The opinion of the court was delivered by: BAUMAN
On May 1, 1974, the Special Prosecutor of the State of New York, plaintiff herein, sought and obtained from Justice Murtagh of the Supreme Court, New York County, an order to show cause directing the United States Attorney for the Southern District of New York and the Director of the United States Marshals Service, defendants herein, to show cause why they should not be ordered to produce one Robert Leuci, a New York City policeman, before a New York County grand jury. That day the Murtagh order was served upon the defendants who immediately and quite properly
removed the proceeding to this court pursuant to 28 U.S.C. § 1422(a)1.
The court has now heard oral argument on plaintiff's motion, and both sides have submitted briefs and affidavits in support of their respective positions. For the reasons that follow, the order to show cause is vacated and the action dismissed.
Some factual background is necessary to provide a context for the instant proceeding. The narrative that follows, however, purports only to recite these facts which are undisputed and is unencumbered, I trust, by the rhetorical baggage that has freighted these proceedings from the outset.
Robert Leuci, a detective in the New York City Police Department, has been assisting various federal and state law enforcement agencies since early 1971. Between April, 1971 and approximately July, 1972 he worked as an undercover agent under the direction of prosecutors in the United States Attorney's Office for the Southern District. In this capacity he is alleged to have aided in the commencement of several cases, most notably United States v. Edmund Rosner, et al., 72 Cr. 782, an indictment returned in this district in July, 1972 and tried before me in November and December, 1972.
Leuci was the government's principal witness at that trial, and was cross-examined vigorously and extensively about prior criminal acts committed while a member of the Police Department. He admitted only to four such acts, all of which allegedly took place prior to his decision to cooperate with the government. From July, 1972 to the present Leuci has been the beneficiary of the protection afforded by §§ 501-504 of the Organized Crime Control Act of 1970, Pub. L. 91-452, 84 Stat. 922, 18 U.S.C. Chap. 223 (preceding § 3481),
or what is colloquially termed federal protective custody.
In August, 1973 the United States Attorney made Leuci available to the Special Prosecutor, whose office, it should be noted, had been established by the Governor of New York to ferret out and prosecute corruption in the state's criminal justice system. Several investigations in which Leuci had been engaged for the United States Attorney were simultaneously transferred to that office. From that time onward, although he has remained in federal protective custody, Leuci worked with the members of the Special Prosecutor's staff in the pursuit of these investigations.
In February, 1974 a joint investigation into corruption in the Special Investigations Unit of the New York City Police Department was commenced by the United States Attorney's Offices for the Southern and Eastern Districts of New York. It appears that evidence disclosed during this investigation caused members of the United States Attorney's Office for this district to examine anew the truth of Leuci's previous accounts of the extent of his criminal activities. In addition, on March 21, 1974, Rosner filed a motion for a new trial, in 72 Cr. 782, in which it was alleged that Leuci had committed perjury at the trial by failing to disclose various criminal acts. Leuci appears to have been subjected to persistent questioning, and finally, on April 17, 1974, he admitted to representatives of the United States Attorney's Offices for the Southern and Eastern Districts that his criminal conduct had been more extensive than he had previously conceded. Agents of the federal government have subsequently been engaged in investigating these new revelations.
The essence of the present controversy is that since April 17, the United States Attorney has refused to make Leuci available to the Special Prosecutor. The application to Justice Murtagh on May 1, now before this court, is designed to compel his production. The Special Prosecutor contends, in brief, that Leuci's testimony is crucial to the successful prosecution of several cases pending before the grand jury, and that a reassessment of his credibility may have an important bearing on the validity of indictments already filed. The United States Attorney, in turn, disavows any intention of withholding Leuci from the Special Prosecutor for an extended period, but insists that he requires sufficient time to "debrief" Leuci adequately and fully to investigate his new disclosures. Both sides have embellished their arguments with extensive accusations of bad faith that do not merit repetition here.
In resolving this controversy, however, I am not required to pass upon the merits of the prosecutorial policies followed by the parties to this action. For I have determined that in the present posture of the case, this court lacks jurisdiction to grant the relief which the Special Prosecutor seeks. It is to this matter that I now turn.
Jurisdiction of the federal court on removal is, in a limited sense, a "derivative" jurisdiction. Where the state court lacks jurisdiction of the subject matter, the federal court acquires none, even though in a like suit originally brought in a federal court jurisdiction might have been present. Minnesota v. United States, 305 U.S. 382, 389, 59 S. Ct. 292, 83 L. Ed. 235 (1939); Lambert Run Coal Co. v. Baltimore & Ohio R. Co., 258 U.S. 377, 383, 42 S. Ct. 349, 66 L. Ed. 671 (1922). The problem for resolution, therefore, is whether the Supreme Court of New York had jurisdiction over this claim prior to its removal here. Stapleton v. $2,438,110, 454 F.2d 1210 (3d Cir. 1972). If it lacked such subject matter jurisdiction, removal cannot cure the deficiency and the action must be dismissed regardless of whether there exists "original" federal jurisdiction over such a claim. Unlike § 1441, § 1442(a) (1) is not keyed to the "original" jurisdiction of the federal courts. Rather, it is predicated upon an independent right given to federal officers whenever a suit is instituted against them in a state court for any act "under color" of federal office.
Since "original" federal jurisdiction is neither required for removal under § 1442(a) (1), nor relevant under the doctrine of "derivative" jurisdiction, I find it unnecessary to consider whether plaintiff could initially have brought this action in federal court.
It is clear that the removal by the United States Attorney is neither a waiver of the right to question jurisdiction, nor tantamount to a governmental consent to be sued. Minnesota v. United States, supra at 388.
Defendants initially argue that the doctrine of sovereign immunity bars the instant action because it is one brought against the federal government. This doctrine prohibits the maintenance of any suit against the United States in the absence of governmental consent.
Its scope encompasses suits seeking compensation for past harms and those seeking prevention of future ones. Contrary to the Special Prosecutor's contention it is not limited to tort claims.
Likewise, utilization of the doctrine is not restricted to actions where the United States is sued in its own name. The protection of sovereign immunity extends as well to officials and instrumentalities of the government, where the courts characterize the actions of these agents as the acts of the United States.
The denomination of the party defendant by the plaintiff is clearly not the test of whether a suit is against an officer individually or against his principal. Larson v. Domestic & Foreign Corp., 337 U.S. 682, 687, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949). The general rule is that a suit is against the sovereign if the effect of the judgment would be "to restrain the Government from acting, or to compel it to act." Dugan v. Rank, 372 U.S. 609, 620, 83 S. Ct. 999, 1006, 10 L. Ed. 2d 15 (1963). There are two recognized exceptions to this rule. Thus, a suit against a government officer in his official capacity will not be ...