Green v. James, Civ. No. 70-3125.
| Decision Date | 01 November 1971 |
| Docket Number | Civ. No. 70-3125. |
| Citation | 333 F. Supp. 1226 |
| Parties | Ophelia GREEN, Plaintiff, v. William H. JAMES, Defendant. |
| Court | U.S. District Court — District of Hawaii |
David C. Schutter, Honolulu, Hawaii, for plaintiff.
Joseph M. Gedan, Asst. U. S. Dist. Atty., Robert K. Fukuda, Honolulu, Hawaii, for defendant.
DECISION AND ORDER
At the outset, the plaintiff moved this Court for an order disqualifying the United States Attorney from representing the defendant, William H. James, upon the ground that the United States had no interest to protect in the pending suit. It was urged that any judgment recovered against the defendant would not "expend itself on the public treasury or interfere with the administration of the Federal Government." Although the Court has already denied that motion for reasons given orally, nevertheless, because the reasoning orally stated for denying the motion bears equally upon the decision on the merits, it is repeated in substance and elaborated upon in the following pages.
In the alternative the plaintiff also moved this Court for an order preventing disclosure to the jury by the United States Attorney of the Federal Government's participation in this action. The Court having found orally that such representation by the United States was proper, the alternate motion was also denied.
After denial of such motion, the Court allowed further time during which the depositions of plaintiff and defendant were taken. Thereafter, further argument was had upon motion of the defendant to dismiss, and motion of plaintiff for summary judgment.
The original motion to disqualify the United States attorney and the above mentioned alternate motion recited that they were based upon the affidavit of Ophelia Green, "attached hereto and incorporated herein by reference as Exhibit `A', the pleadings on file herein, and a Memorandum of Points and Authorities * * *". Although the affidavit was not attached originally to the motion, as filed on May 11, 1970, it was later filed in this court on June 9, 1970.
On page 2 of the plaintiff's memorandum in support of said original motion, counsel recited:
Paragraph I of the Complaint, among other allegations, recites "* * * All the incidents complained of herein took place within the City and County of Honolulu, State of Hawaii and more specifically took place within the territorial limits of Schofield Barracks a Federal Military Reservation contained therein."
Under Count One it is alleged that on December 27, 1969, the Plaintiff was driving along Waianae Street at about 3:30 p. m. within the Military Reservation known as Schofield Barracks when she was stopped by the occupant of another vehicle, which person identified himself as a full "Colonel in the United States Army," Colonel William H. James, who threatened to "drag her in and have her booked for speeding" because she "was going 30 miles per hour in a 25 mile per hour zone."
Again in Count Five the Complaint recites that:
Count Seven, II, contains a further allegation:
"As a result of the wrongful, false, and malicious allegations of the Defendant and as a result of his wrongful and malicious use of his Army rank against a subordinate a traffic ticket was issued to the Plaintiff which traffic ticket became a part of the military record of her husband who is a Sergeant in the United States Army within the State of Hawaii."
In the light of such allegations, the Court disagrees with counsel's contention that the Complaint contains no allegation that the Defendant was * * * (1) acting under color of his office and status, as set forth above.
The burden would be upon the Plaintiff to allege and prove that Defendant, if acting under the color of his office or status, had no right, title or authority to do the acts complained of because of some statutory limitation upon his powers, or if such action was within powers granted, that the exercise of the granted power was constitutionally void.
No showing along this vein has been made. Plaintiff has been content to merely recite that "Certainly there is no authority in the statutes of the United States * * * which confers power on a Government official to commit an intentional tort." The Court is satisfied that plaintiff's characterization of a tort as "intentional" does not necessarily make it such. If such were the law, the application of the Federal Tort Claims Act could be completely thwarted by the mere making of such an allegation in the complaint.
The Court knows of no federal act which confers upon any employee of the Government a mere privilege to negligently operate a motor vehicle within the scope of his authority and to thereby inflict injury upon anyone. The Tort Claims Act comes into play when an injured claimant contends that his tortious injury resulted from the negligent acts, or even willful and wanton acts, of an employee, unless within the statutory exemptions.
Morgan v. Willingham, 383 F.2d 139, a 10th Circuit 1967 case originally heavily relied upon by plaintiff's first memorandum, was expressly reversed by Willingham v. Morgan, 395 U.S. 402, 89 S. Ct. 1813, 23 L.Ed.2d 396, decided June 9, 1969, shortly after the filing of plaintiff's memorandum.
Representation by the Attorney General or the United States Attorney in this matter appears to be most proper. Sections 513, 514, 517 of Title 28, U.S. Code appear sufficiently broad to authorize such representation, and it further appears to be very clear that initial determinations at least as regards the existence of governmental interest, will be made unilaterally within Governmental channels. There is no indication whatever that Congress ever intended to grant options or rights of election to those who assert claims which may or may not be of interest to the Government. This rationale is further borne out by 28 U.S. Code § 1442 and § 1442a. as related to the present action. Congress has expressly provided for the removal of this type of action into the federal judicial system, in reliance upon federal supremacy in such matters, thereby eliminating all risks of challenge to the sovereign immunity of the United States.
Congress saw fit to waive sovereign immunity by enactment of the Federal Tort Claims Act and to provide a means of making claims against the United States and for civil actions on such claims. Original and exclusive jurisdiction in such matter was placed in the United States District Courts by 28 U.S. C. 1346(b), which provides in part:
"* * * the district courts, * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury * * * caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment * * *"
By 28 U.S.C. § 2680, however, Congress saw fit to specifically provide for certain "exceptions" to the provisions of the Act and particularly 28 U.S.C. § 1346 (b). 28 U.S.C. § 2680(h) provides, as a specific exception, as follows:
"(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights."
The leading case in this area appears to be Barr v. Matteo, 360 U.S. 954, 79 S.Ct. 1335, 3 L.Ed.2d 1434 decided in 1959. There, the defendant in the original action was Acting Director of the Office of Rent Stabilization. The plaintiffs were subordinate employees in the same office. The defendant had caused a press release to be issued announcing his intention to suspend the plaintiffs because of certain activities in which they had engaged. The plaintiffs brought action against the defendant individually for libel, alleging malice. Although the Supreme Court decision represents a five to four holding in which three separate dissents were filed, the case nevertheless remains the law of the land and upholds defendant's plea of absolute privilege.
The majority opinion recognizes that the law of privilege as a defense by officers of government to civil damage suits for defamation and kindred torts has, to a considerable extent been judicially made. The opinion traces the absolute privilege granted to members of both Houses of Congress by Act I, Section 6 of the United States Constitution through early Court holdings granting absolute privilege to judges with respect to actions taken by them in the exercise of judicial functions, irrespective of the motives with which those acts were performed and extended thence to executive officers of the Government. The Court says:
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Green v. James, 72-1129.
...an officer and an adjutant general in the Army he had absolute immunity. The district court granted the motion and dismissed the action, 333 F.Supp. 1226. Green appealed. We In Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), the Supreme Court expanded the doctrine of abs......