STATE OF UTAH, ETC. v. IWY COORDINATING COM., ETC.

• Decision Date: 19 January 1978
• Docket Number: No. C-77-0396.,C-77-0396.
• Citation: 454 F. Supp. 518
• Parties: The STATE OF UTAH By and Through Richard G. JENSEN, Utah State Auditor, Plaintiff, v. IWY COORDINATING COMMITTEE OF the STATE OF UTAH, Jan L. Tyler and Dorothy Littrell, Defendants.
• Court: U.S. District Court — District of Utah

454 F. Supp. 518

The STATE OF UTAH By and Through Richard G. JENSEN, Utah State Auditor, Plaintiff, v. IWY COORDINATING COMMITTEE OF the STATE OF UTAH, Jan L. Tyler and Dorothy Littrell, Defendants.

No. C-77-0396.

United States District Court, D. Utah, C. D.

January 19, 1978.

Robert B. Hansen, Atty. Gen., and Jack L. Crellin, Asst. Atty. Gen., Salt Lake City, Utah, for plaintiff.

Ronald L. Rencher, U. S. Atty., Salt Lake City, Utah, for defendant IWY Coordinating Committee of the State of Utah and Jan L. Tyler.

Richard Richards, Ogden, Utah, for defendant Dorothy Littrell.

ORDER DENYING PLAINTIFF'S MOTION TO REMAND, AND GRANTING FEDERAL DEFENDANTS' MOTION TO QUASH

ALDON J. ANDERSON, Chief Judge.

On December 2, 1977, the United States filed a petition for removal of the present action from the District Court of Salt Lake County, Utah to this court pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446. It is the position of petitioner United States that defendant IWY Coordinating Committee of Utah (IWY) is a federal agency and defendant Jan L. Tyler, as chairperson of IWY, is an officer of the United States within the meaning of § 1442(a)(1). On December 12, 1977, having removed the action to this court, defendants IWY and Tyler moved the court to dismiss the action on the ground that plaintiff's complaint failed to state any authority wherein the United States had given consent for the above-named defendants to be sued. In the alternative, the defendants moved to quash the service of process upon them because the requirements of Rules 4(d)(4) and 12(a), Federal Rules of Civil Procedure, regarding proper service upon federal defendants had not been met.

Plaintiff filed a motion to remand the action to the state court. In its memorandum received by this court and in oral argument before the court on January 16, 1978, plaintiff has conceded that defendant IWY is an agency and defendant Tyler is an officer of the United States, but has argued that the action giving rise to this lawsuit (i. e., the request for funds from the State of Utah and the alleged misrepresentation in connection therewith) was not an "act under color of such office" within the meaning of § 1442(a)(1). Thus, plaintiff urges, the action was improperly removed and must be remanded to the state court. Having fully considered the matters presented by way of written memorandum and oral argument, the court concludes that plaintiff's motion to remand must be denied and defendants' motion to quash must be granted.

As the court indicated in open court on January 16, 1978, removal provisions in general, and § 1442(a)(1) in particular, are to be ". . . liberally construed to give full effect to the purposes for which they were enacted." Colorado v. Symes, 286 U.S. 510, 517, 52 S.Ct. 635, 637, 76 L.Ed. 1253 (1932). One of the primary purposes of § 1442(a)(1), as its history clearly demonstrates, was to have any colorable defense assertable by federal defendants litigated in federal courts. Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969); Williams v. Williams, 427 F.Supp. 557, 563 (D.Md.1976). "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 . . .," and "federal jurisdiction rests on a `federal interest in the matter' . . .," Willingham v. Morgan, supra, 395 U.S. at 406, 89 S.Ct. at 1816.

The "color of office" test requires a showing of a ". . . `causal connection' between the charged conduct and asserted official authority." Id. at 409, 89 S.Ct. at 1817. This ". . . test for removal should be broader, not narrower, than the test for official immunity." Id. at 405, 89 S.Ct. at 1815. "It is enough that the federal defendants' acts . . . in performance of their official duty constitute the basis, though mistaken or false, of the state prosecution." Maryland v. Soper (No. 1), 270 U.S. 9, 33, 46 S.Ct. 185, 190, 70 L.Ed. 449 (1926) (emphasis added). In the present case, plaintiff claims that defendants were not authorized to solicit funds from public bodies for the benefit of IWY, and that the solicitation of the funds from the State of Utah involved negligent or willful misrepresentations on the part of defendants. This, plaintiff argues, demonstrates that the above-named defendants were not acting under the color of their office. The court, however, concludes that § 1442(a)(1) cannot be construed so narrowly and that the "color of office" "causal connection" test has been met in the instant action. Even if it be established that defendants engaged in unauthorized and improper actions in their solicitation of funds, it is quite clear that at the time of the solicitation they would have been acting in their official capacities and, for all practical purposes, had the appearance of acting within the scope of their proper duties, or else the funds surely would not have been given to them in the first place.

On January 17,...