Appeal from order of the District Court of Connecticut, Ellen Bree Burns, J., remanding to the state court an action which defendant state officials had removed to the district court under the "refusal to act" clause of the Civil Rights removal statute, 28 U.S.C. § 1443(2). The basis for the remand was that a defendant who denies a violation of state law cannot at the same time remove on the inconsistent theory that he refused to follow state law because it was inconsistent with Title VII of the Civil Rights Act of 1964, as amended, and related statutes. The Court of Appeals held that a petition to remove is generally regulated by the rules of notice pleading and may contain alternative and inconsistent averments. Reversed.
Before Kaufman and Meskill, Circuit Judges, and Brieant, District Judge.*fn*
Defendants-Appellants, state officials of Connecticut,*fn1 appeal from an order remanding this action from the United States District Court for the District of Connecticut (Ellen Bree Burns, J.) to the Superior Court of the State of Connecticut at New Haven. Removal had been effected under the "refusal to act" clause of the Civil Rights removal statute, 28 U.S.C. § 1443(2), originally enacted in 1863 in aid of Reconstruction.*fn2 The remand was granted "without prejudice to defendants to renew their motion at a later date."
Because we believe appellants under the circumstances present here have an absolute right to remove the case, we reverse.
A brief summary of the facts will suffice. Plaintiff-Appellee White is a member of the Police Department of the City of New Haven, holding the rank of patrolman. Together with two employee organizations acting under state law as statutory representatives and bargaining agents for all New Haven police below the rank of Captain, he sues as class representative for all persons seeking promotion to the rank of sergeant in the New Haven Police Department. That position is within the classified civil service, ordinarily filled by competitive promotional examination, according to specific provisions of the city charter and civil service rules and regulations, all having the force of state law.
Plaintiffs allege that defendants have violated such state law, and threaten to continue to do so. They seek declaratory and injunctive relief to enforce such compliance against defendants, who administer the relevant state laws and procedures and will effect the promotion of sergeants and others in the Department. The Intervening Plaintiffs-Appellees are persons aspiring to be appointed who also contend that defendants violated state law in their administration of the promotional examination and procedures.
Although no answer or responsive pleading had been filed in the state court, the position of appellants was disclosed to the district court in their timely petition for removal. Pleading conditionally in their amended petition for removal, they alleged that in conducting an examination for the position of Sergeant-Police Department, they had refused to do certain acts:*fn3
"on the grounds that it would be inconsistent with Title VII of the Civil Rights Act of 1964, as amended, Title 42 United States Code, Section 2000e et seq., Title 42 United States Code Section 3766(c) (Law Enforcement Assistance Administration) and Title 31, United States Code, Section 1242 (Office of Revenue Sharing, U.S. Department of the Treasury), as well as Title 42, United States Code, Sections 1981 and 1983."
The "refusal to act" clause of 28 U.S.C. § 1443(2) has seldom been invoked. As then District Judge Newman to this Court pointed out in his exhaustive and scholarly review of the subject, in Bridgeport Education Association v. Zinner, 415 F. Supp. 715 (D.Conn. 1976), the legislative history limits those able to remove thereunder to state officers, and those acting with or for them including local and municipal officials.*fn4 These ordinarily will prefer to litigate in the state court. The situation here is unusual because the hiring practices of the New Haven Police Department have been under attack since about 1974 for claimed civil rights violations and there is pending in the District Court of Connecticut litigation involving the same or similar claims, the resolution of which may moot or control the instant case.*fn5 Appellants alleged in their removal petition that they believed that the claims alleged in the instant case could "best be resolved" by removal and consolidation with the pending federal civil rights litigation affecting the hiring and promotional practices of the same police department. Whether this is really so, or whether removal will merely result in delay and complications for both lawsuits is beside the point as the right to remove is statutory, jurisdictional and absolute, regardless of motivation, when it is found to exist.
Appellants are within the class of persons entitled to invoke the removal statute. We adopt generally the analysis of Bridgeport Ed. Ass'n. v. Zinner, supra, 415 F. Supp. at 722, which holds that the statute may be invoked when the removing defendants make a colorable claim that they are being sued for not acting "pursuant to a state law which, though facially neutral, would produce or perpetuate a racially discriminatory result as applied." See also, Buffalo Teachers Association v. Board of Education, 477 F. Supp. 691, 693-94 (W.D.N.Y. 1979). Clearly Title VII of the Civil Rights Act of 1964, relied upon in the petition to remove, qualifies under the statutory definition of § 1443.
The district court in its analysis of this case made no finding that the contention that state law, as applied, violates Title VII, was not a colorable claim. Nor could it do so, because the identical contention remains unresolved in companion litigation presently pending in the district.*fn6 Rather, it remanded on what may be characterized as a narrow point of pleading, holding that defendants':
"position is analogous to alternative pleading in that they argue the 1979 (Civil Service) examination did not violate local law, but, even if it did violate such law, enforcement thereof would be inconsistent with federal equal civil rights legislation. The court agrees with the plaintiffs that such a stance falls outside the purview of § 1443(2)."
The district court also held that:
"Implicit in a § 1443 removal is the belief in a conflict, however subtle or colorable, between state/local law and federal law. The state officers should at least be in a position to allege a definite inconsistency between their state law obligation and controlling federal law."
While their case would be aided had they submitted their proposed answer to the complaint, we believe that appellants in their petition for removal do show a colorable claim that their conduct, if violative of state law, was justified by their federal statutory duty to avoid racial discrimination in hiring or promotion. The dissenting opinion in this case does not assert that there is no colorable claim alleged of conflict between state and federal law. We agree fully with Judge Meskill's description of the "jurisdictional touchstone" as "a colorable conflict between state and federal law" leading to the removing defendant's refusal to follow plaintiff's interpretation of state law because of a good faith belief that to do so would violate federal law. That good faith belief is tested objectively, in that the claim to that effect of the removing defendant must be "colorable." In effect, it is much the same claim being litigated in the long pending Silver Shields case. A strong presumption of regularity in their compliance with local civil service rules attaches to the acts of municipal officials in appointing and promoting police. This is so because unions and job aspirants have standing to insist on compliance. If, as is likely, during past years, New Haven has been in compliance with state law in regard thereto, and if, as the EEOC has found, there is reasonable cause to believe that there has been invidious racial discrimination in past police civil service appointments in that City, then the inference follows that the obligations imposed by federal civil rights legislation conflict with state civil service legislation. If so, the issues in this case are truly colorable and removal of this action is justified by the facts. As was held in Bridgeport Ed. Ass'n. v. Zinner, supra, 415 F. Supp. at 722:
"Several considerations persuade me to read no limitation into the nature of the inconsistency that the removing defendants must allege. First, the language of the "refusal' clause is clear on this point. It requires only that the defendants' refusal to act was "on the ground' that acting would be inconsistent with federal law. The statute creates no stringent standard as to the nature of the inconsistency. It establishes a subjective test, to be met by evidence of what in fact was the reason for the defendants' failure to act. To decide at this point whether the local civil service requirements are really inconsistent with Title VII or § 1981 in the circumstances of this case would be to make entitlement to removal depend on whether the defendants will prevail on the merits of their claim. The removing defendants have ...