1

The Honorable Michael J. Melloy, Chief Judge, United States

District Court for the Northern District of Iowa. 

___________

No. 95-2105

___________

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. * ___________

 Submitted: November 16, 1995

 Filed: January 19, 1996 ___________

Before BOWMAN, BEAM, AND MORRIS SHEPPARD ARNOLD, Circuit Judges. ___________

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.
 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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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
 3

As an agronomist, Johnston had less direct knowledge of soil

surveys than did Schellentrager and the other soil scientists. 

 4Upon 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). 

 5The 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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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
 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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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
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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 superappeals 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.