Brawer v. Horowitz, No. 75-1907

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore ALDISERT, GIBBONS and ROSENN; ALDISERT
Citation535 F.2d 830
PartiesAlfred BRAWER, Appellant in no. 75-2003 and Ralph Ignomirello v. Jay S. HOROWITZ & Salvatore L. Mauceli (two cases). Appeal of Ralph J. IGNOMIRELLO, in
Docket Number75-2003,No. 75-1907,Nos. 75-1907
Decision Date12 May 1976

Page 830

535 F.2d 830
Alfred BRAWER, Appellant in no. 75-2003 and Ralph Ignomirello
v.
Jay S. HOROWITZ & Salvatore L. Mauceli (two cases).
Appeal of Ralph J. IGNOMIRELLO, in No. 75-1907.
Nos. 75-1907, 75-2003.
United States Court of Appeals,
Third Circuit.
Submitted Feb. 11, 1976.
Decided May 12, 1976.

Page 832

Alfred Brawer, pro se.

Ralph Ignomirello, pro se.

John J. Barry, Asst. U. S. Atty., Newark, N. J., Jonathan L. Goldstein, U. S. Atty., Maryanne T. Desmond, Asst. U. S. Atty., Newark, N. J., for appellees.

Before ALDISERT, GIBBONS and ROSENN, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The question for decision is whether the district court erred in dismissing a complaint that alleged a federal prosecutor and a cooperating witness had conspired to use perjured testimony and to conceal exculpatory evidence in order to convict appellants. The lower court held that both the prosecutor and the witness were immune from civil suit and, therefore, dismissed the complaint for failure to state a claim upon which relief could be granted. We held these appeals pending the Supreme Court's decision in Imbler v. Pachtman, --- U.S. ----, 96 S.Ct. 984, 47 L.Ed.2d 128, 44 U.S.L.W. 4250 (1976). We now affirm.

I.

Appellants Brawer and Ignomirello were tried and convicted in the Southern District of New York of transporting stolen United States Treasury Bills and of conspiring to do so. 18 U.S.C. §§ 2, 371, 2314; see United States v. Brawer, 482 F.2d 117 (2d Cir.), on remand, 367 F.Supp. 156 (S.D.N.Y.1973), aff'd 496 F.2d 703 (2d Cir.), cert. denied, 419 U.S. 1051, 95 S.Ct. 628, 42 L.Ed.2d 646 (1974). Prior to trial, appellee Mauceli pleaded guilty to a charge of conspiring to transport the stolen securities; he testified for the government; after trial, he was sentenced and ultimately placed on probation for two years. 482 F.2d at 121 n. 5. Appellee Horowitz was the prosecuting Assistant U.S. Attorney.

In September 1974, after the Second Circuit affirmed their convictions, appellees filed a civil complaint in the District Court for the District of New Jersey. They alleged that Horowitz and Mauceli had conspired with "divers other persons unknown to plaintiffs" "to injure, oppress and procure the convictions of plaintiffs with the knowing use of false and perjured testimony, and to deprive plaintiffs . . . of their rights to a fair and untainted trial secured and guaranteed to them by the due process clause of the Fifth Amendment . . . as well as by the Civil Rights Act, 42 U.S.C.A. §§ 1985(2), 1986." 1 Appellants sought money damages from Mauceli only;

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they also asked that their convictions be set aside as having been unconstitutionally obtained.

Horowitz filed a timely motion to dismiss the complaint for want of personal and subject matter jurisdiction and for failure to state a claim. At the conclusion of an ex parte hearing, 2 the district court found that "at all times relevant to the allegations in the Complaint defendant Jay S. Horowitz was acting in his capacity as Assistant United States Attorney and was immune from suit." Civ.Action No. 74-1448 (D.N.J. Jan. 16, 1975). Accordingly, the court entered summary judgment in the prosecutor's favor. Upon motion and after concluding that appellants might not have had sufficient time in which to respond to Horowitz' motion to dismiss, see Potter v. McCall, 433 F.2d 1087 (9th Cir. 1970) (per curiam), the court vacated its order. Ultimately, however, the court reaffirmed its initial ruling on Horowitz' immunity. Civ.Action No. 74-1448 (D.N.J. June 11, 1975). 3

Meanwhile, Mauceli had failed to answer the complaint timely and defaults were entered against him in December 1974. F.R.Civ.P. 55(a). Appellants then moved the district court to enter a default judgment as to Mauceli. F.R.Civ.P. 55(b). In February 1975, the United States responded on behalf of Mauceli with a motion to dismiss. Appellants moved to disqualify the United States; Mauceli countered with an affidavit, reciting in part that he had never received notice of the motion for a default judgment against him and that, in any event, he had been absent from the country for a short time "arranging my relocation under a new identity, with the assistance of the United States Government." In its June 1975 opinion, the district court held that the United States had legal authority to represent Mauceli, 4 28 U.S.C. § 517, and

Page 834

that Mauceli's alleged actions were cloaked with "absolute quasi-judicial immunity."

Thus, the district court dismissed the complaint as to both defendants with prejudice and without costs. These appeals, timely noticed, followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Imbler v. Pachtman, supra, held that a state prosecutor is absolutely immune from a civil suit for damages under 42 U.S.C. § 1983 5 where the allegations of constitutional deprivation relate solely to his initiating a prosecution and presenting the case, i. e., to his role as an advocate. --- U. S. at ----, 96 S.Ct. at 995, 47 L.Ed.2d at 143, 44 U.S.L.W. at 4257. This case is slightly different. Horowitz was a federal prosecutor, so this case is a Bivens -type action, 6 rather than a § 1983 claim. Also, the relief sought against Horowitz was not money damages, but the setting aside of the convictions. 7 Notwithstanding these distinctions, in considering the immunity of Horowitz vel non we properly may look to § 1983 cases. 8 Paton v. La Prade, 524 F.2d 862, 872 (3d Cir. 1975). Accordingly, we focus on Imbler.

We have reviewed the policy considerations underlying the immunity accorded in Imbler, --- U.S. at ----, 96 S.Ct. at 990-995, 47 L.Ed.2d 137-143, 44 U.S.L.W. at 4254-56. We believe that different rules should not obtain for federal prosecutors sued on a Bivens theory and for state prosecutors sued under § 1983. The policy considerations are exactly the same in each case. Accordingly, we hold that a federal prosecutor is absolutely immune from suit where the allegations relate solely to his initiating and presenting a criminal case. The allegations of the complaint implicating Horowitz all related to actions in his role as an advocate, rather than as an administrator or investigator. See Imbler, supra, --- U.S. at ----, 96 S.Ct. at 995, 47 L.Ed.2d at 144, 44 U.S.L.W. at 4257 & n.33. Thus, the district court did not err in holding Horowitz immune from this suit and dismissing the complaint as to him for failure to state a claim.

III.

Before considering whether the district court properly dismissed the complaint as to Mauceli, we must determine whether the trial court erred in reaching the issue of Mauceli's immunity. The district court ruled that the United States had legal authority to represent Mauceli's interests. We agree.

Appellants' argument is multifaceted. First, they argue that the Department of Justice possesses no statutory or regulatory authority to represent a nongovernment defendant in a civil case. This contention approaches the frivolous. 28 U.S.C. § 517 provides:

The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.

The statutory language does not limit representation to any class of cases; the only explicit limitation is that the interests of

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the United States be at stake. Judge Friendly summarized the law under the predecessor 9 statute to § 517:

Appellants claim in the first instance that the suggestion was unauthorized since the United States has no financial interest in the litigation. But the statute, 5 U.S.C. § 316, is not limited by its terms to cases of financial interest; it authorizes the Attorney General to send any officer of the Department of Justice "to attend to the interests of the United States in any suit pending in any of the courts of the United States, or in the courts of any State * * *." Long before the present statute, which derives from the Act of June 22, 1870, c. 150, § 5, 16 Stat. 162, the Attorney General had submitted suggestions as to the immunity of the property of foreign sovereigns, The Schooner Exchange v. M'Faddon, 7 Cranch 116, 147, 11 U.S. 116, 147, 3 L.Ed. 287 (1812), as he has frequently done thereafter. Yet "the interests of the United States" in such cases are simply its interests in friendly intercourse with other nations and in avoiding reprisals by them . . . . 5

5. For other types of suggestions of interest in behalf of the Department of State, see Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947); Ivancevic v. Artukovic, 211 F.2d 565, 566, fn. 4 (9 Cir.), cert. denied, 348 U.S. 818, 75 S.Ct. 28, 99 L.Ed. 698 (1954); Pierre v. Eastern Air Lines, Inc., 152 F.Supp. 486 (D.N.J.1957); Note, Federal Intervention in Private Actions Involving the Public Interest, 65 Harv.L.Rev. 319 (1951); Bilder, The Office of the Legal Adviser, 56 Am.J.Int'l Law 633, 676-78 (1962).

International Products Corp. v. Koons, 325 F.2d 403, 408 (2d Cir. 1963). See also Booth v. Fletcher, 69 U.S.App.D.C. 351, 101 F.2d 676, 681-82 (D.C.Cir.1938), cert. denied, 307 U.S. 628, 59 S.Ct. 835, 83 L.Ed. 1511 (1939).

Next, appellants contend that 28 U.S.C. § 518(b), which authorizes the Attorney General to dispatch someone to "conduct and argue any case in a court of the United States in which the United States is interested", 10 requires as a prerequisite to government representation a specific authorization from the Attorney General. Because the government relied on a bald assertion that the Attorney General had determined that the interests of the United States were involved, the argument continues, the district court erred in denying appellants' motion to disqualify the government from representing Mauceli. We find...

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222 practice notes
  • U.S. v. City of Philadelphia, No. 80-1348
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 19, 1981
    ...Attorney General to represent a private citizen in a civil damages action implicating the United States' interests. Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1976) (Aldisert, J.). In Brawer v. Horowitz, the government undertook the defense representation of a criminal informer whose testimo......
  • McCord v. Bailey, No. 79-1085
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 15, 1980
    ...in a state. Such a construction avoids any question of Congress's authority to enact this provision. See, e. g., Brawer v. Horowitz, 535 F.2d 830, 839-40 (3d Cir. B. McCord's Cause of Action Under the First Clause of Section 1985(2) The requirement of discriminatory animus in actions under ......
  • Klitzman, Klitzman & Gallagher v. Krut, Civ. A. No. 84-2180.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • June 25, 1984
    ...to the lower courts, admonishing them to utilize a "functional" approach. Id. at 430, 96 S.Ct. at 995. Thus, in Brawer v. Horowitz, 535 F.2d 830, 834 (3d Cir.1976), the Third Circuit held that an Assistant United States Attorney was absolutely shielded from allegations that he knowingly use......
  • Chocallo v. Bureau of Hearings and Appeals, SSA, Civ. A. No. 77-2310.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 8, 1982
    ...construes section 1985(2) as subdivided into two parts — one part preceding and the other following the semi-colon. Brawer v. Horowitz, 535 F.2d 830, 840 (3d Cir. 1976). The second half of section 1985(2), proscribing obstructions of justice having as their object the denial of equal protec......
  • Request a trial to view additional results
222 cases
  • U.S. v. City of Philadelphia, No. 80-1348
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 19, 1981
    ...Attorney General to represent a private citizen in a civil damages action implicating the United States' interests. Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1976) (Aldisert, J.). In Brawer v. Horowitz, the government undertook the defense representation of a criminal informer whose testimo......
  • McCord v. Bailey, No. 79-1085
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 15, 1980
    ...in a state. Such a construction avoids any question of Congress's authority to enact this provision. See, e. g., Brawer v. Horowitz, 535 F.2d 830, 839-40 (3d Cir. B. McCord's Cause of Action Under the First Clause of Section 1985(2) The requirement of discriminatory animus in actions under ......
  • Klitzman, Klitzman & Gallagher v. Krut, Civ. A. No. 84-2180.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • June 25, 1984
    ...to the lower courts, admonishing them to utilize a "functional" approach. Id. at 430, 96 S.Ct. at 995. Thus, in Brawer v. Horowitz, 535 F.2d 830, 834 (3d Cir.1976), the Third Circuit held that an Assistant United States Attorney was absolutely shielded from allegations that he knowingly use......
  • Chocallo v. Bureau of Hearings and Appeals, SSA, Civ. A. No. 77-2310.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 8, 1982
    ...construes section 1985(2) as subdivided into two parts — one part preceding and the other following the semi-colon. Brawer v. Horowitz, 535 F.2d 830, 840 (3d Cir. 1976). The second half of section 1985(2), proscribing obstructions of justice having as their object the denial of equal protec......
  • Request a trial to view additional results

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