Camero v. Kostos

• Decision Date: 25 April 1966
• Docket Number: Civ. A. No. 1262-65.
• Citation: 253 F. Supp. 331
• Parties: Frank CAMERO, Plaintiff, v. Theodore M. KOSTOS, Defendant.
• Court: U.S. District Court — District of New Jersey

253 F. Supp. 331

Frank CAMERO, Plaintiff, v. Theodore M. KOSTOS, Defendant.

Civ. A. No. 1262-65.

United States District Court D. New Jersey.

April 25, 1966.

Samuel P. Orlando, Camden, N. J., Edwin J. McDermott, Philadelphia, Pa., of counsel, for plaintiff.

David M. Satz, Jr., U. S. Atty., by Robert W. Page, Asst. U. S. Atty., for defendant.

COHEN, District Judge.

Plaintiff, Frank Camero, a former civilian employee of the Military Clothing and Textile Supply Agency, an agency of the United States, commenced this action in the Superior Court of New Jersey, on November 13, 1965, against Theodore M. Kostos, a former attorney for the same agency. The gravamen of the complaint,¹ sounds in tort, alleging that defendant, while a prosecuting attorney for the Agency, exceeded his legal duties and maliciously incited departmental discharge of plaintiff with resultant monetary damages, for which he seeks recovery, together with punitive damages.

Defendant, represented by the United States Attorney for the District of New Jersey, secured removal of the state suit pursuant to 28 U.S.C. § 1442, on the ground that at all times pertinent to the complaint, defendant, as attorney for the Agency, was an officer of the United States acting under the color of his office and within the scope of his employment.

Thereafter, defendant filed a motion for an order dismissing the complaint for failure to state a cause of action, asserting absolute privilege of immunity from suit as an officer of the United States acting within the scope of his employment, and further, that the action is barred by res judicata, by reason of a collateral proceeding in the Court of Claims. Defendant also seeks a stay of pending discovery proceedings initiated by plaintiff.

Plaintiff counters, urging lack of jurisdiction in this Court and requesting remand to the State Court. He maintains that his cause of action was improperly removed from the State Court since the defendant was not an officer of the United States when suit was commenced, 28 U.S.C. § 1447(c); nor is he entitled to claim immunity. Further, that res judicata is inapplicable since the present action is dissimilar to that in the Court of Claims, which involved different parties and issues and an interlocutory order. Moreover, plaintiff argues that defendant's use of supporting affidavits interposing matters outside the pleadings, converts defendant's motion into one for Summary Judgment under F.R.Civ.P. Rule 12(b),² and F.R.Civ. Rule 56(e),³ which he is entitled to meet through the assistance of appropriate discovery proceedings.

It is readily evident that the parties clash on every phase of this matter. All these issues shall be refined into analytical isolation, as well as be viewed as they may be interrelated. Concise factual narrative of the events leading to the present proceeding may provide a greater prospective to the problems calling for disposition, as well as sharpen a focus on their present resolution.

In 1959, plaintiff was a supervisory clothing inspector civil service non-veteran grade, GS-9, in the Military Clothing and Textile Supply Agency, Department of the Army, Philadelphia Quartermaster Depot, receiving a salary of $6,585.00 per annum. During his twentieth year of service, on May 29, 1959 he was discharged on the accusation of having accepted a bribe in 1948, from one Altman, president of Pembroke Clothes, Inc., a New Jersey supplier of the Quarter-master Depot.

Thereupon, plaintiff pursued the Army Civil Personnel Grievance Procedures, and was granted a hearing,⁴ at which defendant as attorney for the Agency conducted the prosecution. After concluding the hearing, the Grievance Committee filed a detailed report on November 2, 1959 with the Depot Commander, unanimously recommending that the departmental dismissal of plaintiff be revoked and that he be reinstated for failure of the evidence to sustain the charges against him.

Subsequent to the hearing and pending the Depot Commander's action on the Committee's recommendation, it is alleged that defendant wrote a "comment" by letter to the Depot Commander, stating that notwithstanding the Committee's fact finding and conclusion, the evidence clearly established plaintiff's guilt of bribery.

Thereafter, by letter dated December 30, 1959, reviewed and approved by defendant and signed by the Depot Commander, plaintiff was notified that his grievance was dismissed for lack of merit and his removal from employment sustained.

Plaintiff then brought an action for back salary in the United States Court of Claims. That Court, sitting en banc, on hearing cross motions for summary judgment, determined that there was presented "substantial evidence" to support the dismissal of plaintiff from his employment on the charge of bribery, but remanded the case to the Trial Commissioner. As stated by the Court in Camero v. United States, 345 F.2d 798, 170 Ct. Cl. 490 (1965), at page 806:

"In conclusion, both motions for summary judgment are denied. The case is returned to the Trial Commissioner for further proceedings in accord with this opinion. The trial is to be limited to the issues relating to the participation of Mr. Kostos and is not to include the matter of the validity of the grounds for removing plaintiff. As indicated previously, this court has already determined the question of the validity of the grounds for the removal of plaintiff."

The determination on the merits of discharge was against plaintiff Camero.

While cross motions of the parties, here, raise several interesting issues, those which are deemed dispositive are two: (1) does this Court have jurisdiction by virtue of the removal of the state court suit; and if so, (2) is the defendant cloaked by law with an absolute privilege of immunity by virtue of his public office?

On the basis of the present record, there is no doubt that defendant was an attorney in the employ of the United States Government at all times referred to in the complaint challenging his conduct as such. The proposition advanced by plaintiff that under the removal statute, 28 U.S.C. § 1442 and 1442(a),⁵ a removing defendant must have the present status of a federal officer of the United States at the time removal is sought does not accord with the Congressional intent patently demonstrated on the face of the statutes and espoused by the judicial decisions applying it.⁶ Rather, the test is whether the removing defendant was a federal officer, or a civilian employee acting on his behalf, or acting under "the color of office", or in the performance of his duties as a federal employee of an agency of the United States, at the time the incident complained of occurred. Goldfarb v. Muller, 181 F.Supp. 41, 43 (D.C.N.J.1959), an opinion by Circuit Judge Forman, specially designated. See also, State of Maryland v. Soper (No. 1) 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449 (1926); Galbert v. Shivley, 186 F.Supp. 150, 152 (W.D. Ark.1960). Clearly, defendant Kostos was at all times complained of by plaintiff, an attorney in the Office of the General Counsel of the Military Clothing and Textile Supply Agency, an agency of the United States. All actions performed by him in connection with the subject matter of the instant suit were performed as official duties assigned to him by the General Counsel.

The removal statute, 28 U.S.C. § 1442(a), confers upon such defendant "an independent jurisdictional right to remove either a state civil action or criminal prosecution * * *" from a state to a federal court, wholly apart from the general removal statute, 28 U.S.C. § 1441. Moore's Fed. Pract. (2d ed.) vol. 1A, para. 0.164 p. 825. See, Naas v. Mitchell, 233 F.Supp. 414 (D.C.D.Md. 1964); Brenner v. Kelly, et al., 201 F. Supp. 871 (D.C.Minn.1962).

It is the opinion of this Court that this matter has been removed here properly, and that jurisdiction vests under 28 U.S.C. § 1442(a).

Turning to the second issue, and the one which is deemed to be dispositive, i. e. immunity from personal suit, the law seems to have been clearly established in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). This case was the basis for the decision of our Court of Appeals as recently as 1964 in Keiser v. Hartman, 339 F.2d 597 (3 Cir. 1964), a per curiam affirmance of the District Court, cert. den. 381 U.S. 934, 85 S.Ct. 1764, 14 L.Ed.2d 699 (1965). In Keiser, the plaintiff, a former employee of the Department of Agriculture, brought a tort action against seven employees of the Department, seeking damages for alleged libel and slander, and malicious conspiracy to secure his discharge. Unlike the instant case, it was stipulated by counsel that the acts complained of were within the outer perimeter of their line of duty as Federal employees. But plaintiff contended that such malice as he alleged, destroyed any privilege against suit. The District Court concluded that the acts were absolutely privileged under the rule laid down by the Supreme Court in Barr v. Matteo, supra. Our Court of Appeals stated:

"The district court rightly held that Barr v. Matteo rules this case and its action in dismissing the complaint must be affirmed. Indeed counsel for the plaintiff frankly conceded as much at bar, his expressed hope being to persuade the Supreme Court on certiorari to overrule that decision. This the Supreme Court may do if so advised, but we may not."

Keiser seems to be a stronger case for the plaintiff than the instant one. There, departmental and clerical employees were involved. Here, we are confronted with an attorney performing duties for a federal agency as a quasi-judicial officer. The very duties imposed upon defendant Kostos by his superior, the General Counsel of the federal agency, of investigation and prosecution of plaintiff for bribery were precisely those which he performed by virtue of his federal employment. It is for the encouragement of such fearless performance by federal employees, in whom the...