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

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…

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…

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: 1 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). 2 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…