Gibson v. Reynolds

• Decision Date: 11 January 1949
• Docket Number: No. 13767.,13767.
• Citation: 172 F.2d 95
• Parties: GIBSON v. REYNOLDS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

172 F.2d 95 (1949)

GIBSON v. REYNOLDS et al.

No. 13767.

United States Court of Appeals Eighth Circuit.

January 11, 1949.

Hayden C. Covington, of Brooklyn, N. Y., and William E. Wiggins, of Texarkana, Tex., for appellant.

R. S. Wilson, U. S. Atty. and David R. Boatright and Charles A. Beasley, Jr., Asst. U. S. Attys. both of Fort Smith, Ark., and H. G. Morison, Asst. Atty. Gen., and Marvin C. Taylor, Sp: Atty., and Howard C. Wood, Atty., Dept. of Justice, both of Washington, D. C., for appellees.

Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges.

COLLET, Circuit Judge.

This appeal is from an order and judgment of the District Court, dismissing appellant's complaint against the members of a local Draft Board, the Selective Service Appeal Board, the State Director of Selective Service for Arkansas and his Assistant, the Chief of the Legal Division for the Arkansas State Director, seeking damages for alleged improper classification of appellant under the Selective Training and Service Act of 1940, as amended, 50 U. S.C.A. Appendix, § 301 et seq. The complaint was dismissed on motion on the ground that appellees in classifying appellant were acting within the scope of their authority and duty imposed and conferred upon them by the Selective Training and Service Act and were not subject to a civil action for damages on account of such acts. D.C., 77 F.Supp. 629.

Appellant is a Jehovah Witness. He registered June 30, 1942, with his Local Board at El Dorado, Arkansas. On October 12, 1942, he filed his questionnaire reciting facts which he then claimed and now claims entitled him to a IV-D classification as a minister of religion entirely exempt from any service under the Act. The Local Board denied his claim for that classification and on November 6, 1942, classified him in Class I-A, which called for training and service in the armed forces. He appealed that classification to the Selective Service Appeal Board, which Board, on May 8, 1943, reversed the Class I-A Classification and placed him in Class IV-E, making him liable for service in a civilian public service camp as a conscientious objector. Appellant then requested the Selective Service State Director to appeal the latter classification to the President and to stay the induction process. The State Director and his Chief Legal Advisor declined to do so. On September 1, 1943, he was ordered to appear September 22, 1943, for a pre-induction physical examination. In 1944 he was given another such examination and notified by his Local Board that he had been found physically fit and accepted for civilian service. May 23, 1944, he was assigned to perform work in a civilian public service camp.

On August 8, 1944, he was ordered to report on August 21, 1944, to the Local Board at Carlinville, Illinois, for transportation to the Civilian Public Service Camp at Hill City, South Dakota. He reported to that Board and received transportation to the Camp. He proceeded to the Camp and arriving there declared that he came not to work but only to "complete his administrative processes incident to induction" and then to depart. He completed those processes, declared that he was a minister and had been improperly classified, obtained a written statement from the camp director that he had reported on August 23, 1944, completed the administrative process and, without performing any work, had left the camp voluntarily. Upon receiving that statement from the camp director he left the camp. As will be observed from an examination of the opinion of the Supreme Court in Gibson v. United States, 329 U.S. 338, 67 S.Ct. 301, 91 L.Ed. 331, this course of action appears to have been deliberately planned for the purpose of determining at just what point in the administrative process of induction opportunity for challenging the propriety of his classification ceased and the availabiltiy of a judical review of the classification arose.

For his desertion from the Camp he was indicted by a Federal Grand Jury in South Dakota for violation of the Selective Training and Service Act. He was tried and convicted on February 13, 1945, in the District Court of South Dakota, and sentenced to imprisonment for five years. At that trial he unsuccessfully undertook to challenge the propriety of his classification. He appealed his conviction to the Court of Appeals where it was affirmed. Gibson v. United States, 8 Cir., 149 F.2d 751. On certiorari the Supreme Court on December 23, 1946, reversed and remanded the cause (Gibson v. United States supra), holding that he should have been permitted to present and have the question of the propriety of his classification judicially determined in the criminal prosecution. Upon remand of the cause to the District Court, active hostilities having ceased, the indictment was dismissed and appellant discharged February 4, 1947. Thereafter on January 29, 1948, he filed the present action in the District Court for the Western District of Arkansas. In the Complaint it is charged that appellees, in passing on appellant's classification,

"* * * refused and failed to consider and be governed by the * * * proof that plaintiff submitted to them, showing that he was an ordained minister of religion within the meaning of Section 5 (d) of the Selective Training and Service Act and Section 622.44 of the Selective Service Regulations, and thereby

"(a) said defendants acted contrary to and in violation of Section 622.44 of the Selective Service Regulations promulgated by the President of the United States, concerning classification of regular and duly ordained ministers of religion;

"(b) said defendants ignored and disregarded and failed to consider or apply Opinion No. 14 and State Director Advice No. 213-B of Selective Service National Headquarters concerning Jehovah's Witnesses, under which plaintiff would have been declared to be a duly ordained minister of religion, or a regular minister of religion;

"(c) said defendants discriminated against plaintiff contrary to the due process clause of the Fifth Amendment to the United States Constitution; and

"(d) said defendants deprived plaintiff of his procedural rights of due process to a full and fair hearing by a fair and unprejudiced board contrary to the due process clause of the Fifth Amendment to the United States Constitution."

In a carefully considered memorandum opinion the trial court reviewed many of the authorities cited by the parties on this appeal (77 F.Supp. 629). The present opinion need not be extended by a repetitious analysis of those authorities. Nor is there need, in view of the conclusion we reach on the main question presented, to consider whether an action for malicious prosecution, as distinguished from an action under the Civil Rights Act, 8 U.S. C.A. § 47, may be maintained against these appellees under the circumstances of this case, or, whether an action under the Civil Rights Act is barred by the Arkansas Statute of Limitations. Pope's Digest, § 8938.

The determinative question is whether the acts complained of were committed by appellees as officers of the Government within the scope of their authority and jurisdiction and hence privileged. If they were privileged then there is no liability stated either for malicious prosecution or under the Civil Rights Act. The question assumes that the classification was wrong and that appellant was injured thereby. It also assumes that each of the appellees was responsible for the assumed injury. For the purposes of the consideration of the question stated, those assumptions will be indulged.

An examination of the many authorities on this question results, on first impression, in an apparent contradiction between two broad propositions of law. The principle of Anglo-American justice on the one hand that no person is above the law and all shall be held accountable in the courts for malicious violation of the lawful rights of another, albeit under color of office, and the more modern principle arising from the public interest and necessity to insure zealous and fearless administration of the law, that some officers of government must be and are afforded personal immunity from civil actions for damages for acts done in relation to matters committed to them by law although probable cause be absent and malice be present in their enforcement of the law.

Since the latter doctrine of immunity has not been extended to all officials it is at once necessary to determine whether the officials designated by the Selective Training and Service Act to perform the duties assigned them under that Act shall be included in the class of governmental officials possessing the immunity heretofore stated. Eliminating from present consideration strictly judicial officers whose immunity springs from the nature of their duties peculiar alone to that limited group of officials, it is safe to say that all of the considerations which enter into the judicial holdings that the Postmaster General,¹ the Secretary and Assistant Secretary of the Treasury,² Members of the Securities and Exchange Commission,³ the Comptroller of the Currency of the United States,⁴ Members of the United States Parole Board,⁵ the Warden of a Federal Penitentiary and the Director of the Bureau of Prisons,⁶ officials of the Home Owners Loan Corporation,⁷ the Commissioners of the District of Columbia, the Chairman of the Tariff Commission, a building inspector, the United States Commissioner of Indian Affairs, the Chief of Record and Pension, Office of the War Department,⁸ and a deputy Fire Marshal,⁹ possess the immunity in question, apply with equal force to officials such as these appellees. And, in addition to the considerations of public policy furnishing the motivating reasons for the courts to declare that those officers above referred to should possess this immunity, the members of the Local Draft Boards, the Boards of Appeal, the State Directors and their legal advisors must fairly,...