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No. 95-2105
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Loyel Schutterle, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the Northern
United States of America, sued * District of Iowa.
as United States; Department *
of Agriculture, sued as United *
States Department of *
Agriculture; Robert Purcell, *
as agent for USDA; August F. *
Honsell; John Does, 1-10, Jane *
Does, 1-10, *
*
Appellees. *
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Submitted: November 16, 1995
Filed: January 19, 1996
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Before BOWMAN, BEAM, AND MORRIS SHEPPARD ARNOLD, Circuit Judges.
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BEAM, Circuit Judge.
Loyel Schutterle contests a property tax assessment. As a
result, he brought these 42 U.S.C. § 1983 and Bivens-type actions
against various state and federal defendants. The district court1
granted summary judgment for the defendants on all claims.
Schutterle appeals. Because we find Schutterle's arguments to be
without merit, we affirm.
1
The Honorable Michael J. Melloy, Chief Judge, United States
District Court for the Northern District of Iowa.
I. BACKGROUND
In June 1989, Schutterle filed a petition in Iowa County
District Court appealing the 1989 property tax assessment of a
forty-acre parcel of his farm. The appeal was Schutterle's third
such appeal--as well as his third loss. According to Schutterle,
the inaccurate assessment was due to an inflated property valuation
which resulted from the Modern Soil Survey's inaccurate map of his
property. Schutterle maintains that the map erroneously depicted
his land as containing 1884 corn suitability ratings (CSR) (a
measure of soil productivity) instead of 1246 CSR.
At the state court proceeding, the Iowa County Board of Review
(the Board) subpoenaed two soil scientists, Thomas Fenton and Greg
Schellentrager of the United States Department of Agriculture
(USDA) Soil Conservation Service (SCS). The soil scientists
provided testimony supporting the USDA's work product, the Modern
Soil Survey, and thus supporting the Board's assessment of
Schutterle's property. Schutterle also subpoenaed two soil
scientists, Wayne Frederick and Kermit Voy, as well as an
agronomist, Steve Johnston, a SCS employee, to show weaknesses in
the Modern Soil Survey. Johnston declined to testify, however, and
produced a letter in which the SCS denied him permission to testify
pursuant to 7 C.F.R. § 1.214 (1995).2 The agency reasoned that
such testimony was not "in the interest of" the agency, as required
by 7 C.F.R. § 1.214, because (1) Johnston was not an expert in the
2
Pursuant to 7 C.F.R. § 1.214, a subpoenaed USDA employee is
not authorized to appear as a witness in a judicial proceeding in
which the United States is not a party unless the appearance has
been approved by the head of the agency. As the United States was
not a party to Schutterle's state court action, the head of the SCS
had the discretion to deny Johnston permission to testify. See 7
C.F.R. § 1.214.
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area,3 and (2) Schellentrager, who was an expert in the area, was
already testifying in the case.
Although unable to call Johnston, Schutterle did elicit
testimony from his two soil scientists. After hearing this
evidence, the state court reduced Schutterle's property tax
assessment by twenty percent. Schutterle appealed unsuccessfully
to the Iowa Court of Appeals.
Unsatisfied, Schutterle then moved to federal court. He filed
this action in the nature of a section 1983 action,4 naming
numerous federal and state defendants, including, but not limited
to, the United States of America, the USDA, and the state court
judge who dismissed his state appeal. Schutterle claims those
persons and agencies, involved in either the promulgation or the
enforcement of 7 C.F.R. § 1.214, violated his due process rights.5
II. DISCUSSION
To the extent Schutterle sought review of his state property
tax assessment, the district court lacked subject matter
3
As an agronomist, Johnston had less direct knowledge of soil
surveys than did Schellentrager and the other soil scientists.
4
Upon realizing that section 1983 actions were unavailable
against the federal defendants, Schutterle attempted to amend his
complaint. The district court did not allow such amendment, but
treated the proffered complaints as "briefs." From these briefs
emerged the various constitutional and Bivens claims at issue here.
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).
5
The USDA's promulgation of 7 C.F.R. § 1.214 during the
pendency of Schutterle's state court proceeding supplied fodder for
an elaborate conspiracy theory wherein Schutterle claims that
federal and state agents conspired to delay his state court action.
This delay allowed the USDA more time to adopt 7 C.F.R. § 1.214,
thereby preventing Schutterle's witness from testifying.
Schutterle offered no credible evidence in support of this
conspiracy claim.
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jurisdiction over his claim. See Rooker v. Fidelity Trust Co., 263
U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983). To the extent Schutterle attacked the
constitutionality of 7 C.F.R. § 1.214, we doubt the district court
had subject matter jurisdiction. Nonetheless, we find that the
district court properly disposed of the claim on summary judgment.
Section 1983 claims are unavailable against the named federal
defendants6 in this suit due to that section's state action
requirement. 42 U.S.C. § 1983. A Bivens action, providing a cause
of action against federal officers under the Constitution, is
available against federal officers. Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). However,
Bivens actions are unavailable against these federal defendants.
First, the United States and the USDA are not proper Bivens
defendants because of sovereign immunity. Phelps v. U.S. Fed.
Gov't, 15 F.3d 735, 739 (8th Cir. 1994), cert. denied, 114 S. Ct.
2118 (1994); Laswell v. Brown, 683 F.2d 261, 268 (8th Cir. 1982),
cert. denied, 459 U.S. 1210 (1983). Second, Robert Purcell, the
regional USDA attorney, is not a proper Bivens defendant as named
individuals must have been actively involved in the alleged
constitutional violation to support Bivens liability. Laswell, 683
F.2d at 268. Schutterle has offered no evidence to that effect.
The remaining defendants are the John and Jane Doe federal
defendants. Schutterle failed to state a Bivens claim against
these defendants as his allegations do not rise to the level of a
constitutional violation. Schutterle claims that the operation of
an unconstitutional regulation, 7 C.F.R. § 1.214, deprived him of
his constitutional right to due process. However, 7 C.F.R. § 1.214
6
The sole state defendant, the state court judge, is shielded
from this action by judicial immunity and was properly dismissed
from suit by the district court. Liles v. Reagan, 804 F.2d 493
(8th Cir. 1986) (judge acting within scope of judicial duties is
absolutely immune from suit).
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is clearly constitutional. See, e.g., Touhy v. Ragen, 340 U.S.
462, 468 (1951); Ferrell v. Yarberry, 848 F. Supp. 121, 123 (E.D.
Ark. 1994) ("The U.S. Supreme Court has explicitly recognized the
authority of agency heads to restrict testimony of their
subordinates by regulations such as [7 C.F.R. § 1.214]."). As 7
C.F.R. § 1.214 is constitutional, those involved in its
promulgation and enforcement deprived Schutterle of no
constitutional rights. Consequently, he has failed to state a
Bivens claim against these defendants. We have considered the
remainder of Schutterle's claims and find them to be without merit.
III. CONCLUSION
In sum, Schutterle is asking this court to sit as a super-
appeals court for his state property tax evaluation. This, we
refuse to do. As we find Schutterle's claims to be without merit,
we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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