People of the State of California v. Kathryn Isabella Mesa, People of the State of California v. Shabbir A. Ebrahim, A/K/A Shabbir Azam

NOONAN, Circuit Judge,

dissenting:

We are called to interpret an act of Congress. The act provides that “a civil action or a criminal prosecution” brought “against any officer of the United States ... or person acting under him, for any act under color of such office” may be removed by the defendants from the state to the federal court. 62 Stat. 938 (1948), 28 U.S.C. § 1442 (a)(1).

The statute embraces not only “officers of the United States” but all their subordinates, officers or not. The head of every federal department or agency is an officer of the United States. Those acting under him are themselves officers or they are employees. Officers or employees, they are within the statute; they are acting under an officer of the United States. All federal employees fall within the class described. Inclusiveness to this degree was the intention of the revisers when the Judicial Code was changed in 1948. The “Reviser’s note” declared sweepingly: “The revised subsection (a)(1) is extended to apply to all officers and employees of the United States or any agency thereof.” 28 U.S.C. Ann. § 1442, “Historical and Revision Note.”

The extent of the change in 1948 rendered superfluous parts of earlier law that were still retained — e.g. 28 U.S.C. § 1442 (a)(3) providing for removal of suits against any officer of a court “for any act under color of office or in the performance of his duties.” The court officer was already covered by (a)(1). But section (a)(3) was allowed to remain as historical “residue” of a long series of specialized removal statutes that preceded the present (a)(1). See Hart and Wechsler, The Federal *968 Courts and the Federal System (ed. Bator, Mishkin, Shapiro and Wechsler, 1972) 1336.

The “breadth of the language,” id., makes the phrase “under color of such office” unusually spacious. The phrase “act under color of office” suggests action by an officer of the government. In the context of this statute, the phrase goes further. It necessarily includes — because the statute includes — acts by any employee — a janitor, say, or a guard, or a driver— who would not be classified as an officer. Expansively read as it must be to afford protection to all federal employees, “under color of such office” is the equivalent of “within the scope of their employment.”

The statute instructs us that a suit against a federal employee based on an act within the scope of his employment may be removed to a federal forum. No challenge is here raised to the constitutionality of the statute, and none could be. The “judicial Power” of the United States extends to all cases “arising under this Constitution, the laws of the United States ...” Constitution of the United States, Article III, § 2. A case based on the act of a federal employee acting within the scope of his employment arises under the Constitution, which creates the authority to authorize his work, and under the laws of the United States that do authorize it, that make him a federal employee within a federal program with a federal function. Cf. Osborn v. Bank of the United States, 9 Wheat. (22 U.S.) 738, 823, 6 L.Ed. 204 (1824).

The history of the removal statute is of course relevant to its reading. Undoubtedly the motivation of Congress in enacting many past provisions for removal was the fear of local hostility to federal policy. See Maryland v. Soper (No. 1) 270 U.S. 9, 32 , 46 S.Ct. 185, 190 , 70 L.Ed. 449 (1926). Congressional motivation should not be mistaken for congressional power. The power exists in Congress to provide a federal forum for all federal agents engaged in federal work. See Mishkin, “The Federal ‘Question’ in the District Courts”, 53 Col.L.Rev. 157, 193 (1953).

Congress has chosen to vest the “judicial Power” in the federal courts to decide suits against federal employees for acts within the scope of their employment. Removal is at the discretion of the employees sued: the case, the statute says, “may” be removed “by them.” But if removal is sought by the employee, the acceptance of jurisdiction of the case is mandatory. Congress, not the lower federal courts, determines the jurisdiction of these courts. Constitution of the United States, Article III, § 1. Congress has ordained and established that jurisdiction of such suits against federal employees vests in the federal system.

The removal statute as to civil actions is in harmony with the Federal Tort Claims Act, one of whose “principal purposes was to waive the Government’s immunity from liability for injuries resulting from auto accidents in which employees of the Postal Service were at fault.” Kosak v. United States, 465 U.S. 848, 855 , 104 S.Ct. 1519, 1524 , 79 L.Ed.2d 860 (1984). Claims against the United States for the negligent acts of postal employees, as of other federal employees, are within the exclusive jurisdiction of the district court. 28 U.S.C. § 1346 (b).

It would be anomalous, to say the least, that Congress wanted tort suits arising out of allegations of negligent driving by postal employees tried in the district court but criminal prosecutions based on the same conduct tried in the state courts. A footnote in a recent case does suggest that there is a graver invasion of state sovereignty when a state is denied the right to prosecute a state crime in a state court. Willingham v. Morgan, 395 U.S. 402 at 409, n. 4 , 89 S.Ct. 1813 at 1817, n. 4 . This suggestion was answered long ago: a portion of state sovereignty was surrendered, when the Union was formed, to the United States. It is no derogation of any existing state sovereignty when the national government exercises its own authority to create a federal forum in which the acts of its agents will be measured. Tennessee v. Davis, 100 U.S. (10 Otto) 257, 267, 25 L.Ed. 648 (1880). In the removal statute Congress has made no differentiation between “civil actions” and “criminal prosecutions.” *969 In the same breath, Congress has provided for the removal of both. A court should not distinguish where Congress in the exercise of its constitutional power has drawn no line.

It is not a requirement for removal that the employee have a federal defense to the charges. Language in some cases does suggest that there must be such a defense. Maryland v. Soper (No. 1) 270 U.S. at 33-34 , 46 S.Ct. at 190-191 ; cf. Arizona v. Manypenny, 451 U.S. 232, 241 , 101 S.Ct. 1657, 1664 , 68 L.Ed.2d 58 (1981). But this cannot be right. If there were such a requirement, the only federal employees entitled to removal would be those who had committed a crime under state law and had a federal justification or immunity as an affirmative defense. The federal employee charged with a crime for an act done in the course of his employment and entirely innocent of any unlawful act whatsoever has no “federal defense.” His defense is, “I did not do the unlawful act complained of.” The removal statute reflects no intention on the part of Congress to deny such an entirely innocent federal employee the benefit of a federal forum.

Kathryn Mesa is similarly entitled to the removal of her case to the federal forum. The state of California has charged her with vehicular manslaughter in an automobile accident. In her petition for removal she has declared that “the state charges arose from an accident involving defendant which occurred while defendant was on duty and acting in the course and scope of her employment with the Postal Service.” She has stated — rather skimpily to be sure — the essential facts necessary to support removal.

No doubt it would have been better practice to put in her petition what the United States Attorney did put in his brief to the trial court: that on August 16,1985, at 3:20 p.m., Mesa, a postal employee, was driving her postal jeep to reach her assigned mail route when she moved to make a U-turn from the far left lane; that her entry into that lane was blocked by a truck; and that failing to enter that lane, she collided with a bicyclist who had “drifted over” into the middle lane; they collided, and the boy was killed. Such a narrative would have better complied with the requirements of 28 U.S.C. § 1446 (a) that a removal petitioner make “a short and plain statement of the facts which entitle him to removal.” See Willingham, 395 U.S. at 407, n. 3 , 89 S.Ct. at 1816, n. 3 . But Mesa should not be prejudiced because the United States Attorney representing her put in the brief what he should have put in the petition. The essential issue is clear. Mesa killed someone as, on duty, she drove a mail jeep. She was a federal employee. She was within the scope of her federal employment. She is entitled to have a federal court decide whether she killed unlawfully.

She asserts no federal defense in the sense of asserting that a mail truck driver has a license to kill bicyclists. In this respect she is like the warden and doctor in Willingham . Her substantive defense is assertion of innocence of the acts alleged. Her federal “defense” in the sense of Willingham is that she was driving her vehicle on duty. She was within the scope of her federal employment — unquestionably, as the facts stated in her petition are not denied. Her guilt of the crime charged, of which she pleads innocent, must be established, on her demand, in a federal court.

The opinion of the court create a split within the circuits. Pennsylvania v. Newcomer, 618 F.2d 246 (3rd Cir.1980). For that reason alone, on a matter of this kind, we might well hesitate to reach the result the court reaches. The result is far from being required by any binding precedent. The court reads Soper in a broad and binding way and Willingham in a narrow and literal way: that is at the nub of the decision of the court as far as precedents go. The opinion also invokes Morgan v. California, 743 F.2d 728, 731 (9th Cir.1984). But that case dealt with the immunity of federal officers, not removal jurisdiction. The opinion in citing this case is consistent with its theory that only a defense based on federal immunity or justification will warrant removal. Finally, the opinion brings forward a policy consideration, that federal district courts should not be made traffic courts. This concern is needless. *970 The broad removal statute for federal employees has been on the books about 30 years without such a catastrophe. Many federal employee defendants must prefer the informality of a municipal proceeding to federal formality. The United States District Attorney, who defends such suits, and the Postal Service, which is indirectly involved in them, are able to exercise a restraining influence on defendants who foolishly desire removal. To halt a small but useful flow of federal business by a constriction of a statutory channel is unnecessary judicial housekeeping and contrary to the congressional command.

I would affirm.

For the same reasons I dissent in the case now consolidated with this one, California v. Ebrahim, No. 85-1500.