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CAMERO v. KOSTOS

April 25, 1966

Frank CAMERO, Plaintiff,
v.
Theodore M. KOSTOS, Defendant



The opinion of the court was delivered by: COHEN

 Plaintiff, Frank Camero, a former civilian employee of the Military Clothing and Textile Supply Agency, an agency of the United States, commenced this action in the Superior Court of New Jersey, on November 13, 1965, against Theodore M. Kostos, a former attorney for the same agency. The gravamen of the complaint, *fn1" sounds in tort, alleging that defendant, while a prosecuting attorney for the Agency, exceeded his legal duties and maliciously incited departmental discharge of plaintiff with resultant monetary damages, for which he seeks recovery, together with punitive damages.

 Defendant, represented by the United States Attorney for the District of New Jersey, secured removal of the state suit pursuant to 28 U.S.C. § 1442, on the ground that at all times pertinent to the complaint, defendant, as attorney for the Agency, was an officer of the United States acting under the color of his office and within the scope of his employment.

 Thereafter, defendant filed a motion for an order dismissing the complaint for failure to state a cause of action, asserting absolute privilege of immunity from suit as an officer of the United States acting within the scope of his employment, and further, that the action is barred by res judicata, by reason of a collateral proceeding in the Court of Claims. Defendant also seeks a stay of pending discovery proceedings initiated by plaintiff.

 Plaintiff counters, urging lack of jurisdiction in this Court and requesting remand to the State Court. He maintains that his cause of action was improperly removed from the State Court since the defendant was not an officer of the United States when suit was commenced, 28 U.S.C. § 1447(c); nor is he entitled to claim immunity. Further, that res judicata is inapplicable since the present action is dissimilar to that in the Court of Claims, which involved different parties and issues and an interlocutory order. Moreover, plaintiff argues that defendant's use of supporting affidavits interposing matters outside the pleadings, converts defendant's motion into one for Summary Judgment under F.R.Civ.P. Rule 12(b), *fn2" and F.R.Civ. Rule 56(e), *fn3" which he is entitled to meet through the assistance of appropriate discovery proceedings.

 It is readily evident that the parties clash on every phase of this matter. All these issues shall be refined into analytical isolation, as well as be viewed as they may be interrelated. Concise factual narrative of the events leading to the present proceeding may provide a greater prospective to the problems calling for disposition, as well as sharpen a focus on their present resolution.

 In 1959, plaintiff was a supervisory clothing inspector civil service non-veteran grade, GS-9, in the Military Clothing and Textile Supply Agency, Department of the Army, Philadelphia Quartermaster Depot, receiving a salary of $6,585.00 per annum. During his twentieth year of service, on May 29, 1959 he was discharged on the accusation of having accepted a bribe in 1948, from one Altman, president of Pembroke Clothes, Inc., a New Jersey supplier of the Quartermaster Depot.

 Thereupon, plaintiff pursued the Army Civil Personnel Grievance Procedures, and was granted a hearing, *fn4" at which defendant as attorney for the Agency conducted the prosecution. After concluding the hearing, the Grievance Committee filed a detailed report on November 2, 1959 with the Depot Commander, unanimously recommending that the departmental dismissal of plaintiff be revoked and that he be reinstated for failure of the evidence to sustain the charges against him.

 Subsequent to the hearing and pending the Depot Commander's action on the Committee's recommendation, it is alleged that defendant wrote a "comment" by letter to the Depot Commander, stating that notwithstanding the Committee's fact finding and conclusion, the evidence clearly established plaintiff's guilt of bribery.

 Thereafter, by letter dated December 30, 1959, reviewed and approved by defendant and signed by the Depot Commander, plaintiff was notified that his grievance was dismissed for lack of merit and his removal from employment sustained.

 Plaintiff then brought an action for back salary in the United States Court of Claims. That Court, sitting en banc, on hearing cross motions for summary judgment, determined that there was presented "substantial evidence" to support the dismissal of plaintiff from his employment on the charge of bribery, but remanded the case to the Trial Commissioner. As stated by the Court in Camero v. United States, 345 F.2d 798, 170 Ct.Cl. 490 (1965), at page 806:

 
"In conclusion, both motions for summary judgment are denied. The case is returned to the Trial Commissioner for further proceedings in accord with this opinion. The trial is to be limited to the issues relating to the participation of Mr. Kostos and is not to include the matter of the validity of the grounds for removing plaintiff. As indicated previously, this court has already determined the question of the validity of the grounds for the removal of plaintiff."

 The determination on the merits of discharge was against plaintiff Camero.

 While cross motions of the parties, here, raise several interesting issues, those which are deemed dispositive are two: (1) does this Court have jurisdiction by virtue of the removal of the state court suit; and if so, (2) is the defendant cloaked by law with ...


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