Granger v. Marek

• Decision Date: 09 October 1978
• Docket Number: No. 76-1582,76-1582
• Parties: 78-2 USTC P 9683 Mary GRANGER, Plaintiff-Appellant, v. Alfred MAREK, Gerald Kobey, Larry Griffith, Burton Roth, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 781

583 F.2d 781

78-2 USTC P 9683

Mary GRANGER, Plaintiff-Appellant, v. Alfred MAREK, Gerald Kobey, Larry Griffith, Burton Roth,

Defendants-Appellees.

No. 76-1582.

United States Court of Appeals, Sixth Circuit.

Argued June 8, 1978.

Rehearing and Rehearing En Banc Denied Oct. 9, 1978.

James D. O'Connell, Highland Park, Mich., for plaintiff-appellant.

James K. Robinson, U. S. Atty., Detroit, Mich., Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Robert T. Duffy, Jonathan S. Cohen, Jeffrey S. Blum, Tax Div., U. S. Dept. of Justice, Washington, D. C., for defendants-appellees.

Before ENGEL and MERRITT, Circuit Judges, and PECK, Senior Circuit Judge.

PECK, Senior Circuit Judge.

Plaintiff-appellant initiated this lawsuit in the Circuit Court of Wayne County, Michigan, against defendant-appellee agents of the Internal Revenue Service (IRS), ¹ charging that appellees had engaged and conspired to engage in harassing conduct amounting to tortious interference with her business as a professional preparer of tax returns and to intentional infliction of mental and physical distress. In her complaint, appellant alleged that appellees had advised appellant's clients (1) that they would be investigated and have their tax returns audited solely as a result of doing business with appellant, (2) that appellant's competitors would charge less and should be employed, and (3) that appellant was being investigated for possible criminal activity. Appellant further complained that appellees had threatened to put her out of business. She requested a total recovery of 3.25 million dollars for damages to her business and reputation and to her physical and mental health.

On appellees' motion, the case was removed from the Michigan court to the federal district court under the provisions of 28 U.S.C. § 1442(a)(1). ² In the district court, appellant moved for preliminary and permanent injunctive relief, and appellees moved to dismiss the case for lack of jurisdiction and for failure to state a claim upon which relief could be granted, supplementing their motion with affidavits filed by each appellee that denied the substance of appellant's charges.

The district court considered the pleadings and affidavits and heard testimony over several days. The district court then issued an opinion, holding that appellees were immune from suit because they had acted within the scope of their official duties as federal executive officers. Appellant's motion for injunctive relief was denied, and appellees' motion to dismiss was granted. Appellant has perfected this appeal from the district court's judgment dismissing the case. ³

We affirm. Although the district court was imprecise, in light of the Supreme Court's recent decision in Butz v. Economou, --- U.S. ----, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), in defining the scope of immunity accorded to federal executive officials, it did not err in concluding that the appellee IRS agents were protected by the immunity that does exist for federal officers.

There are three legal premises upon which the district court's holding rests. Those premises are: (1) that some federal officials enjoy an absolute immunity for discretionary action performed within the scope of their duties, (2) that the appellee IRS agents fall into the category of Government officials who could claim immunity, and (3) that they were acting within the scope of their duties so as to entitle them to claim the immunity.

The district court's first premise, that there is an absolute immunity for a federal officer's discretionary conduct within the scope of his official duties, was based on a famous passage in an opinion by Judge Learned Hand, Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), Cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950), a passage which the Supreme Court in Barr v. Matteo, 360 U.S. 564, 571-72, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), quoted with full approval. 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.

Judge Hand's opinion in Gregoire v. Biddle, supra, stated the law both prior to that case and for a number of years thereafter. In Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896), the Supreme Court had held that the Postmaster General, who had circulated among postmasters a notice, that the plaintiff in that case alleged had injured his reputation and had interfered with his contractual relationships, was immune from suit, despite the plaintiff's allegations that the Postmaster General had acted with malice, because the Postmaster General had been performing official duties when he circulated the notice. In Barr v. Matteo, supra, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, the Supreme Court held that a press release issued by an acting director of a federal agency announcing his intention to suspend two employees of the agency for certain conduct was within the scope of the director's duties, and that the director could not therefore be found liable to the employees on the ground that the release was libelous. ⁴

Appellant argued in this Court, however, that Judge Hand's decision in Gregoire v. Biddle, supra, 177 F.2d 579, and the Supreme Court's decisions in Spalding v. Vilas, supra, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 and Barr v. Matteo, supra, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, do not constitute the last word on the law of immunity. Appellant pointed to the Supreme Court's decision in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), as indicating that executive officers in government are not entitled to an absolute immunity for actions within the scope of their duties.

In Scheuer v. Rhodes, supra, a case involving damage claims brought under 42 U.S.C. § 1983 for violations of constitutional rights alleged to have been committed by high state officials, the Supreme Court held that:

. . . in varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct.

416 U.S. at 247-48, 94 S.Ct. at 1692. This standard the Supreme Court subsequently applied to alleged violations of constitutional rights by school administrators, Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 314 (1975), and by state hospital superintendents, O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). Courts of Appeals have applied the same standard to alleged violations of constitutional rights by federal officers, on the theory that different standards of immunity should not apply to state and federal executive officials. Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (1974); Economou v. U.S. Dept. of Agriculture, 535 F.2d 688 (2d Cir. 1976), Vacated on other grounds, --- U.S. ----, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); State Marine Lines v. Shultz, 498 F.2d 1146 (4th Cir. 1974); Weir v. Muller, 527 F.2d 872 (5th Cir. 1977); Jones v. United States, 536 F.2d 269 (8th Cir. 1976), Cert. denied, 429 U.S. 1039, 97 S.Ct. 735, 50 L.Ed.2d 750 (1977); Mark v. Groff, 521 F.2d 1376 (9th Cir. 1975); G. M. Leasing Corp. v. United States, 560 F.2d 1011 (10th Cir. 1977).

Whatever doubt there may have been on the question whether the Scheuer standard applies to federal executive officers was laid to rest by the Supreme Court in Butz v. Economou, supra, 98 S.Ct. 2894. There the Supreme Court held that there was only a qualified immunity from damages liability for federal executive officials charged with constitutional violations, absent some special showing of need for a full exemption from liability. The Supreme Court distinguished Spalding v. Vilas, supra, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780, and Barr v. Matteo, supra, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, as cases that did not confront the issue of the liability of officials who have exceeded constitutional limits.

It is apparent from the district court's opinion that the district court did not recognize this limitation on the immunity available to federal executive officials. This did not matter, however, in...