Sowders v. Damron

• Decision Date: 31 March 1972
• Docket Number: No. 71-1317.,71-1317.
• Parties: Zelner B. SOWDERS and Reta M. Sowders, Plaintiffs-Appellants, v. W. B. DAMRON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

457 F.2d 1182 (1972)

Zelner B. SOWDERS and Reta M. Sowders, Plaintiffs-Appellants, v. W. B. DAMRON, Defendant-Appellee.

No. 71-1317.

United States Court of Appeals, Tenth Circuit.

March 31, 1972.

James L. Dow, Carlsbad, N. M., for plaintiffs-appellants.

Charles E. Anderson, Atty., Tax Div., Dept. of Justice, Washington, D. C. (Johnnie M. Walters, Asst. Atty. Gen., Meyer Rothwacks and William Massar, Attys., Tax Div., Dept. of Justice, Washington, D. C., and Victor R. Ortega, U. S. Atty., Albuquerque, N. M., of counsel), for defendant-appellee.

Before BREITENSTEIN, HILL and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Zelner and Reta Sowders brought an action in tort against one W. B. Damron, an agent for the Internal Revenue Service. The gist of the complaint is that as the result of certain false and fraudulent misrepresentations made by Damron to the Sowders in connection with their income tax returns for the years 1965, 1966 and 1967, the Sowders suffered "actual damage to * * * health, reputation and nervous stress and strain" and each sought compensatory and punitive damages.

Damron filed a motion to dismiss or, in the alternative, for summary judgment, based on the grounds that he was immune from suit because at the time of the events in question he was an officer and employee of the United States engaged in the performance of his duties and that all of his actions were within the scope of his official authority. In support of the motion, Damron offered several affidavits.

Upon hearing, the aforesaid motion was granted and the trial court dismissed the action and entered judgment for Damron. The Sowders now appeal. We affirm.

The Sowders' complaint is summarized as follows: (1) Mr. and Mrs. Sowders were in business in Carlsbad, New Mexico, during the years of 1965, 1966 and 1967, and no income tax returns were filed for those years; (2) their business venture was not successful and in 1968 they were adjudged bankrupt; (3) Damron, "while working as a Revenue Officer for the Internal Revenue Service in 1970," negotiated a settlement of delinquent taxes whereby Zelner Sowders agreed to pay the sum of $1,000 in settlement thereof; (4) Damron falsely represented to Reta Sowders, who was at that time divorced from Zelner, that the tax liability had been settled but that her signature was required since the returns had been figured on the basis of a joint return for Zelner and Reta. Damron at the time knowing full well that Reta denied any tax liability on her part; (5) the $1,000 which Zelner gave the Internal Revenue Service in full settlement was later returned on the ground that the settlement had not been completed and that Reta was not advised of such fact; (6) Damron subsequently received from Zelner a partial payment on his tax liability on the false representation that no levy would be made on the property of either Zelner or Reta for a period of one year thereafter; and, (7) Damron thereafter did levy on property belonging to Reta.

The foregoing recital is sufficient to indicate the general nature of the complaint. It is noted that the amount of the tax due and owing for the years in question is not here in issue, nor is it apparently even in dispute, the Sowders alleging in their complaint that the total amount of the liability was the approximate sum of $4,450. Rather, the gravamen of the Sowders' complaint is that they suffered impaired health and reputation by virtue of Damron's various acts.

As indicated, Damron filed several affidavits in support of his motion to dismiss. The matters referred to in such affidavits were not put in issue by any counter affidavits and the recitals contained therein do not appear to be in dispute. One affidavit set forth Damron's job description as one entailing the following duties and responsibilities:

"The incumbent has independent responsibility for difficult collection activity work which requires the application of legal and business knowledges and investigative techniques in collecting delinquent accounts, securing delinquent returns, participating in compliance programs, and rendering financial and tax advice to taxpayers relative to various types of taxes administered by the Internal Revenue Service."

Another affidavit from Damron's supervisor declared that Damron's actions in handling Sowders' offer of compromise was "in the course and performance of his duties as a Revenue Officer and well within the scope of his authority as a Revenue Officer," and that the levy on Reta's bank account was made after consultation with his supervisor and with the latter's approval.

It was on this state of the record that the trial court granted Damron's motion to dismiss, relying on such cases as Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896); and Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950).

The law of privilege as a defense by government officers to civil damage suits for defamation and other torts has been long applied to the judicial, legislative and executive branches of our Government. See Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) for a review of the cases bearing on this matter. The raison d'etre for such rule is well expressed by Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), where appears the following:

"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

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