The opinion of the court was delivered by: BAUMAN
Both of the instant actions were first brought in the New York State Supreme Court, Orange County, and were removed to this court. Plaintiffs now petition for an order, pursuant to 28 U.S.C. § 1447(c), remanding the cases to the state court. Although the actions have not been formally consolidated, they arise from the same set of circumstances and both sides agree that they may be consolidated for the limited purpose of deciding this motion.
The underlying facts may be briefly stated. Plaintiffs are the owners and operators of farms located in Orange County which, in the summer of 1972, employed migrant farm workers, as had been done in years past. During this period defendant Monroe County Legal Assistance Corporation (hereinafter "MCLAC"), through its Mid-Hudson Valley Legal Services Project, attempted to render the migrants legal advice and other assistance pursuant to the mandate of 42 U.S.C. §§ 2861-2862.
That August, a number of MCLAC attorneys attempted to enter one of the farms and thereupon became engaged in an altercation with one or more members of the Gurda family; the precise facts of this encounter are very much in dispute.
These cases appear to arise both out of this incident and the overall activities of MCLAC. In 72 Civ. 4489 plaintiffs allege that the defendants were engaged in a conspiracy to induce the workers to breach their employment agreements and seek damages of $5,000,000 for loss of profits and damage to farm property. In 73 Civ. 67 George Gurda, Sr. sues MCLAC and several of its lawyers for civil assault, alleging damages of $250,000.
Defendants contend that removal to this court is proper pursuant to 28 U.S.C. § 1442(a)1,
which permits removal of all suits against federal officers or persons acting under federal officers. The question presented then, is simple but novel, and apparently has not been previously considered by a United States District Court: are attorneys in an O.E.O. funded legal services program "persons acting under" a federal officer within the meaning of § 1442(a)1. The resolution of the question requires a brief survey of prior judicial treatment of this statute and of the rather complex structure of the O.E.O. legal services program.
The purpose of § 1442(a)1, whose ancestry is venerable, is to prevent federal officers or those acting at their direction from being held accountable in state courts for acts done within the scope of their federal duties. The Supreme Court, in Tennessee v. Davis, 100 U.S. 257, 25 L. Ed. 648 (1879), justified a predecessor of this statute
in the following manner:
"It [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 any alleged offense against the laws 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." 100 U.S. at 263.
Time has not eroded the vitality of that holding. In Willingham v. Morgan, 395 U.S. 402, 89 S. Ct. 1813, 23 L. Ed. 2d 396 (1969), a suit by an inmate of Leavenworth Penitentiary against the warden and chief medical officer for personal injuries incurred through alleged medical experimentation, the Court held removal proper. It noted that the removal statute is an incident of federal supremacy, and one of its purposes was to provide a federal forum for cases in which federal officials raised defenses arising from their official duties. The Court observed that the statute is "not narrow or limited": "[at] the very least it is broad enough to cover all cases where federal officers can raise colorable defenses arising out of their duty to enforce federal law." It went on to say that the congressional policy of giving federal officers the protection of a federal forum "should not be frustrated by a narrow, grudging interpretation of § 1442(a)1." See also, Colorado v. Symes, 286 U.S. 510, 52 S. Ct. 635, 76 L. Ed. 1253 (1932); Maryland v. Soper, 270 U.S. 9, 46 S. Ct. 185, 70 L. Ed. 449 (1926); Poss v. Lieberman, 299 F.2d 358 (2d Cir. 1962).
Even a cursory survey of the application of the statute reveals it has been construed broadly, and its "persons acting under" provision particularly so. A few examples should suffice. In State of Texas v. Heaton, 58 F.2d 656 (N.D. Texas 1932), the court upheld the removal of a murder prosecution against federal prohibition agents and an informer working for them. In People of the State of Colorado v. Maxwell, 125 F. Supp. 18 (D. Colo. 1954), a murder prosecution against a city police chief who, under the direction of an Air Force captain, arrested (and then shot) a soldier was held properly removed. Teague v. Grand River Dam Authority, 279 F. Supp. 703 (N.D. Okla. 1968), was a wrongful death action alleging negligent operation of the floodgates of a dam operated by the defendant under a fifty year license from the Federal Power Commission. The court found that this operation had been ordered by a federal officer, a member of the Army Corps of Engineers, and accomplished by the defendant as a "person acting under" such officer. In State of Texas ex rel. Falkner v. National Bank of Commerce, 290 F.2d 229 (5th Cir.), cert. denied, 368 U.S. 832, 82 S. Ct. 55, 7 L. Ed. 2d 35 (1961), a quo warranto proceeding against banks operating branch offices on military bases was held removable. The Fifth Circuit, in reaching this result, noted that those banking facilities were under the direction of the Secretary of the Treasury and were operated as agents of the federal government. The banks could perform only those functions enumerated in the letter granting them authority to act, and their facilities could be terminated or expanded as the Treasury Department dictated. See also, First National Bank of Bellevue v. Bank of Bellevue, 341 F. Supp. 960 (D. Neb. 1972); Hazen v. Southern Hills National Bank of Tulsa, 414 F.2d 778 (10th Cir. 1969).
Two other cases demonstrate with particular force the broad sweep of the "persons acting under" clause. Kuenstler v. Occidental Life Insurance Company, 292 F. Supp. 532 (C.D. Cal. 1968), upheld the removal of an action for $72 from the Small Claims Court against a private insurance company which had contracted with the federal government to administer benefit provisions of Medicare. Allen v. Allen, 291 F. Supp. 312 (S.D. Iowa 1968), sustained the removal of a garnishment action against a doctor who treated patients under Medicare. The court held that the defendant had been acting under the direction of the Secretary of Health, Education, and Welfare, and reasoned that "[sound] policy requires the availability of a federal forum for adjudication of the legal status of persons who colorably have been acting under federal direction." See also Bates v. Carlow, 430 F.2d 1331 (10th Cir. 1970).
State of Oregon v. Cameron, 290 F. Supp. 36 (D. Or. 1968), is particularly instructive. There the district court upheld the removal of a criminal trespass action against VISTA volunteers who entered upon farm property at the request of migrant farm workers to render medical assistance. It held that the VISTA workers were persons acting under an officer of the United States, here, the Director of O.E.O., and noted that the Director had authority to recruit, select, and train persons to serve in such programs pursuant to 42 U.S.C. § 2992. The court found that the VISTA workers performed work contemplated by a federal statute (42 U.S.C. § 2991) and were responsible to the Director of O.E.O. Furthermore, "the chain of command is clear": the workers were subject to the control of the VISTA Program Officer in Oregon who is designated by the VISTA Regional Administrator for the O.E.O. Western Region. The opinion also regarded as irrelevant the provision of 42 U.S.C. § 2994b that VISTA workers were not to be considered federal employees; one could come within the ambit of the "acting under" clause without being a federal employee. This opinion was cited with approval in Appalachian Volunteers Inc. v. Clark, 432 F.2d 530 (6th Cir. 1970).
These cases articulate no precise standard for the extent of control necessary to bring an individual with the "acting under" clause. The number and complexity of federal institutions and programs would render impossible the formulation of such a standard. What it comes down to is that the court in each case must ascertain to what extent defendants act under federal direction and to what extent as independent agents. It becomes necessary, then, to consider in some detail the relationship between legal service programs and the Office of Economic Opportunity.
The statutory authorization for MCLAC is twofold. Under 42 U.S.C. § 2809(a)(3) the Director of O.E.O. is authorized to develop legal service programs and under 42 U.S.C. § 2862(b)(1) (set out at footnote 1, supra), he can provide assistance to, inter alia, legal service programs which serve the needs of migrant farm workers. These statutes, however, are but the tip of an iceberg of exceedingly complex regulations, guidelines, and evaluation schemes to which MCLAC and all other O.E.O. legal assistance programs are subjected.
The affidavits and documentary evidence submitted by the defendants in opposition to the motion demonstrate convincingly the truth of a statement by defense counsel, a former legal aid lawyer himself: "Defendant corporation [MCLAC] is hedged in on all sides by voluminous O.E.O. directives under which it must operate on a day to day basis."
The strongest evidence of O.E.O. control over MCLAC policies and activities is supplied in the affidavit of Joan O'Byrne, executive director of MCLAC. It recites that all funds received by MCLAC derive from federal grants [Nos. 20053 and 0730]; as a condition of the receipt of these grants, the corporation must comply with a multitude of O.E.O. regulations, only a few of which will be hereafter set forth. Every three months it must submit a "Grantee Quarterly Financial Report" [O.E.O. Form 315], ...