Johnston v. Earle, 14951.
Decision Date | 28 February 1957 |
Docket Number | No. 14951.,14951. |
Citation | 245 F.2d 793 |
Parties | Art JOHNSTON, Appellant, v. Hugh EARLE, Collector of Internal Revenue, Walter S. Shanks, Irwin Borthick and Irving H. Curran, Appellees. |
Court | U.S. Court of Appeals — Ninth Circuit |
Warde H. Erwin, Barzee, Leedy & Erwin, Portland, Ore., for appellant.
Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, A. F. Prescott and George F. Lynch, Attys., Dept. of Justice, Washington, D. C., Clarence E. Luckey, U. S. Atty., Edward J. Georgeff, Asst. U. S. Atty., Portland, Ore., for appellees.
Before DENMAN, Chief Judge, and POPE and CHAMBERS, Circuit Judges.
Johnston, a citizen of the State of Oregon, appeals from a judgment in a suit against appellees, also citizens of Oregon, each holding offices in the Internal Revenue Bureau. The judgment held that appellant could not recover on his complaint that defendants had tortiously seized and converted to their own use a caterpillar tractor belonging to Johnston, because the evidence failed to show they were not entitled to do so in their official capacities as federal revenue officers acting in a federal tax levy.
The controlling matter of this appeal is the question of jurisdiction. It is not a diversity case. The question is whether the acts of the appellees violated the Federal Constitution or federal law, or are they only a violation of a state law against tortious conversion. There was a pretrial at which the government's officers' contention of lack of jurisdiction was stated as follows:
The court held it had jurisdiction.
However, when these federal officers had secured a favorable judgment that their acts were not illegal, they abandoned their contention that the court lacked jurisdiction of the subject matter of the case and in their brief on appeal state the "sole issue"1 here is whether the district court properly determined the merits. Such an abandonment of the contention of lack of jurisdiction cannot create it where absent, however, pleasing to these office holders it would be if we sustained their successful contentions on the merits below. We agree that the several grounds of jurisdiction claimed by Johnston are not valid.
This section provides:
Here the complaint alleges that the seizure was not under any law of the United States. The law was first stated in Section 9 of the Judiciary Act of 1789, 1 Stat. 77, as follows: "the district courts * * * shall also have exclusive original cognizance of all seizures on land * * * and of all suits for penalties and forfeitures incurred, under the laws of the United States."
That the federal courts had no jurisdiction under it for damages for conversion was early determined in the case of Slocum v. Mayberry, 1817, 2 Wheat. 1, 15 U.S. 1, 4 L.Ed. 169. There, as here, a seizure had been made of certain cargo on a vessel by the United States surveyor of customs under the direction of the director of customs. The cargo owners brought an action in replevin in the state court of Rhode Island for the restoration of the cargo.
The Supreme Court sustained the Rhode Island court in holding that, in the absence of authority under the laws of the United States to seize the cargo, its owners could replevy it in a state tribunal. The Supreme Court continued to state what is obvious from the face of the statute:
Emphasis supplied. 2 Wheat. 9, 15 U.S. at 9.
This statute provides:
The complaint's claim for recovery of damages for the tortious conversion of of the appellant's property by defendants is not one "arising under any Act of Congress providing for internal revenue." The basic theory of the complaint is not the return of federal taxes alleged to have been wrongfully assessed as in Roybark v. United States, 9 Cir., 1954, 218 F.2d 164; Loetscher Co. v. Birmingham, D.C.Iowa 1950, 95 F.Supp. 892, affirmed, 8 Cir., 1951, 188 F.2d 78, or for the return of property wrongfully seized as in Stuart v. Chinese Chamber of Commerce, 9 Cir., 1948, 168 F.2d 709. The recovery sought is solely for a state tort by one citizen of the state against other citizens of the same state.
We do not think that the district court was entitled to determine the merits of the issues of fact presented by the complaint under Title 28 U.S.C. § 1331. This section reads:
It is clear that the mere fact that a suit is against a federal officer does not support original jurisdiction thereof in the United States district courts on the ground that it is a case arising under the laws of the United States within the meaning of this section. This necessarily follows from Section 1442, Title 28 U.S.C., which provides for the removal by the defendant of such a suit from a state court to a federal district court where the act complained of is claimed to have been done under the authority of the United States. Where Congress has intended to create original federal jurisdiction over suits against certain types of federal officials, such as United States Marshals, it has expressly provided for such jurisdiction by statute. See, e.g., 28 U.S.C. § 544; Bedenbaugh v. National Surety Corporation, 5 Cir., 1955, 227 F.2d 102. It is not contended that any such special statute is applicable here.
Nor can jurisdiction be sustained on the ground that the plaintiff's complaint alleges that defendants may plead in their answer that their acts were within the scope of their authority as federal officers. Skelly Oil Co. v. Phillips Petroleum Co., 1950, 339 U.S. 667, 672, 70 S. Ct. 876, 94 L.Ed. 1194.
Jurisdiction in the present case, therefore, can be sustained only if, by his allegation that the acts of the appellees "deprived plaintiff of the property without just compensation and without the process of law contrary to the Constitution of the United States", appellant has asserted a federal cause of action. Of course, courts have jurisdiction to determine whether or not the subject matter of the complaint presents a cause which they can entertain. The Fair v. Kohler Die & Specialty Co., 1913, 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716.
This is not a case like Bell v. Hood, 1946, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939, where the district court decided it lacked jurisdiction even to consider whether it had jurisdiction of the subject matter of the complaint. Here the district court decided it had such jurisdiction,2 and we are called upon to determine whether the tortious taking of property by federal officials acting beyond the scope of their authority which undoubtedly is a...
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...United States v. Faneca, 332 F.2d 872, 875 (CA5 1964), cert. denied, 380 U.S. 971, 85 S.Ct. 1327, 14 L.Ed.2d 268 (1965); Johnston v. Earle, 245 F.2d 793, 796 (CA9 1957); Koch v. Zuieback, 194 F.Supp. 651, 656 (SDCal 1961), aff'd, 316 F.2d 1 (CA9 1963); Garfield v. Palmieri, 193 F.Supp. 582,......
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...the Fifth Amendment and presents no federal question. Bell v. Hood, D.C.S. D.Cal.1947, 71 F.Supp. 813, 816 et seq.; Johnston v. Earle, 9 Cir., 1957, 245 F.2d 793, 796. In Bell v. Hood, supra, plaintiffs brought an action for damages against special agents of the Federal Bureau of Investigat......
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Wheeldin v. Wheeler, 493
...at 220. This is not to say that federal law is necessarily implicated whenever the defendant is a federal officer. See Johnston v. Earle, 9 Cir., 245 F.2d 793. But where, as here, it is alleged that a federal officer acting under color of federal law has so abused his federal powers as to c......