stating that the elimination of the federal defense requirement from the federal officer removal statute “would eliminate the substantive Art[icle] III foundation of § 1442(a)(1) and unnecessarily present grave constitutional problems”
How later courts described this case
- stating that the elimination of the federal defense requirement from the federal officer removal statute “would eliminate the substantive Art[icle] III foundation of § 1442(a)(1) and unnecessarily present grave constitutional problems”
- holding that the United States and its agencies may remove under § 1442(a)(1) regardless of whether they assert a colorable federal defense or act under color of office
- holding that under § 1442(a), “the raising of a federal question in the officer’s removal petition ... constitutes the federal law *741 under which the action against the federal officer arises for Article III purposes.”
- holding that under § 1442(a), "the raising of a federal question in the officer's removal petition . . . constitutes the federal law under which the action against the federal officer arises for Article III purposes."
Written by the judges who cited it.
The opinion
*140 Justice Brennan,
with whom Justice Marshall joins, concurring.
While I concur in the judgment and opinion of the Court, I write separately to emphasize a point that might otherwise be overlooked. In most routine traffic-accident cases like those presented here, no significant federal interest is served by removal; it is, accordingly, difficult to believe that Congress would have intended the statute to reach so far. It is not at all inconceivable, however, that Congress’ concern about local hostility to federal authority could come into play in some circumstances where the federal officer is unable to present any “federal defense.” The days of widespread resistance by state and local governmental authorities to Acts of Congress and to decisions of this Court in the areas of school desegregation and voting rights are not so distant that we should be oblivious to the possibility of harassment of federal agents by local law enforcement authorities. Such harassment could well take the form of unjustified prosecution for traffic or other offenses, to which the federal officer would have no immunity or other federal defense. The removal statute, it would seem to me, might well have been intended to apply in such unfortunate and exceptional circumstances.
The Court today rightly refrains from deciding whether removal in such a situation is possible, since that is not the case before us. But the Court leaves open the possibility that where a federal officer is prosecuted because of local hostility to his function, “careful pleading, demonstrating the close connection between the state prosecution and the federal officer’s performance of his duty, might adequately replace the specific averment of a federal defense.” Ante, at 132. With the understanding that today’s decision does not foreclose the possibility of removal in such circumstances even in the absence of a federal defense, I join the Court’s opinion.