Arnsberg v. United States

• Decision Date: 11 August 1982
• Docket Number: Civ. No. 81-936-RE.
• Citation: 549 F. Supp. 55
• Parties: Robert L. ARNSBERG, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Oregon

549 F. Supp. 55

Robert L. ARNSBERG, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 81-936-RE.

United States District Court, D. Oregon.

August 11, 1982.

Stephen R. Frank, Tooze, Kerr, Marshall & Shenker, Portland, Or., for plaintiff.

Charles H. Turner, U.S. Atty., Portland, Or., for defendant.

OPINION

REDDEN, Judge:

Robert L. Arnsberg brought this action against the federal government and certain named officers of the Internal Revenue Service (IRS) for false arrest and other related torts. The case is now before the court on cross motions for summary judgment. A review of the facts will be helpful.

FACTS

In late 1979 and early 1980, the IRS was conducting an investigation of certain wagering activities in the Portland area. Special Agent Maney and Special Agent Weiler were the principal agents in charge. Records seized from one of the targets of the investigation included a number of names, including that of the plaintiff Arnsberg. Agent Weiler called Arnsberg seeking an interview, but Arnsberg declined the invitation. Weiler informed Arnsberg that if he did not talk voluntarily, a grand jury subpoena would issue, requiring his appearance and testimony. Arnsberg declined to cooperate until such a subpoena was served upon him.

On January 25, 1980 and again February 11, 1980, agents Maney and Weiler sought to serve Arnsberg at one of the two businesses managed by Arnsberg in the Portland area. He was not present and the agents left copies of the subpoena and a telephone number for Arnsberg to call. Arnsberg did not respond. The agents attempted to serve Arnsberg at his father's residence and also called his family and friends. Arnsberg was not found, and efforts to serve him were unsuccessful. On February 26, 1980, the investigating grand jury met but Arnsberg had not been served.

On February 27, 1980 agents Maney and Weiler met with an Assistant United States Attorney (AUSA) to discuss the situation and the difficulties encountered in serving Arnsberg. They decided to arrest Arnsberg. The two agents prepared affidavits recounting the above facts and the fact that Arnsberg had not appeared before the grand jury. Although Arnsberg was under no duty to appear, since he had not been served, the AUSA prepared an application for an arrest warrant for him for "failure to appear before the Grand Jury." The application, together with the agents' affidavits, were presented to a Magistrate who signed the warrant.

The AUSA advised the agents that an arrest of Arnsberg would be legal. Maney called Arnsberg and told him that he was "causing trouble," and that he wanted to meet with him. Arnsberg agreed to wait for Maney, and did so. There was apparently no mention of the arrest warrant and when the agents arrived, they arrested Arnsberg. He was handcuffed and taken from his place of business in the view of employees and customers. He was released on his own recognizance, upon his agreement to appear before the grand jury and testify. Soon thereafter, Arnsberg moved to quash the warrant for his arrest. The motion to quash was granted by minute order.

Arnsberg then brought this suit against the United States and the two IRS agents for false arrest and invasion of privacy. LAW

Private citizens whose constitutional rights are infringed by governmental wrongdoing have two causes of action available to them. They may sue individual government officers under the Bivens doctrine, see Bivens v. Six Unknown-Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), or they may sue the United States in tort, as provided in the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) and § 2671 et seq. These are "parallel, complementary causes of action." Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 1472, 64 L.Ed.2d 15 (1980). A plaintiff may proceed under both theories. Id.

The differences between the two causes of action will affect a plaintiff's choice of theories. A Bivens claim against individual government officers entitles the plaintiff to jury trial, and punitive damages are available. Id. at 1473-4. However, individual federal officers may not have the personal assets to satisfy a judgment. Moreover, defendants in a Bivens action have a qualified immunity defense available, based upon their good faith belief in the legality of their actions. Dellums v. Powell, 566 F.2d 167 (D.C.Cir.1977); Butz v. Economou, 438 U.S. 478, 500, 98 S.Ct. 2894, 2907, 57 L.Ed.2d 895 (1978).

Under the FTCA, a plaintiff has no right to a jury trial, and there can be no claim to punitive damages. I conclude, however, that the good faith defense available to individual government officers is not available to the government itself. Townsend v. Carmel, 494 F.Supp. 30, 36-7 (D.C. D.C.1980). This result is dictated by the legislative history of 28 U.S.C. 2680(h), a 1974 amendment to the Federal Tort Claims Act, see Boger, Gitenstein and Verkuil, The Federal Torts Claims Act Intentional Torts Amendment: An Interpretive Analysis, 54 N.C.L.Rev. 497, 505-17 (1976).

The Fourth Circuit Court of Appeals has reached a contrary result in Norton v. United States, 581 F.2d 390 (4th Cir.1978). There the majority reversed the district court and found that the good faith defenses were available to the government. 581 F.2d 397. The Norton court found the legislative history inconclusive, and not entitled to controlling weight. 581 F.2d 396. The Norton decision has been sharply criticized. See 47 Geo.Wash.L.Rev. 651 (1979). The Fifth Circuit has questioned the continued vitality of certain aspects of Norton in light of the Supreme Court's intervening decision in Carlson v. Green, supra. Brown v. United States, 653 F.2d 196, 201 n. 4 (5th Cir.1981). The D.C. Circuit has also referred to criticism of Norton in Sami v. United States, 617 F.2d 755, 767 n. 21 (D.C. Cir.1979). Townsend v. Carmel, supra, reaches a result contrary to that in Norton, without any citation to Norton. It appears that only the Fourth Circuit now follows Norton. See, e.g., Picariello v. Fenton, 491 F.Supp. 1026, 1040-1042 (M.D.Penn.1980) (Norton found unpersuasive).

There is no Ninth Circuit case but I believe that this Circuit will adopt the approach represented by the Townsend decision. Congress clearly intended to protect individuals by providing a defense when they acted in good faith, but did not intend to deny all compensation to aggrieved parties in such circumstances. Congress envisioned the possibility of governmental compensation regardless of the personal liability, or immunity, of the individual government agent. See Owen v. City of Independence, Missouri, 445 U.S. 622, 100 S.Ct. 1398, 1415-18, 63 L.Ed.2d 673 (1980) (Examination of legislative intent and "considerations of public policy" compel ruling that municipalities may not assert the good faith defenses of their officers in suits under § 1983); Butz v. Economou, supra, 438 U.S. at 503-504, 98 S.Ct. at 2909-2910 (In absence of congressional direction to the contrary, federal immunity should be coterminous with corresponding immunities under § 1983). The special circumstances which warrant creation of the qualified personal immunity for agents acting in good faith do not apply to the government under the Federal Torts Claims Act. This appears to be the course the Ninth Circuit would follow, see Wallace v. Chappell, 661 F.2d 729, 731 (9th Cir.1981) (Official immunity question "arises only when an individual official is sued for damages").

Another notable feature of the FTCA is that it provides for federal jurisdiction and waiver of sovereign immunity, but the underlying cause of action is provided by state law. Carlson v. Green, supra, at 1474.

DISCUSSION

The present case was originally filed, under the FTCA, against the federal government and agents Maney and Weiler. Since individuals may not be sued under the FTCA, plaintiff's counsel agreed the two individual agents should be dropped. The plaintiff now seeks to re-join agents Maney and Weiler as defendants on a Bivens theory. This does not unfairly prejudice the government, and the motion is granted.

This case, then, involves a Bivens claim against agents Maney and Weiler and a claim under the FTCA against the government.

A. FTCA Claim

The plaintiff is entitled to partial summary judgment on the issue of liability on the FTCA claim. Although summary judgment is only appropriate where there are no genuine issues of material fact in dispute, Gaines v. Haughton, 645 F.2d 761, 769-70 (9th Cir.1981), the parties to this case have agreed that there are no such issues here. The issue then is whether the plaintiff or defendant is "clearly entitled to prevail as a matter of law," Id. at 769. I hold that the plaintiff should prevail on the liability issue.

The underlying cause of action in a claim under the FTCA must be provided by state law, Carlson v. Green, supra, at 1474; 28 U.S.C. § 1346(b). Oregon recognizes the torts of false arrest, false imprisonment and intrusion on the right of privacy. McNeff v. Heider, 216 Or. 583, 337 P.2d 819 and 340 P.2d 180 (1958); Napier v. Sheridan, 24 Or.App. 761, 547 P.2d 1399 (1976); McLain v. Boise Cascade, 271 Or. 549, 533 P.2d 343 (1975). Since the damages would be the same for any of these torts, and since I find that the federal government is liable for false arrest and false imprisonment, I need not decide whether these facts constitute the tort of invasion of privacy, see Prosser, Privacy, 48 Cal.L.Rev. 383 (1960).

Under Oregon law, an actor may be liable for false arrest and false imprisonment, regardless of whether actual malice existed and regardless of whether there was "probable cause." McNeff v. Heider, supra, 216 Or. at 588, 337 P.2d 819; Napier v. Sheridan, supra, 24 Or.App. at 765, 547 P.2d 1399. Actual malice in such tort actions is only an issue where punitive damages are sought, McNeff, 216 Or. at 589, 337 P.2d 819. Since punitives are not available under the FTCA, 28 U.S.C. § 2674, malice is...