Palermo v. Rorex

• Decision Date: 05 January 1987
• Docket Number: No. 85-3127,85-3127
• Citation: 806 F.2d 1266
• Parties: Carolyn King PALERMO, Plaintiff-Appellant, v. Dewayne ROREX, Jack Chivatero and Charles Hoyle, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1266

806 F.2d 1266

Carolyn King PALERMO, Plaintiff-Appellant, v. Dewayne ROREX, Jack Chivatero and Charles Hoyle, Defendants-Appellees.

No. 85-3127.

United States Court of Appeals Fifth Circuit.

Jan. 5, 1987.

Rehearing and Rehearing En Banc Denied Feb. 17, 1987.

Frank A. Silvestri, New Orleans, La., for plaintiff-appellant.

Murray S. Horwitz, John Volz, Asst. U.S. Atty., Washington, D.C., Gregory C. Weiss, Asst. U.S. Atty., Glenn L. Archer, Jr., Asst. Atty. Gen., New Orleans, La., Michael Paup, Chief Appellate Sec., U.S. Dept. of Justice, Tax Div., Jonathan S. Cohen, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RANDALL and WILLIAMS, Circuit Judges and HINOJOSA, ^* District Judge.

HINOJOSA, District Judge:

FACTS AND PROCEEDINGS BELOW

Appellant Carolyn King Palermo (Plaintiff below, hereinafter Appellant) brought two separate actions seeking monetary damages against Appellees Dewayne Rorex, Jack Chivatero and Charles Hoyle (Defendants below, hereinafter Appellees or Rorex, Chivatero, or Hoyle, respectively if referred to individually). Appellees are all employees of the Internal Revenue Service, an agency of the federal government (hereinafter IRS). One action was brought in the Civil District Court for the Parish of Orleans, State of Louisiana and the other in the Federal District Court for the Eastern District of Louisiana. The state court action was removed to the federal district court and consolidated with the federal action.

The thrust of Appellant's Complaints, which are virtually identical in both suits, is that the Appellees who were her husband Dwayne Joseph Palermo's (hereinafter Mr. Palermo) supervisors in the IRS wrongfully commenced disciplinary proceedings against Mr. Palermo with the intention of inflicting mental and emotional distress on him, and that such actions caused or contributed to Mr. Palermo's committing suicide. The state court action alleged such conduct was tortious, while the federal court action alleged such conduct constituted cruel and unusual punishment and violated Mr. Palermo's due process rights. The district court denied the Appellant's Motion to Remand the common law tort suit to the state court and granted the Appellees' Motion to Dismiss the Complaints pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action. The facts as alleged in Appellant's Complaints are as stated below.

In February, 1980, Mr. Palermo, an employee of the IRS, was told by Rorex that he was being "rotated" to a different position, for the limited period of twelve months, for administrative purposes. Mr. Palermo understood that he would be permitted to return to his original position. However, he was never "rotated" back to his previous position.

Apparently Mr. Palermo as a result of the transfer and other job related pressures developed emotional and psychological problems and suffered a nervous breakdown and was hospitalized in January 1983.

Rorex brought disciplinary action against Mr. Palermo in April 1983, for conduct related to his breakdown and in the same month Mr. Palermo was again hospitalized for his emotional problems. Although Mr. Palermo's psychiatrist advised Rorex and his supervisors of the seriousness of Mr. Palermo's mental illness, Rorex informed Mr. Palermo that he would be subject to disciplinary action if he attempted to return to work.

Mr. Palermo sought disability retirement on July 2, 1983, but was denied disability in August of that year. As a result of the denial of disability, Mr. Palermo returned to work. Upon his return to work, Rorex, Chivatero and Hoyle reinstated disciplinary actions against him. As a part of the disciplinary action, Mr. Palermo was subject to a downgrade of his position with the IRS. Although he sought to take a voluntary downgrade, Mr. Palermo was not permitted to do so and was instead given a disciplinary downgrade. Mr. Palermo committed suicide on October 3, 1983.

On the above alleged facts Appellant stated in her federal Complaint that such action by the Appellees constituted cruel and unusual punishment, violated due process, and constituted malicious administrative prosecution, while in the state court action she alleged that said actions resulted in the "wrongful death" of her husband. In each Complaint she sought monetary damages ($2 million in the state court and $6 million in the federal action).

This proceeding is one in which Appellant appeals the district court's actions denying her Motion to Remand the state court action and the granting of the Motion to Dismiss the Complaints for failure to state a cause of action pursuant to Federal Rule of Civil Procedure 12(b)(6).

I

Appellant argues that the district court erred in denying her Motion to Remand on the grounds that the state court action should not have been removed without certification from the Attorney General that the Appellees were acting within the scope of their employment pursuant to 28 U.S.C. Sec. 2679(d). Appellant further argues that no such certification could have been made because the acts alleged in the petition were malicious and so could not be within the scope of Appellees' employment with the federal government.

Appellees assert that removal was proper pursuant to 28 U.S.C. Sec. 1442 in that the Defendants were all employees of the IRS, an agency of the federal government. Appellees relied upon the allegations in the Complaints to show that the acts complained of were within the scope of their employment.

Appellant's argument that 28 U.S.C. Sec. 2679(d) controls is incorrect. Said section deals with the removal of actions brought against federal employees pursuant to the Federal Tort Claims Act. 28 U.S.C. Secs. 1346 and 2671, et seq.; Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d Sec. 3727, p. 452 (1985). Since this action was not brought under the Federal Tort Claims Act removal was properly considered under the more general removal statute for federal officers, 28 U.S.C. Sec. 1442.

The Supreme Court of the United States has interpreted Title 28 Section 1442, in Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). In holding that removal by the Warden and chief medical officer at a federal penitentiary was proper under this statute, the Court stated:

... the right of removal under Sec. 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. Federal jurisdiction rests on a 'federal interest in the matter' ..., the very basic interest in the enforcement of federal law through federal officials. Id. at 395 U.S. 406, 89 S.Ct. at 1815 (citation omitted).

Professors Wright, Miller and Cooper noted that, in Willingham, "[i]t was sufficient that the acts charged occurred in the course of a continuing relationship between the plaintiff and the federal officer during the latter's performance of his duties...." Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d Sec. 3727, pp. 450-451 (1985).

In the instant case, there can be no doubt that the acts alleged in the Complaints were performed "under color of federal office." The state court Complaint specifically alleges that the actions complained of were connected with Mr. Palermo's status as an employee of the IRS.

The acts alleged include the imposition of disciplinary actions against Mr. Palermo by Rorex, failing to assist Mr. Palermo by means of employee counseling, denying him access to the Troubled Employee Program, and failing to assist him in seeking agency disability. Each act alleged confirms the "continuing relationship" that Plaintiff and Defendant Rorex had at the IRS. The Complaint further alleged that "Mr. Rorex acted upon the authority consent and approval of defendants Jack Chivatero and Charles Hoyle, his supervisors." The words "authority," "consent," and "approval" themselves confirm the assertion that all acts were sanctioned by the IRS. The "under color" test could not be more clearly satisfied.

Appellant also claims that, because the Appellees are sued in their individual rather than official capacities and the acts are alleged to have been maliciously motivated, the Defendants could not have been acting "under color of federal office." A similar argument was rejected in Willingham, supra. In discussing the need for a " 'causal connection' between the charged conduct and asserted official authority," Id. at 409, 89 S.Ct. at 1817, the Court found that it is sufficient that the only contact between the parties was while at their place of federal employment, while performing their duties. The Court went on to explain:

If the question raised is whether they [the appellees] were engaged in some kind of "frolic on their own" in relation to respondent [appellant], then they should have the opportunity to present their version of the facts to a federal, not a state court. This is exactly what the removal statute was designed to accomplish. Id., 409, 89 S.Ct. at 1817.

Based upon this Court's application of the Willingham test, we find that the state action was properly removed pursuant to Section 1442(a)(1) and the district court was correct in denying the Motion to Remand.

II

Appellant's more substantive, if not well founded, argument is that the District Court erred in granting Appellees' Motion to Dismiss the Complaints for failure to state a claim for which relief can be granted. As stated the state Complaint asserted the common law tort claims of intentional infliction of emotional distress and gross negligence in Appellees' conduct as Mr. Palermo's supervisors resulting in Mr. Palermo's "wrongful death" while the federal Complaint alleged the same actions but asserted constitutional violations of the Fifth Amendment protection against deprivation...