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521 F.2d 1304

Docket No. 74-1825.

Roy B. Foster v. Thomas J. MacBride

Ninth Circuit Court of Appeals

Decided July 11, 1975. Amended Aug. 6, 1975. Rehearing Denied Sept. 5, 1975.

Ninth Circuit Court of Appeals · decided 1975-07-11

2 counsel of record

Key passage — most relied on by later courts

“We think the holdings are correct. The trustee, like a receiver, is an officer of court, appointed by the court, directed by the court, and paid by the court from the funds in the court. He is in no sense an agent or employee or officer of the United States. The judge is appointed by the President and confirmed by the Senate and paid from the United States treasury, but in trying cases he is a member of the independent judiciary and is not under the control of the United States any more than a member of the legislative department is in legislating. Such officers are not within the contemplation of the Tort Claims Act. If even gross errors of the judges are to be compensable out of the Treasury of the United States, very clear language would be required in a law so ordering.”

quoted by 3 later decisions, including 430 F. Supp. 956 - LaPATOUREL v. United States, 430 F. Supp. 956 - LePatourel v. United States

“for certain [of his] allegedly improper rulings in another action”

quoted by 1 later decision, including 430 F. Supp. 956 - LaPATOUREL v. United States

Relies on Douglas Gregory v. John J. Thompson · Cromelin v. United States · Throckmorton v. St. Louis-San Francisco Railway Co.

Good law ✅— No negative treatment on recordhow we know

Opinion by Per Curiam · Decided 1975-07-11

How this case has been cited

Cited by 20 later decisions — most recently August 1997

8 federal appellate · 6 district ·

100197519801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Roy B. Foster, in pro. per.

William B. Shubb, Asst. U. S. Atty., Sacramento, Cal., for appellees.

OPINION

Before MERRILL and KENNEDY, Circuit Judges, and ENRIGHT,* District Judge.

PER CURIAM:

¶1

This is an appeal from the district court's dismissal of the appellant's complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(1) and (6). We affirm.

¶2

The appellant filed suit against the United States and Thomas J. MacBride, Chief Judge of the United States District Court for the Eastern District of California, seeking over $400,000 damages for certain allegedly improper rulings in another action over which Judge MacBride presided. Since judges are immune from liability for damages for acts committed within their judicial discretion, Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir. 1974), dismissal of the complaint against Judge MacBride was proper.

¶3

In the district court appellant failed to allege any basis for his claim against the United States. The district court held that the appellant thus failed to meet his burden of alleging a specific statute clearly authorizing suit against the United States for the damages asserted. See, e. g., Albert v. Brownell, 219 F.2d 602 (9th Cir. 1955).

¶4

In his Brief on Appeal, appellant contends that the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 Et seq., provides a proper jurisdictional basis for suit. However, a federal district judge in trying cases is a member of the independent judiciary and is not under the control of the United States. Therefore, he is not an "employee of the government" as required by 28 U.S.C. § 1346. Cromelin v. United States, 177 F.2d 275 (5th Cir. 1949), Cert. denied, 339 U.S. 944, 70 S.Ct. 790, 94 L.Ed. 1359 (1950).

¶5

Accordingly, the judgment of the district court is affirmed.

*

The Honorable William B. Enright, United States District Judge for the Southern District of California, sitting by designation

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