Swanson v. Willis

• Citation: 114 F. Supp. 434
• Decision Date: 08 September 1953
• Docket Number: No. A-8777.,A-8777.
• Parties: SWANSON v. WILLIS.
• Court: U.S. District Court — District of Alaska

114 F. Supp. 434

SWANSON v. WILLIS.

No. A-8777.

District Court, Alaska Third Division, Anchorage.

September 8, 1953.

Bailey E. Bell, of Bell & Sanders, Anchorage, Alaska, for plaintiff.

Arthur D. Talbot, Asst. U. S. Atty., Napoleonville, La., for defendant.

FOLTA, District Judge.

Plaintiff seeks to recover damages from the defendant, a former deputy United States marshal for battery and false arrest, allegedly committed by defendant in connection with arresting or maintaining custody of the plaintiff.

The Assistant United States Attorney appeared on behalf of the defendant and moved to dismiss the complaint. The plaintiff countered with a motion for an order of default on the ground that the Assistant United States Attorney was not authorized to appear in defense of the defendant and that the motion filed by him was not a pleading because he was not authorized to practice law by appearing for and defending a private litigant.

The questions presented are:

(1) Whether the Attorney General of the United States, through the United States Attorney, or one of his assistants, may defend this action;

(2) Whether the United States Attorney or an assistant may defend the action on behalf of the Attorney General without his express authorization, and (3) Whether a deputy United States marshal, acting within the scope of his authority is immune from civil liability.

The law appears to be well settled that the Attorney General individually, or through the United States Attorneys and their assistants, is authorized to appear and defend civil and criminal actions against government officials, employees and military personnel for acts done in the performance of their official duties. 5 U.S. C.A. §§ 309, 316; Booth v. Fletcher, 69 App.D.C. 351, 101 F.2d 676, certiorari denied 307 U.S. 628, 59 S.Ct. 835, 83 L.Ed. 1511, from which it follows that the Assistant United States Attorney in the instant case is authorized to represent the defendant, without express authorization from the Attorney General, U. S. v. Hall, 9 Cir., 145 F.2d 781; Department of Justice Circular No. 4122 of May 11, 1950.

I conclude, therefore, that plaintiff's motion for an order of default should be denied.

There are no facts alleged in the complaint from which it could be inferred that the defendant acted outside the scope of his authority, as that term is explained in Cooper v. O'Connor, 69 App.D.C. 108, 99 F.2d 143, certiorari denied 305 U.S. 642, 59 S.Ct. 146, 83 L.Ed. 414, rehearing denied 307 U.S. 651, 59 S.Ct. 1030, 83 L.Ed. 1529. See also, Cooper v. O'Connor, 71 App.D.C. 6, 107 F.2d 207, certiorari denied 308 U.S. 615, 60 S.Ct. 263, 84 L.Ed. 514. Turning then to the question whether a deputy United States marshal is liable for acts committed within the scope of his authority, it is noted that the authorities are unanimous in holding that he is not, Cooper v. O'Connor, supra. Allen v. United States, 81 U.S.App.D.C. 53, 154 F.2d 329; Camp v. Recreation Board for District of Columbia, D.C., 104 F.Supp. 10; Laughlin v. Garnett, 78 U.S.App.D.C. 194, 138 F.2d 931, certiorari denied 322 U.S. 738, 64 S.Ct. 1055, 88 L.Ed. 1572; Phelps v. Dawson, 8 Cir., 97 F.2d 339, annotation 116 A.L.R. 1343.

In the few reported cases which imply...