Willingham v. Morgan, 395 U.S. 402 (1969)

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U.S. Supreme Court WILLINGHAM v. MORGAN, 395 U.S. 402 (1969) 395 U.S. 402

WILLINGHAM, WARDEN, ET AL. v. MORGAN. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 228. Argued April 22, 1969. Decided June 9, 1969.

Respondent, a federal prisoner, brought a tort action in state court against petitioners, the warden and chief medical officer of a federal penitentiary, who then petitioned for removal of the action to the United States District Court under 28 U.S.C. 1442 (a) (1). That statute allows removal to federal courts of any civil action against a federal officer "for any act under color of [his] office." Petitioner on removal moved for summary judgment, submitting affidavits that their only contacts with respondent had been in the performance of their official duties as warden within the penitentiary confines and at the prison hospital respectively, which respondent did not deny in his responsive affidavit. The District Court denied respondent's motion to remand and granted summary judgment, holding that the official immunity doctrine of Barr v. Mateo,î 360 U.S. 564, barred respondent's recovery of damages. The Court of Appeals, without reaching the immunity issue, found insufficient basis in the record to support the District Court's refusal to remand to the state court, holding that the "color of office" test for removal under 1442 (a) (1) is "much narrower" than the "official immunity" standard of Barr v. Mateo,î supra. Held:

[Page 395 U.S. 402, 403]

Footnotes[Footnote î] ERRATA: "Mateo" should be "Matteo".

Francis X. Beytagh, Jr., argued the cause for petitioners. With him on the brief were Solicitor General Griswold, Assistant Attorney General Ruckelshaus, Morton Hollander, and Walter H. Fleischer.

Joseph M. Snee, by appointment of the Court, 393 U.S. 1061, argued the cause and filed a brief for respondent.

MR. JUSTICE MARSHALL delivered the opinion of the Court.

This case raises some important questions about the power of federal officials to have actions brought against them removed to the federal courts. Petitioners Willingham and Jarvis are, respectively, the warden and chief medical officer at the United States Penitentiary at Leavenworth, Kansas. Respondent Morgan was a prisoner at the penitentiary at the time he filed this suit in the Leavenworth County District Court. He alleged in his complaint that petitioners and other, anonymous, defendants had on numerous occasions inoculated him with "a deleterious foreign substance" and had assaulted, beaten, and tortured him in various ways, to his great injury. He asked for a total of $3,285,000 in damages from petitioners alone, plus other amounts from the unnamed defendants. Petitioners filed a petition for removal of the action to the United States District Court for the District of Kansas, alleging that anything they may have done to respondent "was done and made by them in the course of their duties as officers of the United States of America . . . and under color of such offices . . . ." Petitioners invoked 28 U.S.C. 1442 (a) (1), which allows removal to the federal courts of any civil action against "[a]ny officer of the United States . . . for any act

[Page 395 U.S. 402, 404]

under color of such office . . . ."[Footnote 1] The Federal District Judge denied respondent's motion to remand the case to the state courts and granted summary judgment to petitioners, holding that recovery of damages was barred by the official immunity doctrine of Barr v. Matteo, 360 U.S. 564 (1959). Thereafter, respondent perfected an appeal to the Court of Appeals for the Tenth Circuit. That court found it unnecessary to decide the immunity question, for it found insufficient basis in the record to support the District Court's refusal to remand the case to the state courts. 383 F.2d 139 (1967). The District Court was reversed and the case remanded for further proceedings. Upon the Solicitor General's petition, we granted certiorari to consider whether the Court of Appeals decided the removal question erroneously.[Footnote 2] 393 U.S. 976 (1968). We reverse. I. The court below held that the "color of office" test of 1442 (a) (1) "provides a rather limited basis for removal." 383 F.2d, at 141. It noted that the record might well have supported a finding that petitioners were protected from a damage suit by the official immunity

[Page 395 U.S. 402, 407]

a colorable defense arising out of their duty to enforce federal law. One of the primary purposes of the removal statute - as its history clearly demonstrates - was to have such defenses litigated in the federal courts. The position of the court below would have the anomalous result of allowing removal only when the officers had a clearly sustainable defense. The suit would be removed only to be dismissed. Congress certainly meant more than this when it chose the words "under color of . . . office." In fact, one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court. The officer need not win his case before he can have it removed. In cases like this one, Congress has decided that federal officers, and indeed the Federal Government itself, require the protection of a federal forum. This policy should not be frustrated by a narrow, grudging interpretation of 1442 (a) (1). II. The question remains, however, whether the record in this case will support a finding that respondent's suit grows out of conduct under color of office, and that it is, therefore, removable. Respondent alleged in his motion for remand that petitioners had been acting "on a frolic of their own which had no relevancy to their official duties as employees or officers of the United States." He argued that in these circumstances the case should be remanded to the state courts. The only facts in the record which in any way respond to this allegation appear in petitioners' affidavits in support of their motion for summary judgment.[Footnote 3] There, petitioner Willingham declares

[Page 395 U.S. 402, 408]

that the only contact he has had with respondent was "inside the walls of the United States Penitentiary, Leavenworth, Kansas, and in performance of [his] official duties as Warden of said institution." Petitioner Jarvis declares, similarly, that his only contact with respondent was at the prison hospital "and only in the performance of [his] duties as Chief Medical Officer and only with regard to medical care and treatment, diagnoses and routine physical examination." Respondent did not deny either of these statements in his responsive affidavit. The question, then, is whether petitioners adequately demonstrated a basis for removal by showing that their only contact with respondent occurred while they were executing their federal duties inside the penitentiary.

The Judicial Code requires defendants who would remove cases to the federal courts to file "a verified petition containing a short and plain statement of the facts" justifying removal. 28 U.S.C. 1446 (a). Moreover, this Court has noted that "the person seeking the benefit of [the removal provisions] should be candid, specific and positive in explaining his relation to the transaction" which gave rise to the suit. Maryland v. Soper (No. 1), 270 U.S. 9, 35 (1926); see Colorado v. Symes, supra, at 518-521. These requirements must, however, be tailored to fit the facts of each case.

[Page 395 U.S. 402, 409]

(and unspecified) dates. If petitioners were to be "candid, specific and positive" in regard to all these allegations, they would have to describe every contact they had ever had with petitioner, as well as all contacts by persons under their supervision. This would hardly have been practical, or even possible, for senior officials like petitioners.

In a civil suit of this nature,[Footnote 4] we think it was sufficient for petitioners to have shown that their relationship to respondent derived solely from their official duties. Past cases have interpreted the "color of office" test to require a showing of a "causal connection" between the charged conduct and asserted official authority. Maryland v. Soper (No. 1), supra, at 33. "It is enough that [petitioners'] acts or [their] presence at the place in performance of [their] official duty constitute the basis, though mistaken or false, of the state prosecution." Ibid. In this case, once petitioners had shown that their only contact with respondent occurred inside the penitentiary, while they were performing their duties, we believe that they had demonstrated the required "causal connection." The connection consists, simply enough, of the undisputed fact that petitioners were on duty, at their place of federal employment, at all the relevant times. If the question raised is whether they were engaged in some kind of "frolic of their own" in relation to respondent, then they should have the opportunity to present their version of the facts to a federal, not a state, court. This is exactly what the removal statute was designed to accomplish. Petitioners sufficiently put in issue the questions of official justification and immunity; the validity of their defenses should be determined in the federal courts.

[Page 395 U.S. 402, 411]

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