Cooper v. O'CONNOR

• Decision Date: 27 June 1938
• Docket Number: No. 6956.,6956.
• Citation: 99 F.2d 135,69 App. DC 100
• Parties: COOPER v. O'CONNOR et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

69 App. DC 100, 99 F.2d 135 (1938)

COOPER v. O'CONNOR et al.^*

No. 6956.

United States Court of Appeals for the District of Columbia.

Decided June 27, 1938.

Richard L. Merrick and Wade H. Cooper, both of Washington, D. C., for appellant.

H. Winship Wheatley, Leslie C. Garnett, U. S. Atty., John J. Wilson, Asst. U. S. Atty., Swagar Sherley, Charles F. Wilson, and Henry B. Weaver, all of Washington, D. C., for appellees.

Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.

MILLER, Associate Justice.

Appellant, prior to 1934, was president and a director of a trust company and two banking corporations. During the months of January and March, 1934, a grand jury of the District of Columbia returned three indictments against appellant, charging him with violations of the banking laws of the United States. He went to trial on one indictment and was acquitted. Thereupon, the United States District Attorney entered a nolle prosequi of the other two. In 1936, appellant filed a declaration in the lower court alleging that the three indictments had been returned by the grand jury as a result of acts of appellees; charging appellees with malicious prosecution — jointly, severally, and as conspirators; and seeking damages. Appellees demurred to the declaration; their demurrers were sustained and judgment was entered in their favor; whereupon this appeal followed.

Appellees were sued in their individual capacities and not as officers and employees of the United States; and the declaration does not disclose the office held by each of them. The lower court, however, had power to take judicial notice of appellees' official capacities, as well as the extent of their authority and the scope of their duties.¹ On this appeal, appellant admits that O'Connor was Comptroller of the Currency of the United States; Baldwin was Receiver of the Commercial National Bank of Washington in the District; Barse was General Counsel for the Division of Insolvent Banks of the Treasury Department, and since February 4, 1936, has been, and now is, General Counsel for the Comptroller of the Currency; Lyons was Deputy Comptroller of the Currency of the United States; Awalt was Deputy Comptroller of the Currency of the United States; Rover was United States Attorney for the District of Columbia; Goldstein was Assistant United States Attorney for the District of Columbia. Appellant, in his brief, concedes, moreover, that the court may take judicial notice of the official position of appellees and of their duties, except as to appellee Simon. But the brief states that the issue whether judicial notice may be taken of the latter's official position is unimportant, and it further states as a matter of fact that appellee Simon was a Special Agent of the Bureau of Investigation. Accordingly, we shall assume that this was the case for the purpose of deciding the broader issues primarily argued by appellant.

In view of the history of the case, we are inclined to decide it upon its merits, and for that reason assume, also, that appellant is entitled to contend, as he does on this appeal, that when a public officer acts outside the scope of his authority or acts in a wanton, malicious and unlawful manner and, in either event, injures a private citizen, he is liable in an action for damages. He contends that in the present case all the appellees acted in a wanton, malicious and unlawful manner, and that some of them acted outside the scope of their official authority.

It may be argued persuasively that all public officers should be required to answer a declaration such as that of appellant and respond on the merits. But the courts have been unwilling to go so far. The situation is one in which a serious conflict arises between considerations of public policy: One, the protection of the individual citizen against oppressive official action, and the other, the protection of the whole people by protecting their officers against vindictive and retaliatory damage suits, in order to insure their fearless and effective administration of the law. Randall v. Brigham, 7 Wall. 523, 536 et seq., 19 L.Ed. 285.

There is a general rule that a ministerial officer who acts wrongfully, although in good faith, is nevertheless liable in a civil action and cannot claim the immunity of the sovereign.² There is also a general rule that if any officer — ministerial or otherwise — acts outside the scope of his jurisdiction and without authorization of law, he is liable in an action for damages for injuries suffered by a citizen as a result thereof. See Bradley v. Fisher, 13 Wall. 335, 351-352, 20 L.Ed. 646.³ On the contrary, if the act complained of was done within the scope of the officer's duties as defined by law, the policy of the law is that he shall not be subjected to the harassment of civil litigation or be liable for civil damages because of a mistake of fact occurring in the exercise of his judgment or discretion,⁴ or because of an erroneous construction and application of the law.⁵ This rule of immunity was first applied and has been most universally observed in the case of judges, presumably because considerations of public policy operate most strongly in their favor. But even as to them the rule does not operate in cases in which they act without jurisdiction over the subject-matter. Bradley v. Fisher, supra, at page 351. The first question to be decided, therefore, is whether the acts complained of in the present case come within the general scope of the duties of the several appellees.

In substance, the specific acts alleged to have been committed by appellees were as follows: (1) appearing before a grand jury of the District of Columbia and falsely, maliciously and without probable cause accusing appellant of having committed crimes in violation of the Federal banking laws; thus causing the grand jury to return indictments charging him with the commission of such crimes; (2) causing appellant, in order to avoid imprisonment, to give bail bond for his appearance; (3) causing a nolle prosequi to be entered of two of the indictments, without the knowledge, consent, or procurement of appellant. The act last complained of was limited in the declaration to the United States Attorney for the District of Columbia. The alleged act of causing appellant to procure a bail bond in order to avoid imprisonment may be disregarded; it was the act of appellant himself, done in pursuance of rights guaranteed to him by law. The only sense in which appellees could be said to have caused it, is indirectly, through the return of indictments against appellant. This allegation, therefore, stands or falls with the allegations concerning accusations made to the grand jury. As for the remaining allegations we may properly take judicial notice of the official duties of each of the appellees and thus determine whether the acts charged in the declaration fell within the general scope of their authority.

Considering first appellees Rover and Goldstein, it is obvious that all the acts charged came within the scope of their official duties as District Attorney and Assistant District Attorney, respectively (§ 771, R.S. (28 U.S.C.A. § 485); Richbourg Motor Co. v. United States, 281 U.S. 528, 534-535, 50 S.Ct. 385, 388, 389, 74 L.Ed. 1016, 73 A.L.R. 1081); not only as concerned prosecution (United States v. Winston, 170 U.S. 522, 18 S.Ct. 701, 42 L.Ed. 1130; United States v. Morgan, 222 U.S. 274, 32 S.Ct. 81, 56 L.Ed. 198), but also the power to enter a nolle prosequi, dismiss, or refuse to prosecute.⁶ Moreover, as the allegation concerning the entry of a nolle prosequi was limited to the District Attorney, and as that act was clearly within the scope of his authority, the only acts complained of which remain to be considered in connection with the other appellees consist of their appearing before a grand jury, accusing appellant of crimes, and causing indictments to be found against him.

Closely related to the district attorney are those officers who investigate crimes, detect criminals and act generally in aid of prosecution under the supervision of the district attorneys. Included in this group is appellee Simon, agent and investigator of the Federal Bureau of Investigation, a unit of the Department of Justice. The acts alleged fall clearly within the scope of his duties as prescribed by the Act of March 1, 1921, 41 Stat. 1175, as amended (5 U.S.C. A. § 300), and by virtue of which the Attorney General appointed him to his office.

We are equally satisfied that the alleged actions of appellees O'Connor, Lyons, Awalt, Barse and Baldwin were within the scope of authority of each of them. Section 324, R.S., as amended (12 U.S.C.A. § 1), provides that: "There shall be in the Department of the Treasury a bureau charged with the execution of all laws passed by Congress relating to the issue and regulation of a national currency secured by United States bonds and, under the general supervision of the Board of Governors of the Federal Reserve System, of all Federal reserve notes, the chief officer of which bureau shall be called the Comptroller of the Currency and shall perform his duties under the general directions of the Secretary of the Treasury." Thus, the Comptroller has been vested with general administrative powers and duties — even though they may be judicial in character — for the administration of the national banking laws. Altman v. McClintock, D.C. Wyo., 20 F.2d 226, 231, appeal dismissed, 9 Cir., 28 F.2d 1007. In this capacity he is charged with the duty of supervising national banks. It is within his power, when he deems it necessary, to take possession of the assets of a bank and assume control of its operations. United States v. Weitzel, 246 U.S. 533, 540, 38 S.Ct. 381, 62 L.Ed. 872. For this purpose he may appoint a receiver and place him in complete charge, as directed by § 5234, R.S. (12 U.S.C.A. § 192). The duties of a receiver appointed by the...