De Busk v. Harvin, No. 14684.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtHOLMES, RUSSELL and RIVES, Circuit
Citation212 F.2d 143
PartiesDE BUSK v. HARVIN et al.
Decision Date15 April 1954
Docket NumberNo. 14684.

212 F.2d 143 (1954)

DE BUSK
v.
HARVIN et al.

No. 14684.

United States Court of Appeals Fifth Circuit.

April 15, 1954.


212 F.2d 144

Henry L. DeBusk, Lubbock, Tex., in pro. per.

David Orlikoff, Dept. of Justice, Samuel D. Slade, Dept. of Justice, Paul A. Sweeney, Chief Appellate Sec. Dept. of Justice, John G. Laughlin, Dept. of Justice, Washington, D. C., A. W. Christian, Asst. U. S. Atty., Fort Worth, Tex., Warren E. Burger, Asst. Atty. Gen., Heard L. Floore, United States Atty., Fort Worth, Tex., for appellees.

Before HOLMES, RUSSELL and RIVES, Circuit Judges.

RIVES, Circuit Judge.

This suit was originally filed by appellant in the state district court of Lubbock County, Texas, to recover damages from appellees individually for their alleged malicious acts in causing appellant's dismissal from his former Federal employment with the Veterans Administration Regional Office at Lubbock, Texas. The complaint alleges that appellees "conspired against Plaintiff to hurt him, and to eventually effect his removal from government service" because he was critical of certain alleged gambling and drinking activities by other employees of that government agency; that, as a result of his objections, appellees "for a period of over one year connived, kept notes on Plaintiff, shadowed him, and deliberately set snares for him in their malicious efforts to concoct charges which they thought might effect his removal from service"; that because of their treatment "he has suffered unjustified reprimands and insults", was given an unsatisfactory performance rating, and charges of insubordination were filed against him which ultimately resulted in his unjust removal from employment on February 2, 1953.

Appellees removed the action to the United States District Court under Title 28 U.S.C.A. § 1442(a) (1) which, in pertinent part, authorizes removal of "A civil action * * * commenced in a State court against * * * Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office * * *." In answer to the complaint, appellees defended on the grounds of insufficiency

212 F.2d 145
of the complaint to state a claim for relief, that the action was premature because appellant "has not exhausted the administrative remedies available to him", and that appellant was removed for cause and not for the reasons alleged in his petition. Appellant filed a motion to remand and motion to quash appellees' amended petition for removal, which motions were denied by the district court and a motion by appellees for judgment on the pleadings was granted.1

It is without dispute under the pleadings that appellant, prior to his dismissal, was employed as a Loan Examiner in the Loan Guaranty Division of the Veterans Administration Regional Office at Lubbock, Texas; that his duties entailed some degree of responsibility for examining and passing upon applications by veterans for insurance or guarantee of loans under the Servicemen's Readjustment Act of 1944, 38 U.S.C.A. § 693 et seq.; that one of the appellees, Bethel, was Chief of the Examining Section and in that capacity was charged with the responsibility of supervising appellant's work, while two other appellees, Harvin and Harris, held positions entailing responsibility for the overall direction of the Loan Guaranty Division and supervision of all personnel, including appellant; that appellee, Sisson, was the duly appointed Manager of the Regional Office, and the administrative head of the agency responsible for its work and the supervision of all personnel employed in that facility; that, under the rules and regulations of the Veterans Administration and the Civil Service Commission, all appellees, as appellant's superiors, were charged with varying degrees of responsibility for recommending appropriate employee disciplinary action, including any indicated dismissal from service for unsatisfactory work or misbehavior; that on December 17, 1952, appellee Bethel, acting in accordance with the applicable rules and regulations, prepared a written recommendation for removal of appellant, which was referred

212 F.2d 146
to his superior, appellee Harvin, who served written notice of the charges on appellant and granted him...

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30 practice notes
  • Pretka v. Kolter City Plaza II, Inc., No. 10-11471 (11th Cir. 6/8/2010), No. 10-11471.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 8, 2010
    ...("Defendants have the opportunity to submit affidavits, depositions, or other evidence to support removal."); see also De Busk v. Harvin, 212 F.2d 143, 146 (5th Cir. 1954) (holding, in a case removed under 28 U.S.C. § 1442, that the district court had properly denied the plaintiff's motion ......
  • City of Greenwood, Mississippi v. Peacock Peacock v. City of Greenwood, Mississippi, Nos. 471
    • United States
    • United States Supreme Court
    • June 20, 1966
    ...as a case of misuse of a state prosecution has been made out. Cf. O'Campo v. Hardisty, 9 Cir., 262 F.2d 621; De Busk v. Harvin, 5 Cir., 212 F.2d 143. In other words, the result of removal is not the transfer of the trial from the state to the federal courts in this type of case. If after he......
  • Pennsylvania Railroad Company v. Day, No. 397
    • United States
    • United States Supreme Court
    • June 29, 1959
    ...App.D.C. 292, 121 F.2d 40; Adams v. Home Owners' Loan Corp., 8 Cir., 107 F.2d 139; Gregoire v. Biddle, supra; De Busk v. Harvin, 5 Cir., 212 F.2d 143; Lang v. Wood, 67 App.D.C. 287, 92 F.2d 211. 10. See the striking description in Cummings and McFarland, Federal Justice (1937), pp. 80—81, q......
  • Pretka v. Kolter City Plaza II, Inc., 10-11471.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 8, 2010
    ...("Defendants have the opportunity to submit affidavits, depositions, or other evidence to support removal."); see also De Busk v. Harvin, 212 F.2d 143, 146 (5th Cir.1954) (holding, in a case removed under 28 U.S.C. § 1442, that the district court had properly denied the plaintiff's motion t......
  • Request a trial to view additional results
30 cases
  • Pretka v. Kolter City Plaza II, Inc., No. 10-11471 (11th Cir. 6/8/2010), No. 10-11471.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 8, 2010
    ...("Defendants have the opportunity to submit affidavits, depositions, or other evidence to support removal."); see also De Busk v. Harvin, 212 F.2d 143, 146 (5th Cir. 1954) (holding, in a case removed under 28 U.S.C. § 1442, that the district court had properly denied the plaintiff's motion ......
  • City of Greenwood, Mississippi v. Peacock Peacock v. City of Greenwood, Mississippi, Nos. 471
    • United States
    • United States Supreme Court
    • June 20, 1966
    ...as a case of misuse of a state prosecution has been made out. Cf. O'Campo v. Hardisty, 9 Cir., 262 F.2d 621; De Busk v. Harvin, 5 Cir., 212 F.2d 143. In other words, the result of removal is not the transfer of the trial from the state to the federal courts in this type of case. If after he......
  • Pennsylvania Railroad Company v. Day, No. 397
    • United States
    • United States Supreme Court
    • June 29, 1959
    ...App.D.C. 292, 121 F.2d 40; Adams v. Home Owners' Loan Corp., 8 Cir., 107 F.2d 139; Gregoire v. Biddle, supra; De Busk v. Harvin, 5 Cir., 212 F.2d 143; Lang v. Wood, 67 App.D.C. 287, 92 F.2d 211. 10. See the striking description in Cummings and McFarland, Federal Justice (1937), pp. 80—81, q......
  • Pretka v. Kolter City Plaza II, Inc., 10-11471.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 8, 2010
    ...("Defendants have the opportunity to submit affidavits, depositions, or other evidence to support removal."); see also De Busk v. Harvin, 212 F.2d 143, 146 (5th Cir.1954) (holding, in a case removed under 28 U.S.C. § 1442, that the district court had properly denied the plaintiff's motion t......
  • Request a trial to view additional results

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