E. B. Weiss v. R. C. Lehman and Wayne Larue

676 F.2d 1320, 1982 U.S. App. LEXIS 19338

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 12, 1982
• Docket: 79-4101
• Status: Published

Opinions

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 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.

Id. at 539, 101 S.Ct. at 1915.

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 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.

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.

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.

1 . Finding neither “special factors counselling hesitation” nor an “equally effective alternative remedy,” we affirmed. Our decision was vacated. - U.S. -, 102 S.Ct. 80, 70 L.Ed.2d 76 (1981).

2 . We do not decide now whether a due process violation could be predicated on acts greater than negligence but less than intentional conduct.

The intent question cannot be given “a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action,” Baker v. McCollan, 443 U.S. 137, 139-140, 99 S.Ct. 2689, 2692-2693, 61 L.Ed.2d 433 (1979). Rather, we must give close attention to the nature of the particular constitutional violation asserted in determining whether intent is a necessary element of such a violation.

Parratt, 451 U.S. at 547-48, 101 S.Ct. at 1919 (Powell, J., concurring).