Weiss v. Lehman

• Decision Date: 12 May 1982
• Docket Number: No. 79-4101,79-4101
• Citation: 676 F.2d 1320
• Parties: E. B. WEISS, Plaintiff-Appellee, v. R. C. LEHMAN and Wayne LaRue, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1320

676 F.2d 1320

E. B. WEISS, Plaintiff-Appellee, v. R. C. LEHMAN and Wayne LaRue, Defendants-Appellants.

No. 79-4101.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 22, 1981.

Decided May 12, 1982.

Alfred Mollin, Washington, D. C., argued, for defendants-appellants; M. Karl Shurtliff, Boise, Idaho, Patricia G. Reeves, Barbara L. Herwig, Katherine S. Gruenheck, Washington, D. C., on brief.

Barry Marcus, Marcus & Marcus, Boise, Idaho, for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho.

Before VAN DUSEN, ^* FARRIS and BOOCHEVER, Circuit Judges.

FARRIS, Circuit Judge:

We consider this case for a second time on remand from the Supreme Court for reconsideration in light of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

The sole issue in our initial decision, 642 F.2d 265 (1981), was whether a Bivens-type damage remedy had been properly implied against defendant Lehman, a Forest Service employee, to remedy a violation of plaintiff Weiss' rights under the Fifth Amendment Due Process Clause. ¹ In light of Parratt, we now consider the threshold issue, not raised in the first appeal, whether plaintiff Weiss' due process rights in fact were violated.

Weiss' claim arises out of the destruction of certain equipment and metal objects, consisting principally of three collapsed bus bodies, a metal box, eight empty barrels, and some refrigerators and stoves, which were left unattended on an unpatented mining claim on federal land for six years. Lehman disposed of the property as part of a clean up exercise. Weiss filed suit, however, asserting an ownership interest in the property, and claiming that its destruction was a violation of his Fifth Amendment due process rights. Weiss claimed that one of the mine claimants had traded the property to him in exchange for a lease on a dredge at another mining site. Weiss' ownership interest was not recorded, and Weiss did not claim that Lehman or any other Forest Service employee had actual knowledge of Weiss' interest. Nor did Weiss allege that Lehman acted with the intent to destroy property known or thought to belong to another person.

Parratt involved the negligent loss of a prison inmate's mail order hobby kit. Proceeding against various prison officials under 42 U.S.C. § 1983, the prison inmate claimed that he had been deprived of his property without due process of law in violation of the Fourteenth Amendment. The Supreme Court found no due process violation.

Parratt states that

either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process Id. at 539, 101 S.Ct. at 1915.

can, when coupled with the availability of some meaningful means by which to assess the propriety of the State's action at some time after the initial taking, satisfy the requirements of procedural due process.

Here there was no need for quick action. Our task, then, is to decide whether meaningful predeprivation process was impractical and an adequate postdeprivation remedy was available. If so, Weiss did not suffer a deprivation of his property without due process of law.

We find, however, that we cannot determine from the limited record before us whether meaningful predeprivation process was impractical. Weiss' allegations, and the evidence offered in their support, permit a conclusion that Lehman acted no worse than negligently with respect to Weiss' ownership interest. Weiss argues that the deprivation would not have occurred had Lehman followed proper Forest Service procedures for the destruction of personal property. See 36 C.F.R. § 262.4, which provides for impoundment and disposition of personal property after notice to the owner, or if the name and address of the owner are unknown, then after specified public notice. Since removal of mere debris, such as an old, rusty car body thought to be abandoned and worthless, would not require compliance with 36 C.F.R. § 262.4, the asserted failure to comply here, based on the evidence in the record, would appear to have been no more than a negligent oversight. If there was merely a negligent departure from proper procedures, then such failure to follow procedures was no less "random and unauthorized" than the departure from procedure by the prison officials in Parratt. Under such circumstances, meaningful predeprivation process would be impractical for the same reasons that it was not practical for the prison officials in Parratt to provide a hearing prior to the tortious loss of the prison inmate's property. See id. at 541, 101 S.Ct. at 1915.

As in Parratt, Weiss does not argue that the Forest Service procedures themselves are defective. The Forest Service is not and cannot be expected to publish notice before destroying abandoned and worthless property. Nor can the Forest Service reasonably be expected to provide notice before negligently departing from proper procedures by destroying property erroneously believed to be abandoned and worthless.

The second requirement of Parratt is more clearly satisfied. Weiss had an adequate alternative remedy under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680.

Weiss' attempt to fit Lehman's conduct into the "discretionary function or duty" exception to liability, 28 U.S.C. § 2680(a), fails. "The distinction generally made in the application of the discretionary function exemption is between those decisions which are made on a policy or planning level, as opposed to those made on an operational level." Thompson v. United States, 592 F.2d 1104, 1111 (9th Cir. 1979). See Lindgren v. United States, 665 F.2d 978, 980 (9th Cir. 1982) (quoting Thompson v. United States). Cf. Blessing v. United States, 447 F.Supp. 1160 (E.D.Pa.1978). Here, Lehman's conduct was on the operational level rather than the planning level. See Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065 (1956). In Hatahley, Navajo Indians sued under the Federal Tort Claims Act to recover for the wrongful destruction of their horses. The horses had been grazing on public lands of the United States when they were seized. Federal agents failed to comply with notice requirements specified by the Federal Range Code before destroying the horses. The government's reliance on § 2860(a) as a bar to liability was rejected. Id. at 181, 76 S.Ct. at 751.

The result in Parratt avoided trivializing the Fourteenth Amendment.

To accept respondent's argument that the conduct of the state officials in this case constituted a violation of the Fourteenth Amendment would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under "color of law" into a Id. at 544, 101 S.Ct. at 1917. To permit the jury in this case to find a due process violation based solely on mere negligence would be inconsistent with the more limited role of the Due Process Clause contemplated by Parratt.

violation of the Fourteenth Amendment cognizable under § 1983. It is hard to perceive any logical stopping place to such a line of reasoning. Presumably, under this rationale any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983. Such reasoning "would make the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the states." Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405. We do not think that the drafters of the Fourteenth Amendment intended the amendment to play such a role in our society.

The judgment in favor of Weiss is vacated. On remand, Weiss should have the opportunity to pursue a due process claim by showing additional facts, such as an intentional destruction of his property interest, that would make the Parratt limitation inapplicable. ²

Vacated and Remanded for further proceedings consistent with this opinion.

BOOCHEVER, Circuit Judge, dissenting:

I do not share the majority's belief that our original decision in this case (642 F.2d 265 (9th Cir. 1981) ) is incorrect in light of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

I BACKGROUND

Under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as interpreted in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) and Davis v. Passman, 442 U.S. 228, 245-48, 99 S.Ct. 2264, 2277-78, 60 L.Ed.2d 846 (1979), a plaintiff injured by a federal employee's violation of the plaintiff's constitutional rights is entitled to recover money damages when there is neither a special factor counselling hesitation nor an equally effective alternative remedy. Bivens, 403 U.S. at 396-97, 91 S.Ct. at 2004-05. In our original decision, we affirmed the jury verdict and award of damages for Weiss because neither of the above limitations on a Bivens action were present.

We found no reason to "hesitate" in implying a damage remedy because Lehman "was adequately protected by the availability at trial of a qualified immunity defense." 642 F.2d at 267. Indeed, the case was tried to the jury on the issue of whether Lehman was entitled to qualified immunity. There was sharply disputed evidence regarding the nature and value of the destroyed property. ¹ Clearly implicit in the jury's verdict for Weiss, that was made after jury instructions to which no objection has been raised on appeal, ² are findings that the property had value and that Lehman's actions were not entitled to qualified immunity. In Butz v. Economou, 438 U.S. 478, 505-07, 98 S.Ct. 2894, 2910-11, 57 L.Ed.2d 895 (1978), the Court held that an official was protected by qualified immunity unless he knew or should have known that his conduct was unlawful. We were not "hesitant" in our original decision in implying a Bivens remedy because the qualified immunity defense meant that Lehman was not being held...