KATHRYN ISABELLA MESA, PETITIONER V. PEOPLE OF THE STATE OF CALIFORNIA SHABBIR A. EBRAHIM, PETITIONER V. PEOPLE OF THE STATE OF CALIFORNIA No. 87-1206 In the Supreme Court of the United States October Term, 1987 The Solicitor General, on behalf of Kathryn Isabella Mesa and Shabbir A. Ebrahim, two employees of the United States Postal Service, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statutory provision involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-20a) is reported at 813 F.2d 960. The opinions of the district court (App., infra, 21a-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 (App., infra, 23a-24a). On December 10, 1987, Justice O'Connor extended the time within which to file a petition for a writ of certiorari to and including January 19, 1988. The jurisdiction of this Court is invoked 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 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 apprehension or punishment of criminals or the collection of the revenue. QUESTION PRESENTED Whether an employee of the United States government, 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). STATEMENT Kathryn Mesa and Shabbir Ebrahim are employees of the United States Postal Service. In separate incidents 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 a bicyclist who was killed. She was charged in California state court with vehicular homicide. Petitioner Ebrahim was struck by a police car and was charged by the officer with speeding and failure to yield. The United States Department of Justice is representing both petitioners. See 28 C.F.R. 50.15(a). Pursuant to 28 U.S.C. 1442(a)(1), petitioners filed 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. Prior to trial, the State filed a consolidated appeal to the Ninth Circuit Court of Appeals challenging the denial of the state's remand motions. Petitioners challenged the appealability of the district court's decisions denying remand, but 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. See Maryland v. Soper (No. 1), 270 U.S. 9, 29-30 (1926). /1/ On the merits, a divided panel of the court of appeals held that allegations that petitioners were performing 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 (App., infra, 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 raised no federal defense, the court noted, and their cases therefore turn entirely on issues of state law. While acknowledging (App., infra, 13a) that a desire "to permit trial on state-law claims free from local prejudice against federal interests * * * certainly played a role in the evolution of section 1442(a)(1)," the court nonetheless concluded (App., infra, 11a) that "(t)he attenuated federal interest in ensuring that (petitioners') trial be unbiased does not justify an invasion of the state's authority to police its streets." The court of appeals acknowledged (App., infra, 11a) that this Court had "read the 'color of office' provision of 28 U.S.C. Section 1442(a)(1) quite broadly" in Willingham v. Morgan, 395 U.S. 402 (1969), and held there that removal was appropriate based simply 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." Stressing "the states' compelling interest in the administration of their criminal justice systems," the court concluded that "federal postal workers may not remove state criminal prosecutions to federal court when they raise no colorable claim of federal immunity or other federal defense" (App., infra, 14a). The court therefore issued the writ of mandamus ordering the district court to remand the two prosecutions for trial in the California state courts. Judge Noonan dissented, concluding that the "unusually spacious" language of the statute was not to be given such a restricted reading. "It is not a requirement for removal," he stated, "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 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 employee the benefits of a federal forum." App., infra, 18a. Judge Noonan noted 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" (App., infra, 17a). He therefore rejected the majority's use of separate standards for removal in criminal and civil cases. "In the removal statute, 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" (ibid.). Judge Noonan therefore concluded that "under color of office" is properly read in both types of cases as "the equivalent of 'within the scope of their employment'" (id. at 16a). REASONS FOR GRANTING THE PETITION The Ninth Circuit's decision in this case is inconsistent with the plain terms of Section 1442(a)(1), and is in direct conflict with Pennsylvania v. Newcomer, 618 F.2d 246 (1980), in which the Third Circuit held that a federal defense is not required for removal of a criminal prosecution. Further, the decision below contravenes the clear purpose of Section 1442(a)(1), as explained by this Court in a series of decisions spanning 100 years, and would permit states, through the prosecution of federal officers performing their official duties, to undermine federal policies and programs. Accordingly, review by this Court is warranted. 1. Section 1442(a)(1) is written in "sweeping terms." P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 1335 (2d ed. 1973). 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." This Court has stressed that the words of the statute are not to be given "a narrow, grudging interpretation" (Willingham v. Morgan, 395 U.S. at 407). Accordingly, the Court has stated that removal is appropriate whenever there is a "causal connection" between the charged conduct and the performance of the defendant's official duties (id. at 409; Soper (No. 1), 270 U.S. at 33). In a suit by a prisoner against the warden and chief medical officer of a federal penitentiary, this Court found sufficient "causal connection" in the fact that the defendants' only contact with the prisoner had been in performance of their official duties. "The connection consists, simply enough, of the undisputed fact that (defendants) were on duty, at their place of federal employment, at all the relevant times" (Willingham, 395 U.S. at 409). Under the test applied in Willingham, petitioners are clearly entitled to removal. The events in question occurred while they were driving their mail trucks in the course of delivering the United States mail. Accordingly, as in Willingham, petitioners were "on duty, at their place of federal employment, at all the relevant times." There is no persuasive basis, we submit, for applying a different test on the ground that this is a criminal case. It is true that the Court in Willingham noted in passing that "a more detailed showing might be necessary" in a criminal case "because of the more compelling state interest in conducting criminal trials in the state courts" (395 U.S. at 409 n.4 (emphasis added)). As Judge Noonan noted, however, there is no justification in the language of the statute for such a distinction. Section 1442(a)(1) states simply that "(a) civil action or criminal prosecution * * * may be removed" and then proceeds to state a single test governing all cases. The phrase "under color of office" cannot plausibly be read to mean different things for different cases. "A court should not distinguish where Congress in the exercise of its constitutional power has drawn no line" (App., infra, 17a). While this Court's decisions on the removal of state criminal actions against federal officials do not speak with one voice, /2/ on balance they support a construction of the statute in accordance with its obvious meaning. In upholding the constitutionality of a predecessor of Section 1442(a)(1) in Tennessee v. Davis, 100 U.S. 257, 265 (1880), this Court stated quite clearly that the reasons for removal "are equally applicable to both" civil suits and criminal prosecutions. The Court found "no room for reasonable doubt" that the removal statute applied to a murder prosecution brought against a revenue collector who claimed that he killed in self-defense while engaged in the discharge of his duties (id. at 261), even though self-defense is a state rather than a federal defense to a murder charge. "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 established by the State" (id. at 262). More recently, in Arizona v. Manypenny, 451 U.S. 232 (1981), 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 articulated a standard for removal indistinguishable from that set forth in Willingham, and at no point suggested that a more stringent standard might be justified because a criminal case was involved. See also Soper (No. 1), 270 U.S. at 32-33 (defendant need not admit that he actually committed the charged offense in order to obtain removal; removal available even to officer who denies any relationship to the charged offense). 2. The Ninth Circuit's decision creates a direct conflict with the decision of the Third Circuit in Pennsylvania v. Newcomer. The court below frankly acknowledged that it was "part(ing) company with the Third Circuit, which allowed removal by a federal postal worker under facts indistinguishable from the cases at bar" (App., infra, 12a n.13). In Newcomer, a postal worker involved in a traffic accident while driving on his mail route was charged in state court with vehicular homicide. The employee removed the charge to federal court pursuant to Section 1442(a)(1). The State contended, as the Ninth Circuit held here, that removal is only appropriate where the employee alleges a "federal defense" to the criminal charges against him. The Third Circuit, however, reviewed the history of the removal statute and this Court's construction of the statute, and concluded that allegations of a federal defense were not essential for removal. 618 F.2d at 250. See also Stein-Sapir v. Birdsell, 673 F.2d 165 (6th Cir. 1982) (holding, in reliance on Third Circuit's decision in Newcomer, that no federal defense is required to support removal in civil cases). The Ninth Circuit's decision also conflicts with City of Aurora v. Erwin, 706 F.2d 295 (10th Cir. 1983), which sustained removal of a simple battery charge against a postal employee, who, while delivering the mail, had sprayed a postal patron with dog repellant. The postal employee did not present a "federal defense," but the test for removal formulated by the Tenth Circuit contained no such requirement. "Section 1442(a)(1)," the court stated (id. at 296), "grants a right of removal to federal officers who face litigation in state court as a result of action taken in the course of their official duties." /3/ 3. As this Court explained in Willingham (395 U.S. at 405-406), the predecessors of Section 1442(a)(1) date from 1815 and were designed to prevent state interference with the enforcement of federal customs statutes and revenue laws. Congress extended the removal provision to cover all federal officers in 1948. "The purpose of all these enactments is not hard to discern" (Willingham, 395 U.S. at 406). This Court explained both the purpose and the constitutional justification for removal in Soper (No. 1), 270 U.S. at 32: "The constitutional validity of the section rests on the right and power of the United States to secure the efficient execution of its laws and to prevent interference therewith, due to possible local prejudice, by state prosecutions instituted against federal officers in enforcing such laws, by removal of the prosecutions to a federal court to avoid the effect of such prejudice." See also Willingham, 395 U.S. at 405 ("the removal provision was an attempt to protect federal officers from interference by hostile state courts"); Colorado v. Symes, 286 U.S. 510, 517 (1932); Tennessee v. Davis, 100 U.S. at 263. As the Third Circuit stated in Newcomer (618 F.2d at 250), "(t)he original removal statutes were enacted not so much to provide federal forums for federal defenses, as to protect federal officers from interference with the operations of the federal government by the state." The Ninth Circuit's decision, which makes a "federal defense" a prerequisite to removal, thus defeats the primary purpose of the removal statute. It denies removal to a federal official charged in a state criminal action, where his defense does not raise an issue of federal law. Congress clearly intended to allow such an official to have his "trial upon the merits of the state-law question free from local interests or prejudice" (Manypenny, 451 U.S. at 242). By frustrating this intent, the decision below presents a potential threat to federal supremacy anywhere federal policies encounter local hostility. /4/ CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General DONALD B. AYER Deputy Solicitor General MICHAEL K. KELLOGG Assistant to the Solicitor General BARBARA L. HERWIG JOHN S. KOPPEL Attorneys JANUARY 1988 /1/ Petitioners do not seek certiorari on this aspect of the court of appeals' decision. /2/ There is language in both Arizona v. Manypenny, 451 U.S. 232 (1981), and Maryland v. Soper (No. 1), 270 U.S. 9 (1926), that appears to support the court of appeals' ruling that a federal defense is required for removal. See, e.g., 451 U.S. at 241 ("Historically, removal under Section 1442(a)(1) and its predecessor statutes was meant to ensure a federal forum in any case where a federal official is entitled to raise a defense arising out of his official duties"); 270 U.S. at 34 ("The defense (the federal official) is to make is that of his immunity from punishment by the State, because what he did was justified by his duty under the federal law, and because he did nothing else on which the prosecution could be based"). We submit, however, that each of these decisions, read in its entirety, is wholly consistent with a construction of the statute allowing removal of prosecutions concerning acts committed while performing official duties. /3/ Although the removal issue does not appear to have been raised by the State in City of Aurora, which was heard on an appeal by the defendant following his conviction, the propriety of the removal is a jurisdictional question. Since subject matter jurisdiction is not waivable, the Tenth Circuit's treatment of the removal question is essential to its decision and therefore not dicta. /4/ The court of appeals, at several points in its opinion, acted as if its decision were limited to postal worker traffic cases. For example, the court stated (App., infra, 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. Section 1442(a)(1) to turn the federal courts into a special traffic court for federal employees"); ibid. (noting that "the overcrowded district courts" should not be troubled with such "pesky cases"). The court intimated (App., infra, 13a) that if there were an allegation that the state was bringing a prosecution "to frustrate or impede the performance of federal duties," then "a different, and more difficult, case" for removal would be presented. But the court fails utterly to explain how such a possibility is left open by its ruling. If a federal official's only defense to a state criminal charge is that he did not do whatever it is the state is charging him with, the Ninth Circuit's ruling would preclude removal even in the face of clear evidence that the state is deliberately attempting to thwart federal policy by bringing the case. The ruling of the court of appeals cannot be limited to "pesky" postal cases. APPENDIX