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September 20, 1960

Jacob M. POSS, Plaintiff,
Jerome LIEBERMAN, Defendant

The opinion of the court was delivered by: ZAVATT

Before the court are two motions: the plaintiff's motion to remand the cause to the New York Supreme Court, Kings County, from whence it was removed here; and the defendant's motion for summary judgment. For the reasons that follow the plaintiff's motion must be denied and the defendant's motion must be granted.

The action is for libel. The facts are these: The defendant was a claims representative for the Social Security Administration. In December of 1957 he was engaged in processing a claim for old-age benefits filed by Mrs. Mae Poss, the plaintiff's wife. Her claim was based on employment by two family-held corporations of which the plaintiff was an officer and stockholder. At issue in her claim was whether her purported salary represented work actually done or whether it was deliberately padded for the purpose of increasing potential social security benefits. *fn1"

 The plaintiff is a lawyer and served as his wife's representative in the proceedings before the agency. In reference to his wife's claim he spoke to the defendant at various times. One such conversation concerned the books and records, particularly the minutes, of the two corporations that employed the claimant, which the defendant wanted produced. The plaintiff refused on legal grounds. On the same day the defendant prepared a 'report of contact' wherein he wrote the defamatory statement that the plaintiff had been disbarred. That statement is false. The plaintiff is a member in good standing of the Bar of the State of New York. The report bearing the libel in the regular course of events became part of Mrs. Poss' file.

 For all that appears from the papers in this case, the report remained unread and unpublished until sometime in April, 1959. At that time Mrs. Poss' claim was noticed for hearing before the referee following the disallowance of her claim by the Bureau of Old-Age and Survivors Insurance. In preparing for the hearing, Mr. Poss inspected that part of the claimant's file that was open to him. He found the report of contact; read it; and ordered it photo-copied along with several other file papers. In all this Mr. Poss was acting as the agent of his wife, the claimant.

 Suit was begun in Supreme Court, Kings County, on April 6, 1960 when a summons without complaint attached was personally served on the defendant. On April 23, 1960, the defendant made demand for a copy of the complaint which was served upon him on May 17, 1960. Thereafter, on June 3, 1960, the action was removed to this court.

 We come now to the plaintiff's motion to remand. The action was removed pursuant to 28 U.S.C. § 1442(a) which provides:

 'A civil action * * * 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:'

 '(1) Any officer of the United States * * * or person acting under him, for any act under color of such office * * *.'

 The plaintiff's main contention is that, in determining the validity of a removal, only the complaint may be looked to; that if the complaint does not allege, as this one does not, that the action is brought against a federal officer for acts committed under color of his office, the removal is improper and the action must be remanded. But the plaintiff has confused the rule under the general removal statute, 28 U.S.C. § 1441 (removal in cases involving a federal question) with the rule for removal in cases involving federal officers. To remove under § 1441 the federal question must appear in the complaint, and only in the complaint. To remove under § 1442 the removal petition may provide the jurisdictional facts if the complaint does not. Compare People's United States Bank v. Goodwin, C.C.E.D.Mo.1908, 160 F. 727, with People's United States Bank v. Goodwin, C.C.E.D.Mo.1908, 162 F. 937, and Gay v. Ruff, 1934, 292 U.S. 25, 54 S. Ct. 608, 78 L. Ed. 1099. See generally, Hart & Wechsler, The Federal Courts and The Federal System, 763 & n. 1 (1953). The removal petition here, supported by the affidavit of the defendant, supplies the facts necessary to support the removal.

 We thus come to the defendant's motion for summary judgment and the merits of the controversy. The defendant relies on two independent legal theories: first, that the libel was never published, or alternatively, that the plaintiff published it himself; and second, that the statement is absolutely privileged. Whether the libel was published presents some nice factual issues that are inappropriate on a motion for summary judgment. For although Mr. Poss' conclusion that the libel was published to his wife when he saw it is clearly wrong, it seems probable that the libel was published at some earlier time although, as I have said, neither the complaint nor the affidavits so state. I think the fact of earlier publication can, if not must, be inferred from the undisputed fact that the Bureau had made a determination of Mrs. Poss' claim prior to Mr. Poss' inspection of the files because it is probable that the file was read by the official responsible for the determination preparatory to making that determination.

 The issue of privilege, however, can be resolved without reference to contradicted or ambiguous facts, so that if the matter is absolutely privileged -- if malice does not defeat the privilege -- the defendant's motion must be granted. Two cases decided by the United States Supreme Court in 1959, Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L. Ed. 2d 1434, and Howard v. Lyons, 360 U.S. 593, 79 S. Ct. 1331, 3 L. Ed. 2d 1454, suggest the answer.

 Barr involved a libel contained in a news release prepared by the Director of the Office of Rent Stabilization, a federal agency, and distributed by him to the press. Howard involved a libel contained in an official report by the defendant, a captain in the navy and Commander of the Boston shipyard, to his superior, the Chief of the Bureau of Ships. The defendant also sent a copy of the report to the Massachusetts congressional delegation.

 Procedurally, Barr came to the Court after a jury verdict for the plaintiff that was upheld in the Circuit Court against the defense of absolute privilege. The first time around the Court sent it back to the Circuit Court for a determination on the issue of qualified privilege and that court then remanded the case for retrial. This remand was appealed from, and thus the issue before the Court was whether absolute privilege attached rendering allegations of malice in the complaint immaterial, and requiring judgment for the defendant as a matter of law. Howard came to the Court on appeals from the District Court's grant of summary judgment to the defendant upon the theory of absolute privilege. The Circuit Court reversed, finding that as to the publication to the congressional delegation there was only qualified privilege, and that this aspect required a trial. Certiorari was granted to determine only the issue of whether absolute privilege attached to this publication also. In both cases the Court found that absolute privilege attached. The opinion in Barr was 5 to 4. The opinion in Howard was 6 to 3.

 Comparing the two cases and the positions of the majority and the dissent in each case, it is obvious that Barr is a 'press release' case, and that Howard is also; that the Court was disturbed because the libels in both cases had wide publication and that this fact tended to make the weighing of conflicting social interests more difficult. There was, of course, some ...

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