395 U.S. 402 (1969), 228, Willingham v. Morgan

Docket Nº:No. 228
Citation:395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396
Party Name:Willingham v. Morgan
Case Date:June 09, 1969
Court:United States Supreme Court

Page 402

395 U.S. 402 (1969)

89 S.Ct. 1813, 23 L.Ed.2d 396




No. 228

United States Supreme Court

June 9, 1969

Argued April 22, 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." Petitioners 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, 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, supra.


1. The right of removal under § 1442(a)(1) is made absolute whenever a suit in a state court is for any act "under color" of federal office, and the test for removal under that statute is broader, not narrower, than the test for official immunity. Pp. 404-407.

2. In this civil suit, petitioners sufficiently showed that their relationship to respondent derived solely from their official duties against respondent's charge that they were engaged in some kind of "frolic of their own," and petitioners should have the opportunity of presenting their version of the facts to a federal, not a state, court. Pp. 407-410.

383 F.2d 139, vacated and remanded.

Page 403

MARSHALL, J., lead opinion

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 404

under color of such office. . . ."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 [89 S.Ct. 1815] question erroneously.2 393 U.S. 97 (1968). We reverse.


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

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doctrine. But it held that the test for removal was "much narrower" than the test for official immunity, 383 F.2d at 142, and accordingly that petitioners might have to litigate their immunity defense in the state courts. The Government contends that this turns the removal statute on its head. It argues that the removal statute is an incident of federal supremacy, and that one of its purposes was to provide a federal forum for cases where federal officials must raise defenses arising from their official duties. On this view, the test for removal should be broader, not narrower, than the test for official immunity. We agree.

The federal officer removal statute has had a long history. See H. M. Hart & H. Wechsler, The Federal Courts and the Federal System 1147-1150 (1953). The first such removal provision was included in an 1815 customs statute. Act of February 4, 1815, § 8, 3 Stat. 198. It was part of an attempt to enforce an embargo on trade with England over the opposition of the New England States, where the War of 1812 was quite unpopular. It allowed federal officials involved in the enforcement of the customs statute to remove to the federal courts any suit or prosecution commenced because of any act done "under colour" of the statute. Obviously, the removal provision was an attempt to protect federal officers from interference by hostile state courts. This provision was not, however, permanent; it was, by its terms, to expire at the end of the war. But other periods of national stress spawned similar enactments. South Carolina's threats of nullification in 1833 led to the passage of the so-called Force Bill, which allowed removal of all suits or prosecutions for acts done under the customs laws. Act of March 2, 1833, § 3, 4 Stat. 633. A new group of removal statutes came with the Civil War, and they were eventually codified into a permanent statute which applied mainly to cases

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growing out of enforcement of the revenue laws. Rev.Stat. § 643 (1874); Judicial Code of 1911, § 33, 36 Stat. 1097. Finally, Congress extended the statute to cover all federal officers when it passed the current provision as part of the Judicial Code of 1948. See H.R.Rep. No. 308, 80th Cong., 1st Sess., A134 (1947).

The purpose of all these enactments is not hard to discern. As this Court said nearly 90 years ago in Tennessee v. Davis, 100 U.S. 257, 263 (1880), the Federal Government

can act only through its officers and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a State court for an alleged offence against the law of the...

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