had been charged with the criminal prosecution of the plaintiff for an attempt to defraud the United States. The case came up upon a motion to dismiss the action, on a record consisting of the complaint, the answer, a reply and a stipulation. The complaint alleged that Goff had 'falsely and maliciously and without any reasonable or probable cause, ' procured an indictment against the plaintiff, had caused him to be arrested, arraigned and brought to trial; but that the judge before whom the case was brought dismissed the indictment upon the prosecution's evidence. Goff answered that he had been appointed to prosecute the case against the plaintiff, and that all the acts charged against him had been in discharge of his duties as such. The reply alleged that, already before he was appointed, Goff had conspired maliciously and without cause to prosecute the plaintiff, and that he had obtained his appointment for that purpose alone. It further alleged that he had represented to the Department of Justice that the United States Shipping Board, of which he had been a commissioner, had evidence of the plaintiff's crime, and that it was by this false means that he had secured his appointment. The stipulation merely contained the letter appointing Goff as 'Special Assistant, ' and declared that it was in that capacity that he appeared before the grand jury, presented the evidence against the plaintiff and conducted all the...

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