US SUPREME COURT DECISIONS

Petitioner mail truck drivers, employees of the United States Postal Service, were separately charged in state criminal complaints with traffic violations arising out of unrelated incidents while they were operating their trucks, and they were arraigned in a California Municipal Court. The United States attorney filed petitions for removal of the complaints to Federal District Court pursuant to 28 U.S.C. § 1442(a)(1) -- which provides for removal of a civil or criminal prosecution commenced in a state court against "[a]ny officer of the United States . . or person acting under him, for any act under color of such office . . ." -- because petitioners were federal employees at the time of the incidents and because the charges arose from accidents involving petitioners that occurred while they were on duty and acting in the course and scope of their employment. The District Court granted the petitions. The Court of Appeals, after consolidating the petitions, issued a writ of mandamus ordering the District Court to deny the petitions and remand the prosecutions for trial in state court, holding 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."

Held: Federal officer removal under § 1442(a) must be predicated upon averment of a federal defense. Pp. 489 U. S. 124-139.

(a) For almost 125 years, this Court's decisions have understood § 1442(a) and its predecessor statutes to require such an averment. The test for federal officer removal under which "[t]here must be a causal connection between what the officer has done under asserted official authority and the state prosecution," Maryland v. Soper (No. 1), 270 U. S. 9, 270 U. S. 33, did not eliminate the federal defense requirement. And since petitioners have not and could not present an official immunity defense to the state prosecutions against them, the liberal pleadings sufficient to allege such a defense that were permitted in Willingham v. Morgan, 395 U. S. 402, 395 U. S. 405, are inapplicable to removal of those prosecutions. Pp. 489 U. S. 125-134.

(b) There is no merit to the Government's argument that the language "in the performance of his duties" used in § 1442(a)(3) that permits removal of actions or prosecutions against federal court officers "for any act under color of office or in the performance of his duties" must mean chanrobles.com-red

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something besides "under color of office" in that provision, and that therefore § 1442(a)(1) must be construed broadly to permit removal of any actions or prosecutions brought against a federal officer for acts done during the performance of his duties, regardless of whether that officer raises a federal defense. There is no reason to depart from the longstanding interpretation that Congress meant by both "in the performance of his duties" and "under color of office" to preserve the preexisting requirement of a federal defense for removal. Pp. 489 U. S. 134-135.

(c) Section 1442(a) is a pure jurisdictional statute, granting district court jurisdiction over cases in which a federal officer is a defendant. The section, therefore, cannot independently support Art. III "arising under" jurisdiction. Rather, it is the raising of a federal question in the officer's removal petition that constitutes the federal law under which the action against the officer arises for Art. III purposes. Adopting the Government's view, which would eliminate the federal defense requirement, would in turn eliminate the substantive Art. III foundation of § 1442(a)(1) and unnecessarily present grave constitutional problems. There is no need to adopt a theory of "protective jurisdiction" to support Art. III "arising under" jurisdiction, as the Government urges, because in this case there are no federal interests that are not protected by limiting removal to situations in which a federal defense is alleged. In the prosecutions at issue, no state court hostility or interference has even been alleged, and there is no federal interest in potentially forcing local district attorneys to choose between prosecuting traffic violations hundreds of miles from the municipality in which the violations occurred or abandoning those prosecutions. It is hardly consistent with the "strong judicial policy" against federal interference with state criminal proceedings to permit removal of state criminal prosecutions of federal officers, and thereby impose potentially extraordinary burdens on the States when absolutely no federal question is even at issue in those prosecutions. Pp. 489 U. S. 136-139.

813 F.2d 960, affirmed.

O'CONNOR, J., delivered the opinion for a unanimous Court. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 489 U. S. 140. chanrobles.com-red

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