Gardner v. United States

238 F.2d 262, 99 U.S. App. D.C. 186

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 25, 1956
• Docket: Nos. 13166, 13325
• Status: Published

Opinion

PER CURIAM.

Plaintiff’s complaint alleges he was wrongfully evicted by a Deputy United States Marshal. The District Court denied motions for summary judgment and granted a motion to dismiss for lack of jurisdiction. Cross appeals followed.

We think the court was clearly right. The Marshal was acting in execution of a writ of the Municipal Court for the District of Columbia. Accordingly he was not “acting within the scope of his office or employment” by the Government of the United States, and the United States has not consented to be sued for his alleged misconduct. 63 Stat. 62, 28 U.S.C. § 1346(b). If the District Court had had jurisdiction of the present suit, the United States would have been entitled to summary judgment, for the complaint and affidavits show that the Marshal lawfully evicted the plaintiff after proper notice.

Affirmed.