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Pollock v. Barbosa Group

March 19, 2007


The opinion of the court was delivered by: David G. Larimer United States District Judge


In connection with a New York State action pending in Genesee County Supreme Court, plaintiff obtained a judicial subpoena duces tecum against three non-party federal agencies, the Department of Homeland Security, the General Services Administration, and the Internal Revenue Service. The agencies moved to quash the subpoena in state court, which motion was denied by Acting New York State Supreme Court Justice Robert C. Noonan on July 6, 2006. The agencies then removed the proceedings concerning enforcement of the subpoena to federal court pursuant to 28 U.S.C. § 1442(a).

Plaintiff now moves to remand the subpoena enforcement proceeding back to state court.

(Dkt. #2).*fn1 Plaintiff's motion is denied. For the reasons discussed below, I find that the action was properly removed to federal court pursuant to 28 U.S.C. § 1442(a)(1). Nevertheless, I find that the action should be dismissed.


Plaintiff argues that there was no basis for removal in this case, that the agencies have no sovereign or other immunity that would act as a bar to responding to the subpoena, and that the Department of Homeland Security has been ordered to produce the very same documents in the prior federal court action.

I disagree with plaintiff regarding the legal basis for removal, and find that the other arguments raised are not determinative of the pending motion.

A. Removal under 28 U.S.C. § 1442 28 U.S.C. § 1442(a)(1) allows for removal to a federal district court of any "civil action . . . commenced in a State court" against "[t]he United States or any agency thereof . . . , sued in an official or individual capacity for any act under color of such office . . . ." Plaintiff argues that removal is improper because no federal agency is named as a defendant in the pending state court action. She also argues that a subpoena enforcement proceeding is not an "action" within the meaning of § 1442(a)(1). I disagree with plaintiff on both points.

Section 1442(a)(1) confers removal jurisdiction over a proceeding to enforce a subpoena issued by a state court where removal is "predicated on the allegation of a colorable federal defense." Mesa v. California, 489 U.S. 121, 129 (1989); Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 414-15 (D.C. Cir. 1995) (removal jurisdiction exists under § 1442(a) where Congressmen claimed immunity from state court subpoena based on the Speech or Debate Clause of the U.S. Constitution); see also Smith v. Cromer, 159 F.3d 875 (4th Cir. 1998) (case removed pursuant to § 1442(a) where Department of Justice employees refused to testify in response to state court subpoena); Edwards v. United States Dep't of Justice, 43 F.3d 312 (7th Cir. 1994) (case removed pursuant to § 1442(a) where Department of Justice refused to produce FBI surveillance reports in response to state court subpoena).

Here, there can be no dispute that a colorable federal defense has been raised by the agencies. The agencies claim that sovereign immunity and "federal confidentiality laws" are defenses to the production of the documents subpoenaed. (Dkt. #11, at p.11). Importantly, removal jurisdiction is not contingent on the ultimate merits of the federal defense asserted. That would defeat the purpose of the removal statute, which is to "ensure a federal forum in any case where a federal official is entitled to raise a defense arising out of his official duties." Arizona v. Manypenny, 451 U.S. 232, 241 (1981). All that is required under § 1442 is a "colorable" or "plausible" federal defense. United States v. Todd, 245 F.3d 691, 693-94 (8th Cir. 2001) ("For a defense to be considered colorable, it need only be plausible; § 1442(a)(1) does not require a court to hold that a defense will be successful before removal is appropriate."); accord Willingham v. Morgan, 395 U.S. 402, 406 (1969).

Plaintiff's arguments as to why the agencies' federal defenses lack merit, therefore, are not dispositive of the motion to remand.

Moreover, the fact that the federal agencies themselves are not named parties in the state court case does not defeat removal jurisdiction. Removal under § 1442(a)(1) is available when a federal agency or officer is also a non-party. See, e.g., Brown & Williamson, 62 F.3d at 413-14 (non-party Congressmen, who were subpoenaed in state court civil action, properly removed case to federal court); Smith, 159 F.3d at 877 (non-party subpoena issued to employees of the Department of Justice); Edwards, 43 F.3d at 313 (same); see also 16 Moore's Federal Practice, § 107.15[1][b][iii] (Matthew Bender 3d ed.) ("[F]ederal officers that are not named as parties may remove actions [under § 1442(a)(1)] that interfere with the performance of their duties.").

Furthermore, removal of an action pursuant to § 1442(a) normally brings to federal court the entire action. "However, proceedings to enforce a subpoena against a federal officer may be determined to be ancillary to the state court action, such that the subpoena proceedings are removable but the underlying civil action remains in state court." 16 Moore's Federal Practice, §107.15[1][b][v] (Matthew Bender 3d ed.); see also Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir. 1989).

Accordingly, plaintiff's motion to remand (Dkt. #2) is DENIED. The subpoena enforcement proceeding against the three agencies was properly removed to ...

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