Willingham v. Morgan

PETITIONER:Willingham
RESPONDENT:Morgan
LOCATION:Des Moines Independent Community School District

DOCKET NO.: 228
DECIDED BY: Warren Court (1969)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 395 US 402 (1969)
ARGUED: Apr 22, 1969
DECIDED: Jun 09, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – April 22, 1969 in Willingham v. Morgan

Earl Warren:

T. Willingham, C.A. Jarvis, petitioners, versus Daniel Morgan.

Mr. Beytagh.

Francis X. Beytagh, Jr.:

Mr. Chief Justice and may it please the Court.

In certain respects, this case involves a rather narrow and somewhat technical issue of federal procedure but underlying it are some important questions that relate to notions of federal supremacy involving issues of importance to prison officials and to federal governmental officials generally.

The issue in a nutshell is this, a federal statute.

Section 1442 (a) (1) of Title 28 of the United States Code provides that suits against federal officers may be removed when brought in a State Court to a Federal Court where the acts that are alleged to have occurred about the basis of the suit occur when the officer is acting under “color” of his office.

We’ve set the statute out at page 2 of our brief.

It provides important part as follows.

A civil action or a criminal prosecution 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, one, any officer of the United States or any agency thereof or person acting under him for any act under color of such office.

The issue arises here on the following facts.

Respondent Daniel Morgan was a prisoner at the Federal Penitentiary at Leavenworth, Kansas.

He had been transferred there in March 1966 and in July 1966, some-four months later, filed the damage action which is the subject of this suit in a Kansas State Court.

Petitioners Willingham and Jarvis are the Warden — and were then, Warden and Chief officer of the Federal Penitentiary at Leavenworth.

They were the only named defendants in respondent Morgan’s suit.

There were 75 unnamed co-defendants.

He sought a total recovery of an excessive $90 million in damages.

He alleged in some-10 counts a variety of tortuous acts that he said had been perpetrated upon him by petitioners Willingham and Jarvis and the other 75 people.

In substance, his complaints can be boiled down to really two issues.

He asserted that he had been inoculated with some dangerous foreign substance which had caused him to fall and injure himself and that, in the course of this inoculation, unauthorized people had been giving him medical assistance.

And, in another count, he asserted in conclusory fashion that he had been beaten and assaulted and tortured in various respects.

Petitioners Willingham and Jarvis filed a general denial in the State Court denying all the allegations in the 10-count complaint that had been filed by respondent.

They also filed, pursuant to Section 1442 (a) (1), a verified petition for removal of this action from the Kansas State Court to the Federal District Court for the District of Kansas.

In this removal petition, they asserted that, at all relevant times, they had been acting in their official capacities as Warden and Chief Medical Officer of Leavenworth Penitentiary and they set out the various counts of the complaint and then, at page 9 of the record, they said that Morgan is, and was at all times mentioned, a dully committed prisoner inmate of the Federal Penitentiary at Leavenworth and rather that any act or thing that these petitioners, or either of them, may have done or authorized to be done concerning Morgan, complained of by him, was done and made by them in the course of their duties as officers of the United States of America and as persons acting under officers of the United States of America and under color of such office and by virtue thereof.

And, they again refer to their officers as the Warden and Chief Medical Officer.

Morgan then filed a motion in the Federal District Court to remand the case back to the State Court.

He asserted for a variety of respects that petitioners were not acting under color of office when they committed the acts he alleged they had committed.

He also filed a rather extensive set of interrogatories on petitioner Willingham, directed in substantial part obtaining the names of the unnamed unidentified co-defendants.

With the District Court’s approval, an enlargement of time to answer these interrogatories was obtained.

The next step was petitioners filing for a summary judgment in the Federal District Court on the ground that Morgan’s suit should be dismissed under the so-called Official Immunity Doctrine which has been established by this Court as relating to executive officials as well as judicial and legislative officials in cases dating back to Spalding versus Vilas and going through Barr versus Matteo.

Petitioners, at that point, filed failry extensive affidavits which are set out at pages 44 and — through 48 of the defendant appendix.

Francis X. Beytagh, Jr.:

Those affidavits detail their duties as Warden and Chief Medical Officer at Leavenworth and stated that the only contact that they had had with respondent Morgan was within the prison walls at Leavenworth and was in the course of their official duties as Warden and Chief Medical Officer.

Respondent Morgan opposed dismissal on a variety of grounds.

The District Court in August of 1966 denied the motion of respondent Morgan to remand the suit to the State Court, finding that removal was proper under Section 1442 (a) (1) and writing a short opinion in that regard.

Subsequently, in December of 1966, the District Court granted petitioner’s motion for summary judgment and dismissed the suit.

In substance, the basis for the dismissal was the District Court’s determination that the suit was covered by the Official Immunity Doctrine and that not only had it been properly removed, but that it was subject to dismissal.

Respondent Morgan then appealed to the Tenth Circuit from this judgment, and both parties frankly thought that the issue before the Tenth Circuit related to whether the District Court had properly determined that the requisite — prerequisites for the Official Immunity Doctrine had been met and the case was briefed and submitted on the brief to the Court on that basis.

However, in deciding the case, the Tenth Circuit found it unnecessary to reach the question of whether the Official Immunity defense was properly invoked here.

Instead, it, although it started out by saying and spent most of its opinion by discussing the nature of interrelationship between the Official Immunity standard and the so-called color of office test for removal, it concluded that the District Court had erred in finding that the suit had been properly removed.

It said that “the color of office test for removal was much narrower,” and that’s a quote from the Court of Appeals opinion, than the standard of Official Immunity and, therefore, it determined that the District Court did not have an adequate basis on which — on the record that existed, on which to determine that removal was proper and it reversed the District Court’s decision not reaching the Official immunity question and remanded for a factual determination, in its words, of the question whether removal was proper.

What was the issue that opened on remand?

Francis X. Beytagh, Jr.:

As I understand it, the Court of Appeals said that the District Court needed a more adequate factual basis for making a determination as to removal and that is the issue that the Court — the District Court has directed to address itself to on remand.

The Court of Appeals did mention, in passing, that the — quite curiously, that it thought that perhaps the standard for dismissal on the basis of Official Immunity might have been made out here but, nonetheless, it didn’t feel that the standard of color of office for removal had been satisfied.

We brought the case here on petition for certiorari, which the Court granted, for several reasons.

The case has great potential for substantial mischief if left standing.

There is, as respondent concedes, an obvious relationship between the Official Immunity Doctrine and the color of office test for removal when suits are brought against federal officers in State Courts, as often they are.

And, peculiarly, prison official such as are involved in this case can be subjected to harassment by bringing and having to defend against these kind of suits if the standard that the Court of Appeals has now erected is left standing.

So, we agree with the Tenth Circuit in only one respect, and that is that the question that must be considered is the interrelationship of the Official Immunity Doctrine and the color of office test under the removal statute.

We think, however, that the Court of Appeals is manifestly wrong in concluding that the color of office test is narrower than the Official Immunity defense.

We think that simply stands the law in its head because the result of that is that any suit proper for removal would automatically be dismissible and Congress, therefore, would’ve done a rather empty act in proving a federal forum to do nothing but dismiss suits.

In effect, petition for removal would be an action to enjoin the suit.

Potter Stewart:

Every suit that would be removable would be — should be dismissed, according to the Tenth Circuit.

Francis X. Beytagh, Jr.:

That’s the way we understand the Tenth Circuit.

Potter Stewart:

Plus some that would not be removable would also be dismissible.

Is that right?

Francis X. Beytagh, Jr.:

As I understand the Tenth Circuit’s opinion, yes, sir, assuming that the State Courts would apply the defense.

Abe Fortas:

Bur every suit that’s dismissible is not removable.

Isn’t that what the Tenth Circuit said?

Francis X. Beytagh, Jr.:

That’s correct.

Yes, sir.

Byron R. White:

And what do you think is wrong with that?

Francis X. Beytagh, Jr.:

Well, what I think is — I think a number of things are wr —

Byron R. White:

Apparently a possible mischief.

Francis X. Beytagh, Jr.:

I think the mischief is, apparently, the Tenth Circuit would require that an extensive factual inquiry be made to determine the threshold issue of removal, and if that’s so, then many of the purposes which the Official Immunity Doctrine is supposed to serve would be disserved by this notion because you would put these officers to the kind of burdens that Barr versus Matteo and related doctrines is supposed to protect them against.

Byron R. White:

I suppose that assumes that the Immunity Doctrine also implies a right to have the immunity adjudicated in the Federal Court.

Francis X. Beytagh, Jr.:

Well, I think Congress has made the judgment that these suits in the main should be determined in Federal Courts.

Byron R. White:

Because of the removal provision.

Francis X. Beytagh, Jr.:

Because of the removal provision, yes.

Byron R. White:

But if State Courts would apply the federal standard of immunity and the officers resorted to that in the State Court, they would not be disadvantaged, would they?

Francis X. Beytagh, Jr.:

I’m not sure whether they would or not.

I think that Congress has made the judgment, as I said, that these suits should be — the federal officers have a right to have these suits determined in a Federal Court.

Now, we’re not taking the position that every suit that is removed should be dismissed.

Indeed, a number of suits that in other circuits, where I think they properly construed the removal statute, they found removal proper but have determined that the suit is not dismissible under Barr versus Matteo and the case goes on to trial.

Byron R. White:

Well, the Tenth Circuit relied on, certainly, other authority for their rule such as the cases of where there is a negligent performance of an operation in a government hospital.

Do you —

Francis X. Beytagh, Jr.:

There was one District Court case in that respect.

The other cases that it relied on were all motor vehicle negligence cases.

Byron R. White:

How about those cases?

How about the negligence cases?

Francis X. Beytagh, Jr.:

I think the negligence cases present a difficult problem.

It’s no longer a viable one because Congress has taken care of that by statute by providing that where motor vehicle negligence suits involve actions done within the scope of an employee’s performance stay becomes suits against the United States under Section 2679, I believe, as amended.

But, our position, basically, is those suits are wrong.

Byron R. White:

Are removable.

Francis X. Beytagh, Jr.:

That’s correct.

Byron R. White:

Yes.

Francis X. Beytagh, Jr.:

But, the — I should note the Tenth Circuit completely ignored a whole host of Court of Appeals authority.

It cited District Court decision, but at least three Courts of Appeals that have squarely faced this issue, the Second Circuit, the Fourth Circuit, and the Fifth Circuit, and it concluded exactly the opposite.

Any comparison of the reach of these two concepts is — they have reached the opposite conclusion.

I should note that the — what you asked about the mischief that may come from this is another problem and it involves the fact that this doctrine won’t relate simply to prison officials but would relate to federal officials generally.

Some federal officials do some things in some places in this country that are not popular.

Indeed, the whole notion of removal stemmed from that.

Francis X. Beytagh, Jr.:

The first statute was in 1815 and it had to do with the opposition by some New England States to the war of 1812.

It was limited to Customs officials but it provided a way for Customs officers of the United States to remove suits brought against them when they were enforcing the Customs laws to a Federal Court instead of being sued in a State Court.

It goes on through the nullification controversy of 1883 — of 1833 where it was extended to Revenue officers, such has been successively expanded to include officers of both Houses of Congress and officers of the Courts, and then was expanded in 1948 to include all federal officers.

Now, two cases —

Abe Fortas:

Suppose —

Francis X. Beytagh, Jr.:

Excuse me, sir.

Abe Fortas:

I beg your pardon.

Suppose a prison guard beats a prisoner and that is — suit is brought and it is so alleged.

Do you think that that’s under color of office too in threads and the removal?

Francis X. Beytagh, Jr.:

I think that there may be a difference between a prison guard and a senior prison official such as the individuals involved here.

Abe Fortas:

Why?

Francis X. Beytagh, Jr.:

Because I think that the problem in making the factual determination that the — apparently the Tenth Circuit would require here is substantially more difficult, as we’ve tried to delineate in a short reply brief we filed, for senior officials such as these people.

They — there are over 2,000 prisoners at Leavenworth and, for them to recall what they were doing on a particular day and whether they had anything to do with those man at all —

Abe Fortas:

Well, that goes to question of burden.

Maybe the burden — that’s a question of burden and a question of proof, but why should there be a different rule as to removal in the case of a prison guard and in the case of — a case of a person in the Warden or the Chief Physician?

I don’t understand it.

Francis X. Beytagh, Jr.:

Well, a prison guard, it seems to me, there may be circumstances under which suits brought against him are not removable.

He obviously has some authority to exercise discipline over prisoners but, obviously, he can go beyond that and abuse it.

Now, this Court has construed in cases like Classic and Monroe versus Pape and Screws versus United States, analogous provision that relates to actions under color of law by state officers.

And, the approach taken there has been that even misuse of power even if clothes — clothed with authority provides the statutory requisite of color or law.

I think there may be circumstances in which prison guards go so beyond the scope of their proper —

Abe Fortas:

Well, I gave you a very simple case and I thought your answer was going to be that that would be removable.

A prison guard is charged with complaints filed against prison guard for beating up a prisoner to his injury.

Now — and then — is that removable or is it not under the statute —

Francis X. Beytagh, Jr.:

I would have to —

Abe Fortas:

In your submission?

Francis X. Beytagh, Jr.:

I would have to know more about it.

I would have to know whether the guard was able to file a verified swear to a removal petition.

Abe Fortas:

But either you’re — you’re getting back to the Tenth Circuit position and supporting it.

The complaint is filed and the complaint merely alleges that the prison guard beat up this prisoner and injured him and he suffered damages which he’s now claiming, and petition for removal is filed and the prison guard says “I didn’t do it.”

Francis X. Beytagh, Jr.:

Well, if he’s —

Abe Fortas:

If you say that it’s got to be a —

Francis X. Beytagh, Jr.:

No, that’s not —

Abe Fortas:

A trial of fact before then.

That’s exactly what the Tenth Circuit has said here in which you’re complaining of to the Court.

Francis X. Beytagh, Jr.:

No, Your Honor.

You added the point that he is able to verify that he didn’t do it.

If he can do that, I agree that it is removable.

Abe Fortas:

I mean I am saying that he denies — he files a denial that he did it.

Francis X. Beytagh, Jr.:

I think if he can —

Abe Fortas:

You think that’s enough?

Francis X. Beytagh, Jr.:

If he can swear to an affidavit that he did not do these things alleged, then the suit is removable.

If, however, in some cases that this Court has considered, such as Soper and Symes, involves situations where the — in your hypothetical, the guard obviously had something to do with the individual.

There was some altercation.

There was some action.

He was there and something happened, and so that presents him a more difficult case.

He can’t simply —

Abe Fortas:

Well, are you making any distinction between prison guard because he is a guard, on the one hand, and the Warden because he is a warden, on the other hand?

Francis X. Beytagh, Jr.:

I think, in terms of the — of how elaborated a statement is required in order to justify removal, there may be some difference regarding —

Abe Fortas:

Under these cases, you get exactly the same thing.The prisoner said he did it and the guard or the Warden says he — “I didn’t do it.”

Now, if you want to go beyond that, it seems to me that you’re agreeing with the Tenth Circuit.

Francis X. Beytagh, Jr.:

No, I don’t agree with the Tenth Circuit.

All that I suggest is that there might be some difference if the individual is not able to respond by filing a verified removal petition that he simply —

Abe Fortas:

What I really started out to ask you is this, Mr. Beytagh.

Suppose we should disagree with the Tenth Circuit.

Do you think that we should then confront the issue of whether there is immunity in this case?

Francis X. Beytagh, Jr.:

We’ve not urged the Court to do that.

The Tenth Circuit didn’t reach it.

Of course, the District Court did.

If the Court feels that on the basis of the record that it’s available to the Court, that it can uphold the District Court’s determination in that regard, of course the government would feel that that was fine.

Francis X. Beytagh, Jr.:

On the other hand, we’re not urging that —

Abe Fortas:

Do you think that maybe what we ought to do is to decide only the question of removal and then remand to the Court of Appeals?

Francis X. Beytagh, Jr.:

Well, quite properly, Your Honor, that’s the only question of the Court of Appeals reached and it’s a little bit difficult for us to urge that the Court go beyond that but, as I said, we would not be upset by that approach either.

I was going to mention, in response to Justice White’s question, that there is some real potential for mischief here in the Tenth Circuit’s narrow reading of the removal statute, and two cases I think show why this is so.

One case is called Perez versus Bridal Hoover.

It was brought by Leander Perez down in Louisiana against federal voting examiners in a State Court, seeking to prevent them from carrying out the functions that Congress had charged them with carrying out.

Now, they sought to remove that case.

The question there was whether they were acting under color of office.

Now, if federal officials seeking to enforce laws like this are required to come forward with a substantial showing that they were acting within the scope of their official duties and the delay and the harassment in predictiveness that comes from that is permissible, then I think that there is a real mischief.

Another case that the Court is familiar with is Norton versus McShane which came out of the Meredith incident at the University of Mississippi where suit was brought by individuals down in Mississippi against Marshall, McShane, and others.

There, removal was sought in the State Court and was granted, but if you read the statute narrowly and you can’t obtain removal without a thorough-going extensive factual inquiry, then there is a real potential for mischief and hazard.

We think the plain language of the statute itself supports our reading.

It says color of office.

It doesn’t say within his official duties.

It says under color of office.

As I mentioned, the Courts construed other similar provisions in a broad fashion.

Also, it seems to us that, while respondent here has more or less conceded that the Tenth Circuit’s result is indefensible, he’s possession is not satisfactory either.

In short, he says that, while the Tenth Circuit may have erred in determining the comparative reach of the two statutes, it did not err in determining that the record here was inadequate for the District Court to determine the question of removal.

We think, on the facts presented and for the reasons developed in some length in our brief and in our reply brief, that this simply is not so and that if you say at least as to officials like these that they must do more than they’ve done here.

Deny the charges, assert that all the actions occurred within the prison walls, and assert that anything that was done occurred within color of their office that, inevitably, you’re going to have the extensive kind of litigation on this threshold issue that’s gone into fee most of the purposes of the Official Immunity Doctrine and, I think, also subvert Congress’ intent in enacting the statute.

I’d like to save the time I have left.

Hugo L. Black:

When was the statute passed?

Francis X. Beytagh, Jr.:

This particular statute dates back to — well, 1815 was the first time a removal statute was passed.

That related to Customs officers and it has been expanded since that time.

In 1948, it was expanded to include all federal officers.

Hugo L. Black:

What brought about the passage of the law?

Francis X. Beytagh, Jr.:

The passage of the —

Hugo L. Black:

The answer of the circ —

Francis X. Beytagh, Jr.:

The passage of the first law, as I understand, had to do with the opposition of some New England States with the War of 1812 and they didn’t want federal officers collecting Customs duties up there.

Earl Warren:

Mr. Snee.

Joseph M. Snee:

Mr. Chief Justice and may it please the Court.

This is a rather unique case, in that, the respondent here would submit to the Court that the result reached by the Court of Appeals was quite correct but for the wrong reasons.

As we’ve made clear in our brief, there is neither reason nor authority to support the views expressed by the Court of Appeals of the Tenth Circuit on the alleged interrelationship between the Immunity standards and the color of office test.

However, we say that the Court was correct in reaching its result.

We do not concede, as counsel has just stated, that the result was incorrect, and we say that for the reason that the record in this case was clearly inadequate, both under Section 1446 (a) of Title 28 of the Code and prior decision of this Court, clearly inadequate to support federal jurisdiction on removal.

If one fact stands out in this case, it is that the record is singularly to void effects.

The only uncontroverted fact in the record, as was pointed out by the Court of Appeals, is that, at all times, the only contact which the petitioners had with the respondent were within the walls of Leavenworth Prison.

In some of the case — on the case which is cited by the Court involving automobile accidents, a — the majority saw there was no color of office on the part of the driver of the automobile and, therefore, no removal — excuse me, removability, a matter which is now corrected by the Federal Tort Claims Act giving removability under a different section.

In none of those cases, however, was immunity involved.

Clearly, there’s no immunity under Barr versus Matteo in the part of an automobile driver who was being charged with negligence is not exercising any sort of discretionary act.

One case, Brown versus McBurnett, involving 1442 (a) (3), Court officials held there was a right of removability for two Deputy Martials who’s transporting a federal prisoner to a penitentiary because they were in their performance of their duties under that section of statute and, clearly again, there was no immunity.

Now, the question of, as the respondent sees it, the right of removability is oen which is conferred by statute and the requirements of the statute must be met.

Congress did not see fit, if indeed it could do so, did not see fit to allow removability of every case or prosecution against a federal officer simply because he was a federal officer.

In the various sections of this statute, various tests are put down for the different categories of persons who are covered.

And, as a District Court case has said, Congress knew what it meant, knew how to say what it meant in these statutes, and they put down under color of office.

This Court, Section 1446 (a) requires that the petition contain a claim and short statement of facts.

We’re not left, however, with that bear statutory requirement because this Court in two cases, Maryland versus Soper and Colorado versus Symes, where there was a far more detailed statement of facts than is present in this record, in both cases, held that the case should be remanded to the District Court — to the State Court.

Those are both cases —

Potter Stewart:

What if those cases involved Revenue agents, that there —

Joseph M. Snee:

Prohibition agents who have come out of the Revenue part of this statute, yes, Your Honor.

Potter Stewart:

You’re right, who — and this in the episode and not knowing that was criminal case in the emphasis of —

Joseph M. Snee:

They are both criminal cases, Your Honor.

Potter Stewart:

Happened somewhere out on the countryside in the territory of a state.

Joseph M. Snee:

Right.

Potter Stewart:

There was a murder, I think, a murder charge.

Joseph M. Snee:

In both cases.

Potter Stewart:

And here, as I understand it, the claim is that the very allegation that the only association between the defendant and the plaintiff was within the prison walls of Leavenworth Penitentiary.

It goes far toward carrying the burden of showing color of office.

Joseph M. Snee:

Well, Your Honor, that allegation was made first in the petition — in the affidavit supporting the motion for salary judgment and was evidently cast in the terms of Barr versus Matteo, an immunity rather than removability.

And, if it does not seem ficicious, I would say, not misinterpreting the mind of this Court in Barr versus Matteo, say that the outer perimeter of duties measured by the walls of Leavenworth Penitentiary.

Joseph M. Snee:

But, the only — it’s the only uncontroverted fact.

Now, in Maryland versus Soper, it was clear that the officers were present in the performance of their duty, but the — this Court held that that was not sufficient because they had to show that they were doing nothing other than official duties at the time this homicide occurred, and they had not, by a candid specific positive statement if facts, given the Court a basis upon which to reach this determination.

Both the petitioners and the respondents engaged in the battle of conclusionary statements which will be inadmissible as evidence.

Color of office is a conclusion of law which must be made by the Court on the basis of facts and submit it by the person who seeks removal.

And, the burden of proof is upon him, quite differently from the situations existed in Norton versus McShane where a conclusionary affidavit by the Attorney General that they were active within the performance of their duty was regard as efficient because, there, as in every case, the burden of proof is on the plaintiff, and he made no attempt to controvert this statement.

The fundamental error respondent submits was even comparing these two concepts of immunity and removability.

They are different in origin.

They are different in purpose.

They are different in test.

They are different in effect.

And, to try to compare the two of them is like asking is a horse better than a cow.

It’s a — they belong to two different quarters, two different categories.

Each would stand upon its own two feet.

For the reason which have been suggested by the petitioners in their brief and after very careful analysis of the opinion of the Court of Appeals as distinguished from its judgment, I think it’s incorrect to say that the removal power or removal test is far narrower than the immunity standard but, if for the same reasons, it’s also incorrect to suggest as chasing too that the removal power is far more wider than.

They are in different quarters and different categories, and we’ve been told that the decision of the Court below puts the law on its head.

I would suggest to try to establish the jurisdiction of a Court under the removal statute by determining that immunity was present.

It’s put in the cart before the horse.

And, we must have jurisdiction established before we enter into the immunity question.

Now, the record in this case did not sustain that burden of proof which this Court has recognized.

Hugo L. Black:

What do you say would have to be alleged in order to show what under color was?

Joseph M. Snee:

Perhaps I can best answer that question, Mr. Justice Black, by saying what was not alleged in this case.

In the affidavits which were submitted —

Hugo L. Black:

But then what — you could tell us what could be alleged.

Joseph M. Snee:

Well, I shall, Your Honor.

They have to some — allege some fact which ties the alleged act into their official duties.

In their affidavit, there was a long list of their official duties, but I think it’s highly significant that nowhere in that affidavit do they even mention any of the incidents which were raised in the respondent’s complaint.

They do not make the slightest effort to tie those in.

Now, they only have to do it with regard to one act in order to confer jurisdiction upon the Federal Court.

Hugo L. Black:

Do they show where it happened?

Joseph M. Snee:

No, there is no mention of these incidents.

Hugo L. Black:

You didn’t get any complaint about why — where it happened?

Joseph M. Snee:

In the petitions, Your Honor?

Hugo L. Black:

Yes.

Joseph M. Snee:

No.

Hugo L. Black:

The plaintiff’s case — anything in the plaintiff’s complaint?

Joseph M. Snee:

Yes, the plaintiff has a very detailed complaint.

Hugo L. Black:

Where does he say it happened?

Joseph M. Snee:

He does not say so.

He just said he was subjected to these particular —

William O. Douglas:

Well, it was in the prison.

Joseph M. Snee:

It was in the prison, yes, Your Honor.

Byron R. White:

How do you know that?

Joseph M. Snee:

He says so, and this is not controverted by either party.

He says that the Warden and the Chief Medical Officer were not acting within the — under color of their office were in for their own.

Byron R. White:

You say that the fact that it happened in the prison isn’t enough.

Joseph M. Snee:

It is not enough, Your Honor, because, other than official acts maybe committed within prisons and with regarded to the question that Mr. Justice Fortas raised, I think that it might be fairly easy to establish removability in the case of the prison guard who beat, but certainly not immunity.

Hugo L. Black:

Did they say what he did?

What did he do?

Joseph M. Snee:

The complaint alleges, Your Honor, that he was inoculated with various harmful substances.

Hugo L. Black:

I mean, do you cite in the complaint charge what the defendant does.

Joseph M. Snee:

Yes, Your Honor.

Hugo L. Black:

What do you say he does?

Joseph M. Snee:

The defendant?

Hugo L. Black:

Yes.

What’s his occupation?

Joseph M. Snee:

As Warden.

Hugo L. Black:

Warden?

Joseph M. Snee:

Yes.

Hugo L. Black:

Of the prisoner?

Joseph M. Snee:

All the interrogatories which were submitted by respondent, in several places, raise some question as to whether he was actually acting as Warden at the time that some of these acts were — alleged acts were committed.

Hugo L. Black:

Why would that be necessary and the statute intended if the man is in a prison and the Warden is therein guarding prisoners, isn’t it enough to say that he is the Warden in order to get removal?

Why would you have to go in front of us?

Joseph M. Snee:

Because that merely establishes, Your Honor, that he’s a federal officer.

It does not —

Hugo L. Black:

Well, that means he’s a federal officer inside the prison and that this man was a prisoner.

Joseph M. Snee:

It does not establish that every act which he commits within that prison is under color of office.

He made that conclusion.

Hugo L. Black:

Well, what are his charges?

Joseph M. Snee:

The charges of the plaintiff?

Hugo L. Black:

What he charges the Warden of having done.

Joseph M. Snee:

He charges the Warden with having knocked him on the ground.

Hugo L. Black:

In the prison.

Joseph M. Snee:

In the prison.

Now, there are circumstances where such an act might be under color of office and there are circumstances where it might not be.

Hugo L. Black:

Well, wouldn’t that be a care within an inference unanswered, because what he did was to knock him down while he is tending to his duties as a guard?

Joseph M. Snee:

Well, that may be, Your Honor, except we do not think that it meets the test put down by this Court in those two cases.

Abe Fortas:

I wonder if the matter of burden of going forward may be relevant here.

Now, let us assume that it was alleged somewhere that these injuries, the alleged tort, took place in the prison.

I have a little difficulty finding that, except in the interrogatories which were not answered.

But, let’s assume that the — it was alleged that the injury took place in the prison.

Let us assume that it is alleged or stipulated that the defendants were — are and were officers of the prison, and then I wonder if it — a petition for removal is filed.

I wonder if that does not then shift the burden of going forward to the plaintiff-prisoner, and if that is so, what did the prisoner do to go forward with the verified allegations here to tending to demonstrate that the action of the Warden and the Chief Physician was outside of the scope of their official of their office?

Joseph M. Snee:

Well, Mr. Justice Fortas, it’s perfectly true that the burden of going forward in such a case, in a case of removable — removal power is upon the other party, not upon the person seeking removal, but the burden of proof does not shift and —

Abe Fortas:

What did he do with respect to the burden of going forward?

Is there anything in this record?

Joseph M. Snee:

There’s nothing in the record which would suggest the burden of going forward exists because it does not exist until there’s some factual basis which require —

Abe Fortas:

Well, I’m — I might — let us assume for the moment that we should conclude that where it is alleged that injuries took place within the prison and that the — where it is shown that the defendants are officials of the prison.

Just assume with me for the moment that we would conclude that that sets up a prima facie case for removal, and let us assume further that, then, the burden of going forward beyond that point, you say, is on the plaintiff-prisoner to make some further allegations that would tend to show, for example, that the Warden and the Physician acted outside the scope of their office in doing the acts complained of here.

I’m — what I’m asking is, is there anything in the record here setting forth allegations — verified allegations by the prisoner tending to show that the Physician and the Warden proceeded outside the scope of their official duties?

Joseph M. Snee:

Well, Your Honor, the conclusionary statements of the petitioners were met by an equally conclusionary statement of the respondent.

Hugo L. Black:

Did this Court act on that?

Joseph M. Snee:

The Court of — the District Court evidently did, Your Honor.

Hugo L. Black:

And did either one object to it?

Joseph M. Snee:

No, Your Honor, this question was not really litigated in the District Court to any extent.

There was a motion to remand there by a motion which was denied.

Hugo L. Black:

And the parties chose to submit it to the Court on the allegations of the pleadings up to that time?

Joseph M. Snee:

Yes, Your Honor.

Hugo L. Black:

Then why shouldn’t — why do we need to go any further?

Joseph M. Snee:

Because this is a question of jurisdiction, Your Honor, under the federal statute.

Hugo L. Black:

Does that change it?

Can litigants act with reference to jurisdiction of the Court by the parties who wanted to try it with that sworn evidence?

Joseph M. Snee:

They cannot waive a jurisdiction requirement, Your Honor.

Hugo L. Black:

Well, it can’t waive the jurisdiction requirement, but what evidence — what are they going to pass on if not on the allegations in the pleadings?

That’s usually the way you determine jurisdiction, allegations in the pleadings.

Joseph M. Snee:

I think the allegations weren’t effective.

Hugo L. Black:

For failing to allege what?

Joseph M. Snee:

Facts to support the conclusion, from which the Court could draw the conclusion that the Warden in performing these acts, if he did perform them, was acting under color of his office.

Hugo L. Black:

That’s really the sole issue?

Joseph M. Snee:

That is the issue as I see it, Your Honor, yes.

And, that question of jurisdiction was raised by the District — by the Court of Appeals, sua sponte.

Thurgood Marshall:

Once you decide that case is over.

Joseph M. Snee:

Yes, Your Honor.

The — I would submit to the Court that it can approve the judgment of the Court of Appeals without approving its reasoning, and it would be a rather simple thing.

Thurgood Marshall:

But once you’ve proved that the Warden did this outside the scope of his authority, you recover against the Warden and everybody else.

What’s left in the case?

Joseph M. Snee:

No, as the Court has said, this is not — this Court said in the Symes case, this is not a question of guilt or innocence.

It’s merely establishing some causal react — relationship between the incident, if it occurred, and it’s effective duties.

Thurgood Marshall:

Well, you have — you first have to prove that the incident did occur.

Joseph M. Snee:

I would think, under the holding in Colorado versus Symes, that would not be true, Your Honor.

Thurgood Marshall:

Well, how did you find out when he was acting under color of authority and when he was not?

Joseph M. Snee:

Well, he asked what —

Thurgood Marshall:

The only way, I submit, you could do it is, when he was beating the man up, he was outside the color of authority.

Joseph M. Snee:

Can he not an —

Thurgood Marshall:

Once you proved that, you’ve proved your case.

Joseph M. Snee:

Can he not answer, Your Honor, that “if I beat him up, this was in the exercise of the ordinary discipline of the prison”?

He doesn’t have to prove that he went too far.

As a matter of fact, in Maryland versus Soper, the Court held the removing does not have to — the removal does not have to be for precisely the acts in which he was charged.

If he shows that these acts were in some way — he doesn’t have to admit the homicide in order to show that, at the time —

Thurgood Marshall:

All he has to show is he beat him up.

He doesn’t have to show the homicide.

Joseph M. Snee:

No, all he has to do is show that, in his relations with his prisoner, he was always acting —

Thurgood Marshall:

Well, wouldn’t —

Joseph M. Snee:

In his official capacity.

Thurgood Marshall:

If there’s some substance to the fact that Leavenworth is a maximum security prison and the respondent was in that prison.

So, whatever the Warden is charged with doing was done in the prison, unless he escaped.

Joseph M. Snee:

No, it had happened in the prison, whatever happened.

Thurgood Marshall:

And then, wouldn’t normal reaction be that it was under color of his office?

Joseph M. Snee:

I should assume, Your Honor, that that would be a rather easy thing to do, to establish, but not the slightest effort was made.

Thurgood Marshall:

Well, I submit that the fact that he says “the only time I came in contact with this man was inside the prison when I was the Warden.”

That does not give you any idea that that might be under color with that.

Joseph M. Snee:

That it might be under color of office, but it does not establish it.

Thurgood Marshall:

Well, what else would he have to say other than under color of authority?

What else could he say, the Warden, “I beat the man up”?

Joseph M. Snee:

No, that does not have to be said.

Thurgood Marshall:

What could he say?

Joseph M. Snee:

He must be able, as this Court said, to show the — were not connected with unofficial activities.

Thurgood Marshall:

Well, suppose he said just that, would that be enough?

Joseph M. Snee:

No, there must be facts.

Thurgood Marshall:

What other facts?

Joseph M. Snee:

That is what I find hard to understand from the opinion of this Court in Maryland versus Soper because the petition there was so detailed in its allegations of facts.

Joseph M. Snee:

I don’t know quite what else he could have alleged.

Thurgood Marshall:

Well, wouldn’t that be true in this?

Joseph M. Snee:

I suppose a good deal depends upon the allegations in the original complaint as to what he would have to say.

He does not have to admit that he did the acts, but he does have to show that, if they were committed, they were committed in some way in some causal connection with his official duties, that he was not off on a frolic of his own or that he wasn’t Warden at the time.

The interrogatories raised some question as to this, as was pointed out —

Abe Fortas:

Don’t you think that’s what he tried to do in paragraph 8 of the petition for removal on page 9 of the appendix where he says, before that, he’s alleged that he was the Warden, etcetera and now — and then at paragraph 8 he says that anything that was done or may have been done was done under color of office and as an employee and etcetera, and that the acts complaint of was made solely under color of office and within the scope of their authority.

Joseph M. Snee:

And as —

Abe Fortas:

There is a general allegation and then the question is whether in fact the burden of going, seems to me, that maybe the question is that the — whether the burden of going forward with particularized allegations, more — much more particularized than in the complaint of which, as you said earlier, is pretty general too.

Whether that burden then shifted to the plaintiff, perhaps?

I’m not saying that I’m sure that that’s correct analysis, but that’s one possible approach.

Joseph M. Snee:

Well, my comment on that, Your Honor, would be that paragraph 8, in most parts, is conclusionary in nature, and I would think that the burden of going forward with the proof does not shift until there’s been some proof.

Abe Fortas:

Well, what you’re really saying is raising as a question as to whether paragraph 8 is sufficiently particularized to shift the burden of going forward, and I suppose that then the question would naturally arise as to whether you can expect more than that at this stage of the case and whether that’s adequate as a matter of law.

Joseph M. Snee:

Yes, Your Honor.

Hugo L. Black:

One of these defendants was a petitioner.

Joseph M. Snee:

Yes, Your Honor.

Hugo L. Black:

And they show — the record show that he had been assigned there to do the services as a physician, does it not?

Joseph M. Snee:

Yes, Your Honor.

Hugo L. Black:

And that the complaint is based on the charge that this position for the team with the aid of the other man conniving with him to take some kind of shot in his arm or leg or something, and he did in great arm.

And now, what’s — why doesn’t that show about as well as you could show it?

In fact, the man wanted to know whether they were both in the performance of their duties.

That’s the position that he wanted and hasn’t managed it.

Do they have to go out and prove the beyond the shadow of a doubt?

Joseph M. Snee:

No, Your Honor, I think it was very simple.

Hugo L. Black:

When everybody agrees to it.

That’s what was alleged.

Joseph M. Snee:

It would be very simple to submit an ordinary medical record showing that this was the ordinary medical treatment, and this negates then any possibility —

Hugo L. Black:

But he doesn’t —

Joseph M. Snee:

The doctor was —

Hugo L. Black:

He doesn’t allege it was an extraordinary one.

He just alleges that they didn’t have to.

Joseph M. Snee:

He have actually —

Hugo L. Black:

He was given this serum and he thought it might kill him.

Joseph M. Snee:

He alleges that they did this on a frolic of their own.

Hugo L. Black:

He doesn’t say that.

Joseph M. Snee:

Yes, in the complaint, Your Honor.

Hugo L. Black:

What?

Joseph M. Snee:

In his complaint.

Hugo L. Black:

What part?

Joseph M. Snee:

It’s actually — I maybe wrong on that, Your Honor.

It may be in the motion for remand to the State Court.

Hugo L. Black:

As I gather, what he alleges is the treatment of the serum, this doctor, the other man was helping, he gave it to him, and he then fell to the floor.

Joseph M. Snee:

Well, I would suppose a hypothetical question, Your Honor, a situation.

Suppose this — due the facts which are given by the petitioners in their removal petition or in their subsequent affidavits, do they negate — do they give any facts to negate the idea that the doctor may have been engaged in some kind of strange research and not —

Hugo L. Black:

Well, that’s a possibility, of course.

But, with these filed pleadings both sides gone and submit it to the Court on petition for removal on the pleadings —

Joseph M. Snee:

But, again —

Hugo L. Black:

I don’t see why you have to go any further than the pleadings.

Joseph M. Snee:

Because this Court so held in Maryland versus Soper, Your Honor.

Hugo L. Black:

In what?

Joseph M. Snee:

Maryland versus Soper, that the allegation had to be sufficient to show that not only were they at the time performing their official duties, but they weren’t performing any other acts which were not related to their official duties.

That was the holding of this Court in Maryland versus Soper, that they were not doing any other things besides official duties at the time.

Hugo L. Black:

But you look at the whole record.

Does that say you don’t look at the whole record where the parties submitted on the pleadings and that’s all they submitted on?

Does that case stem from the principle that the judge is barred from taking the importance of the words in the pleadings to what’s happened and then he has to, somehow, force them to come in and swear in addition to the pleadings?

Joseph M. Snee:

They should allege some fact.

Hugo L. Black:

Well, that’s right but if it does allege it, why not enough if it’s not denied?

Joseph M. Snee:

The only answer I’d have to that, Your Honor, is that we’re dealing with the jurisdictional method of it.

Hugo L. Black:

But why would the jurisdiction make up such a noise?

That’s a strong word.

It means many things at many places.

Hugo L. Black:

But, the mere fact that you are testing a jurisdiction, I thought you always tested it mainly by the pleadings, what it alleges, not what can be proven.

Joseph M. Snee:

Well, perhaps a distinction should be drawn between a case which is removed under 1441 where the pleadings themselves must establish that the District Court would have original jurisdiction, and 1442 (a) where the sole jurisdiction of the Federal Court is derivative.

No cause of action is created by 1442.

The cause of action must already exist, as pointed out by this Court in Wheeler versus Wheeldin — or Wheeldin versus Wheeler.

The facts which are necessary for removal need not be contained in the petition.

In one case, Logan versus Stock was held that effect in the petition removal was satisfied by the — cured by the fact that the necessary jurisdictional facts were contained in the attached complaint.

Hugo L. Black:

Do you know of any state in the Union that is not sufficient to file a complaint without swearing to it and you just whether or not the Court has jurisdiction by what’s alleged?

Joseph M. Snee:

That’s true, Your Honor.

It’s the only burden.

Earl Warren:

Mr. Beytagh.

Francis X. Beytagh, Jr.:

Mr. Chief Justice and may it please the Court.

Just several points, I think Mr. Justice Marshall put his finger on the real problem here.

Let’s assume that none of these acts occurred.

This is the basic position of petitioners.

They didn’t do anything to harm this man.

What else can they do?

They denied it.

They said that any contact they had with him was within the prison walls and they said they were acting within their official duties, and they said that they were the Warden and the Chief Medical Officer.

Now, respondent keep saying “well, we need more facts.”

Well, I submit that if there are no more facts to refer to, I don’t know short of what Mr. Justice Marshall suggested that they must admit that they did something wrong, they can do.

Hugo L. Black:

Well, are you relying on the allegations of the papers as being the facts so far as this trial is concerned or do you think he’s right in indicating, as I gather, there’s an indication that you had to have some form too?

Francis X. Beytagh, Jr.:

No, Your Honor.

I agree with you on that.

I don’t see how you could take any other position.

It seems to me, the District Court had before it controverted allegations.

It had factual circumstances and it had to seek to apply the statute against that.

And, it seems to me that, in the circumstances, there wasn’t anything else that he can do.

The reliance on —

Abe Fortas:

Well, it isn’t quite that.

As easy as that, is it Mr. Beytagh because it could — the petition — the complaint contains a lot of very specific allegations and I suppose that they could’ve said that he was never inoculated or, if he was inoculated, the prison record show that such and such were the facts and that he was never given any unusually onerous tasks to conform.

Abe Fortas:

The prison records show so-and-so.

So, there could’ve been specificity.

The question, it seems to me, may be who has the burden of going forward for purposes of this removal —

Francis X. Beytagh, Jr.:

I think that’s —

Abe Fortas:

Order.

Francis X. Beytagh, Jr.:

That that’s correct, but it seems to me that any of that would’ve been subject to the same claim that it was conlusi — conclusionary in nature and, therefore, inadequate and it seems to us that the District Court had an adequate basis here and that Section 1446 on which respondent now relies is mentioned by the Court of Appeals only in one sense.

It said that all the requirements thereof were met.

So, in conclusion, we submit that the Sope and Symes cases, as Justice Stewart pointed out, were criminal cases.

And, there, at least everybody agreed something had occurred and, therefore, we don’t think they are controlling here and, in our view, the Court of Appeals is wrong and we submit its judgment should be reversed.

Byron R. White:

Mr. Beytagh, I take it though, you say that the removal test is narrower that the course of employment.

Francis X. Beytagh, Jr.:

I think course of employment is a somewhat different notion.

I think that the —

Byron R. White:

Well, it’s narrower.

You think it’s narrower than that.

The fact that the events occurred while he was working for an employer isn’t enough to show removal.

Francis X. Beytagh, Jr.:

I think it may not be enough, Your Honor.

But, again, you have notions of — you have the notion of color of office which have been given a broad reading, and that’s what the statute said.

Thank you.