Free Response in Opposition to Motion - District Court of California - California

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KAREN P. HEWITT United States Attorney CINDY M. CIPRIANI Assistant U.S. Attorney California State Bar No. 144402 United States Attorney's Office Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Tel: (619) 557-7390 Email: [email protected] Attorneys for Defendant John Potter Postmaster General, United States Postal Service UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA CHARLES JORDAN, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) I INTRODUCTION Plaintiff moves the Court to remand his claims to state court. The instant motion is untimely. Moreover, removal was entirely proper. Accordingly, Plaintiff's motion to remand should be denied. /// /// /// Case No. 08cv0047 OPPOSITION OF DEFENDANT JOHN POTTER TO PLAINTIFF'S MOTION TO REMAND

13 v. 14 15 16 17 Defendant. 18 19 20 21 22 23 24 25 26 27 JOHN E. POTTER,

Date: Time: Ctrm: Judge:

May 12, 2008 11:00 a.m. 10 Hon. William Q. Hayes

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II FACTUAL AND LEGAL BACKGROUND On January 8, 2008, Plaintiff's action was removed to the United States District Court for the Southern District of California by the filing of a Notice of Removal in a Civil Action by counsel for Defendants. (Doc. No. 1) In the Notice of Removal, Defendant relied upon multiple grounds for removal of the action: 28 U.S.C. §§ 1441, 1442, 1442(a)(1), 1446; sovereign immunity; federal defenses including failure to timely exhaust administrative remedies, failure to timely file claims, and res judicata and collateral estoppel based upon earlier litigation between the parties before the U.S. District Court for the Southern District of California. Id. Plaintiff now moves to remand the action to the Superior Court of California, County of San Diego. However, Plaintiff's argument that removal was improper is based solely upon one statute, 28 U.S.C. § 1442(a), and his reading of that statute lacks merit. III ANALYSIS Plaintiff's Motion to Remand must be denied because Plaintiff's Motion to Remand is untimely, and even if the Court were to reach the motion, each of the statutory bases for removal was proper and Defendant properly provided notice of colorable federal affirmative defenses to Plaintiff's Complaint. A. Plaintiff's Motion to Remand Is Untimely

A motion to remand for procedural defects in the removal must be made within 30 days after the removal notice is filed in federal court. 28 U.S.C. § 1447(c). The term "defect in removal procedure" is interpreted broadly to apply to all non-jurisdictional grounds. Maniar v. FDIC, 979 F.2d 782 (9th Cir. 1992).1/ This time limit runs from the filing of the removal notice. Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560, 566 (5th Cir. 1995). Once the Court determines that a motion to remand was untimely filed, it need not address the remaining grounds in the motion to remand. Durham v. Lockheed-Martin Corp., 445 F.3d 1247, (9th Cir. 2006).

Plaintiff does not contest that this court has jurisdiction. See Opposition to Motion to Dismiss at pp. 4-6. 2

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In the instant case, the removal notice was filed on January 8, 2008. Plaintiff's deadline for filing a timely motion to remand was February 7, 2008. Plaintiff did not file his remand motion until April 8, 2008, two months after the 30-day deadline. Because the motion is untimely, the Court need not address Plaintiff's substantive arguments. B. Plaintiff Fails to Challenge Defendant's Multiple Bases for Removal

Plaintiff raises no objection to the stated bases for removal to federal court, aside from his objection based on 28 U.S.C. § 1442(a). Defendant addresses this statutory basis for removal in the following section. However, Defendant notes here that the remaining bases for removal are valid and unchallenged. Section 1441 of Title 28 of the Code permits removal to federal court of civil actions "of which the district courts of the United States have original jurisdiction," and such an action founded on a claim or right arising from the Constitution or laws of the United States is removable without regard to the citizenship or residence of the parties. 28 U.S.C. § 1441(a)-(b). Plaintiff complains that Defendant (a federal officer in his official capacity) terminated him and subsequently failed to properly reinstate him into his civil service position with the United States Postal Service. Again, Plaintiff's Motion to Remand does not argue that § 1441 does not provide a valid basis for removal to the United States District Court. Finally, Plaintiff fails to address that Defendant's notice of his intention to rely upon federal affirmative defenses provides a valid basis for removal. As a general matter, a federal defense alone will not suffice to provide a valid basis for removal. See, e.g., Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); Enns v. NOS Communs. (In re NOS Communs.), 495 F.3d 1052, 1057 (9th Cir. 2007) (citing Caterpillar, 482 U.S. at 393). However the federal defense is properly a basis for removal when paired with the federal officer or agent grounds for removal provided by 28 U.S.C. § 1442. "Federal officers and their agents, may remove cases based on acts performed under color of their federal office if they assert a colorable federal defense." Durham, 445 F.3d at 1251 (citing 28 U.S.C. § 1442). Here, Defendant gave notice to the Court and Plaintiff that multiple federal defenses, in conjunction with 28 U.S.C. § 1442, would give rise to the proper removal of this action to federal

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district court. Plaintiff raised no objection to the federal nature of the defenses of sovereign immunity, failure to timely exhaust administrative remedies, and failure to timely file the action, in addition to res judicata and collateral estoppel. Plaintiff's only objection is that section 1442 does not apply because the actions of the federal agent relevant to this matter were either not under color of his federal office or were in some way insufficiently causally connected to federal service. Plaintiff's argument on this point must fail. C. Plaintiff's Challenge to 28 U.S.C. § 1442(a) Fails

The removal statute specifically provides that federal officers may remove a state civil action or a criminal prosecution against them. Specifically, Section 1442(a) provides in relevant part: A civil action . . . commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office.. 28 U.S.C. § 1442(a); see also Jefferson County, Ala. v. Acker, 527 U.S. 423, 431 (1999); Mesa v. California, 489 U.S. 121, 129 (1989); Durham, 445 F.3d at 1251. To qualify for removal, a federal officer must raise a colorable defense and establish that the suit is "for an act under color of office." 28 U.S.C. § 1442(a). Contrary to Plaintiff's contentions, both prongs of the removal statute are met here. The scope of a "colorable federal defense" is broadly interpreted. Jefferson County, Ala., 527 U.S. at 431. The federal officer need not show he will win to remove the case. Id. at 432. As stated above, Defendant has set forth numerous federal defenses, and Plaintiff has not raised a legitimate question as to whether any of any of them fail to rise to the "colorable" standard. Furthermore, a causal nexus clearly exists between the Plaintiff's tort claims and the Defendant's employment actions, which were taken pursuant to a federal officer's directions. Durham, 445 F.3d at 1251 (citing Jefferson County v. Acker, 527 U.S. 423, 431 (1999)); Mesa, 489 U.S. at 124-25. Plaintiff's effort to divorce his common law claims from federal actions taken pursuant to a federal officer's directions are strained. Plaintiff concedes that his boss "discharged him" and "refused to

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reinstate him" (the federal actions taken pursuant to a federal officer's direction), but argues, without support, that "the process is not the result of direct orders or comprehensive regulations." See Plaintiff's Memorandum of Points and Authorities in Support of Motion to remand at p.4.) In his tardy opposition to Defendant's motion to dismiss,2/ Plaintiff suggests that a state cause of action could provide a remedy for a federal employee's assignment to a type of work duty within federal employment. This argument is prima facie absurd given both basic principles of federalism and binding Supreme Court precedents holding that federal discrimination and civil service statutes represent the exclusive remedy for employment-related claims. See Brown v. General Services Admin., 425 U.S. 820, 835 (1976); see also Bush v. Lucas, 462 U.S. 367, 390 (1983) (Bivens remedies unavailable where Congress has established a comprehensive remedial scheme for violations by federal supervisors of their employees' First Amendment rights). Moreover, Plaintiff's termination from federal employment was necessarily a decision made pursuant to a federal officer's direction. See 28 U.S.C. § 1442(a); Durham, 445 F.3d at 1251. To the extent Plaintiff's Complaint seeks to recover against a federal agent for that agent's actions relating to Plaintiff's termination and lack of reinstatement, a federal agent properly invokes 28 U.S.C. § 1442(a)(1) to remove the action to federal court. See Willingham v. Morgan, 395 U.S. 402, 406-07 (1969). IV CONCLUSION In keeping with the removal statute, Defendant has set forth several colorable federal defenses. He has also established a causal connection between Plaintiff's allegations and the actions of a federal officer. Plaintiff cannot logically claim that Defendant's decisions to terminate hin and to deny reinstatement were not federal actions taken at the direction of a federal officer. For the foregoing reasons, the Court should deny Plaintiff's Motion to Remand. /// ///

Plaintiff filed his opposition to Defendant's motion to dismiss on April 11, 2008, depriving Defendant of a chance to submit a timely reply in advance of the April 14, 2008 hearing date. Plaintiff's late opposition brief should be disregarded. 5

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Dated: April 28, 2008

Respectfully submitted, KAREN P. HEWITT United States Attorney /s Cindy M. Cipriani

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KAREN P. HEWITT United States Attorney CINDY M. CIPRIANI Assistant U.S. Attorney Deputy Chief, Civil Division California State Bar No. 144402 United States Attorney's Office Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7390 Facsimile: (619) 557-5004 Email: [email protected] Attorneys for Defendant John Potter Postmaster General, United States Postal Service UNITED STATES DISTRICT COURT

10 SOUTHERN DISTRICT OF CALIFORNIA 11 CHARLES JORDAN, 12 Plaintiff, 13 v. 14 UNITED STATES OF AMERICA, et al., 15 Defendants. 16 17 18 19 I am not a party to the above-entitled action. I have caused service of: 20 Opposition of Defendant John Potter to Plaintiff's Motion to Remand 21 22 23 24 25 26 27 Joseph Warren Giovanazzi Law Office of Joseph Giovanazzi 931 Grand Avenue Carlsbad, CA 92008 /// /// [email protected] on the following party by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. IT IS HEREBY CERTIFIED THAT: I, the undersigned, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. ) ) ) ) ) ) ) ) ) ) Case No. 08cv0047-WQH (POR) CERTIFICATE OF SERVICE

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I hereby certify that I have caused to be mailed the foregoing, by the United States Postal Service, to the following non-ECF participants on this case: N/A

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Attorney for Defendant John Potter s/Cindy M. Cipriani CINDY M. CIPRIANI Cindy M. Cipriani Assistant U.S. Attorney the last known address, at which place there is delivery service of mail from the United States Postal Service. I declare under penalty of perjury that the foregoing is true and correct. Executed on April 28, 2008.

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