MESA v. CALIFORNIA

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IN THE SUPREME COURT OF THE UNITED STATES

KATHRYN ISABELLA MESA and SHABBIR A. EBRAHIM, a/k/a SHABBIR AZAM Petitioners v. CALIFORNIA

No. 87-1206

December 6, 1988

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:04 o'clock a.m.

APPEARANCES:

DONALD B. AYER, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Petitioners.

KENNETH ROSENBLATT, ESQ., Deputy District Attorney of Santa Clara County, San Jose, California; on behalf of the Respondent.

PROCEEDINGS

11:04 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 87-1206, Kathryn Isabella Mesa v. California.

Mr. Ayer, you may proceed whenever you're ready.

ORAL ARGUMENT OF DONALD B. AYER ON BEHALF OF THE PETITIONERS

MR. AYER: Thank you, Mr. Chief Justice, and may it please the Court.

This case involves two state court prosecutions of United States postal carriers for negligent violations of California law that allegedly occurred while they were driving their usual mail delivery routes. The question that's presented here is whether such a prosecution is one "for acts under color of office" and is therefore removable under 28 U.S.C. 1442(a)(1).

The Court of Appeals for the Ninth Circuit in this case responded to that question in the negative. And the Respondent here supports the reasoning adopted by that court, which reasoning is essentially that one is only acting under color -- under color of office in the context of this statute where one is raising a federal law defense to the charge that is brought.

The United States and the Petitioners in this case believe that this is a narrow and a grudging interpretation of the statute, and we take that position essentially because it's an interpretation that will clearly fail to accomplish the clear purposes of the statute.

QUESTION: Mr. Ayer, is Section 1442(a)(1) a jurisdictional statute, or does it independently support arising under jurisdiction in the courts?

MR. AYER: It is a statute conferring jurisdiction on the federal courts in matters which do arise under the Constitution and laws of the United States.

QUESTION: Well, it seemed to me that perhaps the statute doesn't independently support arising under jurisdiction, and that to adopt the view that you do might present some Article III jurisdiction problems. Without a federal defense, what is the arising under jurisdiction?

MR. AYER: Well, we believe that it arises --there's a number of answers to that question, and it's a very -- it's a very long answer if one is to give it in any sort of a complete way. It's an answer that has been much debated over a long period of years and which this Court I think has addressed only peripherally in its decisions.

I would start by saying that this case arises under in this -- arises under federal law in the sense that, first, it arises on account of federal law, that is, on account of the federal laws creating the United States Postal Service and giving it certain responsibilities. This case would never have come to court had the Postal Service not been created and various individuals employed by it put in motion in a certain way to accomplish a certain function.

Secondly, it arises under in the sense that it is a challenge that the prosecution in California is a challenge to the conduct of a federal official in the performance of his official duties. That isn't to say that it will ultimately be decided necessarily that his conduct was justified and is not subject to criminal prosecution. That's the issue that has to be decided in the action once removed. But it is a challenge to the way the job was done.

Now --

QUESTION: It says arising under federal law, not arising because of the existence of the federal government or arising in the performance of some federal acts. It says arising -- arising under federal law. We've always thought that meant that federal law had to have something to do with deciding the case, and that would seem to be the reason you would want to put that in federal courts.

MR. AYER: Well, there -- I think there are --there are two parts of the answer I'd like to give to that. The first is that there has been a theory which has been much discussed, the theory of protective jurisdiction. And it is arguable -- I'm not conceding that it's true, but it's arguable that in order to find jurisdiction arising under here, one must adopt some variation of that theory.

What I would suggest is that if one must do that, it is a very narrow and easily confinable form of that theory, that it is protective jurisdiction to protect the activities of the federal government itself.

Secondly --

QUESTION: Inherent -- inherent and without any authorization from Congress.

MR. AYER: Well, the authorization in Congress comes in the -- in the statute --

QUESTION: Arising under federal law.

MR. AYER: In the statute, the removal statute here. In other words, it's a conferral of jurisdiction to decide --

QUESTION: Oh, I see.

MR. AYER: -- issues that are of federal interest where, let us assume for the moment, there is no federal law actually operating.

QUESTION: I think it's stretching things to say that Congress intended that states have to prosecute traffic offenses in federal courts which could be, in fact, miles from the scene of the accidents. It's a very strained interpretation.

MR. AYER: Well, Justice O'Connor, I think what -- what one must do to decide how strained it is is focus on the operative effect of the interpretation on the one hand that we offer and on the other hand that the Respondent offers in this case and the court of appeals adopted.

Number one, I think if one starts with the historical situation that gave rise to these statutes, you are talking starting in 1815 with the embargo and the War of 1812 and the resistance on the part of local governments, the nullification crisis around 1830 and the 1833 statute to deal with specific state resistance to that.

QUESTION: Well, I think if you look at the history and apply it, it certainly wasn't enacted just to protect the presence of a federal employee. It was to deal with a conflicting federal law.

MR. AYER: Well, I -- I think, Your Honor, I would disagree slightly and suggest that what it was intended to do was to deal with a perceived problem of bias, hostility and interference which doesn't come up all the time, but which can come up and historically, demonstrably had come up. And I'd like to give a hypothetical case to illustrate what I'm talking about.

If you assume the situation of a federal criminal investigation that is ongoing in some locality and is generally known to be ongoing, and let's say an FBI agent is in the course of that investigation involved or at least present at the scene of a shootout that occurs. Two situations. One, he is accused, let's say, of murder of someone who ends up dying in the course of that shootout, and in fact the evidence is clear that he did shoot the person. And his response is, yes, I shot him, but I did this in the course of performing my federal duty. There you have a federal defense. There you have removal.

Let's suppose, however, that instead of saying that and, in fact, the facts support his view and his conclusion that did not shoot the person. And, indeed, what has happened is -- let's say to make it as extreme as possible -- he has, indeed, been framed or that there is some indication that he may have been framed. And his answer is not that I did this in the course of performing my federal duty. His answer is I didn't do it. I wasn't there or whatever defense can be offered.

I would submit that in that circumstance, given the distinction that has been rested on here by the Ninth Circuit, that case can't be removed, and it is at least as urgent a situation calling for removal --

QUESTION: Why should that case be removed?

MR. AYER: Why should that case be removed?

QUESTION: Why can't the state court give him a fair trial on whether he shot the man?

MR. AYER: Well, now I think, Justice Stevens, we're talking about the premise of the statute. The premise of the statute is -- and one can disagree with it -- but the premise of the statute is that there is a problem of state interference -- sometimes a problem of state interference, state hostility, state bias, and that that justifies the removal of cases to federal court.

QUESTION: But should not the -- the party wanting removal make such an allegation?

MR. AYER: Well, the problem -- the whole problem that's involved in removal I think, Your Honor, is that one cannot know at the time of removal, number one, either whether the person is a -- is a good guy or a bad guy, whether he did something that was proper or he did something that was improper, nor can one know in every instance whether there is bias, hostility or -- or harassment or something like that.

Now, there are extreme cases.

QUESTION: What kind of a presumption should we adopt?

MR. AYER: Well --

QUESTION: You know, there are thousands of state courts out there. They're all biased, or they're all --

MR. AYER: We -- we do not think that one --that one needs to -- to guess very much about the rule because we think that the language of the statute is reasonably clear when one talks in terms of action under color of office. It is not an absolutely precise term, but it's a term that generally has the meaning of with the appearance of or an apparent performance of office. And -- and we think that that is a perfectly reasonable reading to apply in this situation.

QUESTION: May I ask just two -- two questions here? Does it apply equally in a civil case, a civil tort action? Say -- say somebody is in a fender-bender with a postal worker who's the defendant.

MR. AYER: Well, we think that the -- the basic standard, the basic question that must be asked, which -- which we would submit is is this a case where it appears at the time of removal that the federal official was acting in the performance of his duties.

QUESTION: He was. He was driving the mail truck and he bumped into somebody.

MR. AYER: That that -- that that same standard should apply in both a civil and a criminal case.

Now --

QUESTION: So, every tort case involving a -- a federal employee who is engaged in his regular work can be removed to federal court.

MR. AYER: Well, I -- Your Honor, I would submit that -- that from this Court's decision in Willingham, that much as with regard to the federal case, is quite clear because in Willingham, the Court indicated that all one needed to show was a causal connection between the prosecution and the performance of one's job.

Now, there's a footnote in Willingham that my opponent will I'm sure bring up, and so I'll bring it up first, which indicates that -- I think the words are essentially a more specific showing may be required in a criminal case. So, the argument may be that it's easier to remove a case where it's civil than where it's criminal.

And -- and my point would be that the more specific showing may well involve a requirement of more detail on the part of the government. If there's any doubt about whether he was actually performing his job, if he was in the course of performing his job, then he may have a heavier burden of showing that, a more detailed showing of that. But I would submit --

QUESTION: I'm not sure. Showing that he was really at work? I don't --

MR. AYER: Showing that what -- well, you have to, I think, look at the two cases. One is where he, in fact, did the act, which I think we can take this case as an example of where there were accidents involved, and he was driving his postal route. These are alleged negligent violations.

QUESTION: Well, most motor vehicle accidents - it's not hard to prove who was driving. I mean, you start there. Then the question is -- your position is in all traffic accident cases in which somebody wants to sue a federal employee who was at work at the time, they can all be -- there's jurisdiction to have all those cases in the federal court.

MR. AYER: Well, I think that's right.

Now, the different case, obviously, would be where a postal driver is off on a lark in a detour and something happens.

QUESTION: Well, I understand, but -- but we've got --

MR. AYER: But I --

QUESTION: -- a lot cases where they're not on larks and detours. They're just driving their regular mail route.

MR. AYER: That's right. And -- and that --

QUESTION: Do you think the causal connection that we referred to in Willingham was simply that he happened to be at work at the time?

MR. AYER: He had to be in the course of performing his job.

QUESTION: Why not he wouldn't have been alive because if he didn't have this federal job, he wouldn't have had food and he would have died? Is that a causal connection? It's the only job he had.

MR. AYER: I don't think that's the kind of causal connection that the Court had in mind.

QUESTION: Ah, so we have to decide some kind of causal connection. It isn't clear that any --

MR. AYER: Well, but I think if you look at the facts --

QUESTION: -- causal connection will do.

And you think it's enough just that he was at work rather than it was necessary that he do this thing in the course of his work. The specific thing alleged to have been negligent was something that was much more proximately related to the directions of his -- of his job.

MR. AYER: I think it is definitely as you state, Justice Scalia. And -- and the reason is in part to be found in this Court's decision --

QUESTION: Well, that's not just driving the car. I mean, anytime you're driving a car anywhere during your work hours, that's enough of a causal connection. I'm suggesting that may not be enough.

MR. AYER: Well, when someone's job is to be a postal delivery person, and one is driving one's mail truck and one is going from pickup point A to pickup point B and doing it by the shortest route or by the usual route, it seems to me that it clearly is a situation where he is in the course of performing his job. And that should be enough.

There is --

QUESTION: Mr. Ayer, how did these cases unfold? The -- the State tries to prosecute someone from -- for an ordinary traffic accident as here, and it turns out it's a federal postal worker. Now, does the U.S. Attorney intervene and represent that person just because they're an employee?

MR. AYER: The -- there's a decision to be made with regard to representation, which decision is based upon a decision I think by the United States Attorney as to, number one, whether he believes the action was in the scope of employment and, number two, whether -- whether representation and removal is in the interest of the United States.

QUESTION: Is this a case where the U.S. Attorney got the idea of removal and removed it, or was this something the employees did on their own?

MR. AYER: Well, the employees were represented by the United States Attorney's Office --

QUESTION: I see.

QUESTION: -- and an attorney in the United States Attorney's Office.

I would hasten to add, however -- and I can --based in part on personal experience, that it is not uniformly and always the case that these cases are removed to federal court, I myself, having represented a postal carrier and done it in state court. It is a decision that must be made, and the idea --

QUESTION: Well, how many -- how many of these do we get, Mr. Ayer?

MR. AYER: Well, I -- I think it's interesting. I think the -- the allegation that -- I can't give you statistics, but the allegation that if the Court decides the case the way we urge, there is going to be some deluge of cases that is going to bury the federal courts -- there's several things wrong with that.

One is that the United States attorneys and the United States government has been operating, rightly or wrongly -- and you will let us know that -- under the theory that the rule is as we maintain, that the decisions to remove have been made on this basis.

And there is no flood of these cases. Anyone who has worked in the United States Attorney's Office or in a district attorney's office cannot cite to you, you know, 10 dozen of these cases that have -- that have come along. They simply don't come along that often.

QUESTION: Well, I suppose the private counsel for the employee has the option to remove whether the United States Attorney wants to or not.

MR. AYER: That's certainly right. He certainly would have an option.

QUESTION: How about a parking ticket? That gets removed to federal court if it's a -- a --

MR. AYER: If it involves an act under color of office in the performance of the job.

QUESTION: -- postal worker?

MR. AYER: It can. And it's -- I want to stress it's a decision that must be made in each case whether it makes sense. And I --

QUESTION: Does Congress constitutionally have the authority to pass a statute which says any federal employee as a privilege of his employment can remove any case to the federal court?

MR. AYER: I don't know. I -- I -- any case involving, say --

QUESTION: Any time -- any time when a federal employee is sued, just as a --

MR. AYER: Well, I -- I think --

QUESTION: -- as an incident to your employment you have the right to go to federal court.

MR. AYER: You would have a more difficult time demonstrating arising under jurisdiction. I'm not saying that it couldn't conceivably be done, but it would certainly be more difficult than this case where we are talking about conduct in the performance of official federal functions and disputes about how those functions --

QUESTION: What's the federal law that would appear in that case, and what's the federal law that appears in this case?

MR. AYER: Well, okay. Let me -- let me go back to the question of the arising under jurisdiction and what federal law is present.

My first point is that it is not clear, given the protective jurisdiction theory -- and I would hasten to point out that there are a number of, first of all, cases of this Court starting with the Osborn and the Bank of the United States case. But proceeding to other cases involving federally chartered corporations, the Pacific Railroad removal cases in I think 159 U.S., In the Matter of Dunn in 212 U.S., these are cases brought against federally chartered corporations -- not brought by but brought against federally chartered corporations -- where the Court found jurisdiction simply based on the fact that you had a federally chartered corporation.

Now, subsequently in 28 U.S.C. 1349, Congress has enacted a law that says there is only jurisdiction in that circumstance where the capital stock is owned more than half by the government of the United States. So, it has recognized jurisdiction -- Congress has --jurisdiction predicated on this theory.

So, the first point I guess I would -- and one other thing. There are -- there are several federal statutes now on the books, now operative, now being enforced every day, including those concerning the FDIC. I think it's 28 U.S.C. -- 12 U.S.C. 1819, and one called the Edge Act involving jurisdiction over matters involving banks, international disputes involving banks. I think that's 12 U.S.C. 632. The Bankruptcy Act --slightly different because there's constitutional basis, but trustees in bankruptcy can, as a matter of federal court jurisdiction, pursue state law disputes in connection with the bankruptcies.

QUESTION: What's the policy that you're trying to further in this case --

MR. AYER: Well --

QUESTION: -- or in this class of cases? What is the federal --

MR. AYER: (Inaudible).

QUESTION: -- interest that we have?

MR. AYER: Do you mean these cases?

QUESTION: Yes.

MR. AYER: Well, these are cases where if one looks at the papers in the record and the excerpt of record on appeal in particular, one can see that they are -- they have certain peculiarities. I am not suggesting that there is the bias or the harassment or whatever else because I don't know. And one can't know at this stage of the case I think typically.

But these are cases, on the one hard, where in the Mesa case we have a collision and resulted in a fatality of a -- of a young bicycle rider who was riding on the wrong side of the road and ran into, head-on, the front of this mail truck. Now, I am -- I am not saying -- I'm not suggesting that I'm concluding where fault lies, but that is itself a somewhat unusual situation.

QUESTION: You're suggesting that would be an occasion for bias?

MR. AYER: Well, I'm suggesting that when the matter was presented -- presented for decision by the attorney handling the case as to what to do with it, one of the things that he could reasonably consider, in fact, really about the only thing he knew about the case at that time, was the question of -- of what are the merits -- what do the merits appear to be, what do the facts appear to be of this case. There appeared to be an issue in this case with regard to the merits of the violation, and whether or not there is a question of bias is something that you can't know at that point.

QUESTION: Well, but why -- why would he look at this other than -- as anything other than a garden variety traffic accident case?

MR. AYER: Well, he -- he would -- he would look to see --

QUESTION: I mean, why would he -- why would he view in this case anything especial that might suggest bias against the federal government or against a federal government employee?

MR. AYER: Let me -- let me give you -- give you the other case which may -- may or may not partially answer your question. The other case is one that involves allegations of speeding and -- and another offense where what actually happened was a police car struck the rear, I think, right -- I'm not sure right or left, but the rear side of the mail truck. And the allegation was that the mail truck was speeding.

One wonders in that circumstance, at least I would knowing those facts -- one wonders why the case was brought in the context of -- of that kind of a set of facts. And one can't know -- and I can't even suggest -- that there necessarily is any impropriety or bias or uncertainty. But the fact that there is the possibility of that --

QUESTION: Why is there the possibility on those facts, I mean, other than you might say I suppose that bias might play a part in any case? But why on those facts is there any reason to think it's any different than any other case?

MR. AYER: There -- there is reason -- there is not reason to believe; there is reason to wonder. And the reason is that, as I've described it, I think those facts are susceptible, if you fill them in with other facts, which I don't have, but if you fill them with other facts and circumstances, it is possible that there was -- that there was a motivation for bringing the prosecution that was improper.

QUESTION: (Inaudible).

QUESTION: So, you're asking us to say that there -- we erect a presumption that there was a real potential for bias in the state courts. Isn't that what you're asking us to --

MR. AYER: Well, I don't think you have to erect any presumption. We believe that the statute has been written in a way that plainly allows a choice to be made which forum --

QUESTION: Well, let's -- let us assume that we must find some federal interest beyond the mere employment status. Is that interest the fact that there is a real potential for bias? Is that what you're asking us to say?

MR. AYER: I -- I think what I'm asking you to say is that -- is that Congress has reasonably decided that there is always a reasonable potential for bias, and on that basis, the cases may be moved from state court to federal court, and that the problem is that just as one cannot know whether the defendant, the federal official, is in the right or in the wrong -- you don't find that out till after the case is over -- one cannot know whether one is going to get a fair trial in state court or not.

I'm not saying that most of the time you're not. I'm sure that's not true. I'm sure most of the time you are going to get a fair trial, but Congress has said that where you have essentially a -- a federal function being challenged in state court, we care enough about that that we want that in the federal court.

QUESTION: Yes but, Mr. Ayer, the example you've put, the possibility of bias because there were police officers involved is what I suppose you're suggesting -- they might have wanted to cover up their own negligence, and therefore they brought a charge.

MR. AYER: Well, he ran into a mail truck.

QUESTION: All right. But that same bias would be potential if the defendant were a private citizen rather than a federal employee. That's bias in favor of something unrelated to the federal official.

MR. AYER: Well, and -- you know, now you're --

QUESTION: You're just suggesting that the federal officials ought to have some special defense that the ordinary citizen does not have.

MR. AYER: I'm not suggesting that they ought to; I'm suggesting that Congress has decided that they want challenges to federal functions to be in federal court if the judgment is made that that's, in the given case, what ought to happen. That's the way the statute is written. And I think that Congress had the authority to do that.

And all we are doing in arguing this I think is trying to put the statute in a forum that will accomplish the job.

The problem is if you don't read it the way we read it, and you actually have a situation where there is very good reason to believe that a local community and a local government is completely hostile and is going to throw up every barrier it can, including staging accidents and -- and framing federal officials and prosecuting them for one thing and another, you don't have a removal statute.

Those were the kinds of problems that were being addressed in 1815 and in 1833 where states were openly hostile and where they were taking affirmative actions to stop the enforcement of federal law. And --

QUESTION: In those cases, the statutes were tailor-made to particular situations and for limited periods of time. You don't --

MR. AYER: Well, they were not all for limited periods of time.

QUESTION: You don't have a nationwide assumption that this goes on all over the country.

QUESTION: Mr. Ayer, at the time of Neagle, what -- what year was Neagle? Was there a statute?

MR. AYER: Roughly 1890 or thereabouts.

QUESTION: Was there a statute then?

MR. AYER: Yes.

QUESTION: Not this one though, was it?

MR. AYER: Well, it was in process of evolution. There was the 1866 statute which used the phrase "under color of law."

QUESTION: There's no question that the hostility was very evident toward the United States marshal in --

MR. AYER: That's right.

QUESTION: -- in the Neagle case.

MR. AYER: That's right.

QUESTION: That's quite different from this.

MR. AYER: Well, that was a -- that was a habeas corpus case --

QUESTION: I know.

MR. AYER: -- not -- not a removal --

QUESTION: The mob took the people off the train and --

MR. AYER: Oh, that's right.

QUESTION: Carpetbaggers.

MR. AYER: But -- but the remedy is different. On the one hand, the remedy is -- in habeas corpus is essentially to intervene and put a stop to the state prosecution. Here we are bringing it into the federal forum.

Your Honor, if I could, I'd like to save the remainder of my time for rebuttal.

QUESTION: Very well, Mr. Ayer.

Mr. Rosenblatt, we'll hear now from you.

ORAL ARGUMENT OF KENNETH ROSENBLATT ON BEHALF OF THE RESPONDENT

MR. ROSENBLATT: Mr. Chief Justice, may it please the Court.

This Court has never allowed removal where a federal official has not had a federal defense. This Court should not change its enforcement of the federal defense requirement for several reasons.

First, there's clear legislative history indicating that Congress intended to require a federal defense.

Second, this Court in a long line of cases has accepted that legislative history and has applied it in favor of the federal defense requirement.

Third, allowing removal without a federal defense would not only burden state and local governments, but would also burden federal courts for no discernable purpose.

I'd like to discuss all of those reasons, but first I'd like to clear up a matter of fact.

I've handled these cases since the beginning. At the district court there was no allegation of harassment. At the Ninth Circuit there was no allegation of harassment. If this Court looks at the Ninth Circuit opinion at page 967, the Court specifically states that the removal petitions at issue here contain no allegation of a pattern of enforcement.

QUESTION: If there were an allegation of harassment, would that suffice?

MR. ROSENBLATT: Yes, under certain circumstances. As a preliminary --

QUESTION: How do you draft the allegation of harassment so that you come within the statute as you understand the statute?

MR. ROSENBLATT: I believe this Court stated the exact procedure to follow in its case of Soper (No.1). I read that as an harassment case primarily because of language that's also in Soper (No. 2).

The way you do it is simple. You set out in your removal petitions everything that you did. You show that those acts were protected by federal law. You also must show some hint or some suggestion from the facts of the case that the prosecution was not legitimately motivated, therefore, by the negative pregnant, it must have been motivated or commenced upon account of some act that you did that is protected by your federal authority.

QUESTION: In a criminal case that doesn't impinge on the defendant's Fifth Amendment rights?

MR. ROSENBLATT: No. As a matter of fact, this Court in Soper (No. 1) specifically stated that the Fifth Amendment privilege must be waived. I'm comfortable with that for several reasons.

The first is that the waiver only goes toward stating a federal defense. It's more a -- a prosecutorial discovery that in any event would have been obtained.

Second, the defendant is not stuck with that defense because an allegation that is made for removal does not bind the defendant at trial as happened, in fact, in Arizona v. Manypenny.

QUESTION: Well, you began by saying he has to set forth everything that he did.

MR. ROSENBLATT: That is correct, but we assume that he would do so in order to avail himself of the federal defense. I concede the point.

However, this Court since Tennessee v. Davis has made that clear that the Fifth Amendment privilege must be waived, and it's because it's such an exceptional procedure that we're talking about here. We're talking about taking a case out of the state courts. And in order to do that, the federal official must give some reason why federal jurisdiction, which is usually strictly construed, should be afforded to his case. And he has to tell us essentially that the prosecution challenges federal law. Otherwise, he is consigned to the state courts.

QUESTION: Mr. Rosenblatt, you mentioned Tennessee v. Davis, and that's a case that the Solicitor General argues allowed removal based strictly on the federal employee's assertion of self-defense under state law.

MR. ROSENBLATT: I would disagree --

QUESTION: And it could be --

MR. ROSENBLATT: I'm sorry.

QUESTION: -- read that way I guess.

MR. ROSENBLATT: I don't believe, with all respect, it can be read that way. In my brief I simply stated every sentence of Tennessee v. Davis as somewhat inconsistent. And I -- I may just have to repeat that with particular reference to pages 261 and 262.

Indeed, the Court in assessing the constitutionality of the statute, which is what it was doing in Tennessee v. Davis, said that it only went so far as to look at what happens when there is a federal defense. And the final lines of Tennessee v. Davis I think say it very well about what the Court actually was doing. I might just take a moment.

On page 272, "When this is understood -- and it is time it should be -- it will not appear strange that even in cases of criminal prosecutions for alleged offenses against a state in which arises a defense under United States law the general government should take cognizance of the case and try it in its own courts according to its own forms of proceeding."

I believe that a fair reading of Tennessee v. Davis mandates the idea that the federal defense requirement was what they were considering. Indeed, a fair reading of The Mayor v. Cooper I believe leads us to the same point.

QUESTION: Mr. Rosenblatt, how does -- how does the existence of -- of harassment equate with the existence of a federal defense?

MR. ROSENBLATT: It implicates the Supremacy Clause of the United States Constitution. That is how we get to a federal defense.

QUESTION: Why? Do you have to be harassed because you're a federal employee? Or is it -- do they just have some -- suppose they just have something in for you. They don't like postmen. They wouldn't care whether postmen were federal employees or not, or they don't like some other thing about you that has nothing to do with your federal status?

MR. ROSENBLATT: I'm a little unclear, Justice, because if they don't like you because you're a postman, that does implicate some hostility against federal authority. If they don't like you because of the color of your hair --

QUESTION: Right.

MR. ROSENBLATT: -- you cannot get removal. You may, however --

QUESTION: So, you say there -- there must be harassment specifically on a ground that is related to your federal activity.

MR. ROSENBLATT: Absolutely. And that's what this Court said in Soper (No. 1).

QUESTION: So, you would say there is -- there is no harassment possible where you are picking on a truck that you ran into. You're a policeman. You run into the truck, as happened here. That is not harassment by reason of your federal character.

MR. ROSENBLATT: That's correct. It may well be harassment, and there may be other means of availing yourself of a remedy, but as far as this statute is concerned for federal employees, it would not be enough to gain removal.

QUESTION: And it raises a federal question when you're harassing someone because of his federal character. Why?

MR. ROSENBLATT: Because you're attempting to interfere with his enforcement of federal law. That is, if you take a postman off the street, he isn't able to deliver the mail. And if you do so because you're hostile to the federal government --

QUESTION: But why -- why does that cause the action to arise under federal law?

MR. ROSENBLATT: Because that action --

QUESTION: I mean, once you depart from that language, you -- you risk enabling me to agree with the government that, well, the language doesn't really mean arising under. And if it doesn't mean arising under, then I can think of a lot of different things it might mean.

MR. ROSENBLATT: I assume we're talking about the Article III arising under here, and the reason that it would do so is that it would arise under the Supremacy Clause of the United States. That would be my position as to why this case would -- not this case --

QUESTION: The suit? The suit would arise under the -- I think the harassment might -- might implicate the Supremacy Clause, but I don't see how the lawsuit would arise under the Supremacy Clause.

MR. ROSENBLATT: However, let me make a distinction. The well-pleaded complaint rule which usually guides us in the 1331 situation, doesn't guide us here. So, a defense that raises federal law is enough to make a case arise under Article III. That's how I believe the case would arise under Article III.

Obviously, there have been some concerns stated about harassment. And I'd like to reassure the Court that there is no way in which a ruling in our favor will impede a federal official in gaining a remedy if he is harassed. First, of course, the federal official may file for habeas corpus, the precise thing that happened in In re Neagle.

And as to my colleague's comment that he would not know if he was harassed until at some future date, first, you can file a writ of habeas corpus any time before trial. And by trial you ought to know if you have been harassed. The same can be said for removal --

QUESTION: But -- but habeas corpus before trial is certainly not a favored remedy in the federal courts.

MR. ROSENBLATT: It is for federal officials under this Court's decisions in ex rel. Drury. And I cite those decisions in our brief. For federal officials, anticipatory habeas corpus is, I submit, a favored remedy.

QUESTION: And what's the name of that case again?

MR. ROSENBLATT: Ex rel. Drury. I think it's on page 49 of my brief.

QUESTION: Thank you.

MR. ROSENBLATT: And that is, indeed, how the federal official in In re Neagle obtained his anticipatory habeas relief. I don't think he waited until after trial.

Not only is habeas relief available, it is a preferred remedy in many respects. The federal official, as I just mentioned, can seek it immediately. He does not have to wait until a jury trial some six months to a year later in order to obtain relief.

He can also rely on a federal judge to immediately pass upon his claims. If there is harassment, once the case is removed, the venire will be composed in most cases of people drawn from the area where the harassment, the alleged harassment, springs from or arises.

So, removal is a good remedy. Habeas corpus is a better remedy and it is completely unaffected by the question before us.

Furthermore --

QUESTION: What does -- what do you -- what is your view of the showing that must be made to get relief by way of anticipatory habeas corpus?

MR. ROSENBLATT: That appears to be unclear. Under a recent Ninth Circuit decision, also cited in our case, Morgan v. California, it appears the circuit was applying a preponderance standard; that is, the federal official has to show by a preponderance that he was harassed. I believe that's an appropriate standard, but that could be decided at a later date.

The point is that the remedy is available. In In re Neagle, I also believe that was the standard that was applied, although there there was a federal immunity defense.

Furthermore, if there is some concern about harassment in Soper (No. 2), the companion case to Soper (No. 1), this Court specifically invited Congress to amend the statute to deal with any lingering concerns that states might be harassing federal employees. And that can be found on page 43 of Soper (No. 2). Congress declined to amend.

The bottom line here with harassment is that our position is that the statute, the language and the legislative history particularly are clear. If there are some perceived inadequacies, then that would be for Congress to remedy. But the intent of Congress is clear.

QUESTION: The language certainly seems clearly the other way. It doesn't say anything about a federal defense at all.

How -- how do you explain -- if you don't believe in protective jurisdiction theories, how do you -- you explain the fact that suits against federal instrumentalities, no matter what the subject, can be entertained by federal courts? Do you have an explanation for that apart from protective jurisdiction?

MR. ROSENBLATT: I certainly do. In most cases, it's Osborn. As a matter of fact, the statutes that my colleague cited, 12 U.S.C. 1819 -- there was a case that came up through the circuits. I believe it was the Eighth Circuit. And there's an account of this, by the way, in the New York University Law Review note on protective jurisdiction which was cited by this Court in Verlinden.

There is some doubt as to its constitutionality, but if it's constitutional, it is because Osborn controls cases involving federal instrumentalities because every time you sue an instrumentality, you draw their authority to act into question. And since they are chartered under federal law, that brings federal law into question. That may be considered artifice, but that's the artifice that was used in Osborn. And Osborn apparently is still good law. That's how I would explain 12 U.S.C. 1819.

I would explain the bankruptcy jurisdiction under a number of theories. First, the Bankruptcy Code gives the federal government jurisdiction over the bankrupt's estate. Any action affecting that estate, a suit that would increase it's proceeds, for example, is related to the res of the -- of the estate itself so as to operate as pendent jurisdiction when the trustee goes in to sue.

A second justification would be Osborn. That is, whenever the trustee goes in to sue, there is a question as to whether under federal law he has the authority to do so.

Finally, of course, the Bankruptcy Code is a statutory scheme that not only provides jurisdiction, but also provides substantive rules to govern bankruptcy cases. And it is grounded in Article I of the Constitution. That is not what we have here. We have a purely jurisdictional statute.

The language of the statute -- I believe, Justice Scalia, that you raised the idea that maybe the language when the other way. We do not believe so. We -- our position is that there is no plain and unmistakable meaning or so unmistakable that you would throw out the legislative history and this Court's cases. But we do have a meaning for the statute, and our meaning is that it is a -- for that language, you should substitute "in reliance upon federal authority" for "under color of office." Perhaps an example would assist.

Let us say you have a revenue agent who is assigned to break up illegal stills. The revenue agent goes out to the countryside, finds a still and begins to break it up. A moonshiner happens upon him and a struggle ensues as the moonshiner tries to stop the agent from breaking up the still. The agent throws him to the ground, proceeds with his work. The moonshiner comes at him again. He throws him to the ground. The moonshiner hits his head on a tree and dies. The agent is arrested.

Now, if you look at the Internal Revenue Code or whatever statutes would govern the agent's conduct, you will probably not find in black and white letters if someone tries to interfere with you, throw him to the ground. But there is no question outside of the text of the statute there is some authority for the agent's conduct. He is acting under color of his office, which includes such acts as defending himself when someone tries to interfere with his duties.

This Court echoed that in Soper (No. 2) when it said that the defense of the agent's life is part of the exercise of his federal authority.

We believe that is far more plausible than the United States' version of the statute because the United States' version of the statute assumes that under color of office merely means that something happened while the official was on duty.

Now --

QUESTION: Your -- your theory, if I understand it, wouldn't apply ever to negligent acts because a negligent act you don't purport to do under authority of anything. You -- you do it negligently.

MR. ROSENBLATT: Our theory is that "under color of office" is a term of art, and --

QUESTION: Could it apply to negligent acts? Could it apply to any -- to any suit where the claim is that you were negligent?

MR. ROSENBLATT: This answer will -- may appear confusing. It used to be. It probably does not now because of the official immunity defense and the change in that defense effected by this Court in Westfall v. Erwin. That is, if a -- this is -- if a postal -- or let's say a federal official raises an official immunity defense and says whether I was negligent or not, I have an immunity under federal law, that is the sort of immunity -- and this is what this Court decided in Willingham -- that gets him removal.

The problem now is that this Court has decided that official -- the official immunity defense does not apply to acts that were not discretionary. Therefore, probably under -- under my theory now, you would be correct. It would not apply to negligent acts.

QUESTION: You're right. Confusing.

MR. ROSENBLATT: I'm sorry.

(Laughter.)

MR. ROSENBLATT: Let me make -- the -- excuse me, Justice. I didn't mean to make it that confusing. The answer is it wouldn't apply to negligent acts unless the official is alleging a federal defense.

The problem with the United States' version of the language, besides the fact that you would have to throw out some very clear legislative history, is that it suffers from what I call double superfluity, and that is, as I set out in my brief, it makes two sections superfluous.

In Subsection (a)(3), Congress stated that court officials could remove for acts under color of office or in performance of their duties. Now, the United States' position is that any time an official is performing his duties, he can remove. But those two phrases are separated by a disjunctive. Therefore, they should mean different things. So, we have one superfluity.

The second is that Subsection (a)(3) shouldn't be there at all because if you look at the language purely textually, which is what the United States' brief essentially does, you find that under color of office in Subsection (a)(1) applies to all federal officials. If that means in performance of duties, then why is Section (a)(3) ever there? And there's really no answer to that. See, the United States wants to look at it textually until you get that point, and then they want to look at the legislative history.

The other reason, Justice Scalia, that I disagree with the characterization of the language is this Court's decision in Screws. As I state on page 20 of our brief, this Court in Screws was called upon to decide the meaning of "under color of" in the context of the precursor of Section 1983. And when it did so, it looked to our statute to see what "under color of" meant in Section 1442(a)(1). And when it did so, four members of the plurality and three members who dissented of this Court stated quite clearly that "under color of" in our statute meant acts justifiable under federal law. And there's no reason to change that. Therefore, Screws and the legislative history established that what we have here for under color of office is a term of art with a particular and well-established meaning.

QUESTION: (Inaudible) understand the Screws case, it said the only way to convict is if the person charged must have admitted openly that he was doing this for the purpose of denying the individual his constitutional rights.

MR. ROSENBLATT: I believe that that would be -- I'm not sure I share that characterization of the Screws case.

QUESTION: Well, you better read it. That's what it says.

MR. ROSENBLATT: If it --

QUESTION: And then you ought to check how many times it has been cited.

MR. ROSENBLATT: Thousands.

QUESTION: About twice.

MR. ROSENBLATT: I -- I thought I've seen it more often, but if I have not, then I'm in error.

But the point in my mind of the Screws case --

QUESTION: (Inaudible).

MR. ROSENBLATT: Well, I only rely upon it as the final scoop on the ice cream cone --

QUESTION: Yes.

MR. ROSENBLATT: -- because we already have the superfluity within the statute, and we have very persuasive legislative history that the United States really does not try to -- to counter.

Finally, I'd like to talk about the precedent of this Court because the United States' position would essentially require this Court to overrule every -- just about every case that has come down on this particular point. The best example is Colorado v. Symes. Symes involved very simple facts. It's on I think page 19 of my brief.

A revenue agent filed a petition for removal. He had been arrested for murder. The petition stated that he walked into a restaurant, that he was a prohibition agent, walked into a restaurant while on duty. He saw a many with a bottle of wine on the bar. He attempted to arrest the man because the bottle was illegal under the prohibition laws. There ensued a scuffle over the bottle. The man resisted arrest. The revenue agent, in order to subdue him, used his gun hitting the suspect on the head. The suspect died. Removal was petitioned for.

This Court denied removal, and the language that it used -- and I won't read it, but it's on, I think, page 521 -- states quite clearly that the Court was holding that you need a federal defense in order to remove. The result is removal was denied. That case would have to be overruled.

And the reason that Symes denied removal -- and I mention this to clear up any confusion that may be lingering around the Willingham decision -- is that there are two questions to be -- to be answered in any case like this. The first is is a federal defense necessary. And the second is assuming the answer to the first is yes, what facts have to be alleged in order to put that defense in issue.

Now, in Symes, the Court clearly answered the question yes. And the next question was what facts had to be put in issue, and the Court held that the petitioner came up short.

The same could be said about Soper (No. 1) where this Court denied removal when the petitioner was clearly on duty.

Another case, Gay v. Ruff. Again, the petitioner on duty. Again, this Court denies removal because a federal defense has not been presented.

And finally we come to Willingham where this Court stated that colorable federal defenses were sufficient for removal and stated a very low standard for removal of the official immunity defense.

All of those cases would be changed. And, of course, the early cases that I discussed a moment ago, Tennessee v. Davis versus -- and The Mayor v. Cooper would not have had all of the language and concern over cases where a federal defense is presented because if there was a plain meaning to this language as far back as 1815, they would have simply stated -- they would have gone to the constitutionality of any case where the federal official was on duty. They did not do so.

And, of course, we have the legislative history which I will leave to the Court's reading, but it's very clear that in 1789 the federal -- that Congress allowed removal of federal questions only, that is, where a state held that a validity of the federal government -- the authority of the federal government was invalid in some way.

Somewhere between 1789 and 1948, the United States is contending that Congress drastically expanded the statute in such a way as to not only open it up to federal officials, but also to allow any miscellaneous tort or crime to be removed whether there was a federal question or not. The United States does not tell us anywhere where that intent changed. They cannot point to a single piece of legislative history showing that Congress charged its mind on the federal question limitation.

Article III I've discussed in my brief.

And finally, I'd like to talk just a few minutes about some of the practical implications of this Court's decision because should this Court rule in favor of the United States, we are going to have a flood of federal cases, federal parking tickets, federal traffic tickets and such, because there is a tactical advantage in removing a case.

I would submit, with all respect to my colleague, that that's why these cases were removed rather than any hint or whiff of harassment which has not been discussed until 20 minutes ago because if you have a U.S. Attorney who is in San Francisco, and you have a vehicular manslaughter taking place, say, in Crescent City near the California-Oregon border, the U.S. Attorney has two choices. He can either send his client a removal petition, allow the client to sign it and send it back and try the case next to his office, or he can go to Crescent City and spend two weeks trying it there. More important, he can make the district attorney come down from Crescent City and spend two weeks in San Francisco and require the district attorney to find a way to get his witnesses down there, which is expensive.

QUESTION: That really suggests a really hostile attitude between the U.S. attorneys and state prosecutors. Do you think that's justified?

MR. ROSENBLATT: I don't -- I don't quite agree with that, Mr. Chief Justice. My sense is they're doing what they think is best for their client. And if the client retains them and they are obligated to push for the tactical advantage, that's what they're doing.

QUESTION: Well, but it's a burden on their client and their own witnesses, the same as the prosecution's witnesses.

MR. ROSENBLATT: Well, indeed, if the defense had as many witnesses and they all had to show up for whatever, a preliminary hearing, let's say, if it's a felony, I would agree with you, but the burden is still less. And it's the district attorney who will have to make the first move to decide whether to settle the case.

QUESTION: What -- what do you say about --we've talked about this thousands of cases and we all parade them around, but they haven't shown up. And your opponent I'm sure in good faith represents that there just all that many. What -- what indication is there that this is -- is such a problem?

MR. ROSENBLATT: At the Ninth Circuit, counsel --

QUESTION: For one thing --

MR. ROSENBLATT: I'm sorry.

QUESTION: -- the civil cases -- and I was off base a little bit before -- they're all taken care of by the -- you now can sue the United States, whatever the name of that statute is.

MR. ROSENBLATT: The Federal Driver's Act, if I might --

QUESTION: Yes.

MR. ROSENBLATT: -- address that first, only takes care of drivers. It does not take care of every other federal employee who might get into a --

QUESTION: No, but that's the major -- I mean, in the course of the employee -- employment -- I suppose most torts by federal employees in the course of their employment that we're talking about are probably postal workers, aren't there?

MR. ROSENBLATT: I would suggest that most of them probably are.

QUESTION: Yes.

MR. ROSENBLATT: But we'll still have a significant number that aren't.

QUESTION: I wonder. Could you give me even a hypothetical example of such another case?

MR. ROSENBLATT: Sure. A group of federal postal employees when not driving get into a fight with a neighbor, take somebody's lawnmower or arrested for narcotics violations, not -- I'm suggesting that federal workers are like everyone else. Some commit infractions that are not necessarily driving infractions, but we also have criminal cases.

And before the Ninth Circuit, the U.S. Attorney's representatives said that they remove 30 to 60 cases a year. So, while I can't point to 10 dozen, maybe I can point to 5 dozen. But that's while no one knows that this tactical -- potential for tactical advantage is out there.

If this Court were to rule against us, I'll guarantee you that this story will be front page of every federal employee newsletter, union newsletter, that goes out in this country because there will be a tactical advantage because when push comes to shove, district attorneys -- some of our counties in California are on the brink of bankruptcy. They are not going to spend the money to chase parking tickets and traffic tickets all over California.

But there's a more important interest here and that is state sovereignty. The United States wants this Court to take cases away from us, to take them away from our courts, to deprive the citizens of California of the opportunity to enforce their own laws. Why? What is the federal interest here? With all respect, the only interest is convenience. Until 20 minutes ago, there was no suggestion of harassment here. There's no question of federal authority at stake. The only question is whether the U.S. Attorney wants to go to another court to try the case. And that's the only federal interest here.

And to rip out what the Ninth Circuit called the central pillar of our sovereignty simply for the government's convenience over the -- not just the language of the statute, but the plain legislative history of the statute, running over Article III in the process, we suggest would be a very bad mistake.

If there are any other questions -- thank you.

QUESTION: Thank you, Mr. Rosenblatt.

Mr. Ayer, you have five minutes remaining.

REBUTTAL ARGUMENT OF DONALD B. AYER

MR. AYER: Thank you, Your Honor. I'd just like to make a few points.

One is that recent -- as a matter of information, recent legislation enacted by Congress within the last couple of months changes the situation with regard to civil actions involving the conduct of federal employees within the scope of their duty. The cases covered essentially by Westfall allegations of common law torts against federal officials. All -- to indicate the current intent of Congress, all of those cases are now -- have now been turned into actions against the United States which will go forward in federal court. So, now we're not talking about --

QUESTION: They're under the Federal Tort Claims Act?

MR. AYER: Yes. The same remedy applies, Your Honor.

The suggestion that the problems that I've pointed out with the requirement of a federal defense can somehow be remedied by requiring allegations of harassment is one that troubles me a great deal. It seems to me that what one is doing there is trying to use a very large band-aid to essentially rewrite a statute in order to avoid what I would submit is its most natural meaning and deal with sort of the kernel of the most objectionable cases that might come up.

What I'd like to suggest and -- and reiterate to some degree -- we aren't just talking about harassment. I think Congress was not just talking about harassment that you can identify in the form of some acting-out conduct by some state official or some state court. We're talking about a range of -- of problems that include bias, hostility, unreceptiveness, et cetera.

And that's what I am suggesting somebody might have wondered about in this case. I'm not talking about harassment. I'm talking about a question that arises in one's mind at the time the removal decision must be made, and I would submit it's that question. It's not the answer to that question. It's the question that justifies the removal.

QUESTION: Are you -- are you saying that the statute requires some sort of a reasonable question, or just that the statute allows removal whenever a postal worker who could claim unemployment -- or could --

MR. AYER: The latter. The latter, Your Honor.

QUESTION: -- claim compensation from the government --

MR. AYER: I'm -- I'm suggesting the latter. I'm suggesting that the statute was written in a way specifically to allow that. And I -- I guess --

QUESTION: So, we don't need to worry about whether there might be a question or a legitimate question or whatever in any particular case. If it's in the course of employment, it's removable, period.

MR. AYER: Right. The judgment that has got to be made I think is whether it really is in the course of employment. And I think that is what is involved in Symes where the description that was given by Mr. Rosenblatt is one that I would submit is equally as susceptible. Except for the specific narrow allegation that he was doing his job, it's as susceptible to a barroom brawl -- to -- to actually just a barroom brawl occurring between those individuals as it is to the notion --

QUESTION: Well, Symes -- Symes speaks rather strongly in terms of alleging official immunity.

MR. AYER: Well, that is the -- that is the factual allegation. That is the defense that was, in fact, going to be offered in that case. And -- and in talking about --

QUESTION: But if you're right, why would he have had to talk about official immunity? Why can't he just say it was in the course cf my employment -- Symes?

MR. AYER: Well, his actual defense was going to be one of official immunity, and he talked about his -- whether he had to or not I don't know. But, in fact, the problem I would submit was not a shortage there, but a failure to make clear that he was actually doing this in the course of his employment.

The point I'd like to get to is some specific clear positions which this Court has taken with regard to the question of an employee who doesn't have the federal defense but simply denies the act. And the Court -- the Court has made perfectly clear, number one, that that fact of denial, rather than the reliance on a defense, on a specific justification for the conduct, is enough. It's not something that forecloses the defense.

As the Court said in Willingham, it was settled long ago that the federal officer, in order to secure removal, need not admit that he actually committed the charged offenses. Thus, Petitioners in this case need not have admitted that they actually injured Respondent.

And in Maryland v. Soper (No. 1), it is enough that his acts or his presence at the place of performance of his official duty constitute the basis, though mistaken or false, of the state prosecution.

What has got to be done is to deal with those cases where the official just didn't do it.

CHIEF JUSTICE REHNQUIST: Your time has expired, Mr. Ayer.

The case is submitted.

(Whereupon, at 12:02 o'clock p.m., the case in the above-entitled matter was submitted.)

Print this transcript Transcript: 

Argument of Justice O' Connor

Mr. O'Connor: The second case is Mesa versus California number 87-1206 which comes to us on writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

In the summer of 1985, the petitioners Mesa and Ebrahim were employed as mail truck drivers by the US Postal Service in Santa Clara County, California.

In unrelated incidence, the State of California issued complaints against the petitioners for criminal traffic violations that occurred while the petitioners were driving the mail trucks.

They were arraigned in State Court.

Through the offices of the US attorney for the Northern District of California, the petitioners Sought to remove these prosecutions in State Court.

The Federal District Court, pursuant to Section 1442(a) of the Judicial Code which permits removal of any similar criminal prosecution brought against a federal officer in State Court for any act done under color of office.

The basis for the removal of petition was that the traffic violations had occurred while petitioners were on duty.

Federal District Court granted the removal of petitions, but the Ninth Circuit Court of Appeals issued a writ of mandamus ordering the District Court to remand the prosecutions to the California State Courts.

On the ground that petitioners had failed to raise a colorable federal defense.

We granted the petition to serve to resolve a conflict among the Circuits concerning the necessary predicate for federal officer removal under Section 1442.

We now affirm the judgment of the Court of Appeals unanimously.

For reasons explained in the opinion, we decline to depart from a long line of this Court's precedents dating the 1868 that requires federal officer removal under the statute to be predicated upon the assertion of a federal defense.

And this interpretation avoids potential difficulties under Article 3 of the constitution that might arise if we were to adopt petitioner's contrary review.

Justice Brennan has filed a concurring opinion in which Justice Marshall has joined.