Sarner v. Mason, 11638.

• Decision Date: 21 December 1955
• Docket Number: No. 11638.,11638.
• Citation: 228 F.2d 176
• Parties: Sidney SARNER, Leonard Sarner, Maurice Sarner and Linwood Park, Inc., Sections 1 to 13 Inclusive, Each a Corporation of New Jersey, Appellants, v. Norman P. MASON, Commissioner of the Federal Housing Administration, and Albert M. Cole, Housing and Home Financing Administration, and Federal Housing Administration.
• Court: U.S. Court of Appeals — Third Circuit

228 F.2d 176 (1955)

Sidney SARNER, Leonard Sarner, Maurice Sarner and Linwood Park, Inc., Sections 1 to 13 Inclusive, Each a Corporation of New Jersey, Appellants, v. Norman P. MASON, Commissioner of the Federal Housing Administration, and Albert M. Cole, Housing and Home Financing Administration, and Federal Housing Administration.

No. 11638.

United States Court of Appeals Third Circuit.

Argued November 17, 1955.

Decided December 21, 1955.

As Amended December 23, 1955.

Rehearing Denied January 10, 1956.

Walter D. Van Riper, Newark, N. J. (Van Riper & Belmont, Newark, N. J., on the brief), for appellant.

Carl L. Eardley, Washington, D. C., (Warren E. Burger, Asst. Atty. Gen., Raymond Del Tufo, Jr., U. S. Atty., Charles H. Hoens, Jr., Asst. U. S. Atty., Newark, N. J., Carl L. Eardley, Washington, D. C., Charles J. Steele, Attys., Dept. of Justice, on the brief), for appellee.

Before BIGGS, Chief Judge, and KALODNER and HASTIE, Circuit Judges.

BIGGS, Chief Judge.

The individual plaintiffs own all the common stock of the thirteen corporate plaintiffs. The corporate plaintiffs, corporations of New Jersey, constructed and operate housing projects financed through Federal Housing Administration insured loans. Pursuant to the statute and the regulations¹ the Commissioner of the FHA is the holder of all of the preferred stock of each of the corporations. Under the certificates of incorporation, which are substantially identical, the Commissioner, the sole preferred stockholder, has the right to replace the boards of directors of the corporations if any one of certain defaults specified in the charter take place. The Commissioner was of the view that three defaults had taken place and gave notice to the corporate defendants of his intention to hold preferred stockholders' meetings to elect new boards of directors as provided by the charters. The plaintiffs filed a suit in the Superior Court of Bergen County, New Jersey, seeking to enjoin the Commissioner from holding the meetings. The Commissioner and the other defendants removed the case to the court below. The plaintiffs sought to have it remanded to the state court. The court below denied this motion. D.C., 128 F.Supp. 165. The defendants then moved for summary judgment. Upon consideration of the whole record the court below granted summary judgment. D.C., 130 F.Supp. 829. The appeal at bar followed.

I.

The issue raised by the plaintiffs that the cause was not properly removed must be discussed briefly before we proceed to the merits.

Section 1441(a), Title 28 U.S.C., states that an action may be removed from a state to a United States district court when the latter has original jurisdiction. Section 1442, Title 28 U.S.C., provides that: "(a) A civil action * * * commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue."

From the affidavits filed by the defendants in this case, the statements of which are not denied, it appears that the Federal Housing Administration loaned large sums of money to the corporate plaintiffs. There is no doubt that the Commissioner in seeking to elect new boards of directors was acting under color of his office, in an official capacity and pursuant to the laws of the United States as contemplated by the statute. It follows that the cause was properly removable pursuant to Section 1442(a) (1). DeBusk v. Harvin, 5 Cir., 1954, 212 F.2d 143; Jones v. Elliott, D.C.E.D.Va. 1950, 94 F.Supp. 567, and Matarazzo v. Hustis, D.C.N.D.N.Y.1919, 256 F. 882, 889.

The argument made by the plaintiffs to the contrary, as we apprehend it, seems to have two elements. The plaintiffs say first that the suit presents no question involving the construction of the laws or of the Constitution of the United States and that the only issue involved is the construction of New Jersey corporate charters under the law of New Jersey. Second, they state, Section 1702, Title 12 U.S.C.A., the National Housing Act, indicates that if only questions of state law be involved removal is prohibited.

Section 1702 provides in pertinent part that, "The Commissioner shall, in carrying out the provisions of * * * the Act as specified in this section, be authorized, in his official capacity, to sue and be sued in any court of competent jurisdiction, State or Federal." The plaintiffs seem to assert that in enacting this provision Congress intended to do away with, or in some way to limit, the removal provisions of Section 1442(a) (1).

We cannot follow the argument and, if it be seriously made, it is sufficient to point out that, in enacting Section 1702, Congress intended to permit the Commissioner to sue, and, waiving sovereign immunity, to permit him to be sued in actions arising under the National Housing Act in any court of competent jurisdiction. See Korman v. F.H.A., 1940, 72 App.D.C. 245, 113 F.2d 743. Section 1702 was not intended to affect and did not affect the right of removal inhering in the Commissioner under the removal statute.

II.

The defendants allege that there were three separate defaults by the plaintiff corporations, as follows: (1) an unauthorized redemption of common stock; (2) the making of certain unapproved long-term loans; and (3) a refusal to furnish information and data requested by the Federal Housing Administration. This court and the court below may take judicial notice that...