W. H. Pat O‘BRYAN, Appellant, v. Stephen S. CHANDLER, Appellee.
No. 73-1466.
United States Court of Appeals, Tenth Circuit.
Submitted Feb. 22, 1974. Decided May 6, 1974.
496 F.2d 403
Before VAN OOSTERHOUT, Senior Circuit Judge, and GIBSON, and STEPHENSON, Circuit Judges.
Carl L. Shipley, Washington, D. C., for appellee.
Irwin Goldbloom, Washington, D. C., for the U. S., amicus curiae.
This appeal involves another chapter in the litigation between Judge Stephen S. Chandler and W. H. Pat O‘Bryan.1 Plaintiff-appellant O‘Bryan asks us to reverse the District Court‘s2 granting of Judge Chandler‘s second petition for removal of a state libel suit and motion for summary judgment for Judge Chandler in the removed libel action in federal district court. O‘Bryan further requests us to reverse the District Court‘s order expunging the judgment entered in the state libel action and to order a remand of the libel suit to Oklahoma state court.
A complete repetition of the facts in this case is unnecessary, for in Chandler II, supra at 1047-1051, we detailed the relevant facts. The following information is pertinent to this appeal.
On December 8, 1965, O‘Bryan filed a libel action in an Oklahoma state court seeking damages of $2,500,000 for an alleged libelous statement that Judge
Since the petition to remove was denied by Judge Austin, the state libel action was remanded to Oklahoma state court and tried there. Sometime during the week of trial beginning February 20, 1967, and ending February 25, 1967, O‘Bryan altered his original complaint in the libel suit, according to the Government‘s brief3, “to allege that the libelous statement occurred in the tan brief, a different document from that alleged in the original complaint.” Judge Chandler unsuccessfully objected to this amendment at trial. The state trial judge directed a verdict for O‘Bryan, the jury awarded $40,000 in compensatory and $10,000 in punitive damages on February 25, 1967, and the Oklahoma District Court entered judgment on September 22, 1967. Judge Chandler had filed a second petition to remove in federal courts on February 26, 1967, and this appeal in part is concerned with a review of the District Court‘s (Chief Judge Battisti‘s) granting of that second petition to remove.
With Judge Chandler‘s second petition to remove and O‘Bryan‘s motion to remand pending, Judge Chandler filed a declaratory judgment action “in the nature of a Bill of Peace” in the federal district court, seeking to enjoin O‘Bryan from any further litigation and to expunge the state libel judgment. Chief Judge Battisti was assigned to hear the second petition to remove, the motion to remand, and the declaratory judgment action. The second petition to remove and the motion to remand were held in abeyance. After receiving evidence on the declaratory judgment action, Chief Judge Battisti granted a motion for summary judgment for Judge Chandler in the declaratory judgment action, holding that Judge Chandler was judicially immune from liability for the complained-of-acts in the libel action, and ordered that the Oklahoma District Court expunge the judgment in the libel suit from its records. Judge Chandler‘s second petition to remove and O‘Bryan‘s motion to remand were held in abeyance, while O‘Bryan appealed the declaratory judgment action to this court.
Chandler II dealt with O‘Bryan‘s appeal from the declaratory judgment and injunction granted in Judge Chandler‘s favor. In that case, this court held that there was no federal jurisdiction over the declaratory judgment action and reversed the District Court. Chandler II, supra at 1057. We also stated:
Appellant O‘Bryan, in addition to urging reversal of the judgment in the declaratory judgment action, requests us to enter an order requiring remand of the second removal of the libel suit to the State court. Since this matter is still pending in the trial court and has not been finally acted upon, we do not feel that we have jurisdiction to grant this relief.
Chandler II, supra at 1058. Judge Chandler had not appealed the judgment entered in Oklahoma District Court to the Oklahoma Supreme Court and instead on remand of Chandler II sought a favorable determination in federal court on his second petition to remove. We now consider the validity of the second removal petition.
On remand of Chandler II to the federal district court, Chief Judge Battisti ruled for Judge Chandler on the second
There is no dispute factually concerning how plaintiff changed his original complaint in the state libel suit. That original complaint contained a plaintiff‘s Exhibit “A“, entitled Official Statement of Judge Chandler, which was in part the final draft of the brief filed with this court in Chandler I. O‘Bryan v. Chandler, 352 F.2d 987 (10th Cir. 1965), cert. denied, 384 U.S. 926, 86 S.Ct. 1444, 16 L.Ed.2d 530 (1966). This Exhibit “A” was a portion of what this court labeled the “blue” brief in Chandler II. During the trial of the state libel action, O‘Bryan, over Judge Chandler‘s objection, was allowed to remove the two pages of the “blue” brief and to attach two pages of what we termed the “tan” brief to his original complaint. The “tan” brief was a preliminary brief of the final “blue” brief and was released to the editor of the Oklahoma Journal. We said in Chandler II that the “tan” brief “differed in some respects from the blue brief as filed, but which included the bribery charge.” Chandler II, supra at 1049. Chief Judge Battisti found that the plaintiff voluntarily amended his petition by the substitution of the two pages of the “tan” brief and that this amendment rendered the case removable under
Since the state libel action was removed to federal court, Chief Judge Battisti proceeded to try that case. Judge Chandler moved for a summary judgment in the libel action pursuant to
The first major issue in this appeal is whether Judge Chandler‘s second petition to remove the state libel suit should have been granted pursuant to the second paragraph of
28 U.S.C.A. § 1446(b) provides an absolute right for Appellee Chandler, as a federal judge, to remove an action previously removed, when, as in this case, the complaint has been amended (the original complaint was based on two pages of a brief filed in the Tenth Circuit but was lateramended to state a different cause of action by substituting two pages of another document which had not been filed in the Tenth Circuit . . .), or when a “motion, order or other paper” discloses grounds for removal (subsequent to Judge Austin‘s May 24, 1966, order, there were depositions, a court proceeding, affidavits, exhibits, and other motions, orders and other papers, which were never before Judge Austin . . .). [emphasis in original].
The Department of Justice in its amicus curiae brief expands defendant‘s argument under
O‘Bryan first argues that Judge Chandler did not file his second petition to remove within the time requirements of
We turn next to the issue of whether O‘Bryan‘s substitution of two pages of the “tan” brief to his original state court complaint constitutes an amendment that provides a sufficient basis to invoke the second paragraph of
Generally, the second paragraph of
It is equally clear, however, that not every amendment to a plaintiff‘s original complaint in state court allows the granting of a second (or subsequent) petition to remove. Although a defendant may file a petition to remove an action in which plaintiff has varied his original state court complaint, it does not follow that the amendment per se establishes a right to remove. According to the statute itself, there must be both an amended pleading or paper and a ground for asserting removability that exists for the first time.
To come within the perimeters of
The remand order [a first remand] is, therefore, conclusive only as to the matters that were adjudged or could have been presented at that time as a basis for removal. And when subsequent developments make the case removable, since these were not concluded by the prior remand order, a timely second petition for removal may be made.
1A Moore, supra at § 0.169[3] at 1491 (footnotes omitted).
Second, the voluntary action of the plaintiff in amending his state complaint must set forth a ground for removal that appears for the first time. In West Kentucky Coal Co., the court said that “we see from that opinion [Powers v. Chesapeake & Ohio Railway, supra] that two things must concur to vindicate the filing of a second petition for removal, namely, the appearance in the record for the first time of a state of fact which authorizes the removal and the prompt filing by the defendant of a new petition showing the facts as they then exist.” Key v. West Kentucky Coal Co., supra at 261.6 In McLean the Supreme Court held that a second petition to remove could not be granted to the same party upon “the same grounds” as a first petition. St. Paul & Chicago Railway Co. v. McLean, supra at 217. In McLaughlin v. Hallowell, the Supreme Court, in denying a second petition to remove, again said that the second petition for removal alleged the same grounds as the first petition. McLaughlin v. Hallowell, supra at 293-94.
These cases, therefore, hold that a different ground for removal must be alleged in the second petition that was not alleged in the first petition. For example, if the plaintiff adds or dismisses a party to his state action after the remand and creates diversity of citizenship, a defendant may remove the action for the second time. The federal court then again may determine whether diversity exists so as to grant the second removal petition. Powers involved this situation. Similarly, if the plaintiff amends his state court petition to exceed the federal jurisdictional amount, as in Remington, the federal court can determine whether the second petition to remove should be granted.
The legal phrase “same grounds,” used by the Court in McLean and Hallowell, does not mean the same cause of action or theory of recovery. In order to state a sufficient basis for a second petition to remove, plaintiff need not allege another claim upon which relief could be granted. In other words, plaintiff originally in suing on a libel theory need not allege a slander averment to state a different ground for removal. Stated oppositely different grounds more precisely mean a different set of facts that state a new ground for removal. Key v. West Kentucky Coal Co., supra at 261. The removal cases in which parties were added or dismissed by amendment thereby creating diversity and the removal cases in which the federal jurisdictional amount is reached due to amendments are consistent with this interpretation. In those cases, the theory or claim for relief did not change; only the parties or the amount in controversy was altered by the plaintiffs’ voluntary actions.
In this case, plaintiff voluntarily amended his state court complaint after Judge Austin‘s 1966 order of remand to aver that the alleged libelous statements occurred in the “tan” brief rather than the “blue” brief. Judge Austin had before him the non-amended state court petition alleging that the li-
Federal officers sued or prosecuted. -(a) A civil action or 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:
* * * * * *
(3) Any officer of the courts of the United States, for any act under color of office or in the performance of his duties * * *.
The place where the alleged libel is published is significant in determining whether an officer of the court is acting “under color of office or in the performance of his duties.”
We next must decide whether the actual granting of the petition to remove was correct.8 We think the second
Under the unusual facts of this case it was correct for the District Court to apply the 1969 Supreme Court decision in Willingham to Judge Chandler‘s second petition to remove filed on February 26, 1967. Due to the continuing litigation in this case, a strange set of circumstances has developed. The second petition to remove was held in abeyance from February 26, 1967, until the granting of that petition on February 28, 1973. In that hiatus, the Supreme Court decided Willingham on June 9, 1969, adopting broad standards for removal. However, we are faced with the issue of whether Willingham should be applied to a case involving an amended petition and a later court decision allegedly changing the law.9
First, this case does not involve the situation in which a later opinion changing the law is said to be the only and sufficient reason for removal. Avco Corporation (Lycoming Div.) v. Local 1010 of International Union, 287 F.Supp. 132, 133 (D.Conn.1968), properly held that
This case is unlike Avco Corporation. The plaintiff here voluntarily amended his state court complaint, which allows the filing and consideration of the second petition to remove. The question here is whether Willingham should be applied to a case in which an amended petition has allowed application of
We turn next to the merits of the removed libel suit. The subject matter of this new removed libel suit is the same libel suit referred to as the “second libel suit” in Chandler II, supra at 1050. In September, 1963, O‘Bryan filed a malicious prosecution, libel, and slander action against Judge Chandler in state court, which was removed to federal court and heard by Judge Roy Harper, who found that Judge Chandler was protected from liability due to the doctrine of judicial immunity. O‘Bryan v. Chandler, 249 F.Supp. 51 (W.D.Okla.1964). O‘Bryan appealed that adverse decision to this court.
On August 15, 1965, a Sunday, Judge Chandler asked John Clabes, then managing editor of the Oklahoma Journal, to meet with him in his chambers. During that meeting on August 15th, Judge Chandler asked Clabes to look over the “tan” brief for technical and grammatical corrections. Judge Chandler was going to file a final copy of that brief with this court in O‘Bryan‘s appeal from O‘Bryan v. Chandler, 249 F.Supp. 51 (W.D.Okla.1964). That document, the “tan” brief, was not filed with this court. Chandler II, supra at 1049. Judge Chandler specifically told Clabes that the contents of the “tan” brief should not be released until Clabes procured the final document, the “blue” brief, filed with this court. Judge Chandler did file a final document, the “blue” brief, with this court on August 18, 1965, the day of oral argument for Chandler I.
In the “blue” brief, Judge Chandler made many references to O‘Bryan as being an accomplice in the bribery of the Oklahoma Supreme Court in the Selected Investments case. These comments were made in explanation of Judge Chandler‘s defense of O‘Bryan‘s first libel, slander, and malicious prosecution suit then on appeal. We found in Chandler II that the “[tan brief] differed in some respects from the blue brief as filed, but which included the bribery charge.” Chandler II, supra at 1049. This conclusion was in relation to the following situation. The “blue” brief contained the phrase “O‘Bryan was an ACCOMPLICE if not the MASTER MIND“, whereas the “tan” brief contained the phrase “O‘Bryan was an ACCOMPLICE if not the MASTER MIND” in typing, with the handwritten words of “in the selected bribery of the court” immediately following. It is unclear who added those handwritten words. Nevertheless, the omitted phrase, we think, changes little, so far as the law of libel here is concerned (not the law on removal), the import of Judge Chandler‘s statements in the “blue” brief, which contained many references to O‘Bryan as being an accomplice of the bribery of the Oklahoma Supreme Court.
On August 19, 1965, the day after the final “blue” brief was filed, the Oklahoma Journal published a front page article with a full page headline reading “O‘Bryan called ‘Bribe Mastermind’ “, Judge Chandler‘s picture appeared prominently next to the headline and article. Judge Chandler had sent copies of the “blue” brief to Clabes of the Oklahoma Journal and to the Times and Oklahoman. Other area newspapers published short articles on the case but “did not include the bribery charge.” Chandler II, supra at 1050. On November 30th, 1965, this court found that Judge Chandler was judicially immune
The major issue regarding judicial immunity is whether Judge Chandler‘s publication of allegedly libelous statements in either the “blue” or “tan” briefs is protected by the doctrine of judicial immunity. We think that the judicial immunity doctrine encompasses this entire situation. In defending the Chandler I law suit, Judge Chandler basically repeated in his briefs substantially similar statements that were presented to the grand jury.11 Judge Chandler also released the substantially similar “tan” brief to an editor of the Oklahoma Journal, but with explicit instructions to read the final draft and to publish no article before the brief was filed, and, therefore, became public information. Judicial immunity covers the entire situation; no matter which brief or publication of alleged libel is at issue. Appellant‘s brief does not argue that the doctrine of judicial immunity was improperly applied by the District Court, for he has only argued on this appeal that the second petition to remove should not have been granted. Under the posture of this case, we feel compelled to explain our reasons for upholding the summary judgment.
The publication of libel most advantageous to reverse the summary judgment is the release of the “tan” pages to Clabes before the final “blue” brief was filed. The pertinent question is whether this publication was an official act of a judge, thereby requiring the application of absolute judicial immunity. Judge Learned Hand pinpoints the crux of judicial immunity:
The decisions have, indeed, always imposed as a limitation upon the immunity that the official‘s act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment‘s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him.
Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (emphasis added). Judge Chandler‘s release of the “tan” pages to Clabes was such an “occasion” when he was using his judicial powers entrusted to him. The alleged libel in the “tan” and “blue” legal briefs was in defense of an action with allegations concerning acts of Judge Chandler performing in his capacity as a judicial officer. In Chandler I, the District Court and this court applied the doctrine of judicial immunity to those actions.
Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), indicates the strength of the broad-reaching protection of immunity. Though involving a libel suit against a federal agency officer, Matteo includes broad language in respect to all “officers of government”12, and its holding is applicable here.
In Matteo, the plurality held that the federal officer‘s allegedly libelous act “was within the outer perimeter of petitioner‘s line of duty” and applied the doctrine of absolute immunity. Barr v. Matteo, supra at 575. Mr. Justice Black concurred, reasoning that the allegedly libelous publication was neither “unau-
Of course, the merits of the alleged libel against O‘Bryan have never been decided in federal court. This opinion has not stated any view on the merits of those claims or the propriety of Judge Chandler‘s activities. The issues of removal and judicial immunity only have been discussed. If acting within his official capacity, a judge may scurriously attack counsel, parties, and witnesses who appear before him and escape legal accountability. The rule of judicial immunity is not designed to create a privileged class of citizenry immune from illegal acts, but rather its purpose is to protect the judge from the necessity to constantly defend himself, at the expense of the administration of justice, from possibly countless suits filed by dissatisfied litigants and counsel. One basis of judicial immunity is the expectation that those who are wronged by prejudicial acts of judges are far outnumbered by those who would harass judges with frivolous and unfounded suits. Gregoire v. Biddle, supra at 581, quoted in Barr v. Matteo, supra at 572-573. If a judge is acting within his official capacity, absolute immunity applies to protect the functioning of the judicial system so as to serve the people as a whole. A judge should not have to submit to trials to establish any qualified immunity. Summary judgment was prudently granted in this case. Unfortunately, this controversy, with its attendant suits, has consumed years of time and energy that could have been more creatively used otherwise. We hope for the sake of the parties and the public this controversy can come to a final resting place.
The District Court is affirmed.
VAN OOSTERHOUT, Senior Circuit Judge (dissenting).
Contrary to the view expressed by my brethren in the majority opinion, I am convinced that Judge Chandler has had a full and fair hearing before Judge Austin on plaintiff‘s original motion to remand to the state court. Judge Chandler‘s right to remove to federal court under
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Defendant‘s acts complained of in the Plaintiff‘s Original Petition were not done in the performance of his official duties as a Judge of the District Court of the Western District of Oklahoma, that they were not acts done under color of judicial office. There is no other Federal issue involved therefore the Plaintiff‘s motion to re-
mand is granted and the case is remanded to the State Court from whence it came.
I agree with the majority holding that the second paragraph of
My departure from the majority arises with respect to applying such law to the facts of this case as disclosed by the record.
The amendment which is described in some detail in the majority opinion was filed during the course of the state trial on the merits. Such amendment made no material change in plaintiff‘s cause of action. The basis of plaintiff‘s action before and after the amendment was that Judge Chandler on August 14, 1965, delivered to Mr. Clabes, Managing Editor of the Oklahoma Journal, a document charging that plaintiff was the mastermind of bribes alleged to have been paid to the Supreme Court of Oklahoma. Attached as an exhibit was the blue brief which was subsequently filed with the Tenth Circuit on August 19, 1965, in connection with Chandler I. The pages of the tan brief (preliminary draft) which were substituted by the amendment differ in no material respect from those of the blue brief.
More importantly, the amendment did not for the first time assert a ground for removability which had not previously been asserted. The defense of judicial immunity was raised and considered in the remand proceedings before Judge Austin and such defense was raised by the defendant in the state court proceeding by his answer filed in July 1966. The second petition for removal was filed February 26, 1967, several days after the completion of the state court trial and the jury verdict in the state court against Judge Chandler.
I agree that the well-established doctrine of judicial immunity should be liberally construed. Such is the holding in Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). I find nothing in Judge Austin‘s remand order which reflects the judicial immunity issue was not so considered. In any event Judge Austin‘s remand order is not reviewable by reason of
I agree that this prolonged litigation has placed a heavy burden on all parties. I am not shocked by the result reached by the majority. However, I feel no legal basis exists for permitting the second removal petition under