The opinion of the court was delivered by: CONABOY
We consider here several motions which have been filed in the above-captioned case. These are: Plaintiff's motions that this case be remanded to the Lackawanna County Court of Common Pleas
and that a protective order be issued to prohibit the Internal Revenue Service from destroying any parts of Plaintiff's personnel file; and Defendant's motion for dismissal or, in the alternative, summary judgment.
We note that the parties have properly briefed these motions and we shall now consider them sequentially.
In the face of a case dispositive motion we must accept the veracity of the pleadings by the non-moving party. See Jenkins v. McKeithen, 395 U.S. 411, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969); also, Leone v. Aetna Casualty and Surety Co., 599 F.2d 566 (3d Cir. 1979). Thus, we shall here rely on the Plaintiff's version of the facts. To wit: Plaintiff Andrejko worked for the Internal Revenue Service and was under the supervision of his Group Manager, Raymond J. Sanders. Plaintiff Andrejko worked for the IRS for eleven years before becoming Sanders' subordinate. From September of 1981 until June 13, 1983 Sanders was Andrejko's immediate supervisor. During this time period Sanders ". . . continuously and unrelentingly and intentionally hounded, harassed, intimidated, badgered, threatened and criticized the Plaintiff when he knew, or should have known, that the Plaintiff had personal problems of a severe nature which caused him to be depressed and required medication."
As a consequence of Sanders' treatment of Plaintiff Andrejko, the Plaintiff attempted suicide by ingesting an overdose of medication and is now emotionally disabled. He needs and will continue to need medical and psychiatric care, can no longer work, and his wife has suffered the loss of his society.
PLAINTIFF'S MOTION TO REMAND
The Plaintiff seeks remand to the Lackawanna County Court of Common Pleas on the theory that:
This is a complaint against an individual for injuries which he maliciously and intentionally perpetrated upon the Plaintiffs knowing full well the physical and mental condition of the Plaintiff and the result which his actions would achieve. It is not an action against the United States. The Defendant has attempted to superimpose the United States in his position alleging that these injuries were performed in the line of duty and in Defendant's official capacity. This is blatantly not correct. Nowhere in the Complaint is it alleged that Sanders, during the period of the conduct alleged, was doing so in his official capacity. True, his position with the Internal Revenue Service is stated, however, his course of conduct is not alleged to be as an agent, servant and/or employee of the United States but rather as one individual against another. See Docket Item 14 at page 2.
In response to Plaintiff's averment that this case belongs in state court due to its "individual against individual" character, Defendant cites Willingham v. Morgan, 395 U.S. 402, 23 L. Ed. 2d 396, 89 S. Ct. 1813 (1969), for the proposition that the right of removal under 28 U.S.C. § 1442(a)(1) is made absolute whenever a suit in a state court is for any act "under color" of federal office. The Supreme Court in Willingham agreed with the government's argument that ". . . the removal statute is an incident of federal supremacy, and that one of its purposes was to provide a federal forum for cases where federal officials must raise defenses arising from their official duties." Willingham, supra at 405. Defendant also notes that ". . . the Court in Willingham observed that the Congress, 'has decided that federal officers, and indeed the Federal Government itself, require the protection of a federal forum. This policy should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1)'."
Our reading of Willingham persuades this Court that the government's insistence on a federal forum here is well-founded.
The applicable statute
(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:
(1) any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the ...