During a nearly 45-minute back-and-forth Friday judges of the 9th U.S. Circuit Court of Appeals tried to sort out the details offered by both sides in the case of an Indian trader who lost his job at the Hubbell Trading Post National Historic Site due to questionable actions by the National Park Service.
No immediate ruling was made by the three-judge panel, though their interest seemed to lie primarily in whether the attorneys for Billy Malone had filed their lawsuit against seven now-retired National Park Service personnel before the statute of limitations ran out.
You can listen to the hearing at this site.
Through his appeal, Mr. Malone seeks to have his civil rights lawsuit - known as a Bivens Claim - against the federal defendants reinstated and remanded back to the lower court for trial. Those defendants are: Clyde Yee, Mike Snyder, Steve Martin, Cyd Martin, Patricia Buccello, Brian Smith, and Carl "Chip" Davis.
Other federal employees originally named in the lawsuit included Assistant U.S. Attorney (now federal Magistrate-Judge) Mark Aspey, and Rob Eaton, an attorney in the Department of Interior's Office of the Solicitor. Messieurs Aspey and Eaton were dismissed earlier from the lawsuit, based upon the immunity they enjoy as government attorneys.
The original lawsuit also named the Western National Parks Association, and its top officials at the time, LeAnn Simpson and Jim Babbitt. Those parties reached an out-of-court settlement with Mr. Malone in 2012. ￼
In the lawsuit, originally filed in February of 2008 and amended in 2009, the Indian trader argued that named parties conspired to violate his 4th Amendment right against unreasonable search and seizure, and other constitutional rights, by illegally seizing a life savings in valuable rugs, jewelry, and other Indian crafts from his Hubbell Trading Post home nearly ten years ago, in 2004, as part of a misguided criminal investigation falsely alleging a long list of crimes.
Those allegations had been brought to the National Park Service's Intermountain Region Office, then headed by Mr. Martin, with Mr. Snyder his deputy, by Mr. Malone's then-employer, the WNPA. The property was seized from Mr. Malone's home adjacent to the trading post when Park Service case agent Clyde Yee and a team of support personnel - including officials employed by the WNPA - executed a search warrant on the morning of June 9, 2004.
That and other property belonging to Malone was retained in both National Park Service and WNPA custody for more than two years. It was later determined that the original search warrant - which did not authorize the seizure of rugs, jewelry, or any other personal property - had been issued based a supporting affidavit containing false statements that had been prepared by Agent Yee, and authorized by Assistant U.S. Attorney Aspey.
The charges against Mr. Malone were never substantiated. Instead, the Park Service conducted an investigation of its own initial Hubbell investigation, and then the Inspector General's office conducted yet another investigation of the investigation. In the end, it's been estimated that more than $1 million was spent by the Park Service on the matter, which ended without any charges brought against Mr. Malone.
Through its investigation, the Inspector General's Office "determined that the NPS failed to protect the confidentiality of the investigation, and we found that an improper relationship existed between NPS and WNPA, a nonprofit organization that operates the Hubbell Trading Post under a cooperative agreement with NPS."
Mr. Malone's property was eventually returned to him when another agent and federal prosecutor took over the investigation.
According to supporting documents submitted by Mr. Malone, the WNPA had partially funded and participated in the Park Service investigation based upon an agreement reached with Park Service officials. In the agreement, the non-profit cooperating association would "benefit" from its financial contribution to the investigation through improved relations with the Park Service and, ultimately, the permanent transfer of "evidence" and other property seized from Mr. Malone, to the WNPA for its own use.
Mr. Malone's lawsuit against the federal defendants was dismissed by the District Court in Phoenix in February 2010. The court found that while the Indian trader's rights may have been violated, he had failed to make a showing of evidence likely to prove at trial the requisite "meeting of the minds" necessary to establish that the various defendants had actually conspired to commit such violation.
Federal law holds that to prevail in civil rights case against federal employees, a plaintiff must not only prove that his or her rights were violated, but that such violation occurred as a the result of a conspiracy.
In January of 2012, Mr. Malone filed a "motion to reconsider" with the 9th Circuit Court of Appeals, arguing that the District Court had erred in its dismissal. Today's hearing was held in response to that motion, allowing both Mr. Malone and the government to present oral arguments.
If Mr. Malone prevails, the civil suit, (which seeks compensatory damages), against some or all of the federal defendants would likely be reinstated and sent back to the District Court for trial.
Mr. Malone's attorneys have not indicated what action they will take if the appeals court denies their motion. ￼￼￼￼