Poss v. Lieberman

• Decision Date: 13 February 1962
• Docket Number: No. 126,Docket 26692.,126
• Parties: Jacob M. POSS, Plaintiff-Appellant, v. Jerome LIEBERMAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

299 F.2d 358 (1962)

Jacob M. POSS, Plaintiff-Appellant, v. Jerome LIEBERMAN, Defendant-Appellee.

No. 126, Docket 26692.

United States Court of Appeals Second Circuit.

Argued December 7, 1961.

Decided February 13, 1962.

Jacob M. Poss, New York City, pro se.

Malvern Hill, Jr., Asst. U. S. Atty., E. D. New York, Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty., E. D. New York, Brooklyn, N. Y., on the brief), for defendant-appellee.

Before WATERMAN, SMITH and MARSHALL, Circuit Judges.

SMITH, Circuit Judge.

This is an appeal from an order and a judgment of the United States District Court for the Eastern District of New York, Joseph C. Zavatt, District Judge, denying appellant's motion to remand the case, a libel action against a claims representative of the United States Department of Health, Education and Welfare, to the state court. The appeal from the order is on the ground that the facts necessary for removal under 28 U. S.C. § 1442(a), which provides for removal in a civil action against "any officer of the United States * * * for any act under color of such office," did not appear in the complaint. The appeal from the judgment is from an order granting appellee's motion for summary judgment in his favor based upon an absolute and unqualified privilege of a federal officer. The judgment of dismissal is final and appealable. The appeal, attacking the existence of federal jurisdiction in the District Court, raises before us the propriety of the denial of the motion to remand, whether or not this is considered a final order. We hold the case properly removed, and that absolute privilege existed under the circumstances of this case, and affirm the judgment.

Plaintiff is a lawyer in good standing, of many years practice at the bar. He appeared before defendant, a claims representative of the United States Department of Health, Education and Welfare, at an interview in connection with a claim of plaintiff's wife for Social Security benefits based on employment by corporations owned and operated by plaintiff. In a report made in the case in the agency, defendant stated that plaintiff had told him that some years before plaintiff had been disbarred as a lawyer. In fact, no disbarment or disciplinary action has ever been taken against plaintiff. Plaintiff, on learning some time later of the matter contained in the report in his wife's case, sued in the New York Supreme Court for libel, alleging falsity and malice. Defendant raised for the first time in his petition for removal to the United States District Court a claim that the libelous statement was made in the course of federal employment, and privileged.

Under the removal statute 28 U.S.C. § 1441 it is necessary for the facts to appear on the face of the complaint or subsequent amendments filed by the plaintiff; as to this there is no disagreement. Romick v. Bekins Van & Storage Co., 197 F.2d 369 (5 Cir. 1952). Hart & Wechsler, The Federal Courts and The Federal System, 763 n. 1 (1953). This is because the case may be removed under Section 1441 only where it is one over which the federal courts would have original jurisdiction. This they do not have based upon a federal right asserted by way of defense. This is not the case, however, under 28 U.S.C. § 1442(a) under which the removal in this case was sought and obtained. The removal is based on a federal interest in the matter, the facts underlying which may be stated in the removal petition itself, whether or not federal jurisdiction existed over the claim as stated in the complaint as originally served. Where a federal officer asserts a privilege for acts done under color of his office the defense is based upon a federal right, the purpose of which is to prevent federal employees from being unduly harassed by "vindictive or ill founded damage suits brought on account of action taken in the exercise of their official responsibilities." Barr v. Matteo, 360 U.S. 564-565, 79 S.Ct. 1335, 1336, 3 L.Ed. 2d 1434. Consequently, the federal government has a special interest in such matters which justifies the granting of removal jurisdiction to the federal courts in such cases. Congress has not in § 1442, as in § 1441, required that the case be one over which the court have original jurisdiction in order for the defendant to obtain removal. In the Revision of Title 28 U.S.Code, Act of June 25, 1948, c. 686, 62 Stat. 938, the right of removal was extended to apply to all officers and employees of the United States or any agency thereof. See Reviser's Note 28 U.S.C.A. § 1442. The action was properly removed.

We come to the merits of the summary judgment of dismissal. It is based on a ruling that the concededly false and libelous statement that plaintiff had admitted that he was a disbarred lawyer, inserted by defendant in a report within the agency, was absolutely privileged, that is, not actionable regardless of actual malice. Such an absolute privilege is usually justified on one of two grounds, the possibility of harassment of government officers and consequent difficulty in recruitment of able men for such positions if every exercise of discretion were subject to attack directed against the officer personally in the civil courts, and the necessity to its proper functioning of free communication within the government agency.¹

It may be doubted that the first ground would have much validity if applied to merely clerical or minor administrative positions, important as it may be to positions on the policy making level. The recent cases upholding absolute privilege, Gregoire v. Biddle, 177 F.2d 579 (2 Cir. 1949), Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335 (1959) and Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d...