Opinion
CIVIL ACTION NO. 03-1606, SECTION "T" (3).
July 24, 2003.
Before the Court is a Motion to Remand and For Costs filed on behalf of the Plaintiff, Lonnie Daw, hereinafter "Daw." The Court, having considered the arguments of counsel, the evidence presented, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
The action arises out of a vehicular collision that occurred on October 9, 2002 at or near the intersection of N. Claiborne Avenue and St. Bernard Avenue in New Orleans, LA. The Plaintiff avers that the sole and proximate cause of the accident was the negligence of the Defendant, Carlene Gibson. Gibson allegedly ran a red light thereby causing the accident.
The suit was filed in the Civil District Court for the Parish of Orleans on April 30, 2003. On or about June 5, 2003, the Defendants filed to have the action removed to this Court. The Defendants based the removal on the allegation that the Defendant, Carlene Gibson, was acting as an agent for the federal government at the time of the loss in question, pursuant to 28 U.S.C. § 1442(A)(1). The Plaintiff now seeks to have the matter remanded to the Civil District Court for the Parish of Orleans.
II. ARGUMENTS ON BEHALF OF THE PARTIES:
A. DAW'S ARGUMENTS IN SUPPORT OF REMAND:
The Notice of Removal should fail on its face because the mere allegation that Gibson was acting as an agent on behalf of FEMA at the time of the collision is not enough to satisfy 28 U.S.C. § 1442(A)(1). 1442(A)(1) reads:
(A) A civil action or criminal prosecution 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 or on account of any right, title, or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of revenue.
The test for removal under 1442(A)(1) is not whether the Government employee was acting in the performance of his duties but rather whether the act complained of was under color of office or any right, title, or authority claimed under any Act of Congress. Galbert v. Shivley, 186 F. Supp. 150 (W.D. Arkansas 1960). When applied in the light of its underlying purpose, 1442(A)(1) permits the removal of those actions commenced in state court that expose a federal official to potential civil liability or criminal penalty for an act performed in the past under color of office. Murray v. Murray, 621 F.2d 103, 107 (5th Cir. 1980). The Defendant has made no allegations that Gibson's actions at the time of the collision were under color of office.
The Defendant cannot prove the necessary requirements to support removal in this case. The Defendant must: (1) raise a colorable federal defense to the claims asserted against it; (2) show that it acted under the direction of a federal officer; and (3) demonstrate a causal nexus between the claim and the act it performed under color of federal authority. Ruffin v. Armco Stee Corp., 959 F. Supp. 770, 773 (S.D. Tex. 1997). If the right to remove is doubtful, the case should be remanded. Id. at 772. First, the Defendants have failed to raise a colorable defense because none exists. Thrifty Car rental was the actual owner of the vehicle at the time of the collision and the vehicle was insured by Scottsdale Insurance Company. Gibson is being sued for negligence under Louisiana law, not for any actions directly related to her job responsibilities as a FEMA agent. Second, Gibson was not operating the vehicle under the direction of a federal officer. Finally, Gibson's alleged negligent operation bears no rational relationship to her job requirements as an alleged FEMA agent. See Id. The case, therefore, should be remanded.
B. Arguments of Gibson and Scottsdale in Opposition to Remand:
The Defendants argue that the case was properly removed because the car Gibson was driving was marked FEMA and she carried a FEMA badge. (See Affidavit of Carlene Gibson). In the event the case is remanded, the Defendants pray that the request for costs be denied as the Notice of Removal was filed in good faith and in the belief that federal jurisdiction exists.
III. LAW AND ANALYSIS:
The test for removal under 1442(A)(1) is not whether the Government employee was acting in the performance of his duties but rather whether the act complained of was under color of office or any right, title, or authority claimed under any Act of Congress. Galbert v. Shivley, 186 F. Supp. 150 (W.D. Arkansas 1960). When applied in the light of its underlying purpose, 1442(A)(1) permits the removal of those actions commenced in state court that expose a federal official to potential civil liability or criminal penalty for an act performed in the past under color of office. Murray v. Murray, 621 F.2d 103, 107 (5th Cir. 1980). 28 U.S.C. § 1442(A)(1) reads:
(A) A civil action or criminal prosecution 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 or on account of any right, title, or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of revenue.
The Defendant must: (1) raise a colorable federal defense to the claims asserted against it; (2) show that it acted under the direction of a federal officer; and (3) demonstrate a causal nexus between the claim and the act it performed under color of federal authority. Ruffin v. Armco Stee Corp., 959 F. Supp. 770, 773 (S.D. Tex. 1997). If the right to remove is doubtful, the case should be remanded. Id. at 772.
The Defendants have failed to carry their burden of proving that Gibson acted under color of federal authority. The United States government is not a defendant. As a matter of fact, the car was neither owned nor insured by the government. The tort action will not interfere with the federal government if it is heard in Louisiana state court. The Court hereby GRANTS the Plaintiff's Motion to Remand and DENIES the Plaintiff's request for costs as the case was removed in good faith.
Accordingly,
IT IS ORDERED that the Plaintiff's, Lonnie Daw, Motion to Remand is hereby GRANTED. IT IS FURTHER ORDERED that the Plaintiff's request for costs is hereby DENIED.