PEOPLE OF the STATE OF CALIFORNIA, Plaintiff-Appellant, v. Kathryn Isabella MESA, Defendant-Appellee. PEOPLE OF the STATE OF CALIFORNIA, Plaintiff-Appellant, v. Shabbir A. EBRAHIM, a/k/a Shabbir Azam, Defendant-Appellee.
Nos. 86-1525, 86-1500.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 13, 1987. Decided March 26, 1987.
813 F.2d 960
Before MERRILL, NELSON and NOONAN, Circuit Judges.
The fact that Myers has couched these claims in constitutional terms does not automatically entitle him to judicial review. Before we may properly address the merits of Myers’ claims, we must first be certain that they are in fact colorable constitutional claims.
In order to be colorable, a claim must have both legal and factual support. Beaudry Motor Co. v. Abko Properties, Inc., 780 F.2d 751, 756 (9th Cir.), cert. denied, U.S., 107 S.Ct. 100, 93 L.Ed.2d 51 (1986). A claim is not colorable if it is factually unsupported, legally unsupported, or both.
All five of Myers’ constitutional claims are due process claims. An indispensable element of any due process claim is a constitutional or statutory entitlement. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972); Hewitt v. Grabicki, 794 F.2d 1373, 1380 (9th Cir.1986). No court or legislature has recognized a constitutional or statutory entitlement to early termination of parole, and we decline to do so here. Myers’ due process claims against the Parole Commission thus lack a legal basis and are not colorable constitutional claims. Consequently, they are unreviewable. See Wallace, 802 F.2d at 1552.
The district court did not err in dismissing Myers’ petition for lack of jurisdiction.
AFFIRMED.
Richard K. Willard, Joseph P. Russoniello, Barbara L. Herwig and Mack A. Player, Washington, D.C., for defendant-appellee.
MERRILL, Circuit Judge:
These two cases1 pose a fascinating issue of federalism: can a federal postal employee remove his state criminal prosecution to federal court when no issue of federal law will arise at trial and when the only federal component of the case is that he was on duty when the relevant acts allegedly occurred?
Mesa and Ebrahim are United States mail carriers charged with violations of state law2 that allegedly occurred while they were on duty driving their mail trucks. Both defendants removed their cases to federal court pursuant to
I. COLLATERAL ORDER DOCTRINE
This court‘s appellate jurisdiction is generally limited to review of “final decisions of the district courts.”
Although the orders at issue here clearly satisfy the second requirement, the first and third requirements are not met. First, the orders denying the motions to remand to state court are not final rejections of the state‘s request for remand because
II. MANDAMUS
This court has the power to issue a writ of mandamus in aid of its appellate jurisdiction. See Roche v. Evaporated Milk Ass‘n, 319 U.S. 21, 25, 63 S.Ct. 938, 941, 87 L.Ed.2d 1185 (1943);
Because of the strong policy against piecemeal review embodied in the final judgment rule (particularly in criminal cases), the question is whether discretionary review by way of a writ of mandamus is appropriate. As a general matter, the Supreme Court has described the writ as “an ‘extraordinary remedy’ that should only be invoked in ‘exceptional circumstances.’ ” Id. (quoting Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967)).
Nonetheless, the Supreme Court has approved appellate grants of mandamus in cases very similar to those before us. In Maryland v. Soper (No. 1), 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449 (1926), four prohibition agents and their chauffeur sought to remove their state murder prosecutions to federal court under a statutory predecessor of
The crux of these authorities—that federalism concerns justify review by mandamus—applies directly to the cases before us. California‘s jurisdiction to try traffic infractions and misdemeanor-manslaughter charges has been “wrested” from it by the district court‘s orders. There is an argument, however, that the force of these early Supreme Court decisions has been partially deflected by its decision in Arizona v. Manypenny, 451 U.S. 232, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981), which, together with authorizing state law, would permit an appeal by the state after an acquittal in federal court if the case was improperly removed to federal court.5 Thus, mandamus may not be the only procedure whereby California could obtain appellate review of the propriety of the removals.
We find that the limited availability of post-trial review of the removals does not deprive these cases of the exceptional character necessary for mandamus relief. Under Manypenny and pertinent state law, California will be able to appeal an acquittal on the grounds that the defendant improperly removed his prosecution to federal court. Yet if the postal workers are convicted in federal court, California will be in an odd position. California could let the convictions stand, but then its asserted right to try the defendants in its own courts would remain unfulfilled. To vindicate this sovereign right, California might appeal the federal court convictions in order to be able to retry the defendants in its own courts. But it would seem perverse to require the state to prosecute in federal court only so it can have its convictions reversed on appeal.6 Mandamus is appropriate to avoid this awkward result.
Moreover, after the great expenditure of judicial resources necessary to try and acquit a defendant in federal court, an appellate court may well be reluctant to second-guess the district court‘s decision concerning the often close question of the propriety of removal under the “under color of” requirement. In addition, although the defendant may be said to have brought this situation upon himself by removing to federal court in the first place, the appellate court may nonetheless cautiously approach the prospect of putting him through the ordeal of trial a second time, even if jeopardy technically would not have attached in the federal trial. See Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957).
III. REMOVAL
A. The Federal Officer Removal Statute and Its History
The removal issue in these cases cannot be properly understood without at least a quick glimpse at the history of the federal officer removal statute, currently codified at
Although the 1815 removal provision was of limited duration, Congress enacted a permanent version in 1833 as part of the “Force Bill,” enacted in response to South Carolina‘s Nullification Act—an attempt to make enforcement of federal customs law a state crime. During the 1860‘s, the “Force Bill” was extended to protect federal officials enforcing the revenue laws in addition to the customs laws. The next development came during the Civil War, when Congress enacted a broad, although temporary, statute allowing removal of civil and criminal cases based on acts justified under the authority of the President or Congress. Finally, in 1948 the statute was broadened further to the language currently contained in
Several aspects of the federal officer removal statute‘s pedigree are worth noting. Throughout the statute‘s history, Congress balanced the perceived federal interests of the time against the states’ traditional right to enforce their criminal laws in their own courts. Congress never allowed federal officers—merely because of their federal status—to remove all state court cases in which they were sued or prosecuted. Rather, the right to remove generally came as part and parcel of a larger package of federal substantive law expected to encounter hostility in the state courts. And the federal officers could only remove prosecutions based upon acts done “under color of” their federal authority. The final broadening of the statute in 1948 retained the same “under color of” language present all along, suggesting that a similar balance between state sovereignty and federal interests had been struck, but with application to a wider range of federal substantive law.
B. The Scope of the “Under Color of Office” Requirement
The delicate balance between federal and state interests examined in the historical context above comes to the fore in the two cases before us today. Although
The leading Supreme Court decision interpreting the breadth of the criminal removal provision, Maryland v. Soper (No. 1), 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449 (1926), insisted that the federal officers seeking removal demonstrate “a causal connection between what the officer has done under asserted official authority and the state prosecution.” Id. at 33, 46 S.Ct. at 190. Federal prohibition agents had “discovered a man . . . mortally wounded and lying beside the path along which they were walking” during an investigation. Id. at 24, 46 S.Ct. at 187. The Court held that the pleadings had not established a sufficient basis for removal of their state murder prosecutions because the “averments amount to hardly more than to say that the [alleged] homicide . . . was at a time when they were engaged in performing their official duties.” Id. at 35, 46 S.Ct. at 191. A proper removal petition would have to allege that “what he did was justified by his duty under the federal law, and [that] he did nothing else on which the prosecution could be based.” Id. at 34, 46 S.Ct. at 191; see Colorado v. Symes, 286 U.S. 510, 519, 52 S.Ct. 635, 637, 76 L.Ed. 1253 (1932).
Under the rule of Soper (No. 1), removal of the state criminal prosecutions at bar is inappropriate. The removal petition in Mesa alleges only that her allegedly illegal acts “occurred while defendant was on duty and acting in the course and scope of her employment with the Postal Service.” Ebrahim alleges that his state charges arose from an accident “which occurred while defendant was on duty.” Neither petition shows a sufficient “causal connection” between their duties as mail carriers and the allegedly negligent driving upon which their prosecutions rest. Cf. Goldfarb v. Muller, 181 F.Supp. 41, 47 (D.N.J.1959) (denying removal of tort suit against a mail truck driver because there was no “official connection between the act complained of and [the officer‘s] official duties“).
As in Soper (No. 1), the removal petitions here do not allege that the acts complained of were justified by the officers’ duties under federal law. There is no colorable claim that federal immunity8 protects the officials’ acts, as there was when a federal officer received a speeding ticket while hurrying to stage a raid on a suspected illegal still. See City of Norfolk v. McFarland, 143 F.Supp. 587 (E.D.Va.1956). There is no effort on the state‘s part to criminalize activity important to federal interests, as there was during the War of 1812 and Civil War eras. In short, the prosecutions of Mesa and Ebrahim turn completely on issues of state law. The attenuated federal interest in ensuring that their trial be unbiased does not justify an invasion of the state‘s authority to police its streets.
The postal workers rely heavily on a more recent Supreme Court decision, Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). In Willingham, the Court read the “color of office” provision of
Citing Willingham, the postal workers argue that “on duty” satisfies “under color of office.” This argument, however, reads too much into Willingham. First of all, the officers in that case had raised a colorable claim of official immunity. See id., 395 U.S. at 405, 409, 89 S.Ct. at 1815, 1817. In fact, Justice Marshall, writing for the Court, noted that “[o]ne of the primary purposes of the removal statute—as its history clearly demonstrates—was to have such defenses litigated in the federal courts.” Id. at 407, 89 S.Ct. at 1816. Here, no federal defense can justify removal.
Second, Justice Marshall drew a sharp distinction between removal in civil cases like Willingham and removal of criminal prosecutions: “[w]ere this a criminal case, a more detailed showing might be necessary because of the more compelling state interest in conducting criminal trials in the state courts.” Id. at 409 n. 4, 89 S.Ct. at 1817 n. 4.10 Indeed, removal of state criminal prosecutions constitutes a far greater disruption of legitimate state authority than removal of state law civil suits against federal officials.11 Under the diversity jurisdiction, federal courts have long entertained civil suits turning solely on state substantive law. Furthermore, in criminal suits the state itself is a party; removal forces the state to enforce its own laws in an alien forum. And finally, a polity‘s ability to protect its citizens from violence and other breaches of the peace through enforcement of criminal laws is the centermost pillar of sovereignty.12 Thus, Willingham‘s broad reading of “under color of office” cannot be casually imported into the criminal arena.13
C. Policy Considerations
The postal workers seek to justify this federal interference with state authority through two policy arguments. First, they cite scattered statements in the case law indicating that besides providing federal officers a federal forum to adjudicate their federal defenses, the federal officer removal provision was designed to permit trial of state-law claims free from local prejudice against federal interests. See, e.g., Arizona v. Manypenny, 451 U.S. 232, 241-42, 101 S.Ct. 1657, 1664-65, 68 L.Ed.2d 58 (1981). Although a fear of state court prejudice certainly played a role in the evolution of
The second policy argument set forth in favor of federal removal is a fear “that local officials might use ‘petty’ offenses such as traffic tickets, trespass or assault charges in a collateral effort to hinder and intimidate federal officials in the performance of their assigned federal duties.” This argument assumes, however, that state courts would cooperate with such a ploy by local police. The removal petitions at issue here contain no allegation of a pattern of enforcement discriminating against federal officers, or even of a single prosecution motivated by a desire to frustrate or impede the performance of federal duties. Allegations of this sort would establish a different, and more difficult, case.
Practical considerations militate against construing the removal statute as broadly as the district court did here. Congress could not have intended
IV. CONCLUSION
A federal officer‘s acts performed while on duty are not automatically done “under color of [federal] office.”
A writ of mandamus is hereby GRANTED. The district court is ordered to DENY the petitions for removal and to REMAND these two prosecutions for trial in the California state courts.
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),
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.”
The extent of the change in 1948 rendered superfluous parts of earlier law that were still retained—e.g.
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 rests 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.
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 (1969). 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.”
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
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.
I would affirm.
For the same reasons I dissent in the case now consolidated with this one, California v. Ebrahim, No. 85-1500.
Notes
§ 1442. Federal officers sued or prosecuted
(a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to [federal district court]:
(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.