O'BRYAN v. Chandler

• Decision Date: 06 May 1974
• Docket Number: No. 73-1466.,73-1466.
• Citation: 496 F.2d 403
• Parties: W. H. Pat O'BRYAN, Appellant, v. Stephen S. CHANDLER, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

496 F.2d 403 (1974)

W. H. Pat O'BRYAN, Appellant, v. Stephen S. CHANDLER, Appellee.

No. 73-1466.

United States Court of Appeals, Tenth Circuit.

Submitted February 22, 1974.

Decided May 6, 1974.

COPYRIGHT MATERIAL OMITTED

Reagan M. Martin and Harvey L. Davis, Dallas, Tex., for appellant.

Carl L. Shipley, Washington, D. C., for appellee.

Irwin Goldbloom, Washington, D. C., for the U. S., amicus curiae.

Before VAN OOSTERHOUT, Senior Circuit Judge, and GIBSON, and STEPHENSON, Circuit Judges.^*

GIBSON, Circuit Judge.

This appeal involves another chapter in the litigation between Judge Stephen S. Chandler and W. H. Pat O'Bryan.¹ Plaintiff-appellant O'Bryan asks us to reverse the District Court's² granting of Judge Chandler's second petition for removal of a state libel suit and motion for summary judgment for Judge Chandler in the removed libel action in federal district court. O'Bryan further requests us to reverse the District Court's order expunging the judgment entered in the state libel action and to order a remand of the libel suit to Oklahoma state court.

A complete repetition of the facts in this case is unnecessary, for in Chandler II, supra at 1047-1051, we detailed the relevant facts. The following information is pertinent to this appeal.

On December 8, 1965, O'Bryan filed a libel action in an Oklahoma state court seeking damages of $2,500,000 for an alleged libelous statement that Judge Chandler released to a newspaper editor prior to an appellate argument before this court in Chandler I. Judge Chandler then filed his first petition to remove the libel suit to federal court pursuant to 28 U.S.C. § 1442(a) (3). The Honorable Richard B. Austin, United States District Judge, Northern District of Illinois, sitting by designation in the Western District of Oklahoma, conducted a hearing on April 18, 1966, on this petition to remove, and on May 24, 1966, held that the state libel action was not removable pursuant to 28 U.S.C. § 1442(a)(3). Chandler II, supra at 1050 n. 4.

Since the petition to remove was denied by Judge Austin, the state libel action was remanded to Oklahoma state court and tried there. Sometime during the week of trial beginning February 20, 1967, and ending February 25, 1967, O'Bryan altered his original complaint in the libel suit, according to the Government's brief³, "to allege that the libelous statement occurred in the tan brief, a different document from that alleged in the original complaint." Judge Chandler unsuccessfully objected to this amendment at trial. The state trial judge directed a verdict for O'Bryan, the jury awarded $40,000 in compensatory and $10,000 in punitive damages on February 25, 1967, and the Oklahoma District Court entered judgment on September 22, 1967. Judge Chandler had filed a second petition to remove in federal courts on February 26, 1967, and this appeal in part is concerned with a review of the District Court's (Chief Judge Battisti's) granting of that second petition to remove.

With Judge Chandler's second petition to remove and O'Bryan's motion to remand pending, Judge Chandler filed a declaratory judgment action "in the nature of a Bill of Peace" in the federal district court, seeking to enjoin O'Bryan from any further litigation and to expunge the state libel judgment. Chief Judge Battisti was assigned to hear the second petition to remove, the motion to remand, and the declaratory judgment action. The second petition to remove and the motion to remand were held in abeyance. After receiving evidence on the declaratory judgment action, Chief Judge Battisti granted a motion for summary judgment for Judge Chandler in the declaratory judgment action, holding that Judge Chandler was judicially immune from liability for the complained-of-acts in the libel action, and ordered that the Oklahoma District Court expunge the judgment in the libel suit from its records. Judge Chandler's second petition to remove and O'Bryan's motion to remand were held in abeyance, while O'Bryan appealed the declaratory judgment action to this court.

Chandler II dealt with O'Bryan's appeal from the declaratory judgment and injunction granted in Judge Chandler's favor. In that case, this court held that there was no federal jurisdiction over the declaratory judgment action and reversed the District Court. Chandler II, supra at 1057. We also stated:

Appellant O\'Bryan, in addition to urging reversal of the judgment in the declaratory judgment action, requests us to enter an order requiring remand of the second removal of the libel suit to the State court. Since this matter is still pending in the trial court and has not been finally acted upon, we do not feel that we have jurisdiction to grant this relief.

Chandler II, supra at 1058.

Judge Chandler had not appealed the judgment entered in Oklahoma District Court to the Oklahoma Supreme Court and instead on remand of Chandler II sought a favorable determination in federal court on his second petition to remove. We now consider the validity of the second removal petition.

On remand of Chandler II to the federal district court, Chief Judge Battisti ruled for Judge Chandler on the second petition to remove and granted Judge Chandler's motion for summary judgment on the removed libel suit. O'Bryan's motion to remand was denied, and the expungement of the state libel judgment stood. Chief Judge Battisti first found that Judge Chandler's second petition to remove fell within the requirements of the second paragraph of 28 U.S.C. § 1446(b)⁴, which allows more than one petition to remove. Fritzlen v. Boatmen's Bank, 212 U.S. 364, 29 S.Ct. 366, 53 L.Ed. 551 (1909); 1 Barron and Holtzoff, Federal Practice and Procedure, § 107 at 514 (1960). Chief Judge Battisti held that Judge Austin's order of remand in 1966 no longer controlled and that the second petition to remove should be granted, because O'Bryan amended his complaint in state court subsequent to Judge Austin's denial of Judge Chandler's first petition to remove in 1966, which amendment made applicable the provisions of § 1446(b).

There is no dispute factually concerning how plaintiff changed his original complaint in the state libel suit. That original complaint contained a plaintiff's Exhibit "A", entitled Official Statement of Judge Chandler, which was in part the final draft of the brief filed with this court in Chandler I. O'Bryan v. Chandler, 352 F.2d 987 (10th Cir. 1965), cert. denied, 384 U.S. 926, 86 S.Ct. 1444, 16 L.Ed.2d 530 (1966). This Exhibit "A" was a portion of what this court labeled the "blue" brief in Chandler II. During the trial of the state libel action, O'Bryan, over Judge Chandler's objection, was allowed to remove the two pages of the "blue" brief and to attach two pages of what we termed the "tan" brief to his original complaint. The "tan" brief was a preliminary brief of the final "blue" brief and was released to the editor of the Oklahoma Journal. We said in Chandler II that the "tan" brief "differed in some respects from the blue brief as filed, but which included the bribery charge." Chandler II, supra at 1049. Chief Judge Battisti found that the plaintiff voluntarily amended his petition by the substitution of the two pages of the "tan" brief and that this amendment rendered the case removable under § 1446(b) pursuant to Judge Chandler's second petition to remove.

Since the state libel action was removed to federal court, Chief Judge Battisti proceeded to try that case. Judge Chandler moved for a summary judgment in the libel action pursuant to Fed.R.Civ.P. 56, which was granted upon the rationale that the alleged libel by Judge Chandler was protected by judicial immunity. O'Bryan appeals from the granting of Judge Chandler's petition to remove, from the denial of O'Bryan's motion to remand the libel suit to state court, and from the granting of summary judgment in the libel action in Judge Chandler's favor. We affirm the granting of Judge Chandler's second petition to remove and the granting of the summary judgment for Judge Chandler. The order expunging the state judgment of $50,000 therefore stands.

The first major issue in this appeal is whether Judge Chandler's second petition to remove the state libel suit should have been granted pursuant to the second paragraph of 28 U.S.C. § 1446(b) supra. Judge Chandler makes the following argument:

28 U.S.C.A. § 1446(b) provides an absolute right for Appellee Chandler, as a federal judge, to remove an action previously removed, when, as in this case, the complaint has been amended (the original complaint was based on two pages of a brief filed in the Tenth Circuit but was later amended to state a different cause of action by substituting two pages of another document which had not been filed in the Tenth Circuit . . .), or when a "motion, order or other paper" discloses grounds for removal (subsequent to Judge Austin\'s May 24, 1966, order, there were depositions, a court proceeding, affidavits, exhibits, and other motions, orders and other papers, which were never before Judge Austin . . .). emphasis in original.

The Department of Justice in its amicus curiae brief expands defendant's argument under 28 U.S.C. § 1446(b). In addition to arguing that plaintiff's amending of his original complaint in the state libel suit provided a sufficient basis for granting a second petition to remove, the Government contends that the most important reason for requiring removal under 28 U.S.C. § 1446(b) is the Supreme Court's decision in Willingham v. Morgan, 395 U.S. 402, 89 S. Ct. 1813, 23 L.Ed.2d 396 (1969), which, according to the Government, reversed the Tenth Circuit's interpretation of the "color of office" test for removal. The Government states that the case "became removable" after Willingham, which was decided by the Supreme Court in 1969. Although not basing his rationale of removal on Willingham alone, Chief Judge Battisti also referred to Willingham by saying that "the Supreme Court held the...