De Busk v. Harvin

• Decision Date: 15 April 1954
• Docket Number: No. 14684.,14684.
• Citation: 212 F.2d 143
• Parties: DE BUSK v. HARVIN et al.
• Court: U.S. Court of Appeals — Fifth Circuit

212 F.2d 143 (1954)

DE BUSK v. HARVIN et al.

No. 14684.

United States Court of Appeals Fifth Circuit.

April 15, 1954.

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 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 to his superior, appellee Harvin, who served written notice of the charges on appellant and granted him opportunity to reply and a hearing; that a committee selected to hear the charges against appellant, though finding the evidence sufficient to justify removal on the grounds of insubordination, recommended that appellant not be removed; and that, acting on the basis of the committee findings but disregarding its recommendation,² appellee Sisson, as Manager of the Regional Office, removed appellant from his employment. It further appears that appellant appealed the removal decision administratively to the Director of the United States Civil Service Region at Dallas, Texas, and was granted a hearing thereon, after which a Commission Examiner recommended "that no change be made in the personnel action taken by the agency"; that this recommendation was approved by the Regional Director of the Civil Service Commission, but that appellant further appealed from his action to the Commission at Washington, D. C., which appeal is now pending.

Appellant's principal insistence is that the acts "as alleged were beyond the duties and ambit of authority of officers and employees of the Government", and that the statute authorizing removal of such suits and the rule granting immunity from civil suit to federal officers acting "under color of such office", as relied upon by the trial court, therefore does not apply. Title 28 U.S.C.A. § 1442 (a) (1); see Gregoire v. Biddle, 2 Cir., 177 F.2d 579, 581; Waterman v. Nelson, 2 Cir., 177 F.2d 965. While recognizing in his pleadings that federal employment is a privilege and not an absolute right, appellant asserts that "he is not suing for any job" but for damages "for the malicious treatment he received from defendants as individuals", for which, under the statute and applicable authorities, he claims they have no right of removal to the Federal Court and are not entitled to invoke their official immunity. Cf. State of Colorado v. Symes, 286 U.S. 510, 52 S.Ct. 635, 76 L.Ed. 1253; State of Maryland v. Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449; Viles v. Symes, 10 Cir., 129 F.2d 828; Ampey v. Thornton, D.C.Minn., 65 F.Supp. 216.

We think the authorities relied upon by appellant are readily distinguishable on their controlling facts from the present situation, and that this action was clearly...