Mir v. Fosburg

• Decision Date: 22 January 1980
• Docket Number: No. 78-1103,78-1103
• Citation: 646 F.2d 342
• Parties: Jehan Zeb MIR, Plaintiff/Appellant, v. Richard G. FOSBURG, Perry Ah-Tye, and Horrace Warden, Defendants/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 342

646 F.2d 342

Jehan Zeb MIR, Plaintiff/Appellant, v. Richard G. FOSBURG, Perry Ah-Tye, and Horrace Warden,

Defendants/Appellees.

No. 78-1103.

United States Court of Appeals,

Ninth Circuit.

Jan. 22, 1980.

As Amended on Denial of Rehearing July 24, 1980.

Allen M. Gruber, Freeman & Gruber, San Diego, Cal., for plaintiff-appellant.

John Neece, Asst. U. S. Atty., San Diego, Cal., argued for defendants-appellees; Donald F. Shanahan, Asst. U. S. Atty., San Diego, Cal., on brief.

Appeal from the United States District Court for the Southern District of California.

Before CHAMBERS, WALLACE and KENNEDY, Circuit Judges.

KENNEDY, Circuit Judge:

When the confusion engendered by both parties' presentation is eliminated, this appeal presents two principal issues: (a) whether a district court has subject matter jurisdiction over a suit commenced in state court and removed by federal defendants pursuant to 28 U.S.C. § 1442a, ¹ it being conceded the action would not lie in the federal courts as an original matter since the pleadings alleged only state grounds; and (b) whether federal executive officers are absolutely immune from state-law tort actions.

Plaintiff originally filed suit in the Superior Court in and for the County of San Diego, State of California. Plaintiff and all the defendants were military officers in the United States Navy. Plaintiff alleged that his termination from the Thoracic Surgery Program at the Balboa Naval Hospital was wrongful. As developed in the early proceedings of this case, his claim was based on three separate state law theories: wrongful interference with practice of his profession; defamation; and intentional infliction of emotional distress. Defendants successfully removed the action to federal court pursuant to 28 U.S.C. § 1442a, alleging they were members of the armed forces and that the suit arose from acts authorized by federal law, done under color of their office.

The district court eventually dismissed the case, relying on the immunity doctrine stated in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). On appeal, this court vacated and remanded for further consideration in light of Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). On remand, defendants filed a motion for summary judgment, which was denied by the district court. After about one and one-half years of slow-paced discovery, the district court dismissed the complaint on April 20, 1977 for lack of subject matter jurisdiction, but granted plaintiff leave to amend. Plaintiff's amended complaint failed to allege any federal question basis for jurisdiction, and the district court dismissed the complaint with prejudice on August 5, 1977. On August 15, 1977, plaintiff moved to set aside the court's order and sought leave to file an amended complaint, which finally alleged violation of various federal statutes. See Fed.R.Civ.P. 15(a), 59, 60. The court denied plaintiff's motion.

A. Timeliness

Before turning to the merits of this appeal, we first address the timeliness of the appeal to this court. Following the district court's dismissal of appellant's action with prejudice, appellant filed a motion which in effect sought to vacate that order and permit the filing of another amended complaint. The motion (both in district court and here) has repeatedly been characterized as one under rules 59(b) and 60(b) of the Federal Rules of Civil Procedure. The district judge considered the motion as one under rule 60 and denied relief. Presumably he ignored rule 59(b) as it deals with motions for new trial and would be inappropriate in this case.

The only notice of appeal was filed within thirty days after the filing of the order denying the post-judgment relief. If the motion were indeed only under rule 60, the appeal would not be timely and we would have no jurisdiction. Motions under rule 60 (unlike those under rule 59) do not toll the time in which to take an appeal under Fed.R.App.P. 4.

Appellant now argues that the motion was intended to be one under rule 59(e), which would be a proper vehicle by which to seek vacation of the order of dismissal and obtain leave to file another amended complaint. Wilburn v. Pepsi-Cola Bottling Co., 492 F.2d 1288 (8th Cir. 1974). We will so construe it. See Sea Ranch Ass'n v. California Coastal Zone Conservation Commissions, 537 F.2d 1058, 1061 (9th Cir. 1976). The motion was filed within the time required by rule 59 so as to toll the time for taking an appeal under Fed.R.App.P. 4(a). We therefore have jurisdiction to consider the appeal on the merits.

B. Jurisdiction

The jurisdictional issue in this case is controlled by the undisputed circumstance that defendants fall within the category of persons entitled under 28 U.S.C. § 1442a to remove to a federal forum an action properly commenced in a state court.

Our holding can be stated simply: unlike removal pursuant to 28 U.S.C. § 1441, ² a district court has jurisdiction to hear an action removed pursuant to 28 U.S.C. § 1442a even if the initial action could not have been commenced by the plaintiff in a federal forum. The district court's dismissal of plaintiff's complaint on this ground was therefore improper.

As noted by the Supreme Court in Willingham v. Morgan, 395 U.S. 402, 406, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969), one of the principal purposes of the removal statute was to prevent federal officers acting under color of their authority from being sued in state courts. See Tennessee v. Davis, 100 U.S. 257, 263, 25 L.Ed. 648 (1880). After surveying the statute's history, the Court stated:

For this very basic reason, the right of removal under § 1442(a)(1) is made absolute whenever a suit in a state court is for any act "under color" of federal office, regardless of whether the suit could originally have been brought in a federal court.

Since we perceive no relevant distinction in this context between section 1442 and 1442a, ³ we are bound by Willingham.

Even were we not bound by the Court's statement, our conclusion finds support in the prior cases which have considered the issue before us. See, e. g., State of North Carolina v. Carr, 386 F.2d 129 (4th Cir. 1967); Poss v. Lieberman, 299 F.2d 358, 359 (2d Cir. 1962), cert. denied, 370 U.S. 944, 82 S.Ct. 1585, 8 L.Ed.2d 810 (1962); Sarner v. Mason, 228 F.2d 176 (3d Cir. 1955), cert. denied, 351 U.S. 924, 76 S.Ct. 781, 100 L.Ed. 1454 (1956); Lindy v. Lynn, 395 F.Supp. 769, 771 (E.D.Pa.1974), aff'd mem., 515 F.2d 507 (3d Cir. 1975); Special Prosecutor v. United States Attorney, 375 F.Supp. 797, 800-01 (S.D.N.Y.1974); United States v. Penney, 320 F.Supp. 1396 (D.C.D.C.1973). See also Wright, Miller & Cooper, Federal Practice and Procedure § 3727 at 691-92 (1976). One of the principal aims of the removal section is to allow the merits of federal defenses, such as the immunity defense in this suit, to be tried in a federal court where the defendant so desires. This goal would be substantially impaired if the district court had jurisdiction only where the plaintiff's claim was based on a federal question or the existence of diversity of citizenship. Similarly, we doubt that the statutory language permitting removal of criminal prosecutions commenced in state court was intended to refer only to prosecutions based on violations of federal statutes. Congress plainly has the power to permit suits such as the instant case to be heard in a federal court, and we conclude they have done so in section 1442a.

Some of the cases relied on by the United States Government are distinguishable as involving a district court's original jurisdiction. In Martin v. Wyzanski, 262 F.Supp. 925 (D.Mass.1967), for example, the plaintiff filed a suit for libel in the district court. When the federal defendants moved to dismiss, plaintiff relied on section 1442. The court properly noted that section 1442 does not enlarge the original jurisdiction of district courts, id. at 927, and it dismissed the case for lack of jurisdiction. Far from supporting the Government's position, the court's discussion supports the conclusion we reach. For example, the court stated:

That the cause of action is concerned with state law and not federal law is shown by the fact that removal could be had under the provisions of 28 U.S.C. § 1442 in a similar case filed in state court only because the interposition of a federal defense would make the case one "arising under" the Constitution or laws of the United States.

Similarly inapposite are cases such as Gleason v. United States, 458 F.2d 171, 174-75 (3d Cir. 1972), which hold that where a state court does not have jurisdiction over the plaintiff's complaint, removal from the state court to the federal court will not cure the jurisdictional defect. Cf. Minnesota v. United States, 305 U.S. 382, 389, 59 S.Ct. 292, 83 L.Ed. 235 (1939). The Government does not argue on this appeal that the state court was originally without jurisdiction to hear plaintiff's state court theories. The grounds of the district court's dismissal, defended by the Government on this appeal, were that there is no federal question or diversity jurisdiction. Rejecting the Government's argument, we hold the district court had jurisdiction to hear the case.

C. Immunity

It seems the Government's proffer of the meritless jurisdictional argument resulted from its confusion between a district court's jurisdiction to hear an action and the existence of an absolute immunity defense against plaintiff's claims. Although the only reference to such an immunity was an offhand remark by the Government at oral argument, and we did not address the issue squarely when this case was here before, it appears that the defendants may be entitled to absolute immunity from damage claims grounded either in state statutes or state common law. See, e. g., Miller v. DeLaune, 602 F.2d 198 (9th Cir. 1979); Clifton v. Cox, 549 F.2d 722 (9th Cir. 1977); Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335,...