Areskog v. United States

• Decision Date: 14 May 1975
• Docket Number: Civ. No. H 74-228.
• Citation: 396 F. Supp. 834
• Court: U.S. District Court — District of Connecticut
• Parties: Lawrence ARESKOG v. UNITED STATES of America and Patrick J. O'Keefe, et al.

396 F. Supp. 834

Lawrence ARESKOG v. UNITED STATES of America and Patrick J. O'Keefe, et al.

Civ. No. H 74-228.

United States District Court, D. Connecticut.

May 14, 1975.

COPYRIGHT MATERIAL OMITTED

Gilbert Shasha, Shasha & Maruzo, New London, Conn., for plaintiff.

Henry S. Cohn, Ass't. U. S. Atty., Hartford, Conn., for the United States & Patrick J. O'Keefe.

Thomas B. Wilson, James F. Brennan, Jr., Suisman, Shapiro, Wool & Brennan, Groton, Conn., for defendant, General Dynamics.

RULING ON PLAINTIFF'S MOTION TO REMAND & DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT OR DISMISSAL

CLARIE, Chief Judge.

The plaintiff, Lawrence Areskog, commenced this action in the Connecticut State Superior Court for New London County and it was thereafter removed to this Court by the petition of the defendants United States of America and Patrick J. O'Keefe. The plaintiff now moves to remand the suit to the State court and the defendants United States and O'Keefe resist the motion to remand and have moved for dismissal under Rule 12(b), Fed.R.Civ. P., or, in the alternative, for summary judgment under Rule 56. The other defendant, General Dynamics Corporation, has moved to dismiss the action for its failure to state a claim, Rule 12(b) (6). The Court denies the plaintiff's motion to remand as to the claims against the United States and Patrick O'Keefe; it dismisses the claim against the United States for want of jurisdiction and grants the summary judgment motion of the defendant O'Keefe. The plaintiff's claims against the defendant General Dynamics as set forth in Counts One and Two of the complaint, are ordered remanded to the State Court; and said defendant's motion to completely dismiss the action is consequently denied.

Facts

In essence, the complaint alleges a breach of contract by the defendant General Dynamics, and a tortious interference with the contractual relations between the plaintiff and General Dynamics by the defendants United States and Patrick O'Keefe. From 1941 until June, 1973, the plaintiff served as a civilian employee of the United States Navy. He alleges that during June, 1973, he entered into a contract of employment with the Electric Boat Division of the General Dynamics Corporation, located in Groton, Connecticut. At that time, he was serving as a civilian Production Controller under the overall command of the defendant Captain O'Keefe, then the Superintendent of Shipbuilding, United States Navy, Groton, Connecticut.

The plaintiff claims that Navy Captain O'Keefe caused General Dynamics to breach its alleged employment contract, resulting in the latter's refusal to hire him in accordance with their agreement, after his retirement from his civilian Navy service in June, 1973. According to the affidavit filed by Captain O'Keefe, after he had learned of the employment discussions between the plaintiff and General Dynamics, he contacted General Dynamics concerning the effect of certain Navy regulations covering their proposed employment relationship. These regulations were aimed at avoiding any possible conflicts of interest between Government employees and private contractors. At that same time, Captain O'Keefe also brought to the attention of the General Dynamics officials an "understanding" he had with the Company that it "would not discuss possible future employment opportunities with any Navy employee actively employed in a position to favorably influence dealings between General Dynamics and the Navy." Captain O'Keefe concluded that because of the plaintiff's "sensitive position with the Navy," these employment discussions placed him in a position of substantially conflicting interests. An affidavit filed by Rear Admiral Raymond W. Burk, who as Deputy Commander, Naval Sea Systems Command, was Captain O'Keefe's direct supervisor, essentially confirms that the actions described in Captain O'Keefe's affidavit were taken pursuant to the latter's official responsibility to enforce Navy regulations.

The plaintiff's claim against the United States must be dismissed for lack of jurisdiction. The Federal Tort Claims Act, 28 U.S.C. § 1346(b), does constitute a partial waiver of the sovereign immunity of the federal government, giving the district courts jurisdiction over certain tort claims against the United States.¹ However, since the Act, by its terms, confers exclusive jurisdiction on the district courts, the State Court lacked jurisdiction over the defendant United States. Furthermore, among those claims expressly excluded from the Act's waiver of sovereign immunity are those "arising out of . . interference with contract rights," 28 U.S.C. § 2680(h). Since this is such a claim, and since the United States has not otherwise consented to this suit, there could be no jurisdiction in this Court, even as an original matter, over the United States as a defendant.

The defendant Captain O'Keefe based his claim for removal of the action from the State Superior Court on 28 U.S.C. § 1442(a)(1), which concerns removal of actions against federal officers, and provides in relevant part:

"A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office . . .."

The plaintiff contends that Captain O'Keefe may not invoke the provisions of this statute for the reason that his actions were not taken "under color" of his office. Secondly, he claims that even if removal were proper, summary judgment should not enter, because there is no undisputed factual basis to support Captain O'Keefe's claim to official immunity under the circumstances in which he acted. Two Supreme Court cases set the bounds for the Court's determination of these two issues. The propriety of removal is governed by Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969), and the question of official immunity by Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959).

In construing the "color of office" requirement for removal under § 1442 (a)(1), the Willingham court emphasized that the phrase must be broadly construed in order to effectuate the purposes behind the federal officer removal statute. The Court stated:

". . . 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)."

395 U.S. at 407, 89 S.Ct. at 1816; also see, Colorado v. Symes, 286 U.S. 510, 517, 52 S.Ct. 635, 76 L.Ed. 1253 (1932). The allegations of the complaint, and the affidavits submitted by the Government, clearly demonstrate that the actions of Captain O'Keefe were taken under the color of his office for purposes of § 1442 (a) (1), and the Court so finds.

The plaintiff maintains that the affidavits of Captain O'Keefe and Admiral Burk are insufficient in several other respects as a basis for the removal of this action. While the preferred procedure would be to include, within the removal petition itself, a "candid, specific and positive" statement of the facts justifying removal, Maryland v. Soper, No. 1, 270 U.S. 9, 35, 46 S.Ct. 185, 70 L.Ed. 449 (1926),² the Court finds that the submission of these affidavits subsequent to the filing of the removal petition constitutes substantial compliance with this requirement. See, Willingham v. Morgan, supra, 395 U.S. at 407, n. 3, 89 S.Ct. 1813. The plaintiff further argues that the affidavits are insufficient to support removal under the Willingham rule, because the defendants in the latter case specifically averred that all the actions complained of were taken within the physical confines of a federal penitentiary. The plaintiff would distinguish his claim by arguing that the understanding or agreement which Captain O'Keefe cited to the General Dynamics representatives was a "personal" and not an "official" agreement.

The Court's adoption of these overly technical assertions of the plaintiff would run counter to both the spirit and the explicit language of Willingham:

"In a civil suit of this nature, we think it was sufficient for the petitioners to have shown that their relationship to respondent derived solely from their official duties. . . . 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." 395 U.S. at 409, 89 S.Ct. at 1817 (footnote omitted).

Having determined that this action has been properly removed to this Court, the next question is whether the case is ripe for summary judgment on the issue of Captain O'Keefe's official immunity. In support of its summary judgment motion, the Government relies on the affidavits of Captain O'Keefe and Admiral Burk, together with the supporting regulations cited therein. In opposition to said motion, the plaintiff has filed his own affidavit, as well as that of his attorney. His affidavits contain the following assertions: that the plaintiff was not involved in direct negotiations with General Dynamics concerning contract modifications, but instead developed technical specifications which were used for negotiating purposes; that there was no "official" agreement between General Dynamics and Navy officials concerning hiring policies, but only a "personal" agreement between Captain O'Keefe and the General Manager of General Dynamics to the effect that neither would hire the other's employees; and finally...