S & S LOGGING CO. v. Barker

• Decision Date: 24 August 1966
• Docket Number: No. 19896.,19896.
• Citation: 366 F.2d 617
• Parties: S & S LOGGING CO., Inc., Appellant, v. B. G. BARKER and Jane Doe Barker, his wife, Bob Jones and Jane Doe Jones, his wife, Ivan O. Jones and Jane Doe Jones, his wife, Harold C. Chriswell and Iris E. Chriswell, his wife, Wm. O. Benecke and Ruth Benecke, his wife, Summit Timber Company, a Washington corporation, and Eclipse Timber Co., a Washington corporation, Defendants, Lewis Hovde and Jane Doe Hovde, his wife, and the Bank of Sumas, a banking corporation, Additional Defendants, (Harold C. Chriswell et ux. and Wm. O. Benecke et ux. of Defendants), Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

366 F.2d 617 (1966)

S & S LOGGING CO., Inc., Appellant, v. B. G. BARKER and Jane Doe Barker, his wife, Bob Jones and Jane Doe Jones, his wife, Ivan O. Jones and Jane Doe Jones, his wife, Harold C. Chriswell and Iris E. Chriswell, his wife, Wm. O. Benecke and Ruth Benecke, his wife, Summit Timber Company, a Washington corporation, and Eclipse Timber Co., a Washington corporation, Defendants, Lewis Hovde and Jane Doe Hovde, his wife, and the Bank of Sumas, a banking corporation, Additional Defendants, (Harold C. Chriswell et ux. and Wm. O. Benecke et ux. of Defendants), Appellees.

No. 19896.

United States Court of Appeals Ninth Circuit.

August 24, 1966.

Joseph T. Pemberton, Bellingham, Wash., for appellant.

John W. Douglas, Asst. Atty. Gen., Alan S. Rosenthal, Edward Berlin, Attys., Dept. of Justice, Washington, D. C., Wm. N. Goodwin, U. S. Atty., Seattle, Wash., for appellees.

Before POPE, BARNES and MERRILL, Circuit Judges.

POPE, Circuit Judge.

Appellant brought suit against appellees and others under section 4 of the Clayton Act, 38 Stat. 731 (1914), 15 U.S.C. Sec. 15 (1964), charging a conspiracy to monopolize and control the sale of National Forest Service timber in Mount Baker National Forest, Washington, in violation of Sections 1 and 2 of the Sherman Act, 26 Stat. 209 (1890), 15 U.S.C. Secs. 1, 2 (1964).

Appellee Chriswell is Supervisor and appellee Benecke is Timber Staff Assistant of the Mount Baker National Forest. It is charged in the complaint that pursuant to the alleged conspiracy appellees canceled an auction sale of timber on which appellant was successful bidder and thereafter awarded the contract of sale to other named conspirators, also joined as defendants.

The appellees moved for dismissal of the complaint, pursuant to F.R.Civ.P. 12 (b) (6), on the ground that the complaint failed to state a claim upon which relief could be granted. In the alternative appellees asked for summary judgment. The action was dismissed as to appellees.

I

As we shall note hereafter the motion for summary judgment was supported by affidavits and depositions, which raises the question whether the whole motion should not be treated as one for summary judgment. But before reaching that question, it is appropriate to consider whether the complaint, on its face, and taken by itself, states a claim against these appellees.

The trial Judge, in sustaining the motion, relied upon the case of Barr v. Matteo, 360 U.S. 564, 575, 79 S.Ct. 1335, 1341, 3 L.Ed.2d 1434. There the opinion of Mr. Justice Harlan, for four Justices, held that governmental officers have an absolute privilege and immunity against suits for damages against them arising out of actions taken by them "within the outer perimeter of their line of duty * * * despite the allegations of malice in the complaint." In announcing this rule the Court quoted at length what it said Judge Learned Hand had "admirably expressed" in Gregoire v. Biddle, 2 Cir., 177 F.2d 579, 581, as follows: "`It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. * * *

"`The decisions have, indeed, always imposed as a limitation upon the immunity that the official's act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment's reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him. * * *'" (360 U.S. 571, 572, 79 S.Ct. 1335, 1339.)

Judge Hand's statement was again alluded to with approval in the recent case of Garrison v. State of Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125.¹ The complaint here states clearly just what it is claimed that the defendants did. What they actually did was to reject all bids at the first sale and arrange for another sale of the same timber. These were acts which were clearly within the perimeter of those defendants' duties, or, as put by the Fifth Circuit in Norton v. McShane, 332 F.2d 855, 857, they were "acting within the scope of their authority or in the discharge of their duties."

This immunity from suit granted to governmental employees, is not limited to those of cabinet rank, nor to those exercising judicial or quasi-judicial functions. As stated in Barr v. Matteo, supra, 360 U.S. pp. 572-573, 79 S.Ct. p. 1340: "We do not think that the principle announced in Vilas Spaulding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 can properly be restricted to executive officers of cabinet rank, and in fact it never has been so restricted by the lower federal courts. The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. 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 cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy." And in O'Campo v. Hardisty, 9 Cir., 262 F.2d 621, 625, a suit against employees of the Internal Revenue Service, we said: "At an early date the rule was extended to protect legislative and administrative officers. * * That minor governmental officers are within the scope of the immunity is well established."²

The allegations of the complaint using the words "conspired with each other and with the defendants" and "conspired to and arranged for another sale" and a "conspiracy to injure the plaintiff" do not operate to take this case out of the Gregoire rule.

In Bershad v. Wood, 9 Cir., 290 F.2d 714, the wrongful levy by the defendant officers in that case was alleged to have been done "wrongfully, maliciously, without probable cause, and in willful disregard of the rights of plaintiff." This court affirmed a judgment for the defendant officers relying upon a substantial number of decisions which rejected similar claims. This court there expressly approved and adopted the Gregoire rule. The allegations here, as to "conspiracy" can mean no more than the allegations in Bershad, or in Gregoire where it was asserted that the defendants "conspired together and maliciously and wilfully entered into a scheme to deprive the plaintiff * * * of his liberty contrary to law."

We cannot say that it was not within the power of these defendants to reject all bids on the first sale. Such power is granted to these officers by the Forest Service regulations found in 36 CFR (1960 ed.) 221.10(a) (1). The actual basis for the action here is necessarily the cancellation of the first sale by the rejection of the bid and the re-advertising of the property. No basis for depriving the officers of the absolute immunity granted to them can be found here through an allegation that this was done through a "conspiracy" with others. The so-called conspiracy would not result in harm to plaintiff if nothing were done pursuant to it. What was done here was an act specifically authorized by the regulations. That that act is motivated by a conspiracy adds nothing to plaintiff's claim and makes no stronger case than the case mentioned by Judge Hand in Gregoire where the officer used his power to "vent his spleen" upon others or for any other personal motive "not connected with the public good" or where he exercises a power "dishonestly", or where, as in our Bershad case, the officer acts "wrongfully, maliciously, without probable cause and in willful disregard of the rights of plaintiff."

In Bershad, supra, we cited with approval the case of Yaselli v. Goff, 2 Cir., 12 F.2d 396, 56 A.L.R. 239. The very proposition just expounded is discussed there by the court and dealt with in an appropriate manner. The plaintiff in that case had pleaded that the defendant officer had conspired with other defendants to prosecute the plaintiff maliciously, and, in furtherance of the plan, "confederated and agreed" that the officer would do the things with which he was charged in the complaint. The pleading contained "other allegations concerning the details of the plan of...