Petitioners Brief — Mesa v. California

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No. 87-1206

In the Supreme Court of the United States

OCTOBER TERM, 1988

KATHRYN ISABELLA MESA, PETITIONER

Vv.

PEOPLE OF THE STATE OF CALIFORNIA

SHABBIR A. EBRAHIM, PETITIONER

Vv.

PEOPLE OF THE STATE OF CALIFORNIA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE PETITIONERS

CHARLES FRIED

Solicitor General

JOHN R. BOLTON

Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

MICHAEL K. KELLOGG

Assistant to the Solicitor General

BARBARA L. HERWIG

JOHN S. KOPPEL

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether an employee of the United States govern-

ment, charged in state court with a crime allegedly

committed while performing official duties on behalf

of the United States, is entitled to remove his trial

to federal district court under 28 U.S.C. 1442(a) (1).

(1)

TABLE OF CONTENTS

Opinions below ...................... Teena

EE

Statutory provision involved ..........................------..-0.0.....--

1

1

2

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a csceeusenevecccczeces 5

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A federal empleyee charged in state court with a

crime allegedly committed while performing official

duties on behalf of the United States is entitled to

remove his trial to federal district court under 28

LE EL 7

A. The plain language of Section 1442(a) (1) per-

mits removal without assertion of a federal de-

a sccunsntonnesnnnsenns 9

B. The statute» history and its construction by this

Court are consistent with the plain meaning in-

terpretation of its language —............0.0..0022....002... 13

1. The history of Section 1442(a) (1) -.............. 13

2. This Court’s civil cases constrwing Section

1442(a) (1) and its predecessors permit re-

moval without assertion of a federal defense.. 15

3. There is no justification for applying, and

this Court’s cases do not mandate, a differ-

ent test for removal in criminal cases ............. 17

C. Related removal provisions reinforce the conclu-

sion that removal under Section 1442(a) (1)

does not require a federal defense _................... 25

D. The purpose of Section 1442(a)(1) would be

frustrated if a federal defense were a pre-

Nee essemsnmsnoncs 28

LE 31

IV Vv

TABLE OF AUTHORITIES Statutes and regu. ion—Continued: Page

Cases : Page Act of July 13, 1866, ch. 184, § 67, 14 Stat. 171

. _ , (Rev. Stat. $643 (2d ed. 1873-1874 ed.))... 14, 19

Arizona v. Manypenny, 451 U.S. 282 (1961)......6, “ Civil Rights Act of 1871, ch. 22, §1,17Stat.13.. 10

Cleveland, C. &.c. R.R. V. McClung, 119 U.S. 454 Act of Feb. 28, 1871, ch. 99, § 18, 16 Stat. 437-438. 14

BUI: cnssinsnsinsimeisiabeineniatiaavamalamiaan nats 15, 24, 30 Act of Mar. 3, 1875, ch. 130, § 8, 18 Stat. ties 14

Colorado v. Symes, 286 U.S. 510 (1982) ............. 23, 24, 28 Act of Aug. 23, 1916, ch. 399, 39 Stat. 532 000... 14, 25

Davis v. South Carolina, 107 U.S. 597 (1882)........ 21 Act of Aug. 29, 1916, ch. 418, § 3, 39 Stat. 669

Dodge v. Woolsey, 59 U.S. (18 How.) 331 (1855).. 30 (Art. 117) neh pacar apEE ESI tcmea ime gaorapanncaasactn 14

Gay V. Ruff, 292 U.S. 25 (1984) ..........ec-se-eeseeeeseeees 26 National Prohibition Act of 1919, ch. 85, § 28, 41

Georgia v. Grady, 10 Fed. Cas. 245 (1876) (No. SR 14

ae 20, 21 Act of June 25, 1948, ch. 646, § 1442, 62 Stat. 938.. 14

Greenwood Vv. Peacock, 384 U.S. 808 (1966)........ 27 18 wane SES ~ srerndeoeavenenmveneensnnicenmseneenn eaeameatore 10, 11, 14

Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982) .... 10 = aaa et wae gM pa gk ea 30

Maryland v. Soper (No. 1), 270 U.S. 9 (1929) ....22, 23, 28 98 USC 1442 a) os omens oaneenamanannaneneeneneenenanieiosennees page

Maryland v. Soper (No. 2), 270 U.S. 36 (1926)....9, 20, 23 pot eee (8) (3) -....---rneeeneceneseneesnssenecenneenneceneeens 25, 26

The Mayor v. Cooper, 73 U.S. (6 Wall.) 247 BG. T44Z (8) (4) ....--..-----nnneeneennenonennevneccnsenseeneennees 26

CL ee 27

OIE in'conissnnesimiciaceistiadbalsnanie iam tacaee ti. 14 pty

Mitchum V. Foster, 407 U.S. 225 (1972) -.--....0-000--- 10 U.S.C. 1983 n-nonane eeeeeeece ences eeeeeeeeeccccecnnnnne 10, 11

Monell v. New York City Dep’t of Social Services, 28 CPR. 50.15 (8) ..-----------eecoeseeesnnesesensenccnneseceneeecones 2

436 U.S. 658 rages we enna ene e cee eeneneneeeeeetenneeeeneneeeeee ~ Miscellaneous:

Monroe V. Pape, 365 U.S. 167 (1961) -.........--........... 1 ais

Pennsylvania v. Newcomer, 618 F.2d 246 (3d Cir. 28 Annals of Cong. 758-761 (1814) aeRO a 13

LES LEER LG SAE IS 28 P. Bator, D. Meltzer, P. Mishkin & D. Shapiro,

United States v. Classic, 313 U.S. 299 (1941)... 11 res ee ae ng A ederal Courts and the

Screws V. United States, 325 U.S. 91 (1945)..10, 11, 12, 31 oGen in oe ¢ ohn meine seeeeees sisetecoseeeeeeeeees 9, 16, 26

Tennessee V. Davis, 100 U.S. 257 (1880) ..15, 19, 20, 21, 28 : ae tag ts cn - be a etsnsnnscuvensssnsseoes 14

Webster v. Doe, No. 86-1294 (June 15, 1988)........ 12 ‘Seen te Gita ae (1833) ........-.----. 13

West v. Atkins, No. 87-5096 (June 20, 1988)........ 11 oe fo one, : ong., ess. 534 (1863)... 18

Willingham v. Morgan, 395 U.S. 402 (1969)...... 4, 8, 9, 12, -R. Rep. 776, 64th Cong., Ist Sess. (1916) ............ 26

16-17, 25. 28. 29. 31 S. Rep. 94-996, 94th Cong., 2d Sess. (1976) _........ 12

ene ee The Federalist No. 80 (A. Hamilton) .................... 30

Constitution, statutes and regulations:

8 Re eo 30

Administrative Procedure Act, 5 U.S.C. 702 ............. 12

Act of Feb. 4, 1815, ch. 31, § 8, 3 Stat. 195, 198... 13, 18

Act of Mar. 3, 1817, ch. 109, § 2, 3 Stat. 396 .............. 13

Act of Mar. 2, 1833, ch. 57, § 3, 4 Stat. 633 00... 13, 18

Act of Mar. 3, 1863, ch. 81, § 5, 12 Stat. 756 _............ 14, 19

Act of Mar. 7, 1864, ch. 20, § 9, 13 Stat. 17 0.0.0.0... 14

Iu the Supreme Court of the United States

OCTOBER TERM, 1988

No. 87-1206

KATHRYN ISABELLA MESA, PETITIONER

Vv.

PEOPLE OF THE STATE OF CALIFORNIA

SHABBIR A. EBRAHIM, PETITIONER

Vv.

PEOPLE OF THE STATE OF CALIFORNIA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1la-

20a) is reported at 813 F.2d 960. The opinions of

the district court (Pet. App. 21la-22a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered

on March 26, 1987. A petition for rehearing was

denied on October 21, 1987 (Pet. App. 23a-24a).

On December 10, 1987, Justice O’Connor extended

the time within which to file a petition for a writ of

(1)

2

certiorari to and including January 19, 1988. The

petition was filed on that date and was granted on

May 1, 1988. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

28 U.S.C. 1442(a) (1) provides:

(a) A civil action or criminal prosecution

commenced in a State court arainst 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 apprehen-

sion or punishment of criminals or the collec-

tion of the revenue.

STATEMENT

Kathryn Mesa and Shabbir Ebrahim are employees

of the United States Postal Service. In separate in-

cidents each was involved in a collision while driving

a United States Postal Service vehicle in the course

of delivering the United States mail. Petitioner Mesa

struck and killed a bicyclist. She was charged in

California state court with vehicular homicide. Peti-

tioner Ebrahim collided with a police car and was

charged by the officer with speeding and failure to

vield. Pet. App. 2a & n.2.

The United States Denartment of Justice is repre-

senting hoth petitioners. See 28 C.F.R. 50.15(a).

Pursuant to 28 U.S.C. 1442(a)(1), petitioners filed

3

removal petitions in the United States District Court

for the Northern District of California. The district

court granted the petitions and denied motions by the

State of California to remand the cases to state court.

The State filed an interlocutory appeal in each case,

challenging the denial of its remand motion. The two

cases were consolidated by order of the court of ap-

peals (Pet. App. 2a n.1). Petitioners challenged the

appealability of the district court’s decisions denying

remand. The court of appeals held that, although the

State could not bring an interlocutory appeal, the

court nonetheless had jurisdiction to issue a writ of

mandamus to order the cases remanded to state court

(id. at 4a-7a).'

On the merits, a divided panel of the court of

appeals held that the fact that petitioners were per-

forming their duties as federal officers at the time

and place of the alleged criminal conduct did not

satisfy the “color of office” requirement of 28 U.S.C.

1442(a)(1). The court stated (Pet. App. 10a) that

the primary purpose of the removal statute was to

permit a federal official with a federal defense to

litigate that defense in federal court. Petitioners

have not raised any federal defense, the court noted

(id. at lla), and their cases therefore turn entirely

on issues of state law. While acknowledging (id. at

13a) that a desire “‘to permit trial on state-law

claims free from local prejudice against federal in-

terests * * * certainly played a role in the evolution

of section 1442(a)(1),” the court nonetheless con-

cluded (Pet. App. lla) that “[t]he attenuated fed-

eral interest in ensuring that [petitioners’] trial be

' Petitioners did not seek certiorari on this aspect of the

court of appeals’ decision. See Pet. 3 n.1.

4

unbiased does not justify an invasion of the state’s

authority to police its streets.”

The court of appeals acknowledged (Pet. App.

lla) that this Court had “read the ‘color of office’

provision of 28 U.S.C. § 1442(a)(1) quite broadly”

in Willingham v. Morgan, 395 U.S. 402 (1969), and

held there that removal was appropriate based sim-

ply on “the undisputed fact that petitioners were on

duty, at their place of federal employment, at all the

relevant times” (id. at 409). The court of appeals

noted, however, that Willingham was a civil case and

declined to “casually import[]” that reading of the

statute “into the criminal arena” (Pet. App. 12a).

Stressing “the states’ compelling interest in the ad-

ministration of their criminal justice systems,”’ the

court of appeals concluded (id. at 14a) that “federal

postal workers may not remove state criminal prose-

cutions to federal court when they raise no colorable

claim of federal immunity or other federal defense.”

The court therefore issued the writ of mandamus

ordering the district court to remand the two prose-

cutions for trial in the California state courts.

Judge Noonan dissented, concluding that the “un-

usually spacious” language of the statute was not to

be given such a restricted reading. “It is not a re-

quirement for removal,” he stated (Pet. App. 18a),

“that the employee have a federal defense to the

charges. * * * The federal employee charged with

a crime for an act done in the course of his employ-

ment and entirely innocent of any unlawful act what-

soever 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.”

5

Judge Noonan noted (Pet. App. 17a) that “[i]t 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.” He therefore rejected the

majority’s use of different standards for removal in

criminal and civil cases. “In the removal statute,”

the dissent observed (ibid.), “Congress has made no

differentiation between ‘civil actions’ and ‘criminal

prosecutions.’ * * * A court should not distinguish

where Congress in the exercise of its constitutional

power has drawn no line.” Judge Noonan therefore

concluded (id. at 16a) that “under color of office’’ is

properly read in both types of cases as “the equiva-

lent of ‘within the scope of their employment.’ ”

SUMMARY OF ARGUMENT

Section 1442(a)(1) permits removal of “[a] civil

action or criminal prosecution” by “[a]ny officer of

the United States” for “any act under color of such

office.” The phrase “under color of office’ limits re-

moval to suits arising out of the exercise of an em-

ployee’s official duties. But there is no requirement,

nor can one plausibly be read into Section 1442

(a)(1), that the employee’s actions be justified by

federal law. The term “color,” as used in Section

1442(a) (1), refers to the appearance of a right, au-

thority or office, such as any federal employee enjoys

when he is performing official duties, whether his

actual performance of those duties is justified by

federal law or not.

This reading of the phrase “under color of office”

is consistent with the Court’s construction of analo-

gous language in other federal statutes. The Court

has always read the words “under color of” law or

6

legal authority to apply whenever a public employee

is acting in his official capacity, even if he abuses

the authority given to him. An equally broad reading

is appropriate here. An FBI agent conducting an

allegedly illegal search, an engineer from the Army

Corps of Engineers building an allegedly unsafe

bridge, an EPA inspector conducting an allegedly

negligent inspection, and a postman delivering the

mail at an allegedly excessive speed are all acting

“under color of” their respective offices, even if their

actions are wrongful under state law and not justi-

fied by federal law.

This Court’s civil cases construing Section 1442

(a) (1) and its predecessors have therefore permitted

removal by federal officials without regard to the

presence of any issue of federal law raised by the

defendant. Removal is appropriate, the Court has

stressed, whenever there is a causal connection be-

tween the charged conduct and the performance of

the defendants’ official duties, and that connection

may consist of nothing more than the fact that the

defendants were on duty, at their place of federal

employment, when the incident occurred. The Court’s

civil cases make clear that the right to removal is as

available to a federal defendant who simply denies

committing the act alleged as to one who admits the

act but claims an official immunity.

The Court’s criminal cases construing the removal

statute are more ambiguous, but on balance they are

also consistent with the plain meaning of the statute.

Furthermore, there is no justification in the language

of the statute for applying a test in criminal cases

different from that used in civil cases. Section 1442

(a)(1) states simply that “[a] civil action or crim-

7

inal prosecution * * * may be removed” and then

proceeds to state a single test governing all cases.

The court of appeals’ requirement of a “federal

defense” as a prerequisite to removal frustrates the

statute’s purpose—to protect federal officers from

interference by hostile state courts. Federal policy

can be disrupted more readily by false charges than

by the relatively rare circumstance of otherwise

legitimate charges that are expressly precluded by

federal law. In either instance, the federal interest

in ensuring a federal forum is the same. The deci-

sion below thus presents a potential threat to federal

supremacy anywhere federal policies encounter local

hostility.

ARGUMENT

A FEDERAL EMPLOYEE CHARGED IN STATE

COURT WITH A CRIME ALLEGEDLY COMMITTED

WHILE PERFORMING OFFICIAL DUTIES ON BE-

HALF OF THE UNITED STATES IS ENTITLED TO

REMOVE HIS TRIAL TO FEDERAL DISTRICT

COURT UNDER 28 U.S.C. 1442(a)(1)

The court of appeals has imposed upon the “un-

usually spacious” (Pet. App. 18a) language of Sec-

tion 1442(a)(1) an artificial distinction between

cases in which a federal official charged with a crime

for actions within the scope of his employment pro-

poses to offer a “federal defense” and those in which

he does not. By allowing removal in the former in-

stance but not the latter, the court of appeals seeks

to strike a balance between the protection of federal

governmental functions and the state’s interest in

the enforcement of its criminal laws (Pet. App. 13a-

14a). The presence or absence of a “federal defense,”

however, is not a useful measure of this balance.

8

Whenever a federal official is charged with a state

crime for actions within the scope of his employment,

the prosecution poses a challenge to the manner in

which the official has performed his duties. The chal-

lenge to that performance of his job is no less where

the official responds that he did not do the act

charged, or that he lacked a criminal state of mind,

than where he claims that his behavior is shielded by

an official privilege or immunity. In each instance,

the official is called to account in a state criminal

court for the manner in which he has acted in the

course of carrying out his federal responsibilities.

In each instance, federal government functions will

be disrupted and the possibility exists that interfer-

ence by the state is a deliberate attempt to frustrate

federal policy.

Whether the criminal charges in any given case

are justified or unjustified cannot be known until

after a determination of the merits of the case.

What the removal statute ensures is that that deter-

mination will be made in federal court so as “to pro-

tect federal officers from interference by hostile state

courts” (Willingham v. Morgan, 395 U.S. 402, 405

(1969) ). At the same time, the removal statute en-

sures “the highest regard for a State’s right to make

and enforce its own criminal laws” (Arizona v.

Manypenny, 451 U.S. 232, 243 (1981)) by requiring

that all but the procedural aspects of the removed

case will still be governed by state law. That is the

balance struck by the removal statute.

The reading of Section 1442(a)(1) that we ad-

vocate here—which allows removal whenever a fed-

eral official is prosecuted for the manner in which

he has performed his federal duties—is supported by

the language and history of the statute. It is also ex-

9

plicitly adopted in this Court’s cases dealing with the

removal of civil actions against federal employees,

and is consistent with a reasonable reading of this

Court’s decisions on the removal of state criminal

prosecutions.

A. The Plain Language Of Section 1442(a)(1) Permits

Removal Without Assertion Of A Federal Defense

Section 1442(a)(1) is written in “sweeping

terms.” P. Bator, D. Meltzer, P. Mishkin & D.

Shapiro, Hart d& Wechsler’s The Federal Courts and

the Federal System 1057 (3d ed. 1988). It permits

removal of “[a] civil action or criminal prosecution”’

by “[a]ny officer of the United States” for “any act

under color of such office.” The phrase “under color

of office” limits removal to suits arising out of the

exercise of an employee’s official duties. Thus, a fed-

eral employee who commits a crime or a tort while

off-duty is not entitled to invoke Section 1442(a) (1).

See, e.g., Maryland v. Soper (No. 2), 270 U.S. 36, 42

(1926) (appearance of federal official before a state

coroner “is not an act of his under federal authority”

and he connot remove a subsequent prosecution for

obstruction of justice). But employees who are

brought to trial in state court for actions taken while

“on duty, at their place of federal employment”

(Willingham vy. Morgan, 395 U.S. at 409) are en-

titled to remove their cases to federal court. There

is no requirement, nor can one plausibly be read into

Section 1442(a)(1), that the employees’ actions be

justified by federal law. Section 1442(a)(1) is not

limited to employees “with a defense based on fed-

eral law,” and the words “under color of office” will

not bear such weight.

The term “color,” as used in Section 1442(a) (1),

implies the appearance of a right, authority or office,

such as any federal employee enjoys when he is per-

10

forming official duties, whether his actual perform-

ance of those duties is justified by federal law or not.

It is clear that under “color” of law means under

“pretense” of law. Thus acts of officers in the

ambit of their personal pursuits are plainly ex-

cluded. Acts of officers who undertake to per-

form their official duties are included whether

thev hew to the line of their authority or over-

step it. If, as suggested, the statute was de-

signed to embrace only action which the State

in fact authorized, the words “under color of any

law” were hardly apt words to express the idea.

Screws vy. United States, 325 U.S. 91, 111 (1945)

(plurality opinion) (construing predecessor of 18

U.S.C. 242).

This construction is consistent with the Court’s

interpretation of analogous language in 42 U.S.C.

1983, which provides a federal cause of action

against any person who deprives a citizen of his fed-

eral rights while acting “under color of any statute,

ordinance, regulation, custom, or usage, of any

State.’ The predecessor of 42 U.S.C. 1983, Section 1

of the Civil Rights Act of 1871, ch. 22, 17 Stat. 13,

was enacted, like the predecessors of Section 1442

(a)(1), to provide a federal forum for a category

of cases that Congress was unwilling to trust to the

state courts. See Mitchum v. Foster, 407 U.S. 225,

238-242 (1972).

The Court has consistently interpreted the “under

color of state law” requirement in Section 1983

broadly. “[S]tate employment is generally sufficient

to render the defendant a state actor.” Lugar v. Ed-

monson Oil Co., 457 U.S. 922, 936 n.18 (1982). In-

deed, “‘a public employee acts under color of state law

while acting in his official capacity or while exercising

11

his responsibilities pursuant to state law” even “when

he abuses the position given to him by the State.”

West v. Atkins, No. 87-5096 (June 20, 1988), slip op.

7. See also Monroe v. Pape, 365 U.S. 167, 184-187

(1961), overruled on other grounds, Monell v. New

York City Dep’t of Social Services, 436 U.S. 658,

695-701 (1978); United States vy. Classic, 313 USS.

299, 326 (1941) (similar construction for ‘under

color of” state law language in predecessor of 18

U.S.C. 242).?

Just as the meaning of the words “under color of

state law” has not been limited to acts arguably au-

thorized by law, the words “under color of office’

2In Screws v. United States, supra, the dissent expressly

drew the parallel between the language of the removal stat-

ute and the language of the predecessor of Section 242,

stating that the construction of the former “should be bind-

ing in the situation now before us” (325 U.S. at 146). The

dissent, however, read the Court’s cases interpreting the re-

moval statute narrowly to “indicate[] that misuse of federal

authority does not come within the statute’s protection” (id.

at 145). As discussed below, that reading is not mandated

by the criminal cases upon which the dissent relied. See

pages 17-25, infra.

The plurality in Screws did not take issue with the dis-

sent’s “strict” reading of the removal statute, but instead

simply asserted that the statute was not “in point’ because

the policies behind the two statutes were different (325 U.S.

at 111-112). But the parallel language of the two con-

temporaneous statutes cannot be so easily brushed aside.

If anything, the “under color of” state law language in 42

U.S.C. 1983 and 18 U.S.C. 242 would suggest a narrower

limitation to conduct grounded in specific state laws as com-

pared with the “under color of office’ languave of the re-

moval statute, which suggests that the conduct at issue need

only arise out of the performance of official duties. Further-

more, the policies underlying Section 1442(a) (1) fully sup-

port a reading of the statute at least as bruad as that of

Sections 212 and 1983. See pages 28-31, infra.

12

have not been and should not be limited to acts argu-

ably authorized by that office. An FBI agent con-

ducting an allegedly illegal search, an engineer from

the Army Corps of Engineers building an allegedly

unsafe bridge, an EPA inspector conducting an al-

legedly negligent inspection, and a postman deliver-

ing the mail at an allegedly excessive speed are all

acting “under color of” their respective offices. Even

if their actions are wrongful under state law and

not justified by federal law, these employees are still

“undertak[ing] to perform their official duties,” not

acting “in the ambit of their personal pursuits.”

Screws v. United States, 325 U.S. at 111. In all such

cases, the federal employees are entitled “to present

their version of the facts to a federal, not a state,

court.” Willingham v. Morgan, 395 U.S. at 409.°

3A similar reading was intended for the “under color of”

language in the judicial review provision of the Administra-

tive Procedure Act, 5 U.S.C. 702, which provides, in perti-

nent part:

An action in a court of the United States seeking relief

other tha[n] money damages and stating a claim that an

agency or an officer or employee thereof acted or failed

to act in an official capacity or under color of legal au-

thority shall not be dismissed nor relief therein be denied

on the ground that it is against the United States.

The legislative history of this provision indicates that the

quoted language was intended “to eliminate the defense of

sovereign immunity with respect to any action in a court of

the United States seekirg relief other than money damages

and based on the assertion of wnlawful official action by a

Federal officer.” S. Rep. 94-996, 94th Cong., 2d Sess. 2

(1976) (emphasis added). It is clear then that action can be

“under color of legal authority” whether or not it is justified

by, and even where it violates, that authority. See Webster

v. Doe, No. 86-1294 (June 15, 1988).

13

B. The Statute’s History And Its Construction By This

Court Are Consistent With The Plain Meaning Inter-

pretation Of Its Language

1. The History of Section 1442(a)(1)

Section 1442(a)(1) has a long lineage. The first

removal act for federal officials was a temporary

measure enacted in 1815.* See Act of Feb. 4, 1815,

ch. 31, § 8, 3 Stat. 198. Prompted by New England’s

resistance to embargoes imposed during the War of

1812 (see 28 Annals of Cong. 758-761 (1814)), the

Act permitted those enforcing the U.S. Customs laws

to remove “any suit or prosecution” against them

into federal court for “any thing done or omitted to

be done, as an officer of customs,” or “by virtue of”

the customs laws or “under colour thereof.”

In 1833, Congress found it “desirable to revive

[the removal provision], with some modifications bet-

ter adapted to the occasion” (9 Cong. Deb. App.,

Pt. 2, at 153 (1833) ), in response to a new national

crisis—South Carolina’s nullification of the federal

customs laws. The “Force Bill,” as it came to be

known, provided removal authority for any “suit or

prosecution” brought against “any officer of the

United States, or other person, for or on account of

any act done under the revenue laws of the United

States or under colour thereof.” Act of Mar. 2, 1833,

ch. 57, § 3, 4 Stat. 633. The avowed purpose of the

removal provision was to prevent state interference

with the collection of federal customs duties. 9 Cong.

Deb. App., Pt. 2, at 153 (1833). Removal was con-

sidered necessary because federal officers could not

get a fair trial from jurors who had sworn allegiance

* This removal provision was designed to last only during

the War of 1812, though it was temporarily extended by the

Act of Mar. 3, 1817, ch. 109, § 2, 3 Stat. 396.

14

to the South Carolina nullification act. Jd., Pt. 1, at

462 (remarks of Sen. Webster).

During the Civil War, Congress passed an addi-

tional, temporary provision to allow general removal

by “any officer, civil or military” of “any suit or

prosecution, civil or criminal” for any “wrongs done

or committed * * * during the present rebellion, by

virtue or under color of any authority derived from

or exercised by or under the President of the United

States, or any act of Congress.” Act of Mar. 3, 1863,

ch. 81, § 5, 12 Stat. 756. See The Mayor v. Cooper,

73 U.S. (6 Wall.) 247 (1867). This removal provi-

sion expired shortly after the Civil War, but the

Force Bill of 1833 continued in effect and was gradu-

ally expanded in scope to apply to collectors of the

internal revenue (Act of Mar. 7, 1864, ch. 20, § 9,

13 Stat. 17), to persons acting under color of the

Elective Franchise Act (Act of Feb. 28, 1871, ch. 99,

$ 18, 16 Stat. 487-438 (repealed 1894) ), to officers of

either House of Congress (Act of Mar. 8, 1875, ch.

130, § 8, 18 Stat. 401), to court officers (Act of Aug.

23, 1916, ch. 399, 39 Stat. 532), to soldiers in the

military service (Act of Aug. 29, 1916, ch. 418, § 3,

Art. 117, 39 Stat. 669), to prohibition officers (Na-

tional Prohibition Act of 1919, ch. 83, § 28, 41 Stat.

316 (vepealed 1935) ), and finally to “[a]ny officer of

the United States or any agency thereof, or person

acting under him” (Act of June 25, 1948, ch. 648,

$ 1442, 62 Stat. 988). The words “under color of

office” were introduced in 1866, when the removal

provision in the Force Bill was amended without

debate, in a bill to restructure and lower taxes, to

apply to “any case, civil or criminal” brought against

a revenue officer “on account of any act done under

color of his office.” Act of July 18, 1866, ch. 184,

§ 67, 14 Stat. 171 (codified as Rev. Stat. § 643 (2d

ed. 1873-1874 ed.) ).

15

2. This Court’s Civil Cases Construing Section 1442

(a)(1) And Its Predecessors Permit Removal With-

out Assertion Of A Federal Defense

The “under color of office” language was first

interpreted by the Court in a civil context in Cleve-

land, C. dc., R.R. v. McClung, 119 U.S. 454 (1886).°

In McClung, a railroad brought suit in state court

against a collector of customs alleging that the collec-

tor’s deputy delivered goods upon which there was a

lien for freight charges to a consignee upon receipt

of the money due for the freight charges without

turning that money over to the railroad. The rail-

road sued the collector for the money so received, and

the collector removed the case to federal court. The

railroad contended in this Court that the case was

improperly removed because the collector had claimed

in his defense ‘‘that it was not the official duty of the

collector to collect the carrier’s money, and, therefore,

that he is not liable for the acts of his deputy in that

behalf” (119 U.S. at 461). The collector had claimed,

in other words, not that his actions were justified by

federal law but rather that he bore no responsibility

for the alleged wrongdoing.

The Court found the action removable despite the

absence of any federal defense. “[T]he right to a

removal is not taken away because the collector says

in his defense that the act charged was not in fact

done. If done by him it was done under color of his

office. The thing to be tried is whether it was done”

(119 U.S. at 461). McClung, therefore, stands for

the proposition that a federal defense is not a pre-

requisite to removal. McClung makes clear, to the

5 Tennessee V. Davis, 100 U.S. 257 (1880), discussed infra,

pages 19-21, is the earliest criminal case dealing with this

statute.

16

contrary, that actions committed in the course of per-

forming one’s job are committed “under color of

office’ regardless what defense is to be offered.

This natural reading of the phrase ‘‘under color of

office” was continued by this Court after Congress in

1948—without any comment or debate (see P. Bator,

D. Meltzer, P. Mishkin & D. Shapiro, supra, at 1057)

—-extended the scope of the removal statute to cover

all federal employees. In Willingham v. Morgan, 395

U.S. at 409, the Court stated that removal is appro-

priate whenever there is a “causal connection”’ be-

tween the charged conduct and the performance of

the defendant’s official duties. In a suit by a prisoner

against the warden and chief medical officer of a fed-

eral penitentiary, the Court found sufficient ‘causal

connection” in the fact that the defendants’ only con-

tact with the prisoner had been in performance of

their official duties. “The connection consists, simply

enough, of the undisputed fact that [the defendants]

were on duty, at their place of federal employment,

at all the relevant times.” Willingham, 395 U.S. at.

409.

In Willingham, the Court noted that the defend-

ants had a potential defense based on official immu-

nity (see 395 U.S. at 406, 409), and that “one of the

most important reasons for removal is to have the

validity of the defense of official immunity tried in

federal court” (id. at 407). But the Court did not

limit its reading of Section 1442(a)(1) to cases in

which “federal officers can raise a colorable defense

arising out of their duty to enforce federal law” (395

U.S. at 406-497). The Court in Willingham did not

find it necessary even to discuss whether the claim of

official immunity at issue there was colorable, con-

cluding simply that “it was sufficient for [the defend-

ants] to have shown that their relationship to [the

17

plaintiff] derived solely from their official duties”

(395 U.S. at 409). Under those ~ircumstances, the

Court stated (ibid.), the defendants “should have an

opportunity to present their version of the facts to a

federal, not a state, court.”

If the test applied in Willingham and McClung is

applied in this case, petitioners are clearly entitled to

removal. Petitioners have both pled “not guilty” to

the charges against them. It is not presently clear

what specific defenses they will offer. It is clear,

however, that the events in question here occurred

while petitioners were driving their mail trucks in

the course of delivering the United States mail. As

in Willingham, 395 U.S. at 409, petitioners were “on

duty, at their place of federal employment, at all the

relevant times,” and, following that case’s reasoning,

they too “should have the opportunity to present their

version of the facts to a federal, not a state, court”

(ibid.).

3. There Is No Justification For Applying, And This

Court’s Cases Do Not Mandate, A Different Test For

Removal In Criminal Cases

There is no persuasive basis, we submit, for apply-

ing a different test here on the ground that this is a

criminal case. In Willingham, the Court did remark

in passing (395 U.S. at 409 n.4) that “a more de-

tailed showing might be necessary” in a criminal case

“because of the more compelling state interest in

conducting criminal trials in the state courts.” As

Judge Noonan noted, however, there is no justi-

fication in the language of the statute for such a dis-

tinction. Section 1442(a) (1) states simply that “[a]

civil action ov criminal prosecution * * * may be

18

removed” and then proceeds to state a single test

governing all cases. The phrase “under color of of-

fice” cannot plausibly be read to mean different things

for different cases, and “[a] court should not dis-

tinguish where Congress in the exercise of its con-

stitutional power has drawn no line” (Pet. App.

17a).

The earliest removal statutes applied to “any suit

or prosecution.” See Act of Feb. 4, 1815, ch. 31, § 8,

3 Stat. 198; Act of Mar. 2, 1833, ch. 57, $ 3, 4 Stat.

633. Although this language on its face appears to

apply to both civil suits and criminal prosecutions,

there was apparently some ambiguity as to whether

the statute in fact extended to criminal cases. See

Cong. Globe, 37th Cong., 3d Sess. 534 (18638) (ve-

marks of Sens. Sumner and Collamer). Congress

accordingly amended the language of a bill providing

broad removal authority during the Civil War so “as

to exclude all possibility of doubt that this language

is applicable to criminal as well as to civil suits or

prosecutions.” Jd. at 525 (remarks of Sen. Sumner).

The proposed amendment sparked considerable con-

troversy. Some Senators contended that the bill was

unconstitutional because it would allow federal courts

to decide criminal cases involving only issues of state

law. Id. at 534 (remarks of Sen. Trumbull); id. at

5387 (remarks of Sen. Bayard). The amendment

nonetheless passed by a comfortable margin (id. at

538) and was defended as “a matter of necessity” to

ensure fair trials for federal officials charged with

state offenses. Jd. at 535 (remarks of Sen. Clark) ;

ibid. (remarks of Sen. Sumner) (“I think that we

ought to adapt it both to criminal and to civil pro-

ceedings, and that unless we do, the bill will be a

failure.” ).

19

The statute as amended was, thus, made expressly

applicable to “any suit or prosecution, civil or crimi-

nal.” Act. of Mar. 3, 1865, ch. 81, § 5, 12 Stat. 756.

This same language was then added to the Force Bill

when it was amended in 1866. Act of July 13, 1866,

ch. 184, § 67, 14 Stat. 171. In Tennessee v. Davis,

100 U.S. 257, 265 (1880), the Court upheld the con-

stitutionality of this predecessor to Section 1442(a)

(1) and stated that the reasons for removal “are

equally applicable to both” civil suits and criminal

prosecutions. The Court also found “no room for

reasonable doubt” that the removal statute applied to

a murder prosecution brought against a revenue col-

lector who claimed that he killed in self-defense while

engaged in the discharge of his duties (100 U.S. at

261). “Such is [the statute’s] positive language,” the

Court explained, “and it is not to be argued away by

presenting the supposed incongruity of administering

State criminal laws by other courts than those estab-

lished by the State” (id. at 262).

The Court in Tennessee vy. Davis noted that the

purpose of the removal statute is to prevent interfer-

ence by state courts with the performance of federal

functions (100 U.S. at 2683). The Court recognized |

that the statute, in accordance with that purpose,

authorizes removal whenever the acts of the defend-

ant “‘were done, or claimed to have been done, in the

discharge of his duty as a Federal officer” (id. at

261-262). Indeed, the Court expressly equated actions

done by the defendant “under color of his office as a

revenue collector’ —the statutory test—with actions

taken “while he was engaged in performing his

duties as a revenue officer” (id. at 261). Although

‘he decision also contains language suggesting that

20

removal may depend upon the assertion by the de-

fendant of a “Federal right or authority” (id. at

262),° it cannot fairly be read to require, as a pre-

requisite to removal, a defense based on federal law.

For, although the defendant in that case claimed that

his actions were “done under and by right of his

office, and while he was resisted by an armed force

i. his attempts to discharge his official duty” (id. at

261), his claim of self-defense in fact turned on state

rather than federal law.’ The defendant’s assertion

® See, e.g., 100 U.S. at 262 (“when [the statute] speaks of

criminal prosecutions in State courts, it must intend those

that are instituted for alleced violations of State laws, in

which defences are set up or claimed under United States

laws or authority’’).

7In Maryland v. Soper (No. 2), 270 U.S. 36, 42 (1926),

the Court remarked that “acts committed by a federal officer

in defense of his life, threatened while enforcing or attempt-

ing to enforce the law * * * are really part of the exercise

of his official authority” because “[t]hey are necessary to

make the enforcement effective.” It does not follow, how-

ever, that such a defense is governed by federal law. A

justified use of force in self-defense by a federal official en-

forcing federal law is indeed “‘necessary to make the enforce-

ment effective,” but the determination of whether the use of

force was justified is still—except to the extent the Court is

prepared to develop a federal common law of “justification”

applicable to crimes committed by federal employees in the

performance of their duties-—a question of state rather than

federal law.

Thus, in Georgia v. Grady, 10 Fed. Cas. 245 (1876), a

soldier enforcing the revenue laws shot and killed the owner

of an illegal still in what he claimed was self-defense. The

soldier, charged with murder by the State of Georgia, re-

moved the case to federal court under the same 1866 removal

statute at issue in Tennessee v. Davis. The court in Grady

permitted the removal, but nonetheless charged the jury that

the soldier’s defense was “to be determined by the law of

21

of “federal authority” was only of the general au-

thority to do his job undisrupted, and not of any

federal law theory of defense. Thus, Tennessee v.

Davis permits removal where no specific defense

based on federal law is claimed.*

This reading of the removal statute was confirmed

two years later by the Court’s decision in Davis v.

South Carolina, 107 U.S. 597 (1882). In that case a

soldier enforcing the revenue laws shot and killed a

distiller when the victim “made his escape through

a hole in the side of the house near where [the sol-

dier] was standing, sprang past him, frightening his

horse, and accidentally discharging his piece” (107

U.S. at 598). When the soldier was indicted for

murder in state court, he removed the case to federal

court stating only that ‘“‘[y]our petitioner shows that

at the time of said accident he was in the discharge

of his duty, and that said shooting * * * was purely

accidental” (ibid.). This Court affirmed the removal,

Georgia” (10 Fed. Cas. at 247). The court went on to ex-

plain the extent to which “[t]he Code of Georgia justifies a

homicide committed in defense of one’s person” and stressed

that “[t]he defendant had the same, and only the same,

rights of self-defense that a citizen would have had under

the same circumstances” (ibid.). The defendant was not to

be afforded any special protection because he was a soldier,

or because he was on duty performing his federal duties at

the time of the shooting, or because the victim was engaged

in a violation of federal law (ibid.).

® Although the Court notes that the removal petition went

beyond these minimal requirements by asserting that the ac-

tions were “done under and by right of his office” (100 U.S.

at 261), that remark, and others like it, seem to be addressed

more to establishing the constitutionality of the removal there

in issue than to stating an express requirement of the statute

(see, e.g., id. at 263).

22

noting simply that the removal “petition set out the

necessary facts showing that the homicide which was

charged against him as a crime took place while he

was in discharge of his official duty” (éd. at 600-

601).

The Court’s remaining decisions on the removal of

state criminal.actions against federal officials, while

not without ambiguity, also support a construction of

the statute that allows removal without the assertion

of any justification based on federal law. In Mary-

land vy. Soper (No. 1), 270 U.S. 9 (1926), four reve-

nue agents were charged with murder. They sought

to remove the case to federal court on the grounds

that the acts in question ‘were done in the discharge

of their official duties as prohibition agents, and as

officers of the internal revenue service in the dis-

charge of their duty” (id. at 22). This Court re-

jected the removal petition at issue in that case, say-

ing that it did not “negative the possibility that [the

defendants] were doing other acts than official acts

at the time and on this occasion, or make it clear and

specific that whatever was done by them leading to

the prosecution was done under color of their federal

official duty” (id. at 35).

At some points in its opinion, the Court seemed to

state that the removal petition would only be suffi-

cient if it asserted a federal defense to the charges.

See, e.g., 270 U.S. at 34 (“The defense [the federal

official] is to make is that of his immunity from pun-

ishment by the State, because what he did was justi-

fied by his duty under the federal law, and because

he did nothing else on which the prosecution could

he based.’’). The Court also stressed, however, that

a defendant need not admit that he actually com-

mitted the charged offense in order to obtain removal.

23

Removal is available even to the officer who denies

any relationship to the charged offense, provided only

that there is “a causal connection between what the

officer has done under asserted official authority and

the state prosecution. * * * It is enough that his

acts or his presence at the place in performance of

his official duty constitute the basis, though mistaken

or false, of the state prosecution.” Jd. at 33.

The removal petition in Soper (No. 1) was denied

because it was “not sufficiently informing and spe-

cific to make a case for removal” (270 U.S. at 34).

It failed to state in a “candid, specific and positive”

manner precisely what it was that the defendants

were claiming happened (id. at 35), and thus failed

to show that “the reason and occasion for the crimi-

nal charge and the prosecution against them” arose

out of their official duties and not out of “other acts

than official acts at the time and on this occasion”

(ibid.). The petition was not denied because it failed

to state a federal defense to the charges.’

Colorado v. Symes, 286 U.S. 510 (1932), appears

to have been decided on similar grounds. In that case

* A comparison with Maryland v. Soper (No. 2), supra, is

instructive. In Soper (No. 2), the Court held that federal

officials could not remove a prosecution for conspiracy to

ebstruct justice arising out of their testimony before a state

coroner. The defendant officials in Soper (No. 2) had no

federal defense to the state charges, but the Court did not

deny removal on that ground. Rather, the Court denied re-

moval because the charges against the officials did not arise

out of “an act of [theirs] under federal authority” (270 U.S.

at 42). Similarly, the Court in Soper (No. 1) rejected the

removal petition as insuflicient—though with leave to amend

it—not because it did not assert a federal defense but be-

cause the defendant officials did not “negative the possibility

that they were doing other acts than official acts” (270 U.S.

at 35).

24

a prohibition agent charged with murder in state

court sought to remove the case to federal court on

the ground that the victim was killed in a struggle

while resisting arrest for a violation of the prohibi-

tion laws. This Court rejected the removal petition

because it did not “give specific information as to the

details of the occurrence” (286 U.S. at 521) so as to

enable the Court to determine “that petitioner’s claim

[that he was entitled to removal] is not without

foundation and is made in good faith” (id. at 519).

The Court indicated that a proper removal petition

must show that the defendant acted only “in the

proper discharge of his duty” (id. at 518). But that

fact could be established by a claim that the homicide

was “excusable or justifiable” (ibid.) under the state

law of self-defense, or presumably by the claim that

“the act charged was not in fact done” (McClung,

119 U.S. at 461). The Court did not say that any

peculiarly federal defense was necessary.

Most recently, in Arizona v. Manypenny, supra, the

Court assumed the propriety of removing to federal

court a state assault prosecution against a Border

Patrol agent on the ground that “the charge arose

from an act committed while on duty for the INS”

(451 U.S. at 235). While the removal itself was not

challenged before this Court, it is noteworthy that the

Court’s discussion in explaining the removal articu-

lated a standard—‘‘an act committed while on

duty”—indistinguishable from that set forth in Wil-

lingham, and at no point suggested that a more strin-

gent standard might be justified because a criminal

case was involved.

The Court in Manypenny did note that the removal

statute ‘was meant to ensure a federal forum in any

case where a federal official is entitled to raise a de-

25

fense arising out of his official duties” (451 U.S. at

241). But the Court did not state that an immunity

defense based on federal law was a prerequisite to

removal.”” Rather, the Court noted a broader pur-

pose behind the removal statute, which also “permits

a trial upon the merits of the state-law question free

from local interests or prejudice” (id. at 242).

“Tor [both] these reasons,” the Court stressed, “the

right of removal is absolute for conduct performed

under color of federal office, and * * * the policy

favoring removal ‘should not be frustrated by a nar-

row, grudging interpretation of § 1442(a)(1).’”

Ibid. (quoting Willingham v. Morgan, 395 U.S. at

407).

C. Related Removal Provisions Reinforce The Conclusion

That Removal Under Section 1412(a)(1) Does Not Re-

quire A Federal Defense

1. Subsection (a)(3) of 28 U.S.C. 1442 provides

for the removal of any civil action or criminal pros-

ecution brought against court officers. This subsec-

tion derives from the Act of Aug. 23, 1916, ch. 399,

39 Stat. 552. In light of the 1948 extension of 28

U.S.C. 1442(a) (1) to “[a]ny officer of the United

States,” this specialized removal provision—like sub-

Indeed, “an immunity defense had not been raised at

trial” (451 U.S. at 236) and, thus, was not used by the de-

fendant to justify the removal of his case under Section

14142(a) (1). Rather, as noted, removal was appropriate sim-

ply because “the charyve arose from an act committed while

on duty for the INS” (451 U.S. at 235). But the district court

sua sponte concluded after trial “that it had erred in failing to

instruct the jury on such a defense” and granted a “pre-

sumed motion for acquittal” by the defendant on that ground

(id. at 236-237). The question at issue in that case was

whether state or federal law governed the right of the state

to appeal from that decision.

26

section (a)(4), which applies to officers of either

House of Congress—is merely historical “residue” of

earlier removal statutes. See P. Bator, D. Meltzer,

P. Mishkin, & D. Shapiro, supra, at 1057. A con-

sideration of its precise language, however, reinforces

the conclusion that removal applies to any case in

which the federal official is acting “in the perform-

ance of his duties” and is not limited to cases in

which the federal employee raises a federal defense.

Subsection (a)(8) permits removal of any case

brought against ‘‘[a]ny officer of the courts of the

United States, for any act under color of office or in

the performance of his duties” (28 U.S.C. 1442(a)

(3) (emphasis added) ). In Gay v. Ruff, 292 U.S. 25

(1934), this Court noted that the predecessor of this

subsection was designed to give United States mar-

shals executing process “ ‘the same protection in all

cases now given to officers acting under the revenue

laws * * *.”” 292 U.S. at 38 (quoting H.R. Rep.

776, 64th Cong., lst Sess. 2 (1916) ). In other words,

both Congress and this Court viewed the additional

phrase “in the performance of his duties” as simply

coterminous with the phrase “under color of office,”

since only the latter and not the former was to be

found in the removal statute covering officers acting

under the revenue laws. This additional clause did

not broaden the scope of the provision at all because

such actions were already covered."

11 The Court held in Gay v. Ruff that the new provision did

not authorize removal of an action against a railroad receiver

appointed by a federal court to recover damages caused by

the negligence of railroad employees after the appeintment.

But the reason for that holding was simply that the receiver

was “not an officer engaged in enforcing an order of a court”

(292 U.S. at 39).

27

2. Section 1443(2) of Title 28 permits removal of

“civil actions or criminal prosecutions” brought in

state court “[f]or any act under color of authority

derived from any law providing for equal rights, or

for refusing to do any act on the ground that it

would be inconsistent with such law.” In Greenwood

v. Peacock, 384 U.S. 808, 823 (1966), this Court held

that removal under this provision was not available

to private persons because the “color of authority”

language “‘was clearly limited to enforcement activity

by federal officers and those acting under them.” ”

But the Court did not suggest that any federal de-

fense was required as a prerequisite to removal by

those officers. Rather, the Court stressed (id. at 823

n.21) that removal applied to “the full range of

enforcement activities in which federal officers might

be engaged under the Civil Rights Act.” That read-

ing of the phrase “under color of” seems particularly

appropriate in the area of civil rights enforcement,

an area in which federal policies have frequently

encountered local hostility. To require a federal de-

fense would, as we explain below, defeat the purpose

of the removal statute by permitting a state to inter-

fere with federal enforcement activities by means of

charges that, while not expressly precluded by federal

law, are simply false.

2 The Court acknowledged (584 U.S. at 820 n.17) that, in

light of the 1948 extension of Section 1442(a) (1), “many, if

not all, of the cases presently removable under § 1443(2)

would now also be removable under § 1442(a)(1).” The

Court noted (ibid.), however, that “[t]he present overlap

between the provisions simply reflects the separate historical

evolution of the removal provision for officers in civil rights

legislation.”

28

D. The Purpose Of Section 1442(a)(1) Would Be Frus-

trated If A Federal Defense Were a Prerequisite To

Removal

Removal provisions, in one form or another, have

been in force for most of the history of the Republic.

“The purpose of all these enactments is not hard to

discern” (Willingham, 395 U.S. at 406), and it ex-

tends far beyond the “narrow, grudging interpreta-

tion of § 1442(a)(1)” (id. at 407) offered by the

court of appeals. To be sure, “one of [the] purposes

fof removal] was to provide a federal forum for

cases where federal officials must raise defenses aris-

ing from their official duties” (id. at 405 (emphasis

added) ); but the removal statute also performs a

broader function, which is “to protect federal officers

from interference by hostile state courts” (ibid.) by

ensuring that those charged with a crime under state

law receive a “trial upon the merits of the state-law

question free from local interests or prejudice” (Ari-

zona v. Manypenny, 451 U.S. at 242). See also Colo-

rado v. Symes, 286 U.S. at 517; Soper (No. 1), 270

U.S. at 32; Tennessee v. Davis, 100 U.S. at 263.

“The original removal statutes were enacted not

so much to provide federal forums for federal de-

fenses, as to protect federal officers from interference

with the operations of the federal government by the

state.” Pennsylvania v. Newcomer, 618 F.2d 246,

250 (3d Cir. 1980). The Ninth Circuit’s decision,

which makes a “federal defense” a prerequisite to

removal, thus defeats the primary purpose of the

removal statute. The court of appeals simply dis-

missed the “federal interest in ensuring that [peti-

tioners’] trial be unbiased” as too “attenuated” to

“justify an invasion of the state’s authority to police

its streets” (Pet. App. lla). But “Congress has de-

29

cided that federal officers, and indeed the Federal

Government itself, require the protection of a federal

forum” and it is not for the court of appeals to frus-

trate that policy with “a narrow, grudging interpre-

tation of § 1442(a)(1)” (Willingham vy. Morgan,

395 U.S. at 407).

The courts of appeal, at several points in its opin-

ion, acted as if its decision were limited to postal

worker traffic cases. For example, the court stated

(Pet. App. 13a) that “[t]here is simply no reason to

believe that, on a systematic basis, postal workers

will not get a fair shake in state court.” See also id.

at 14a (“Congress could not have intended 28 U.S.C.

§ 1442(a)(1) to turn the federal courts into a spe-

cial traffic court for federal employees.” ) ; ibid. (not-

ing that “the overcrowded district courts” should

not be troubled with such “pesky cases”). The court

intimated (id. at 13a) that if there were an allega-

tion that the state was bringing a prosecution “to

frustrate or impede the performance of federal du-

ties,” then “a different, and more difficult, case” for

removal would be presented. But the court fails ut-

terly to explain how such a possibility is left open by

its ruling.

On the contrary, unless removal is to depend upon

a district judge’s ab initio, ad hoe evaluation of the

merits of the case, a federal official whose defense to

a state criminal charge is a denial of the act alleged

would be precluded from removal even in the face of

'* Furthermore, all but the procedural aspects of the re-

moved case will still be governed by state law. Arizona v.

Manypenny, 451 U.S. at 241. “Thus, while giving full effect

to the purpose of removal, this Court retains the highest

regard for a State’s right to make and enforce its own

criminal laws” (id. at 242-243).

30

clear evidence that the state is deliberately attempt-

ing to thwart federal policy by bringing the case.

“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” (Pet. App.

18a (Noonan, J., dissenting) ). Indeed, federal pol-

icy can be disrupted more readily by false charges

than by the relatively rare circumstance of other-

wise legitimate charges that are expressly precluded

by federal law. In either instance, the federal inter-

est in ensuring a federal forum is the same. The

decision below thus presents a potential threat to

federal supremacy anywhere federal policies encoun-

ter local hostility. The fact that such concerns are

not implicated in the instant case is irrelevant to the

proper construction of the removal statute."* If the

statutory entitlement of federal employees to removal

without assertion of a federal defense is lost in this

context, it is also lost “in the context of civil rights

law or some realm of federal authority likely to en-

counter antagonism in state court” (id. at 13a).

Each petitioner is charged with a crime for an

alleged violation of state law committed while driv-

ing a mail truck in the course of delivering the

United States mail. As the Court stated in McClung,

119 U.S. at 461, “[s]uch a suit is removable, and

certainly the right to a removal is not taken away

14 The diversity jurisdiction of federal district courts (U.S.

Const. Art. 3, § 2; 28 U.S.C. 1332) was established, like the

removal authority of federal employees, because “foreign”

individuals might be viewed with a hostile eye by local courts.

Dodge v. Woolsey, 59 U.S. (18 How.) 331, 354 (1855); The

Federalist No. 80 (A. Hamilton). No showing of potential

bias is required, however, to justify that jurisdiction in in-

dividual cases.

31

because the [federal official] says in his defence

that the act charged was not in fact done. If done by

him it was done under color of his office. The thing

to be tried is whether it was done.” Petitioners, like

any other federal employees “undertak[ing] to per-

form their official duties” and not simply acting “in

the ambit of their personal pursuits” (Screws v.

United States, 325 U.S. at 111), “should have an op-

portunity to present their version of the facts to a

federal, not a state, court” (Willingham, 395 U.S. at

409). There is no “pesky” case exception to the re-

moval statute.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

CHARLES FRIED

Solicitor General

JOHN R. BOLTON

Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

MICHAEL K. KELLOGG

Assistant to the Solicitor General

BARBARA L. HERWIG

JOHN S. KOPPEL

Attorneys

JULY 1988

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