The opinion of the court was delivered by: THOMAS C. PLATT
Petitioner moves pursuant to 28 U.S.C. § 1447(c) to remand this summary eviction proceeding to the New York State courts. Respondents Michelle and Mark Laurenti removed this action from the Sixth District Court of Suffolk County, New York pursuant to 28 U.S.C. § 1443(1), alleging that the maintenance of this proceeding in State court discriminates against them based upon their familial status in derogation of their federally guaranteed right to equal access to housing under the Fair Housing Act, 42 U.S.C. §§ 3601 -31. For the reasons stated herein, petitioner's motion to remand must be granted.
Petitioner Water's Edge entered into a leasehold agreement with Padmaja and Soma Pulipati on certain cooperative property owned by Water's Edge in Patchogue, New York. In August 1992, the Pulipatis entered into a sub-lease agreement with Mark and Michelle Laurenti as undertenants subject to the approval of the co-op board, as required by the Pulipatis' lease agreement. The Laurentis filled out an application seeking the Board's approval for a sub-lease to Mr. and Mrs. Laurenti and "other residents," listed as "Venessa Gabrielle Leah." The application also indicated that Mrs. Laurenti was employed by the Town of Brookhaven. The Laurentis were directed to appear before the Board with all prospective occupants of the property.
The Laurentis appeared before the board with two of their four children on August 12, 1992. On August 20, the Board notified the Laurent is that their application was approved. Representatives of Water's Edge telephoned Mrs. Laurenti on August 25 whereupon Laurenti confirmed that she actually had four children. Subsequently, on August 27, 1992, petitioner informed the Laurentis that the approval of their sublease was withdrawn because the proposed living arrangement violated the Housing Standards of the Patchogue Village Code and the by-laws of the Water's Edge development. Shortly thereafter, petitioner also learned that Michelle Laurenti had not worked with the Town of Babylon for several months. Nonetheless, the Laurentis took possession of the leasehold on September 1, 1992.
Water's Edge sought and received a ruling from the Village of Patchogue interpreting Section 55-6 of the Occupancy Code limiting occupancy of any dwelling to "one occupant per sleeping room." Res. App., Ex. G. In a letter dated September 21, 1992, the Village indicated that Pulipati, as principal lessee, was in violation of the Code by permitting more than three people to live in the apartment and gave Pulipati 30 days to rectify the situation.
Res. App., Ex. G. No action was taken by any of the parties with respect to the infraction until March 12, 1992 when Pulipati initiated an eviction proceeding 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." ...