against the Laurentis. Shortly thereafter, on March 25, the Laurentis commenced an action in this Court alleging a violation of the Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601 -31, in that they were discriminated against based upon their familial status due to the number of minor children in their household. Laurenti v. Water's Edge, No. 93-1333 (E.D.N.Y. filed March 25, 1993). The Pulipatis voluntarily stayed the State court eviction proceeding pending resolution of the federal suit. However, on May 3, 1993 Water's Edge served the Pulipatis with written notice terminating their proprietary lease effective May 14 based upon the Laurentis' occupancy of the residence in violation of the Village Code and Water's Edge by-laws.
Water's Edge commenced a holdover suit against the Pulipatis and Laurent is in Suffolk County District Court on May 17, 1993. Laurenti moved this Court for a preliminary injunction in their pending federal FHA suit to enjoin petitioner and the Pulipatis from continuing the eviction tactics in State court. Simultaneously, Laurenti and Pulipati moved the State court to stay the eviction proceedings pending the outcome of the federal case. The State court denied the stay and set the matter down for trial.
In a memorandum decision, familiarity with which is assumed, this Court denied respondents' motion for a preliminary injunction under the FHA. Laurenti v. Water's Edge Habitat, Inc., No. 93-1333 (E.D.N.Y. June 28, 1993).
On July 6, 1993, just two days before the trial date in the holdover action, the Laurentis removed the eviction proceeding to this Court pursuant to the civil rights removal statute, 28 U.S.C. § 1443(1), alleging that the continuation of the eviction proceeding violates their federally protected right to equal access to housing without regard to their familial status. Petitioner now moves this Court to remand this case for want of federal jurisdiction under 28 U.S.C. § 1447(c).
Water's Edge seeks to remand this eviction proceeding to Suffolk County District Court pursuant to 28 U.S.C. § 1447(c) for failure to state a cognizable basis for federal jurisdiction. In evaluating a petition to remand, "the burden falls squarely upon the removing party to establish its right to a federal forum by 'competent proof'." R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979), quoting McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 80 L. Ed. 1135, 56 S. Ct. 780 (1936). The respondents removed the present action to this Court pursuant 28 U.S.C. § 1443(1) alleging that the State action infringed upon their federally protected rights.
A party removing an action under section 1443 must satisfy the two-part test established by the Supreme Court in Georgia v. Rachel, 384 U.S. 780, 16 L. Ed. 2d 925, 86 S. Ct. 1783 (1966). First, the court must determine that the right allegedly being denied the removal petitioner arises under a federal law "providing for specific civil rights stated in terms of racial equality." Rachel, 384 U.S. at 792. Second, the court must determine that the petitioner cannot enforce the specified federal right in state court. Id. at 794-99. Because respondents cannot establish either prong of the Court's test, this action must be remanded to the State court.
I. Federal Law Guaranteeing Equal Civil Rights
Respondent's claim of disparate treatment based upon familial status simply may not support removal under 28 U.S.C. § 1443(1). Although the Fair Housing Act ("FHA") is a federal statute that arguably guarantees "equal civil rights" within the plain meaning of section 1443, the scope of rights circumscribed by this phrase may not be ascertained without considering the circumstances under which the civil rights removal provision was drafted. In Rachel, the Supreme Court conducted an exhaustive review of the legislative history behind section 1443 and the historical treatment of the current statute in the federal courts before concluding that the provision "must be construed to mean any law providing for specific civil rights stated in terms of racial equality." Rachel, 384 U.S. at 792. In addition, the Court found that principles of federalism and comity mandate that the removal statute be strictly construed to minimize encroachment by the federal courts upon the sovereignty of the state courts. See City of Greenwood v. Peacock, 384 U.S. 808, 827-28, 16 L. Ed. 2d 944, 86 S. Ct. 1800 (1966); New York v. Mitchell, 637 F. Supp. 1100, 1101-02 (S.D.N.Y. 1986). Accordingly, if the activity in question "does not on its face discriminate in terms of race, appellants claim of violation of the equal protection clause does not qualify their cause for removal." Chestnut v. New York, 370 F.2d 1, 4 (2d Cir. 1966), cert. denied, 386 U.S. 1009, 18 L. Ed. 2d 439, 87 S. Ct. 1355 (1967).
The federal courts have scrupulously honored the unambiguous language of Rachel and Peacock in restricting the scope of the removal statute to violations of explicit federal statutory and Constitutional laws guaranteeing racial equality for all citizens. See Johnson v. Mississippi, 421 U.S. 213, 227-28, 44 L. Ed. 2d 121, 95 S. Ct. 1591 (1975); Chestnut, 370 F.2d at 4; New York v. Bell, 617 F. Supp. 47, 49 (E.D.N.Y. 1985). "Claims that prosecution and conviction will violate rights under constitutional or statutory provisions of general applicability or under statutes not protecting against racial discrimination, will not suffice." Johnson, 421 U.S. at 227-28. Relying upon a series of cases that have found a state proceeding impinging upon rights guaranteed by the FHA may implicate an "equal civil right" warranting removal to this Court, see e.g., Sofarelli v. Pinellas County, 931 F.2d 718, 725 (11th Cir. 1991); Emigrant Sav. Bank v. Elan Management Corp., 668 F.2d 671, 673 (2d Cir. 1982), respondents assert that the courts have merely sought to distinguish Equal Protection rights belonging to a protected class from substantive due process rights belonging to the public generally. However, all of the cases cited in respondents' papers involve claims under the FHA alleging racial discrimination in housing, entirely consistent with the mandate of Rachel.4 "If changes are to be made in the long-settled interpretation of the provisions of this century-old removal statute, it is for Congress and not for this Court to make them." Peacock, 384 U.S. at 834. See also Village of Portchester v. Port Chester Yacht Club, Inc., 598 F. Supp. 663 (S.D.N.Y. 1984); Little Ferry Assoc. v. Diaz, 484 F. Supp. 890 (S.D.N.Y. 1980). Therefore, respondents' removal petition grounded upon alleged discrimination based upon familial status may not support removal under 28 U.S.C. § 1443(1) and must be remanded to the State court.
II. Inability To Enforce Federal Right In State Court
A party removing a state case under section 1443 must also demonstrate that the right claimed is being denied or is unenforceable in the state court. 28 U.S.C. § 1443(1). It is axiomatic that a defendant has no inherent right to a federal forum to adjudicate a federal right absent exclusive federal jurisdiction. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 10-12, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983). "The vindication of the defendant's federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court." Peacock, 384 U.S. at 828. This showing normally requires that "the denial be manifest in a formal expression of state law." Rachel, 384 U.S. at 803. Since respondents do not argue that the Village ordinance is invalid on its face,
the Laurentis must carry the heavy burden of demonstrating that the mere pendency of the suit constitutes a continuing infringement of their rights under the FHA. Id. at 802-03. The present facts may not support such an inference.
The mere existence of a state suit may violate a defendant's rights so as to permit removal where the federal right at issue prohibits even the act of filing the suit or preempts the field so that the state law cannot co-exist with the federal right. Rachel, 384 U.S. at 797-804. This premise, known as the Strauder-Rives doctrine, deems the state action to be violative of the federal right when the loss or curtailment of that right has already occurred or is inevitable irrespective of the outcome of the state proceeding. See Strauder v. West Virginia, 100 U.S. 303, 25 L. Ed. 664 (1880); Virginia v. Rives, 100 U.S. 313, 25 L. Ed. 667 (1880). Under Strauder-Rives, the defendant must demonstrate that the very act of being forced to defend the state suit manifests a violation of the federal right in order to state a claim for removal under section 1443. Peacock, 384 U.S. at 828. However, "the provisions of section 1443(1) do not operate to work a wholesale dislocation of the historic relationship between the state and federal courts . . . ." Peacock, 384 U.S. at 831. "When [a defendant] has only an apprehension that such rights will be withheld from him when his case shall come to trial, he cannot affirm that they are actually denied, or that he cannot enforce them." Rachel, 384 U.S. at 799. Absent an unequivocal deprivation of the federal right in state court, the remedy for an adverse verdict that denies a defendant's federal rights is appellate review, not removal. Peacock, 384 U.S. at 834.
Respondents will not be denied their federal rights in the State court proceeding. Even if Water's Edge's occupancy policy is illegal, the FHA confers no federal right to violate the facially valid Village ordinance limiting the number of occupants in the dwelling. See Peacock, 348 U.S. at 826. "The Strauder-Rives line of distinction was that removal will lie when enforcement of the petitioner's rights in a state court was barred by a state statute or constitutional provision which was applicable in terms although unconstitutional on its face, but not when the allegation was simply that in practice he would be denied or be unable to enforce his rights." Emigrant Sav. Bank v. Elan Management Corp., 668 F.2d 671, 674 (2d Cir. 1982). Under New York law, the defendant in an eviction proceeding is entitled to present all legal and equitable defenses he or she has available under State or federal law.
See N.Y. Real. Prop. Acts. § 743 (McKinney 1979); Elan, 668 F.2d at 675; Little Ferry Assoc. v. Diaz, 484 F. Supp. 890, 892 (S.D.N.Y. 1980) (eviction proceeding alleged to be racially motivated may be adequately challenged in landlord-tenant court). Accordingly, respondents have an adequate State remedy to protect their federal rights and removal to this Court under 28 U.S.C. § 1443(1) was improper. Therefore, this case must be remanded to the State court.
Thomas C. Platt
Chief Judge, U.S.D.C.
Dated: Uniondale, New York September 30, 1993