US SUPREME COURT DECISIONS

Respondent, a federal prisoner, brought a tort action in state court against petitioners, the warden and chief medical officer of a federal penitentiary, who then petitioned for removal of the action to the United States District Court under 28 U.S.C. § 1442(a)(1). That statute allows removal to federal courts of any civil action against a federal officer "for any act under color of [his] office." Petitioners on removal moved for summary judgment, submitting affidavits that their only contacts with respondent had been in the performance of their official duties as warden within the penitentiary confines and at the prison hospital, respectively, which respondent did not deny in his responsive affidavit. The District Court denied respondent's motion to remand and granted summary judgment, holding that the official immunity doctrine of Barr v. Mateo, 360 U. S. 564, barred respondent's recovery of damages. The Court of Appeals, without reaching the immunity issue, found insufficient basis in the record to support the District Court's refusal to remand to the state court, holding that the "color of office" test for removal under § 1442(a)(1) is "much narrower" than the "official immunity" standard of Barr v. Mateo, supra.

Held:

1. 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 the test for removal under that statute is broader, not narrower, than the test for official immunity. Pp. 395 U. S. 404-407.

2. In this civil suit, petitioners sufficiently showed that their relationship to respondent derived solely from their official duties against respondent's charge that they were engaged in some kind of "frolic of their own," and petitioners should have the opportunity of presenting their version of the facts to a federal, not a state, court. Pp. 395 U. S. 407-410.

383 F.2d 139, vacated and remanded. chanrobles.com-red

Page 395 U. S. 403