Willingham v. Morgan, 228

CourtUnited States Supreme Court
Writing for the CourtMARSHALL
Citation23 L.Ed.2d 396,395 U.S. 402,89 S.Ct. 1813
PartiesJohn T. WILLINGHAM and C. A. Jarvis, Petitioners, v. Daniel MORGAN
Docket NumberNo. 228,228
Decision Date09 June 1969

395 U.S. 402
89 S.Ct. 1813
23 L.Ed.2d 396
John T. WILLINGHAM and C. A. Jarvis, Petitioners,


Daniel MORGAN.

No. 228.
Argued April 22, 1969.
Decided June 9. 1969.

Page 403

Francis X. Beytagh, Jr., Cleveland, Ohio, for petitioners.

Joseph M. Snee, Austin, Tex., for respondent.

Mr. Justice MARSHALL delivered the opinion of the Court.

This case raises some important questions about the power of federal officials to have actions brought against them removed to the federal courts Petitioners Willingham and Jarvis are, respectively, the warden and chief medical officer at the United States Penitentiary of Leavenworth, Kansas. Respondent Morgan was a prisoner at the penitentiary at the time he filed this suit in the Leavenworth County District Court. He alleged in his complaint that petitioners and other, anonymous, defendants had on numerous occasions inoculated him with 'a deleterious foreign substance' and had assaulted, beaten, and tortured him in various ways, to his great injury. He asked for a total of $3,285,000 in damages from petitioners alone, plus other amounts from the unnamed defendants. Petitioners filed a petition for removal of the action to the United States District Court for the District of Kansas, alleging that anything they may have done to respondent 'was done and made by them in the course of their duties as officers of the United States of America * * * and under color of such offices * * *.' Petitioners invoked 28 U.S.C. § 1442(a)(1), which allows removal to the federal courts of any civil action against '(a)ny officer of the United States * * * for any act

Page 404

under color of such office * * *.'1 The Federal District Judge denied respondent's motion to remand the case to the state courts and granted summary judgment to petitioners, holding that recovery of damages was barred by the official immunity doctrine of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). Thereafter, respondent perfected an appeal to the Court of Appeals for the Tenth Circuit. That court found it unnecessary to decide the immunity question, for it found insufficient basis in the record to support the District Court's refusal to remand the case to the state courts. 383 F.2d 139 (1967). The District Court was reversed and the case remanded for further proceedings. Upon the Solicitor General's petition, we granted certiorari to consider whether the Court of Appeals decided the removal question erroneously.2 393 U.S. 976, 89 S.Ct. 441, 21 L.Ed.2d 437 (1968). We reverse.


The court below held that the 'color of office' test of § 1442(a)(1) 'provides a rather limited basis for removal.' 383 F.2d, at 141. It noted that the record might well have supported a finding that petitioners were protected from a damage suit by the official immunity

Page 405

doctrine. But it held that the test for removal was 'much narrower' than the test for official immunity, 383 F.2d, at 142, and accordingly that petitioners might have to litigate their immunity defense in the state courts. The Government contends that this turns the removal statute on its head. It argues that the removal statute is an incident of federal supremacy, and that one of its purposes was to provide a federal forum for cases where federal officials must raise defenses arising from their official duties. On this view, the test for removal should be broader, not narrower, than the test for official immunity. We agree.

The federal officer removal statute has had a long history. See H. M. Hart & H. Wechsler, The Federal Courts and the Federal System 1147—1150 (1953). The firsts uch removal provision was included in an 1815 customs statute. Act of February 4, 1815, § 8, 3 Stat. 198. It was part of an attempt to enforce an embargo on trade with England over the opposition of the New Englant States, where the War of 1812 was quite unpopular. It allowed federal officials involved in the enforcement of the customs statute to remove to the federal courts any suit or prosecution commenced because of any act done 'under colour' of the statute. Obviously, the removal provision was an attempt to protect federal officers from interference by hostile state courts. This provision was not, however, permanent; it was by its terms to expire at the end of the war. But other periods of national stress spawned similar enactments. South Carolina's threats of nullification in 1833 led to the passage of the so-called Force Bill, which allowed removal of all suits or prosecutions for acts done under the customs laws. Act of March 2, 1833, § 3, 4 Stat. 633. A new group of removal statutes came with the Civil War, and they were eventually codified into a permanent statute which applied mainly to cases

Page 406

growing out of enforcement of the revenue laws. Rev.Stat. § 643 (1874); Judicial Code of 1911, § 33, 36 Stat. 1097. Finally, Congress extended the statute to cover all federal officers when it passed the current provision as part of the Judicial Code of 1948. See H.R.Rep.No.308, 80th Cong., 1st Sess., A134 (1947).

The purpose of all these enactments is not hard to discern. As this Court said nearly 90 years ago in Tennessee v. Davis, 100 U.S. 257, 263, 25 L.Ed. 648 (1880), the Federal Government

'can act only through its officers and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged offense against the law of the State, yet warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for their protection,—if their protection must be left to the action of the State court,—the operations of the general government may at any time be arrested at the will of one of its members.'

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. Federal jurisdiction rests on a 'federal interest...

To continue reading

Request your trial
737 cases
2 books & journal articles
    • United States
    • Michigan Law Review Vol. 121 No. 2, November 2022
    • November 1, 2022
    ...For an unusual type of catch and kill in litigation against federal employees, see Fukes, supra note 43. (161.) See Willingham v. Morgan, 395 U.S. 402, 405-06 (1969) (discussing the history of federal officer (162.) See, e.g., STANLEY I. KUTLER, JUDICIAL POWER AND RECONSTRUCTION POLITICS 14......
    • United States
    • May 1, 2021
    ...1442(a)(1) (2018). The evolution of the statute, the first iteration of which was enacted in 1815, is described in Willingham v. Morgan, 395 U.S. 402, 405-06 (86) 41 U.S. (16 Pet.) 1 (1842), overruled by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). (87) See James E. Pfander & Jonathan......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT